PEOPLE v. LOOMIS (1995)

Robert Fitch Loomis pleaded guilty to one count of petty theft with a prior (Pen.Code, § 666), and admitted having previously been convicted of two felonies for which he served prison terms (Pen.Code, § 667.5, subd. (b)) and having previously been convicted of the same two felonies for purposes of the “three strikes law” (Pen.Code, § 667, subds. (b)—(i)).   After striking one of Loomis's prior convictions for purposes of the three strikes law, the trial court sentenced him to seven years in prison.   The People appeal.

Since the trial court erred when, on its own motion, it struck Loomis's prior burglary conviction and erred when it determined the same prior felony conviction could not be used to both elevate Loomis's petty theft to a felony and for purposes of the three strikes law, we will reverse the judgment and the matter will be remanded to allow Loomis to withdraw his plea.

FACTUAL AND PROCEDURAL BACKGROUND

On May 25, 1994, the People filed an information alleging Loomis committed petty theft with a prior in violation of Penal Code section 666 when he stole a calculator worth $36.97 from a Fedco store.   It was further alleged Loomis had twice previously been convicted of burglary, once in 1990 and once in 1989, and had served prison terms for each of the two convictions within the meaning of Penal Code section 667.5, subdivision (b).   In addition, it was alleged each of Loomis's two prior burglary convictions amounted to a prior conviction for purposes of Penal Code section 667, subdivisions (b) through (i), or the “three strikes law.”

At proceedings held on July 13, 1994, the trial court indicated if Loomis entered a plea of guilty to the charged offense and admitted the prior convictions and prison terms, the court would strike one of the prior convictions for purposes of the three strikes law.¹  Loomis entered a plea of guilty to the charge of petty theft with a prior and admitted the prior burglary convictions and prison terms.   The trial court and the parties entered into a lengthy discussion, during which the court indicated it believed it had the power to strike a three strikes prior conviction “in the furtherance of justice,” and that it could not use the same prior conviction to both elevate a petty theft to a felony and for purposes of the three strikes law.   The court then struck Loomis's 1990 burglary conviction for purposes of Penal Code section 667, subdivisions (b) through (i), the three strikes law.

The trial court sentenced Loomis to the upper term of three years in prison for his conviction of petty theft with a prior.   Since Loomis had one remaining prior conviction under the three strikes law, the 1989 burglary, the trial court doubled the term to six years pursuant to Penal Code section 667, subdivision (e)(1).   Indicating it did not believe a prior conviction could be used simultaneously as the prior conviction for a petty theft with a prior and to enhance Loomis's sentence, the trial court imposed, then stayed, a one-year term pursuant to section 667.5, subdivision (b) for Loomis's 1990 conviction of burglary.   For Loomis's 1989 conviction of burglary, the trial court imposed a one-year enhancement pursuant to Penal Code section 667.5, subdivision (b).

CONTENTIONS

The People contend 1) the trial court erred when, on its own motion and in furtherance of justice, it struck for purposes of the three strikes law Loomis's 1990 burglary conviction and, 2) the trial court erred when it determined a prior felony conviction cannot be used to both convert a petty theft to a felony and for purposes of the three strikes law.

We agree.

DISCUSSION

1. Trial court's power to strike a prior felony conviction on its own motion.

The People contend the provisions of section 667, subdivisions (b) through (i) precluded the trial court from striking Loomis's prior conviction “in furtherance of justice” under Penal Code section 1385.

a. Statutory Interpretation

Penal Code section 1385 subdivision (a) provides that a judge or magistrate may, on “his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”   Subdivision (b) states, “This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”

