PEOPLE v. OLSAVER (1984)

OPINION

After trial by the court at which the issue of defendant's guilt was submitted upon the transcript of the preliminary hearing, defendant was convicted of robbery (Pen.Code, § 211) ¹ and was found to have suffered a prior conviction for voluntary manslaughter, a serious felony (§§ 667, subd. (a), and 1192.7, subd. (c)(1)).   The court sentenced defendant to the mid term of three years for robbery and imposed a five-year enhancement for his prior conviction of manslaughter.   Defendant appeals, challenging only the applicability of the provisions of section 667, enacted by the voters as part of Proposition 8 and effective June 9, 1982.   We reject defendant's challenge and affirm the judgment.

THE FACTS

At approximately 9:45 a.m. on September 3, 1982, 64-year-old Stanley James Mellin was passing through the underpass below Tuolumne Street in Fresno.   Earlier that morning Mellin had gone to Dan's Tavern to cash his disability check.   He had then gone to Guarantee Savings, where he had purchased a money order for $150, stopped at the L & M Market to purchase some groceries, and started home, walking alone and carrying the bag of groceries.   When he was approximately halfway through the underpass, Mellin heard the sound of running behind him, so he stepped to the side.   He was suddenly grabbed from behind in a choke hold by one “guy,” and another “guy” started going through his pockets, removing his billfold.

The man maintaining the choke hold instructed his companion to look through Mellin's pockets;  in removing cash from Mellin's shirt pocket, the companion ripped the pocket from the shirt.   The companion then ran, and the man maintaining the choke hold on Mellin threatened to kill Mellin if he followed them.   Mellin retrieved his wallet and the money order for $150 which had been thrown to the ground.   A few moments later, Mellin saw the two men kneeling on the ground where they had been apprehended by two deputy sheriffs.

Deputy Sheriff Tom Kerns was in Guarantee Savings on the morning of September 3 with his partner.   Both were in plain clothes.   Kerns observed two men appearing to “case” the bank and “felt” that something was going to happen.   Kerns and his partner observed both men outside, still watching the bank;  the two men then entered an alley, where they appeared to be watching the L & M Market.

Kerns and his partner saw Mellin leave the market;  Kerns then recalled that Mellin had been in the teller line in front of him at Guarantee Savings.   When the two men the officers had been watching started to follow Mellin, Kerns and his partner in turn started to follow the two men.

Kerns and his partner observed the two begin to chase Mellin from the rear of the Continental Trailways bus station;  the suspects caught up with Mellin in the Tuolumne Street underpass.   The officers observed one of the suspects grab Mellin in a choke hold while the other rifled his pockets.   As Kerns and his partner began to run toward this activity, Olsen (the taller of the two and the one who had been rifling the victim's shirt pocket) ran toward the officers.   He stopped when Kerns, pointing a gun, told him to do so.   Defendant was stopped by Deputy Kerns' partner.

Deputy Kerns identified both defendants in the courtroom as the two men who had been apprehended on September 3.

DISCUSSION

On this appeal defendant does not challenge the validity of his conviction nor the validity of the prior conviction for which he received a five-year sentence enhancement.   Rather, defendant challenges the applicability of the provisions of section 667 on three theories:  (1) the provisions of section 667, subdivision (a), the “habitual criminal” enhancement provision, constitute an ex post facto law when applied to convictions suffered prior to the passage of Proposition 8;  (2) the provisions of the statute constitute cruel and unusual punishment in violation of constitutional prohibitions;  and (3) the trial court in the instant case abused its discretion in failing to strike the enhancement pursuant to the provisions of section 1385.

 I. Does section 667 constitute an ex post facto law when its provisions are applied to convictions suffered prior to its effective date, June 9, 1982?

Section 667 was added by initiative measure approved by the people on June 8, 1982, a part of Proposition 8, the so-called “Victim's Bill of Rights.”   The section provides in pertinent part:

“(a) Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.

“․

“(d) As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.

“․”

The serious felonies defined in section 1192.7, subdivision (c), enacted at the same time as section 667, include voluntary manslaughter.

The amended information filed against defendant alleged that he was convicted of voluntary manslaughter on May 5, 1970.   Defendant urges that, insofar as the provisions of section 667 are applied to a conviction suffered in 1970, prior to the passage of section 667 on June 8, 1982, the statute is an ex post facto law.   As such, defendant contends section 667 violates article I, section 9 of the California Constitution as well as article I, section 9, clause 3, and section 10, clause 1 of the United States Constitution.   We conclude that defendant's contention is without merit.

The applicable standards to be applied in the federal courts when a statute is challenged as an ex post facto law were recently articulated by the Supreme Court in Weaver v. Graham (1981) 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17.   There the court considered the retroactive application of a Florida law which reduced the amount of “gain time” (equivalent to California's good-time/work-time credits) available to already sentenced prisoners.   The law was held to be violative of the ex post facto proscription.   The court stated in part:

“The ex post facto prohibition forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed;  or imposes additional punishment to that then prescribed.’  [Citations omitted.]   Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.   [Citations omitted.] ․

“In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto:  it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.  [Citations omitted.] ․  Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.   Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.”  (Id., at pp. 28–30, fns. omitted, 101 S.Ct. at pp. 963–965.)

