Penal Code section 1385, subdivision
(a), authorizes a trial court to dismiss a criminal action "in furtherance
of justice" on its own motion. (All further statutory citations are to
the Penal Code except as noted.) We have held that the power to dismiss
an action includes the lesser power to strike factual allegations relevant
to sentencing, such as the allegation that a defendant has prior felony
convictions. (People v. Thomas (1992) 4 Cal. 4th 206, 209-210 [14 Cal.
Rptr. 2d 174, 841 P.2d 159]; People v. Burke (1956) 47 Cal. 2d 45, 50-51
[301 P.2d 241].) This case raises the question whether a court may, on
its own motion, strike prior felony conviction allegations in cases arising
under the law known as "Three Strikes and You're Out." (§ 667, subds.
(b)-(i), added by Stats. 1994, ch. 12, § 1, eff. Mar. 7, 1994; see
also § 1170.12, added by initiative, Gen. Elec. (Nov. 8, 1994) [Proposition
184].) Although the Legislature may withdraw the statutory power to dismiss
in furtherance of justice, we conclude it has not done so in the Three
Strikes law. Accordingly, in cases charged under that law, a court may
exercise the power to dismiss granted in section 1385, either on the court's
own motion or on that of the prosecuting attorney, subject, however, to
strict compliance with the provisions of section 1385 and to review for
abuse of discretion.
I. BACKGROUND
A. The Three Strikes Law
The Three Strikes law consists of
two, nearly identical statutory schemes designed to increase the prison
terms of repeat felons. The earlier provision, which the Legislature enacted,
was codified as section 667, subdivisions (b) through (i). The later provision,
which the voters adopted through the initiative process, was codified as
section 1170.12. [n. 1]
Meanwhile, on October 7, 1993, a
petition to add Proposition 184 to the ballot for the November 1994 General
Election began to circulate for signatures. The initiative was loosely
based on Assembly Bill No. 971 and likewise proposed to add a new section
1170.12 to the Penal Code. A notable difference between the original bill
and the initiative was that the bill counted all prior felonies as "strikes"
in determining the defendant's sentence, while the initiative counted prior
felonies only if they were defined as "violent" or "serious" in other sections
of the Penal Code. (See § 667.5, subd. (c) [defining "violent felony"];
§ 1192.7, subd. (c) [defining "serious felony"].) Another notable
difference was that the initiative permitted the prosecutor to move to
strike prior felony conviction allegations "in the furtherance of justice
pursuant to section 1385," while the bill permitted a motion to strike
only for insufficient evidence.
On January 3, 1994, while Proposition
184 was circulating, the sponsors of Assembly Bill No. 971 amended it to
conform to the language of the initiative, with minor exceptions. The bill
underwent its only further significant amendment on January 13, when the
proposal was made to codify its provisions as subdivisions (b) through
(i) of section 667, rather than as a new section 1170.12. Both the Senate
and the Assembly approved the bill on March 3, 1994. The Governor signed
it on March 7. It took effect as an urgency measure the same day.
March 7, 1994, was also the last
day on which Proposition 184 could lawfully circulate for signatures. On
April 6, 1994, the Secretary of State certified the initiative for the
ballot, and the voters approved it at the General Election on November
8, 1994. It took effect the next day, codified as section 1170.12.
The case before us involves a crime
committed on May 9, 1994. It thus arises under the legislative statute
(§ 667, subds. (b)-(i)) rather than under the initiative statute (§
1170.12). While the two statutes differ in minor respects, no such difference
affects the questions before us in this case. [n. 2] In summary, both statutes
have this effect: When a defendant is convicted of a felony, and it is
pleaded and proved that he has committed one or more prior felonies defined
as "violent" or "serious," sentencing proceeds under the Three Strikes
law "[n]otwithstanding any other law" (§ 667, subd. (c); § 1170.12,
subd. (a).) Prior felonies qualifying as "serious" or "violent" are taken
into account regardless of their age. (§ 667, subd. (c)(3); §
1170.12, subd. (a)(3).) The current felony need not be "violent" or "serious."