 Initially, we agree with the determination made by Division Four of this court that punishment imposed under Penal Code section 667, subdivisions (b) through (i) is not a sentence “enhancement.”  (People v. Martin (1995) 32 Cal.App.4th 656, 666–667, 38 Cal.Rptr.2d 776;  see People v. Hernandez (1988) 46 Cal.3d 194, 207, 249 Cal.Rptr. 850, 757 P.2d 1013.)   As the Martin court stated, the applicable portion of section 667, subdivision (e)(1), “does not provide for any kind of ‘added term.’   Instead, it defines the term for the crime itself, supplanting the term that would apply but for the prior serious or violent felony.”  (People v. Martin, supra, at p. 667, 38 Cal.Rptr.2d 776.)   Since a sentence imposed pursuant to the three strikes law is not an enhancement, the trial court was not precluded from striking the prior conviction allegation by the provisions of section 1385, subdivision (b).

 The question remains, however, whether any portion of section 667, subdivisions (b) through (i) prohibited the trial court from striking the prior conviction allegation in the interests of justice pursuant to subdivision (a) of section 1385.   In construing a statute, it is necessary to “․ ascertain the intent of the lawmakers so as to effectuate the purpose of the law.  [Citations.]   In order to determine this intent, we [must examine] the language of the statute.  [Citations.]”  (People v. Pieters (1991) 52 Cal.3d 894, 898, 276 Cal.Rptr. 918, 802 P.2d 420.)   However, “․ we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’  [Citation.]”  (Id. at p. 899, 276 Cal.Rptr. 918, 802 P.2d 420.)

Subdivision (f)(2) of section 667 provides, “The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior conviction.   If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation.”

 Although this section allows the prosecutor to move to strike a prior felony conviction allegation in the furtherance of justice or if there is insufficient evidence to prove the prior conviction, it makes no reference to the trial court's authority to dismiss or strike a prior conviction on its own motion.   Read literally, this section authorizes the trial court to dismiss or strike a prior felony conviction allegation only when it finds the evidence is insufficient to prove the prior or in furtherance of justice after the prosecutor has made a motion to dismiss or strike on one or both of those grounds.   We find nothing in a literal reading of this section authorizing the court, on its own motion, to dismiss or strike a prior on any ground.

As we discuss further below, such a literal reading is consistent with the legislative intent of the statute to restrict the power of the court to strike priors in “three strikes” cases.   In addition, such a reading does not interfere with the court's ability to handle procedurally an unproved prior.   If the prosecution is unable to prove the prior, the only finding the trial court must make is that it has not been proven.   As a result of this finding, the prior may not be used for any purpose, including sentencing under the three strikes law.   Thus, there is no need for the court to have the statutory authority to strike or dismiss the prior in this instance.   This is also true where the prosecutor makes a motion on that ground.   The motion adds nothing to the unproved prior and it must fall by its own infirmity.   There is no prior strike in that situation.

 The exercise of a trial court's discretion under section 1385 may be limited by a “more specific proscription on the court's power.”   (People v. Rodriguez (1986) 42 Cal.3d 1005, 1019, 232 Cal.Rptr. 132, 728 P.2d 202;  see People v. Tanner (1979) 24 Cal.3d 514, 519–521, 156 Cal.Rptr. 450, 596 P.2d 328 [language of Penal Code section 1203.06 barring probation disclosed an intent by the Legislature to preclude the exercise of judicial discretion under section 1385].)  However drafters of sentencing provisions “need to include clear language eliminating a trial court's section 1385 authority whenever such elimination is intended.”  (People v. Fritz (1985) 40 Cal.3d 227, 230, 219 Cal.Rptr. 460, 707 P.2d 833.)  “․ [A]bsent a clear expression of legislative intent in this regard, a sentencing statute will not be construed to abrogate a trial court's general section 1385 power to strike.  [Citation.]”  (Ibid.)   It is not, however, “necessary that the Legislature expressly refer to section 1385 in order to preclude its operation.”  (People v. Thomas (1992) 4 Cal.4th 206, 211, 14 Cal.Rptr.2d 174, 841 P.2d 159, italics added.)