1   The California SupremeCourt has consistently followed the standard articulated by the U.S. Supreme Court in Weaver v. Graham, supra.   (See, e.g., In re Stanworth (1982) 33 Cal.3d 176, 180–182, 187 Cal.Rptr. 783, 654 P.2d 1311;  People v. Smith (1983) 34 Cal.3d 251, 259, 193 Cal.Rptr. 692, 667 P.2d 149, “The latter phrase [it must disadvantage the offender affected by it] plainly includes any law that punishes as criminal an act that was innocent when done, or increases the punishment for a crime after it was committed”.)   Moreover, this court, among others, has applied an identical standard for ex post facto analysis in the specific consideration of recidivist or habitual criminal statutes.   Like defendant, others have challenged statutes which purport to enhance a criminal sentence based upon prior criminal convictions or prison terms suffered prior to the enactment of the statute.   Such arguments have been rejected.   For example, in People v. Williams (1983) 140 Cal.App.3d 445, 189 Cal.Rptr. 497 the defendant challenged the applicability of the provisions of section 667.5, subdivision (b), which mandated an increased prison term based upon convictions the defendant had suffered prior to the enactment of the statute.   In rejecting defendant's argument that the statute therefore constituted an ex post facto law, the court stated in part:

“If appellant had not been convicted of the underlying offense of burglary, he could not have been prosecuted and sentenced solely on the enhancement.   Consequently, since the prior convictions were not elements of a substantive offense, the bar against ex post facto laws is inapplicable.  [Citation omitted.]

“Our conclusion is in accord with the purpose of ex post facto prohibitions which is to assure that legislative acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.   [Citations omitted.]  Penal Code section 667.5, subdivision (b) in its present form was in effect at the time appellant committed the instant offense.  (Stats. 1980, ch. 587, § 3, p. 1596.)   Thus appellant was assured fair warning of the enhancement effect the statute would have on the crime of burglary which he ultimately committed.  [Citation omitted.]   For purposes of ex post facto analysis, the critical point of reference is the date the crime was committed, i.e., July 24, 1981.   If the enhancement statute in question had taken effect after that date, then the bar against ex post facto laws would have applied.  [Citation omitted.]”  (People v. Williams, supra, at p. 449, 189 Cal.Rptr. 497;  see also In re Foss (1974) 10 Cal.3d 910, 922, 112 Cal.Rptr. 649, 519 P.2d 1073.)

 Therefore, in the instant case, the date of defendant's voluntary manslaughter conviction, May 5, 1970, is irrelevant.   Defendant committed the robbery with which he was charged on September 3, 1982, well after the passage of Proposition 8 and the enactment of section 667.   No ex post facto proscription arises from the enactment of that statute.

The defendant's reliance on People v. Smith, supra, 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149 is misplaced.   In his reply brief, defendant points to language in the Smith opinion during the court's consideration of ex post facto effects of Proposition 8.   The court stated in part:

“[T]he 10 sections of the proposition were designed to strengthen both ‘procedural and substantive’ safeguards for victims of crimes.  [Citation omitted.]   When the measure is examined in light of our present concern, however, its provisions do not all divide neatly into one or the other of those categories.   Thus some of the provisions of Proposition 8 are clearly substantive, and would be ex post facto if they were applied to crimes committed before the measure took effect.   Prime among these is the clause adding five years to the sentence of anyone convicted of a ‘serious felony’ with a prior conviction of such a crime.  (§ 5.)”  (Id., at p. 261, 193 Cal.Rptr. 692, 667 P.2d 149, fn. omitted.)  (Emphasis added.)

 It is clear that the crime to which the Supreme Court is referring is the crime for which the defendant is on trial.   Thus, had defendant committed the robbery of Mr. Mellin prior to June 9, 1982, his sentence could not have been enhanced for his prior voluntary manslaughter conviction pursuant to the provisions of section 667, subdivision (a).   Application of the statute under those circumstances would have constituted an ex post facto law and thus ran afoul of the constitutional proscriptions discussed above.   However, at the time defendant committed the robbery with which he was charged, the provisions of Proposition 8, including section 667, subdivision (a), were in place.   The five-year enhancement imposed because of defendant's prior conviction of an enumerated serious felony did not increase the punishment for the prior felony nor punish the defendant for it;  defendant was punished by the enhanced sentence because of his status as a repeat offender and as an incident of the crime of robbery committed on September 3, 1982, after the passage of the statute.

 II. Does application of the enhanced punishment provided in section 667, subdivision (a), constitute cruel and unusual punishment?