(§ 667, subd. (c); § 1170.12, subd. (a).) If the defendant has
only one qualifying prior felony conviction, the prescribed term of imprisonment
(or the minimum term if the current offense calls for an indeterminate
sentence) is [p. 506] "twice the term otherwise provided as punishment
for the current felony conviction." (§ 667, subd. (e)(1); § 1170.12,
subd. (c)(1).) If the defendant has two or more prior qualifying felonies,
the prescribed sentence is "an indeterminate term of life imprisonment
. . . ." (§ 667, subd. (e)(2)(A); § 1170.12, subd. (c)(2)(A).)
Those defendants who are sentenced to life become eligible for parole on
a date calculated by reference to a "minimum term." The "minimum term"
IS THE GREATER OF: (a) three times the term otherwise provided for the
current conviction; (b) twenty-five years; or (c) the term required by
section 1170 (the Determinate Sentencing Act of 1976) for the current conviction,
including any enhancements, the term required by section 190 (concerning
homicide), or the term required by section 3046 (concerning life sentences).
(§ 667, subd. (e)(2)(A)(i)-(iii); § 1170.12, subd. (c)(2)(A)
(i)-(iii).) Sentencing on all current offenses is generally consecutive
(§ 667, subds. (c)(6)-(8); § 1170.12, subds. (a)(6)-(8)) without
any aggregate term limitation (§ 667, subd. (c)(1); § 1170.12,
subd. (a)(1)). In sentencing, the court may not grant probation, suspend
execution or imposition of sentence (§ 667, subd. (c)(2); § 1170.12,
subd. (a)(2)), divert the defendant, or commit the defendant to any facility
other than state prison (§ 667, subd. (c)(4); § 1170.12, subd.
(a)(4)).
On June 3, 1994, the District Attorney
of San Diego County filed an information in the superior court charging
defendant Jesus Romero with possession of a controlled substance, namely
0.13 grams of cocaine base, in violation of Health and Safety Code section
11350, subdivision (a). The information also alleged defendant had previously
been convicted of the following felonies on the dates indicated: second
degree burglary (§ 459) on June 25, 1980; attempted burglary of an
inhabited dwelling (§ 459, 664) on November 16, 1984; first degree
burglary of an inhabited dwelling (§ 459) on September 2, 1986; and
possession of a controlled substance (Health & Saf. Code, § 11350,
subd. (a)) on April 6, 1992, and June 8, 1993.
Defendant's two prior serious felonies
(see § 667, subd. (d)(1); § 1192.7, subd. (c) [defining "serious
felony"]), namely burglary and attempted burglary of inhabited dwellings,
made him eligible for a life sentence under the Three Strikes law. (§
667, subd. (e)(2).) Without the prior felony conviction allegations, defendant's
sentence would fall between one and six years. The current offense, possession
of a controlled substance (Health & Saf. Code, § 11350, subd.
(a)), is punishable by sixteen months, two years, or three years in state
prison (ibid.; Pen. Code, § 18). The three prior felonies for which
defendant served prison terms within the last five years, unless stricken
pursuant to section 1385, would result in three consecutive one-year [p.
507] enhancements added to the base term for possession of a controlled
substance. (§ 667.5, subd. (b).) Defendant's prior felonies do not
call for five-year enhancements (§ 667, subd. (a)) because the current
offense is not defined as a "serious felony." (§ 1192.7, subd. (c).)
Defendant pled not guilty. At a subsequent
hearing, the court indicated its willingness to consider striking the prior
felony conviction allegations if defendant changed his plea to guilty as
charged on all counts. The prosecutor objected to that procedure, arguing
the court had no power to dismiss prior felony allegations in a Three Strikes
case unless the prosecutor asked the court to do so. The court disagreed.
To interpret the Three Strikes law in this way, the court reasoned, would
violate the constitutional doctrine of separation of powers. (Cal. Const.,
art. III, § 3; see People v. Tenorio (1970) 3 Cal. 3d 89 [89 Cal.