 We note that the Legislature is deemed to have been aware of the provisions of section 1385 when it enacted section 667, subdivisions (b)–(i).  (People v. Harrison (1989) 48 Cal.3d 321, 329, 256 Cal.Rptr. 401, 768 P.2d 1078.)   In fact, it is specifically mentioned in the latter section.   Under these circumstances, we conclude that in enacting subdivision (f)(2), the Legislature intended to limit the trial court's discretion to strike a prior felony conviction to cases where the prosecution has made such a motion and the court finds there is insufficient evidence to prove the prior conviction, or when the prosecution makes a motion to dismiss in the interest of justice under section 667, subdivision (f)(2) and the court dismisses it pursuant to section 1385.

 This determination is consistent with the stated purpose of the three strikes statute.   Subdivision (b) of the section states, “It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”   Subdivision (c) provides that, “[n]otwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in [this statute], the court shall adhere to․” the sentencing requirements of the statute.   Construing the statute to effectuate the purpose of the law, we conclude the principal reason behind the Legislature's enactment of subdivision (f)(2) was to limit the trial court's power to strike alleged prior convictions.

Finally, we observe, if the Legislature, in enacting section 667, subdivisions (b) through (i), had wanted to give the court the discretion to dismiss or strike a prior conviction for purposes of the three strikes law, there would have been no need for subdivision (f)(2) at all.   The court already had the power to dismiss or strike a prior “․ [on] either his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice․”  (Pen.Code, § 1385, subd. (a).)  Moreover, subdivision (b) would not prevent the judge from exercising his or her discretion in this regard because, as we have already said, we view section 667, subdivisions (b) through (i), not as an enhancement but as a sentencing scheme.  (See People v. Martin, supra, 32 Cal.App.4th at pp. 666–667, 38 Cal.Rptr.2d 776.)   Therefore, we are left with the clear inference that the Legislature, in employing the language of subdivision (f)(2) restricting the power to strike or dismiss a prior to instances where the prosecuting attorney makes the motion, must have intended to prohibit the court from doing so on its own motion.

b. Separation of Powers

Loomis contends subdivision (f)(2) is unconstitutional because it violates the separation of powers doctrine.   Relying on People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993 and its progeny, Loomis asserts that if the prosecutor may move to strike a prior conviction in the furtherance of justice, the trial court must also have such power.   According to Loomis, any other interpretation of the statute would unconstitutionally condition the trial court's power to exercise its discretion on the prior approval of the prosecutor.

Article 3, section 3 of the California Constitution provides:  “The powers of state government are legislative, executive, and judicial.   Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”

In People v. Tenorio, supra, the defendant was convicted of possession of marijuana, then admitted having suffered a prior conviction of possession of marijuana.  Health and Safety Code section 11718 required mandatory minimum prison terms for defendants with one or more prior convictions, “ ‘․ except upon motion of the district attorney.’ ”  (Id. at p. 91, 89 Cal.Rptr. 249, 473 P.2d 993.)   The trial court dismissed the allegation of the prior conviction without first obtaining the prosecutor's approval, then granted the defendant probation.   Recognizing that the separation of powers doctrine demands “․ that the branches of government be co-equal and that a prosecutor not be vested with the power to foreclose the exercise of a judicial power recognized in [a statute] itself” (id. at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993, fn. omitted), the court concluded “․ judicial power is compromised when a judge, who believes that a charge should be dismissed in the interests of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor.   The judicial power must be independent, and a judge should never be required to pay for its exercise.”   (Id. at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)

The Supreme Court continued the separation of powers discussion in Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140.   There, the court determined a statutory scheme which granted a magistrate the authority to reduce a wobbler to a misdemeanor, but conditioned the magistrate's exercise of such power on the approval of the district attorney, violated the separation of powers doctrine.   The court noted that, although the “․ Legislature in the first instance was not required to give the power to a magistrate to determine whether to hold a defendant to answer to a felony or a misdemeanor charge, having done so, the Legislature [could not] condition its grant upon the approval of the district attorney.”  (Id. at p. 127, 95 Cal.Rptr. 524, 485 P.2d 1140.)   The court further indicated, “As stated in Tenorio, ‘When the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature.’  [Citation.]”  (Ibid.)