 Both article I, section 17 of the California Constitution and the Eighth Amendment to the United States Constitution prohibit the infliction of cruel or unusual punishment.   As the United States Supreme Court has pointed out, the concept of cruel and unusual punishment has never been limited to the method of punishment but has traditionally incorporated the concept that the punishment imposed should be proportionate to the crime for which a defendant is convicted.  (Solem v. Helm (1983) 463 U.S. 277 [103 S.Ct. 3001, 3006, 77 L.Ed.2d 637].)   The California courts follow a similar approach;  the Supreme Court has stated:  “We conclude that in California a punishment may violate article I, section 6 [now art. I, § 17], of the Constitution if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921, fn. omitted.)

The United States Supreme Court in Solem v. Helm, supra, reaffirmed the applicability of a proportionality analysis to a sentence imposed under a recidivist statute.   There, the defendant had been sentenced to life imprisonment without the possibility of parole after he was convicted of uttering a “no account” check in the amount of $100.   He had suffered six prior felony convictions, three for third degree burglary, one for obtaining money under false pretenses, one for grand larceny, and one for a third offense of drunk driving.

In the Helm case the court noted its prior statements in Rummel v. Estelle (1980) 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, and Hutto v. Davis (1982) 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 that successful challenges to thelength of the sentence based on a proportionality argument were exceedingly rare.   Nevertheless, it deemed its prior statement insufficient to eliminate the proportionality analysis altogether.   It then proceeded to analyze Helm's sentence and to conclude:

“The Constitution requires us to examine Helm's sentence to determine if it is proportionate to his crime.   Applying objective criteria, we find that Helm has received the penultimate sentence for relatively minor criminal conduct.   He has been treated more harshly than other criminals in the State who have committed more serious crimes.   He has been treated more harshly than he would have been in any other jurisdiction, with the possible exception of a single State.   We conclude that his sentence is significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment.”  (Solem v. Helm, supra, 463 U.S. at p. –––– [103 S.Ct. at p. 3016].)

Also applying a proportionality analysis, the Supreme Court of California concluded in In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 that the provision of section 314 making a second offense of indecent exposure a felony punishable by imprisonment for not less than one year inflicted a penalty so disproportionate to the crime as to violate California's constitutional prohibition against cruel or unusual punishment.   In that case the court defined its role in ruling on the constitutionality of the punishment the Legislature has prescribed as follows:

“We approach this issue with full awareness of and respect for the distinct roles of the Legislature and the courts in such an undertaking.   We recognize that in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone.  [Citations omitted.]

“Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment, adopted by the people of this state as an integral part of our Declaration of Rights.   It is the difficult but imperative task of the judicial branch, as coequal guardian of the Constitution, to condemn any violation of that prohibition․  ‘The Legislature is thus accorded the broadest discretion possible in enacting penal statutes and in specifying punishment for crime, but the final judgment as to whether the punishment it decrees exceeds constitutional limits is a judicial function.’  [Citations omitted.]

“We add that the determination of whether a legislatively prescribed punishment is constitutionally excessive is not a duty which the courts eagerly assume or lightly discharge.   Here, as in other contexts, ‘ “mere doubt does not afford sufficient reason for a judicial declaration of invalidity.   Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears.” ’  [Citation omitted.]   When such a showing is made, however, we must forthrightly meet our responsibility ‘to ensure that the promise of the Declaration of Rights is a reality to the individual.’   [Citation omitted.]”  (Id., at pp. 414–415, 105 Cal.Rptr. 217, 503 P.2d 921;  see also People v. Wingo (1975) 14 Cal.3d 169, 174, 121 Cal.Rptr. 97, 534 P.2d 1001.)

The court then pointed to certain considerations to be weighed by the courts in analyzing the proportionality of a sentence challenged as cruel or unusual punishment:

(1) Comparison of the nature of the offense and/or the offender with particular regard to the degree of danger both present to society;

(2) Comparison of the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious;

(3) Comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision.  (In re Lynch, supra, 8 Cal.3d at pp. 425–427, 105 Cal.Rptr. 217, 503 P.2d 921.)

The Supreme Court's later opinion in People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 makes clear that the criteria articulated in Lynch were intended as nonexclusive examples of approaches which courts may apply to the proportionality problem.   In Dillon the court pointed out that it had neither held nor implied that a punishment cannot be ruled constitutionally excessive unless it is disproportionate in all three respects.   The sole test is whether the punishment shocks the conscience and offends fundamental notions of human dignity.  (Id., at p. 487, fn. 38, 194 Cal.Rptr. 390, 668 P.2d 697.)   In addition to relying on Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, a death penalty case, the Supreme Court in Dillon also cited with approval Solem v. Helm, supra, 463 U.S. 277 [103 S.Ct. 3001, 77 L.Ed.2d 637], suggesting approval of a proportionality analysis in a recidivist context as well.