Rptr. 249, 473 P.2d 993].) After cautioning defendant that the court "was
making no promises in the case," the court permitted defendant to change
his plea and struck the prior felony conviction allegations. At the sentencing
hearing, the court heard further argument by the prosecuting attorney on
the propriety of striking the prior felony conviction allegations. The
court considered the prosecutor's arguments about the requirements of the
Three Strikes law, defendant's criminal history and history of drug abuse,
and the court's knowledge of sentences imposed in similar cases. Having
done so, the court reaffirmed its decision to strike the prior felony conviction
allegations and imposed a sentence of six years in state prison. This sentence
represented the upper term for possession of a controlled substance (§
11350, subd. (a)) plus three consecutive one-year enhancements for defendant's
prior felony convictions (§ 667.5, subd. (b)).
The district attorney petitioned
for a writ of mandate to require the superior court to vacate its order
striking the prior felony conviction allegations and to resentence defendant
accordingly. The Court of Appeal concluded the trial court had no
power to dismiss prior felony allegations on its own motion in a Three
Strikes case; the court therefore directed issuance of a writ requiring
the trial court to vacate the sentence and to permit defendant to withdraw
his plea. We granted defendant's petition for review.
II. Discussion
The ultimate question before us is
whether a trial court may dismiss prior felony conviction allegations in
furtherance of justice on its own motion in a case brought under the Three
Strikes law. In answering this question, two statutes are of central importance.
The first is section 1385 (hereafter section 1385, 1385(a), or 1385(b),
as appropriate). It provides as follows: "(a) The judge or magistrate may,
either of his or her own motion or upon the [p. 508] application
of the prosecuting attorney, and in the furtherance of justice, order an
action to be dismissed. The reasons for 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. [P]
(b) 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."
As mentioned, we have construed section
1385(a) as permitting a judge to dismiss not only an entire case, but also
a part thereof, including the allegation that a defendant has previously
been convicted of a felony. (People v. Thomas, supra, 4 Cal. 4th at pp.
209-210; People v. Burke, supra, 47 Cal. 2d at pp. 50-51.) When a court
strikes prior felony conviction allegations in this way, it " 'does not
wipe out such prior convictions or prevent them from being considered in
connection with later convictions.' " (People v. Burke, supra, 47 Cal.
2d at p. 51.) Instead, the order striking such allegations simply embodies
the court's determination that, " 'in the interest of justice' defendant
should not be required to undergo a statutorily increased penalty which
would follow from judicial determination of [the alleged] fact." (Id. at
p. 50.)
The other statute of central importance
to this case is section 667, subdivision (f) (hereafter section 667(f),
667(f)(1), or 667(f)(2), as appropriate). A part of the Three Strikes law,
the statute provides as follows: "(f)(1) Notwithstanding any other law,
subdivisions (b) to (i), inclusive, shall be applied in every case in which
a defendant has a prior felony conviction as defined in subdivision (d).
The prosecuting attorney shall plead and prove each prior felony conviction
except as provided in paragraph (2). [P] (2) 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." The initiative version of
the statute contains an identically worded provision. (§ 1170.12,
subd. (d).)
Defendant argues that the Three Strikes
law, if interpreted to permit a court to strike a prior felony conviction
allegation only on the prosecutor's motion, violates the doctrine of separation
of powers. The doctrine became a part of California law through the adoption
of article III, section 3, of the state Constitution. The section provides
that "[t]he powers of state government are legislative, executive, and
judicial. Persons charged with the [p. 509] exercise of one power
may not exercise either of the others except as permitted by this Constitution."
(Ibid.) We have said the doctrine's "primary purpose is to prevent the
combination in the hands of a single person or group of the basic or fundamental
powers of government." (Parker v. Riley (1941) 18 Cal. 2d 83, 89 [113 P.2d
873, 134 A.L.R. 1405].) Of the many decisions articulating the separation
of powers doctrine, defendant relies primarily on People v. Tenorio, supra,
3 Cal. 3d 89, and opinions following Tenorio. (People v. Superior Court
(On Tai Ho) (1974) 11 Cal. 3d 59, 64-68 [113 Cal. Rptr. 21, 520 P.2d 405];
People v. Navarro (1972) 7 Cal. 3d 248, 256-265 [102 Cal. Rptr. 137, 497
P.2d 481]; In re Cortez (1971) 6 Cal. 3d 78, 82-90 [98 Cal. Rptr. 307,
490 P.2d 819]; Esteybar v. Municipal Court (1971) 5 Cal. 3d 119, 124-128
[95 Cal. Rptr. 524, 485 P.2d 1140]; People v. Clark (1970) 3 Cal. 3d 97,
98-99 [89 Cal. Rptr. 253, 473 P.2d 997]; People v. Clay (1971) 18 Cal.