People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405 involved a constitutional challenge to the district attorney's role in a statutory diversion scheme.   There, the defendant challenged the district attorney's role in the last stage of the diversion process, where he was given the power to disapprove a trial court's decision to grant diversion.   Nothing that the magistrate's determination to grant diversion followed the district attorney's decision to prosecute, the court determined the constitutional defect in the statute was that it interposed a prosecutorial veto at the judicial stage of the proceedings, when the case was already before the court for disposition.

 Taken together, this line of cases establishes that “․ when a district attorney is given a role during the ‘judicial phase’ of a criminal proceeding, such role will violate the separation-of-powers doctrine if it accords the district attorney broad, discretionary decisionmaking authority to countermand a judicial determination․”  (Davis v. Municipal Court (1988) 46 Cal.3d 64, 85, 249 Cal.Rptr. 300, 757 P.2d 11.)   We now consider whether section 667, subdivision (f)(2) impermissibly vests in the district attorney the power to foreclose the proper exercise of judicial power.

 Initially, unlike the statutes considered in Tenorio, Esteybar and On Tai Ho, section 667, viewed as a whole, does not grant the prosecutor unfettered authority.   Notably, subdivisions (f)(1) and (g) require the prosecutor to plead and prove all known prior felony convictions.   Subdivision (g) also prohibits use of a prior felony conviction for purposes of plea bargaining.   In short, it appears the only discretion granted the prosecutor is that provided by subdivision (f)(2), to move to strike or seek the dismissal of a prior strike conviction allegation if there is insufficient evidence to prove the prior conviction or in the furtherance of justice.   The prosecutor has no power to strike or dismiss a prior felony conviction.   Moreover, the clear intent of the legislature to remove from the court all discretion to, on its own motion, strike or dismiss a prior conviction in “three strikes” cases was not present in the statutes involved in Tenorio (possession of marijuana), Esteybar (wobblers), and On Tai Ho (statutory diversion scheme).

In addition, section 667, subdivision (f)(2) does not strip the court of any previously held long-standing and unfettered power to independently strike an allegation of a prior conviction and instead grant the prosecutor the authority to control the court's ability to exercise its power to strike.   The unrestrained power to strike a prior serious felony conviction alleged pursuant to section 667 had already been taken from the trial court when the Legislature enacted section 1385, subdivision (b) in 1986, and that section has withstood constitutional challenge.  (People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180;  see People v. Williams (1987) 196 Cal.App.3d 1157, 1160, 242 Cal.Rptr. 421.)   Since the trial court was already prohibited from striking section 667 enhancements under subdivision (b) of section 1385, it cannot be said subdivision (f)(2) had any significant impact on the court's inherent power as it existed at the time of the enactment of the statute.

Subsequent legislation and case law support this conclusion.   For example, in People v. Tanner, supra, 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, the court determined Penal Code section 1203.06 lawfully precluded trial courts from granting probation or suspending execution of a sentence whenever a defendant used a firearm during the commission of certain crimes.   Although the statute did not expressly state that the trial court's discretionary power to dismiss or strike under section 1385 was precluded, the Tanner court held that to be the case.  (Id. at pp. 520–521, 156 Cal.Rptr. 450, 596 P.2d 328.)   In 1989, the Legislature amended section 1170.1, subdivision (h), which allows a court to strike certain specified enhancements, by deleting the reference to section 12022.5 firearm use enhancements.   Despite the fact the Legislature did not refer to the trial court's power to strike under section 1385, the court in People v. Thomas, supra, 4 Cal.4th at p. 208, 14 Cal.Rptr.2d 174, 841 P.2d 159, determined the amendment precluded a trial court from exercising its discretion under section 1385 to strike a section 12022.5 firearm use enhancement.   In 1990, through the initiative process, the people enacted section 1385.1 which precludes a trial court from striking or dismissing under section 1385 any section 190.2 special circumstance allegation.