 Against this background, the recidivist legislation, section 667, is not unconstitutional as violative of the proscription against cruel and unusual punishment when considered by itself.   Unlike the Texas statute upheld in Rummel v. Estelle, supra, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 and distinguished in Solem v. Helm, supra, 463 U.S. 277 [103 S.Ct. 3001, 77 L.Ed.2d 637], the provisions of California's recidivist legislation apply only to certain enumerated serious felonies, among which are not the petty, theft-related offenses which sustained the defendant's life sentence in Rummel.   Like Rummel, however, a defendant in California sentenced under the habitual criminal statute is eligible for parole and does earn good-time/work-time credits.   Both of these entitlements serve to reduce the actual term of imprisonment.   In light of the Legislature's discretion in defining crimes and fixing punishments and the substantial deference afforded its determinations, a power in this case exercised by the people of California directly through the initiative process, we see no basis to declare the habitual criminal statute, section 667, cruel or unusual punishment per se.

 Nor do we believe application of section 667 to defendant personally constitutes cruel or unusual punishment.   Defendant does not argue that the statute is disproportionate when measured against more serious crimes in California or similar crimes in other jurisdictions, as indeed he cannot.   California's recidivist statute provides for a consecutive term of five years for each prior conviction of the serious felonies enumerated in section 1192.7, subdivision (c).   This is not as severe as the life sentences upheld in Rummel v. Estelle, supra, and the cases cited therein, and this court need not hypothesize arguments which would be irrelevant to the factual situation presented by defendant.

Defendant focuses in the instant case upon the nature of the offense and/or the offender, as well as his individual culpability.   Defendant points to his long history of alcoholism and alcohol-related offenses as warranting confinement in an alcohol treatment program instead of an eight-year prison term.   We cannot agree.   Although in the robbery for which defendant was on trial, the elderly and partially blind victim fortunately escaped serious physical injury, he was clearly threatened with death and it seems reasonable that he was seriously, if not traumatically, frightened.   Moreover, the prior manslaughter conviction which defendant suffered in 1970, also allegedly alcohol related, occurred when defendant and a companion beat a third man into unconsciousness and built a fire on his torso, which caused his death.   Defendant's record reveals numerous other alcohol-related involvements with law enforcement, although clearly not of the same serious degree as robbery and manslaughter.

 Although defendant now argues that his criminality is inexorably related to his alcoholism and would be alleviated by appropriate treatment, defendant offers no explanation for his failure to obtain such treatment during the approximately eight years he has been free nor for his unsatisfactory performance on parole.   The California recidivist statute addresses itself to only “serious” enumerated felonies, and in this regard differs from both the statutes considered in Rummel v. Estelle, supra, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 and Solem v. Helm, supra, 463 U.S. 277 [103 S.Ct. 3001, 77 L.Ed.2d 637].   With respect to defendant, he was charged with a serious felony, robbery, and had previously been convicted of a serious felony, manslaughter.   The trial court sentenced defendant to the mid term of three years for the robbery and imposed a five-year enhancement for the prior conviction.   As discussed above, there is no constitutional infirmity in California's recidivist statute when considered without reference to individual facts;  there is nothing in the facts of defendant's particular case to warrant a conclusion that an eight-year prison term is cruel and unusual, especially in light of the legislative intent regarding serious felonies.   We therefore conclude that the sentence imposed on defendant did not constitute cruel and unusual punishment.

 III. Did the trial court abuse its discretion in failing to strike defendant's prior conviction alleged for purposes of sentence enhancement?

In support of his contention that the trial court abused its discretion in denying his motion to strike the allegation of his prior manslaughter conviction for the purpose of sentence enhancement, defendant points to the statutory grant of discretion to the trial court by the provisions of section 1385.   That section provides:

“The judge or magistrate may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.   The reasons of the dismissal must be set forth in an order entered upon the minutes.   No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.”

In response to defendant's contention, the People rely upon newly enacted article I, section 28 of the California Constitution, passed by voter initiative on June 8, 1982, as part of Proposition 8.   Subdivision (f) of article I, section 28, provides:

“Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.   When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”  (Emphasis added.)

The People, joined by the Criminal Justice Legal Foundation as amicus curiae, argue that the words “without limitation” used in subdivision (f), as well as the use of the mandatory word “shall” in section 667, manifest clear and unmistakable intent to strip away any discretion afforded to the trial court pursuant to section 1385.   Because Proposition 8 was adopted pursuant to initiative, no legislative history as such is available.   Amicus therefore furnishes the court with a well-prepared discussion of the intent behind the passage of Proposition 8 insofar as such intent can be ascertained from various materials prepared and circulated in connection with its passage by the voters.

The California Supreme Court discussed the scope of discretion afforded to the trial court by section 1385 in People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029.   There the Supreme Court considered whether a trial court possessed the discretion to dismiss a finding of special circumstances under California's death penalty statute in order to modify a sentence of life imprisonment without possibility of parole.   The Supreme Court reviewed in detail the history and development of the scope of discretion under section 1385, commencing with the decision in People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241.   Although by its express terms section 1385 empowers the trial court to dismiss an action in the interests of justice, the decision in Burke affirmed the power of a trial court to dismiss or strike a prior conviction alleged for purposes of sentence enhancement, “ ‘not only where the prior conviction has not been legally established, but also where the fact of the conviction has been shown but the trial court has concluded that “in the interest of justice” defendant should not be required to undergo a statutorily increased penalty which would follow from judicial determination of that fact.’  (People v. Burke, supra, 47 Cal.2d at p. 50, 301 P.2d 241.)”   (People v. Williams, supra, 30 Cal.3d at p. 479, 179 Cal.Rptr. 443, 637 P.2d 1029.)