Although section 667, subdivision (f)(2) applies to that part of the criminal process which leads to acquittal or sentencing, traditionally considered the “judicial” stage of the proceedings, it does not take away from the trial court any inherent power it previously possessed and give to the prosecutor the authority to countermand a judicial determination.   Under these circumstances, we conclude subdivision (f)(2) does not violate the separation of powers doctrine.

c. Proposition 184

Loomis asserts the passage of Proposition 184 removed any prohibition section 667, subdivision (f)(2) might have placed on the trial court's ability to strike a prior conviction under section 1385.   Loomis asserts that because the initiative created a new statute, section 1170.12, the restriction placed on a trial court's authority to strike a section 667 prior conviction pursuant to section 1385, subdivision (b) does not apply to “strike” convictions alleged under section 1170.12.²  We believe that to adopt Loomis's construction of the statute would “render its provisions ineffective or contrary to a stated ․ objective.”  (People v. Pieters, supra, 52 Cal.3d at p. 901, 276 Cal.Rptr. 918, 802 P.2d 420.)

 The California Ballot Pamphlet for the general election held November 8, 1994, provides the Legislative Analysis of Proposition 184.   The pamphlet indicates the initiative “[i]ncreases sentences for defendants convicted of any felony who have prior convictions for violent or serious felonies such as rape, robbery or burglary.”   In addition, the pamphlet indicates proposition 184 “proposes amendments to state law that are identical to a law enacted by the Legislature and signed by the Governor in March 1994.   Consequently, adoption or rejection of this initiative will have no direct impact on existing law because the measure reaffirms provisions of the law that are already in effect.”  (Italics added.)  (Ballot Pamp., analysis of Prop. 184 by Legislative Analyst as presented to the voters, Gen. Elec. (Nov. 8, 1994).)

Given the stated intent of the initiative, we cannot find that passage of Proposition 184, codified as Penal Code section 1170.12, granted the trial court the power to strike a prior felony conviction on its own motion for purposes of the three strikes law.   For the first time, the people of the state of California and the Legislature have acted in unison, and their intent is clear.

2. Dual Use of Prior Convictions

The People contend the trial court erred when it determined it could not use the same prior felony conviction to both convert a petty theft to a felony and for purposes of the three strikes law.

 Subdivision (e)(1) of Penal Code section 667 provides that “[i]f a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”   Subdivision (e)(2)(A) states that “[i]f a defendant has two or more prior [violent or serious] felony convictions ․ that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated [according to this statute].”  The sentencing provisions of subdivision (e) are to be applied “in addition to any other enhancement or punishment provisions which may apply.”   In addition, subdivision (f)(1) indicates that, “[n]otwithstanding any other law, subdivisions (b) through (i), inclusive, shall be applied in every case in which a defendant has a prior conviction․”   Construing the language of the statute with the intent of the lawmakers in mind (People v. Pieters, supra, 52 Cal.3d at p. 898, 276 Cal.Rptr. 918, 802 P.2d 420), we conclude the trial court was not precluded from utilizing the same prior conviction to both convert the petty theft to a felony and to impose sentence under the three strikes law.

a. Jones, Boatwright and Edwards

The court's opinion in People v. Jones (1993) 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163, does not require a contrary conclusion.   In Jones, the court determined a defendant could not receive both a one year enhancement pursuant to Penal Code section 667.5, subdivision (b),³ and a five year enhancement pursuant to Penal Code section 667, subdivision (a),⁴ for the same prior felony conviction.   At the time Jones was decided, subdivision (b) of section 667 stated, “This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment․”  (People v. Jones, supra, at p. 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)   The Jones court determined the most reasonable interpretation of section (b) was that when multiple statutory enhancements were available for the same prior serious felony conviction, one of which was a section 667 enhancement, the “greatest enhancement, but only that one, [would] apply.”  (Id. at p. 1150, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)