 In Williams the Supreme Court rejected the People's argument that the Legislature's use of the mandatory word “shall” was sufficient to show a legislative intent that the trial court be stripped of any discretion afforded by section 1385 to strike or otherwise set aside an allegation made for the purpose of sentence enhancement.  (See also People v. Burke, supra, 47 Cal.2d 45, 301 P.2d 241 and People v. Dorsey (1972) 28 Cal.App.3d 15, 104 Cal.Rptr. 326.)   It is clear from the authorities carefully traced by the court in Williams that divestiture of the discretion granted to the trial court by section 1385 can only be accomplished by language which is clear, unambiguous and unequivocal.   This rule was not abrogated by the decision of the court in People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328.

In Tanner, the court construed the language of section 1203.06, as illuminated by the legislative history of that section, as clearly manifesting a legislative intent that the trial court had no discretion to strike a firearm use finding in order to place an otherwise ineligible defendant on probation.   Significant in its evaluation of the decision in Tanner was the Williams court's consideration of the prior authority on which Tanner relied.   Specifically, the court stated:

“The Tanner decision did not purport to overturn Burke, Howard [People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138] or Dorsey.   Indeed, the opinion cited Burke for the proposition that ‘[s]ection 1385 has been construed to provide judicial power to dismiss or strike—within the court's discretion—allegations which, if proven, would enhance punishment for alleged criminal conduct.’  [Citation omitted.]   Furthermore, it is clear from the opinion that the mere use of mandatory language in the statute does not indicate that section 1385 is inapplicable.   If it did, there would have been no need to consider the legislative history or intent.   Therefore, section 1385 is applicable in the absence of a specific indication by the Legislature to the contrary.”  (People v. Williams, supra, 30 Cal.3d at p. 483, 179 Cal.Rptr. 443, 637 P.2d 1029.)

We think it clear that the use of the mandatory word “shall” in section 667 is insufficient, considered by itself, to satisfy the specificity requirements enunciated by the Supreme Court in Williams and recently affirmed in People v. Marsh (1984) 36 Cal.3d 134, 202 Cal.Rptr. 92, 679 P.2d 1033.)   Nor are we persuaded that the ambiguity is eliminated by reference to the “without limitation” language in article I, section 28(f) of the California Constitution.  (Accord, People v. Lopez (1983) 147 Cal.App.3d 162, 165, 195 Cal.Rptr. 27.)   This constitutional language is, of necessity, drafted broadly to provide the framework on which more specific enabling legislation may be engrafted.   It is not, however, an umbrella under which such legislation can be sheltered from legitimate attacks grounded upon vagueness, ambiguity, overbreadth, and other constitutional infirmities.   The drafters of Proposition 8 had the benefit of the decision in Williams, supra, 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029, and legislation can be drawn to specifically address and to divest the discretion otherwise afforded to the trial court by section 1385.  (See, e.g., section 1203.066, providing in pertinent part, “․ nor shall a finding bringing the defendant within the provision of this section be stricken pursuant to Section 1385 for any of the following persons:  ․”)  We do not accept the premise that the drafters of Proposition 8 could successfully circumvent direct and meaningful debate on specific issues by ambiguous drafting and subsequently assert this identical vagueness as language specific enough to satisfy the mandate of the California Supreme Court in Williams.

However, our inquiry does not end with the language of the statute and the constitutional amendment;  like the court in Tanner, supra, 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328 we must attempt to ascertain the intent underlying the enactment of these provisions.   As stated above, no legislative history as such is available to us because both section 667 and article I, section 28(f) were adopted by the voters incident to the powers of initiative and referendum reserved to them by article IV, section 1 of the California Constitution.   As the Supreme Court has recently stated in Brosnahan v. Brown (1982) 32 Cal.3d 236, 241, 186 Cal.Rptr. 30, 651 P.2d 274:

“Preliminarily, we stress that ‘it is a fundamental precept of our law that, although the legislative power under our constitutional framework is firmly vested in the Legislature, “the people reserve to themselves the powers of initiative and referendum.”  (Cal. Const., art. IV, § 1.)   It follows from this that, “ ‘[the] power of initiative must be liberally construed ․ to promote the democratic process.’ ”  [Citations.]'  (Amador [Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208] at pp. 219–220 [149 Cal.Rptr. 239, 583 P.2d 1281] italics added.)   Indeed, as we so very recently acknowledged in Amador, it is our solemn duty jealously to guard the sovereign people's initiative power, ‘it being one of the most precious rights of our democratic process.’  (Id., at p. 248 [149 Cal.Rptr. 239, 583 P.2d 1281].   Consistent with prior precedent, we are required to resolve any reasonable doubts in favor of the exercise of this precious right.  (Ibid.)”  (Emphasis in original.)

In attempting to ascertain the electoral intent underlying the passage of Proposition 8, the People and amicus, in a thorough and thoughtful brief, have urged this court to consider various materials prepared and circulated in connection with the initiative.   In addition to the official legislative analysis and the official ballot arguments, amicus asserts we can properly consider reports of the Assembly Criminal Justice Committee, apparently prepared by partisan factions in connection with the campaign itself, i.e., prior to the passage of Proposition 8, as well as other, equally partisan, prepassage reports and newspaper articles.   We are not persuaded that material beyond the official legislative analysis and the official ballot arguments, disseminated to all voters in the state by the Secretary of State, is properly considered as indicative of the electorate's intent.  (See, e.g., People v. Knowles (1950) 35 Cal.2d 175, 182, 217 P.2d 1;  Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 603, 45 Cal.Rptr. 512;  Crees v. California State Board of Medical Examiners (1963) 213 Cal.App.2d 195, 211, 28 Cal.Rptr. 621;  2A Sutherland, Statutory Construction (4th ed. 1973) Extrinsic Aids—Legislative History, § 48.19, pp. 226–227.)

Neither the opinion of the legislative analysts, whether proponents or opponents of the measure,² nor the opinion of the editorial staff of any single newspaper, necessarily of limited circulation, can be considered a factor in the intent of the voters unless such opinions were made known to all voters.   To hold otherwise would be to condone construction of a statute or constitutional amendment based upon information available to only a limited number of voters, whether those privy to analyses distributed to elected officials, strategies contemplated by prosecutors or defense attorneys, or the local readers of the San Jose Mercury.   The inherent infirmity in such construction can be illustrated in the context of the issue we now consider:  Assuming arguendo that editorials published in the San Jose Mercury made it unequivocally clear to readers of that newspaper that one of the effects of passage of Proposition 8 would be to divest, specifically, the discretion otherwise afforded to the trial court under section 1385, we might then be able to find that passage of the measure by those voters who read the San Jose Mercury manifested an intent to take away this discretion.   That we could not, however, justifiably find similar intent in voters who lacked similar knowledge is self-evident.³

In considering both the official legislative analysis and the official ballot arguments, we are unable to find any language adequate to meet the specificity requirements of Williams, supra, 30 Cal.3d 470, 170 Cal.Rptr. 443, 637 P.2d 1029, and Marsh, supra, 36 Cal.3d 134, 202 Cal.Rptr. 92, 679 P.2d 1033, establishing unequivocally an electoral intent that the discretion afforded to the trial court by section 1385 be stripped away.   Specifically, the legislative analysis provides in pertinent part:

“This measure includes two provisions that would increase prison sentences for persons convicted of specified felonies.   First, upon a second or subsequent conviction for one of these felonies, the defendant could receive, on top of his or her sentence, an additional five-year prison term for each such prior conviction, regardless of the sentence imposed for the prior conviction.   This provision would not apply in cases where other provisions of law would result in even longer prison terms.   Second, any prior felony conviction could be used without limitation in calculating longer prison terms.”

The use of the term “could” in this section does not indicate that the additional term for prior convictions is an absolute.   Moreover, the ballot arguments in support of Proposition 8 do not themselves address the discretion of the trial court afforded by section 1385, much less clearly set forth any intent to take away this discretion.

What is abundantly clear, however, not only from the official analysis and official arguments, but also from concurrent and subsequent judicial construction and, most importantly, from the language of the initiative itself, is an unmistakable intent on the part of the electorate to increase the protection and safeguards available to actual and potential victims of crime.   The first subparagraph of article I, section 28 of the California Constitution now provides:

“(a) The People of the State of California find and declare that the enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system to fully protect those rights, is a matter of grave statewide concern.

“The rights of victims pervade the criminal justice system, encompassing not only the right to restitution from the wrongdoers for financial losses suffered as a result of criminal acts, but also the more basic expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance.

“Such public safety extends to public primary, elementary, junior high, and senior high school campuses, where students and staff have the right to be safe and secure in their persons.

“To accomplish these goals, broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons are necessary and proper as deterrents to criminal behavior and to serious disruption of people's lives.”

In considering a challenge to the validity of Proposition 8, based upon alleged violation of the “single subject rule” applicable to the initiative process, the Supreme Court stated:

“Each of [Proposition 8's] several facets bears a common concern, ‘general object’ or ‘general subject,’ promoting the rights of actual or potential crime victims.   As explained in the initiative's preamble, the 10 sections were designed to strengthen procedural and substantive safeguards for victims in our criminal justice system.   These changes were aimed at achieving more severe punishment for, and more effective deterrence of, criminal acts, protecting the public from the premature release into society of criminal offenders, providing safety from crime to a particularly vulnerable group of victims, namely school pupils and staff, and assuring restitution for the victims of criminal acts.”  (Brosnahan v. Brown, supra, 32 Cal.3d at p. 247, 186 Cal.Rptr. 30, 651 P.2d 274.)