The three strikes statute differs significantly from the statute interpreted by the court in Jones.   Initially, as stated above, section 667, subdivisions (b) through (i) does not provide for sentencing enhancements.  (See People v. Martin, supra, 32 Cal.App.4th at p. 667, 38 Cal.Rptr.2d 776.)   Moreover, in Jones, the language of the statute specifically provided that only the greatest enhancement could be applied.   If an enhancement greater than that provided for in section 667 was available, the section 667 enhancement was precluded.   In contrast, the stated purpose of the three strikes law is not to limit punishment, but to “․ ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent offenses.”  (Pen.Code, § 667, subd. (b).)

Loomis relies on In re Boatwright (1932) 216 Cal. 677, 15 P.2d 755 and People v. Edwards (1976) 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995, to argue the trial court was precluded from using the same prior felony conviction to elevate a petty theft to a felony and for purposes of section 667, subdivisions (b) through (i).   In Boatwright, the court, relying on the language of the 1927 habitual offender statute, Penal Code section 667, subdivision 2, found the statute clearly stated that “on a conviction of petit theft, no greater penalty is to be imposed than imprisonment for a period of five years.” ⁵  (Id. at p 683, 15 P.2d 755.)   No such limitation exists in the present version of Penal Code section 667, or in section 666, the petty theft statute.

 In Edwards, supra, 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995, the defendant was convicted of possession of a firearm by an ex-felon in violation of Penal Code section 12021, subdivision (a).   There, the court determined the trial “․ court's reliance on defendant's prior conviction for the dual purpose of augmenting sentence and providing an essential element of the charged offense ․ runs afoul of the established rule that when a prior conviction constitutes an element of criminal conduct which otherwise would be noncriminal, the minimum sentence may not be increased because of the indispensable prior conviction.  [Citation.]”  (Id. at p. 800, 135 Cal.Rptr. 411, 557 P.2d 995.)   In the present case, Loomis's conduct would not be “noncriminal” but for the prior conviction.   Unlike possession of a firearm, petty theft is a crime whether or not one has previously been convicted of a felony.  (See Pen.Code, §§ 488, 490.)   In addition, it has been determined that the petty theft with a prior statute, section 666, “is a sentence-enhancement statute, not a substantive ‘offense’ statute.”  (People v. Bouzas (1991) 53 Cal.3d 467, 479, 279 Cal.Rptr. 847, 807 P.2d 1076.)   Thus, the requisite prior felony conviction is not an “element” of the offense.  (See People v. Darwin (1993) 12 Cal.App.4th 1101, 1104, 15 Cal.Rptr.2d 894.)

b. Penal Code Section 654

Loomis argues Penal Code section 654 precludes use of a prior felony conviction to both elevate a petty theft to a felony and sentence him under the three strikes law.  Section 654 provides in relevant part, “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one․”

 “It is a well-established rule ․ that the Legislature may create an express exception to section 654's general rule against double punishment by stating a specific legislative intent to impose additional punishment.  [Citations.]”  (People v. Ramirez (1995) 33 Cal.App.4th 559, 572, 39 Cal.Rptr.2d 374;  see People v. Hicks (1993) 6 Cal.4th 784, 792, 25 Cal.Rptr.2d 469, 863 P.2d 714.)   In Ramirez, the court recognized that “[a] statute which provides that a defendant shall receive a sentence enhancement in addition to any other authorized punishment constitutes an express exception to section 654.”  (Id. at p. 573, 39 Cal.Rptr.2d 374;  People v. Powell (1991) 230 Cal.App.3d 438, 441–442, 281 Cal.Rptr. 568.)   Finding that the Legislature had created such an exception in Penal Code section 667, subdivisions (b) through (i), the Ramirez court concluded section 654 did not prohibit use of the same prior serious felony conviction to both impose a doubled sentence under the three strikes law and enhance the sentence under section 667, subdivision (a).