Similarly, in People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149 the court has affirmed that deterrence of crime is the primary purpose underlying the passage of Proposition 8.

However, as the court also pointed out in Smith, notwithstanding the intent underlying Proposition 8, neither the voters nor the Legislature can enact an unconstitutional law.

“Our second reason for so viewing Proposition 8 flows from the fundamental principle that if reasonably possible the courts must construe a statute to avoid doubt as to its constitutionality.  [Citations omitted.]   The same principle governs construction of a provision of the California Constitution.   [Citation omitted.]   And it governs in either case even though the measure was adopted by vote of the people, ‘because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation.’  [Citation.]” (Id., at p. 259, 193 Cal.Rptr. 692, 667 P.2d 149.)

 Therefore, even were we to conclude that the language of section 667 is sufficiently specific to satisfy the mandate of People v. Williams, supra, 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029 considered in light of article I, section 28(f) of the California Constitution and the electoral intent underlying the passage of Proposition 8, discretion must remain in the trial court to consider a challenge to a sentence enhanced under the provisions of section 667 grounded upon the constitutional proscription against cruel and unusual punishment.  (See also People v. Tanner, supra, 24 Cal.3d at pp. 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328;  In re Foss, supra, 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073.)   Regardless of the offense committed or the number of prior serious felonies for which the defendant has been convicted, no defendant can constitutionally be subjected to punishment which is cruel and unusual.   Thus the greatest effect the passage of Proposition 8 can have on the discretion afforded to a trial court under section 1385 is to require that the language in that section referring to the “interest of justice” be defined and limited for the purpose of applying the recidivist provisions of section 667 within the parameters and standards developed in connection with the proscription against cruel and unusual punishment.

This is consistent with the decision of the United States Supreme Court in Solem v. Helm, supra, where the court stated:

“In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted.   Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.   But no penalty is per se constitutional.”  (463 U.S. 277 [103 S.Ct. at p. 3009–3010], emphasis added.)

In a footnote to that section, the court further stated:

“Contrary to the dissent's suggestions, post, at 3017, 3022, we do not adopt or imply approval of a general rule of appellate review of sentences.   Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence;  rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits.   In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.”  (Id., at p. 3009, fn. 16.)

Significantly, the continued existence of judicial discretion insofar as required by the constitutional proscription against cruel and unusual punishment has been recognized by the Attorney General.   In the Attorney General's Guide to Proposition 8, dated June 9, 1982, the Attorney General has recognized that the length of a sentence enhanced pursuant to the provisions of Penal Code section 667 must be reduced if the total length of the sentence is disproportionate to the offense charged.   The Attorney General stated at page 9–3:

“Under Penal Code section 667, all prior serious felony convictions may properly be charged regardless of their age or their cumulative enhancement effect.   There is no exception for pardoned convictions.   Furthermore, since the decision on the length of appropriate punishment is essentially a legislative determination, even cumulative enhancements which result in extremely long terms of incarceration do not run afoul of the proscription against cruel or unusual punishment or similar constitutional restrictions.   If, in a given case, a court should be inclined to find that the length of imprisonment is, in a constitutional sense, impermissibly lengthy, the defendant's remedy is limited to the shortening of the term of incarceration to a constitutionally permissible period.”

The Attorney General later clarifies this procedure by stating:

“In any event, if the sentence in an individual case is deemed to be constitutionally disproportionate, the remedy is not a declaration of unconstitutionality of the statute but a reduction of the length of the sentence to a constitutionally permissible term under the circumstances.  (See People v. Schuerin [sic ] (1973) 10 Cal.3d 553, 561–562 [111 Cal.Rptr. 129, 516 P.2d 833] (Pen.Code section 1260 employed to reduce the punishment in order to prevent the defendant from serving an unconstitutional sentence).)”   (Attorney General's Guide to Proposition 8 (June 9, 1982) at p. 9–12.)

Penal Code section 1260 delineates powers of a reviewing court and provides:

“The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”

We find no rational justification for limiting the review of sentences challenged as unconstitutionally cruel and unusual punishment to the appellate courts, empowered under section 1260 to reduce the total term of the sentence.   The trial court is eminently capable of assessing the proportionality of disproportionality of a particular sentence;  in point of fact, given the trial court's greater familiarity with both the circumstances surrounding the offense and the offender, the trial court is certainly better equipped to make the determination of proportionality and individual culpability, necessary to insure that the sentence is within constitutional parameters, than is a reviewing court, limited to the “cold” record.

 Thus our determination that section 667 is not sufficiently specific to divest the trial court of its discretion to strike, in the interest of justice, a prior conviction which is alleged for purposes of sentence enhancement, does not vitiate the intent of the electorate to increase the protection afforded to actual and potential victims of criminal activity by increasing the length of sentences to be served by persons who have shown themselves unamenable to any rehabilitative effect of a prior conviction for a serious felony.   It is clear that the voters intended such a prior conviction to carry significant weight in sentencing for a subsequent felony;  thus the trial court must defer to this intent and impose the appropriate enhanced term unless to do so would shock the conscience and offend fundamental notions of human dignity and therefore violate the constitutional proscription against cruel and unusual punishment.   In such a case, the interest of justice mandates adjustment of the sentence to bring it within constitutional parameters;  the discretion afforded by section 1385 is an appropriate vehicle for the trial court to use in achieving this constitutionally mandated end.   As the Supreme Court stated in People v. Williams, supra:

“Trial courts will exercise this power in a careful and thoughtful manner.   The wise use of this power will promote the administration of justice by insuring that persons are sentenced based on the particular facts of the offense and all the circumstances.   It enables the punishment to fit the crime as well as the perpetrator.”  (People v. Williams, supra, 30 Cal.3d at p. 489, 179 Cal.Rptr. 443, 637 P.2d 1029.)

We are not unmindful of the greatly increased burden our opinion places on a defendant seeking to persuade a trial court to exercise its discretion under section 1385 to strike one or more prior convictions.   Indeed, in light of our analysis of the constitutionality of section 667 in the abstract, section II, supra, we are cognizant that a successful appeal to the trial court's discretion, on the basis that the proposed sentence runs afoul of the constitutional proscription, will be rare.   The California statute, unlike the broad Texas statute upheld by the United States Supreme Court in Rummel v. Estelle, supra, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, is narrowly drawn and applies only to specifically enumerated serious felonies, both as to the prior conviction and as to the offense for which the defendant is presently on trial.   Thus the traditional proportionality analysis, based upon criteria suggested in In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, and People v. Dillon, supra, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, may not provide fertile ground to support a defendant's argument that his sentence is disproportionate under the California statutory framework.

However, the unlikeliness of a successful challenge to an enhanced sentence on constitutional grounds is neither the actual nor the functional equivalent of impossibility, and it is the possibility of imposition of sentences unconstitutional because of their duration which the discretion vested in the trial court by section 1385 guards against.   The addition of other criteria to the traditional Lynch/Dillon review may enable a trial court, attempting to assess the proportionality of a sentence enhanced for prior serious felony convictions, to focus the necessary attention on the nature of the offender and his individual culpability.   Such criteria might include the length of time between the prior conviction and the present offense, as well as the defendant's intervening conduct.   Moreover, factors insufficient to mitigate the pending offense might be appropriately considered in assessing the constitutionality of the enhanced term.

We emphasize again that the trial court is in the best position to make the necessary analysis, guided in the first instance by the strong presumption in favor of the constitutionality of a sentence enhanced pursuant to the provisions of section 667, a presumption which necessarily arises to effect the intent of the electorate as discussed above.   However, the discretion retained by the trial court to strike a prior conviction, when to do so would bring an otherwise unconstitutional sentence within constitutionally acceptable limits, cannot be divested.   The people who sought protection from crime in their passage of Proposition 8 are not served by unnecessary appellate review of sentencing proceedings when the trial court is equally capable and better prepared to insure adherence to state and federal constitutional requirements.

 Notwithstanding our determination that the trial court in the instant case possessed the discretion to strike defendant's prior conviction for voluntary manslaughter, we find no abuse of discretion in the court's failure to do so.   Our consideration of the circumstances in this case, guided by the principles we have set forth above, show no constitutional infirmity in the sentence imposed on defendant, such that the trial court should have exercised its discretion to avoid an unconstitutional result.

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise specified.

2.   We do not accept amicus' characterization of these partisan legislative analyses as the equivalent of the “contemporaneous construction of the Legislature or of the administrative agencies charged with implementing the new enactment.”  (Amador, supra, 22 Cal.3d at p. 245, 149 Cal.Rptr. 239, 583 P.2d 1281.)   It is clear from the discussion in Amador that the “contemporaneous construction” contemplated was that inherent in implementation of the enactment, whether by the Legislature or by administrative agencies.   Partisan evaluations of the possible effects of a proposed statute or constitutional amendment, prepared and disseminated prior to passage and in aid of the “campaign,” neither require nor reflect the deliberative analysis necessary to put the law, once enacted, into effect.

3.   The necessity for an informed and knowledgeable electorate is made clear by the provisions of Elections Code section 3572:“The Legislative Analyst shall prepare an impartial analysis of the measure describing the measure and including a fiscal analysis of the measure showing the amount of any increase or decrease in revenue or cost to state or local government.   Any estimate of increased cost to local governments shall be set out in boldface print in the ballot pamphlet.   The analysis shall be written in clear and concise terms which will easily be understood by the average voter, and shall avoid the use of technical terms wherever possible.   The analysis may contain background information, including the effect of the measure on existing law and the effect of enacted legislation which will become effective if the measure is adopted, and shall generally set forth in an impartial manner the information which the average voter needs to understand the measure adequately.   The Legislative Analyst may contract with professional writers, educational specialists or other persons for assistance in writing an analysis that fulfills the requirements of this section, including the requirement that the analysis be written so that it will be easily understood by the average voter․”

HAMLIN, Associate Justice.

FRANSON, Acting P.J., and ANDREEN, J., concur.