 We find the reasoning in Ramirez persuasive.   Although the Ramirez Court considered use of the same prior felony conviction for purposes of the three strikes law and enhancement, while in the present case we consider whether the same prior felony may be used to both elevate a petty theft to a felony and for purposes of sentencing under the three strikes law, the rationale remains the same.   The stated purpose of the three strikes law is to ensure greater punishment for recidivists.  (Pen.Code, § 667, subd. (b).)  We conclude that in enacting section 667, subdivisions (b) through (i), the Legislature created an exception to section 654 which allows the same felony conviction to be used to convert a petty theft to a felony and for purposes of the three strikes law.

Our conclusion, that if a statute so provides the underlying felony in a petty theft may also be used for purposes of sentencing, is supported by the court's decision in People v. Vega (1990) 224 Cal.App.3d 506, 273 Cal.Rptr. 684, disapproved on another point in People v. McClanahan (1992) 3 Cal.4th 860, 872, fn. 6, 12 Cal.Rptr.2d 719, 838 P.2d 241.   There, the court found no violation of section 654 “․ in the use of [the] defendant's prior burglary conviction as a basis for escalating his petty thefts from misdemeanors to felonies and in enhancing his sentence under section 667.5, subdivision (b).”  (People v. Vega, supra, at p. 513, 273 Cal.Rptr. 684.)   The court determined dual use of the prior felony conviction simply “ ‘․ carried out the policies of both sections 666 and 667.5, imposing a greater punishment on [a felon] ․ whose prior prison term failed to deter future criminality.’  [Citation.]”  (Id. at pp. 512–513, 273 Cal.Rptr. 684.)

CONCLUSION

Since the trial court erred when, on its own motion, it struck Loomis's 1990 burglary conviction for purposes of the three strikes law, and erred when it determined that Loomis's prior felony convictions could not be used both to elevate his petty theft to a felony and for purposes of the three strikes law, the judgment will be reversed and the matter will be remanded to the trial court to permit Loomis to withdraw his plea.

DISPOSITION

The judgment of conviction is reversed.   The matter is remanded to the trial court to permit Loomis to withdraw his plea if he so desires.   If Loomis elects to not withdraw his plea, the trial court shall sentence him in accordance with this opinion.

FOOTNOTES

1.   Before Loomis entered his plea, the trial court informed him that, should the matter be reversed or remanded for resentencing, he would be allowed to withdraw the plea.

2.   In 1994, the voters passed Proposition 184, now codified as Penal Code section 1170.12.   Subdivision (d)(2) of that section contains a provision identical to that in section 667, subdivision (f)(2).

3.   Penal Code section 667.5, subdivision (b), provides in relevant part:  “․ [W]here [a] new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;  provided that no additional term shall be imposed ․ for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and ․ [conviction of] a felony․”

4.   At the time of the court's decision in People v. Jones, supra, Penal Code section 667, subdivision (a) provided in relevant part:  “․ [A]ny person convicted of a serious felony ․ who previously has been convicted of a serious felony ․ shall receive, in addition to the sentence imposed ․ for the present offense, a five-year enhancement for each such prior conviction․”  (Id. at p. 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)

5.   At the time of Boatwright, Penal Code section 667, subdivision 2 provided, “ ‘Every person who, having been convicted of any offense punishable by imprisonment [is subsequently convicted] ․ [¶] 2.  If the subsequent conviction is for petit larceny, then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding five years․' ”  (In re Boatwright, supra, 216 Cal. at p. 682, 15 P.2d 755.)

ALDRICH, Associate Justice.

KLEIN, P.J., and CROSKEY, J., concur.