App. 3d 964, 965-971 [96 Cal. Rptr. 213].)
We examine the impact of the separation
of powers doctrine at the outset because constitutional considerations
necessarily inform our interpretation of the statutory language. "If a
statute is susceptible of two constructions, one of which will render it
constitutional and the other unconstitutional in whole or in part, or raise
serious and doubtful constitutional questions, the court will adopt the
construction which, without doing violence to the reasonable meaning of
the language used, will render it valid in its entirety, or free from doubt
as to its constitutionality, even though the other construction is equally
reasonable. [Citations.] The basis of this rule is the presumption that
the Legislature intended, not to violate the Constitution, but to enact
a valid statute within the scope of its constitutional powers." (Miller
v. Municipal Court (1943) 22 Cal. 2d 818, 828 [142 P.2d 297]; see also
San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal. 4th
571, 581 [7 Cal. Rptr. 2d 245, 828 P.2d 147]; cf. Crowell v. Benson (1932)
285 U.S. 22, 62 [76 L. Ed. 598, 619, 52 S. Ct. 285] ["When the validity
of [an] act of Congress is drawn in question, and even if a serious doubt
of constitutionality is raised, it is a cardinal principle that this Court
will first ascertain whether a construction of the statute is fairly possible
by which the question may be avoided." (Fn. omitted)].)
We begin with the leading case, People
v. Tenorio, supra, 3 Cal. 3d 89. The defendant in Tenorio was charged with
possession of marijuana in violation of Health and Safety Code section
11350. The prosecutor alleged the defendant had previously been convicted
of the same offense. While the statute did not mandate a prison sentence
for a first offense, for a second offense the statute required the trial
court to impose a term of two to ten years. A related statute purported
to bar the court from striking the prior-conviction allegation without
the prosecutor's consent, in these words: [p. 510] " '[n]o allegation
of fact which, if admitted or found to be true, would change the penalty
for the offense charged from what the penalty would be if such fact were
not alleged and admitted or proved to be true may be dismissed by the court
or stricken from the accusatory pleading except upon motion of the district
attorney.' " (3 Cal. 3d at p. 91, quoting former Health & Saf. Code,
§ 11718.) Despite this statute, the trial court struck the prior-conviction
allegation, reasoning that the Legislature had violated the separation
of powers doctrine by giving the prosecutor the power to veto the court's
decision to dismiss. The People appealed, and we granted review.
We had addressed the same issue just
eight years earlier in People v. Sidener (1962) 58 Cal. 2d 645 [25 Cal.
Rptr. 697, 375 P.2d 641]. In an opinion for a majority of four, Justice
Traynor wrote that Health and Safety Code section 11718 did not violate
the separation of powers doctrine; instead, section 11718 merely adopted
part of the prosecutor's common law power of nolle prosequi. California's
first Legislature had abolished the doctrine of nolle prosequi in a statute
that later became Penal Code section 1386. [n. 4] (Crim. Prac. Act of 1850;
Stats. 1850, ch. 119, § 630, p. 323.) Nevertheless, Justice Traynor
reasoned, a prosecutor who had enjoyed the power of nolle prosequi would
have been able to dismiss charges at any time--before the jury was impaneled,
while the case was before the jury, or after verdict. "It would exalt form
over substance," Justice Traynor wrote, "to hold that broad constitutional
principles of separation of powers and due process of law permit vesting
complete discretion in the prosecutor before the case begins, but deny
him all discretion once the information is filed." (58 Cal. 2d at pp. 650-651.)
In People v. Tenorio, supra, 3 Cal.
3d 89, the court unanimously overruled People v. Sidener, supra, 58 Cal.
2d 645, largely adopting the reasoning of [p. 511] Justice Schauer's
dissenting opinion in that case. The author of the opinion in Tenorio,
and one other justice, had signed Justice Traynor's opinion in Sidener.
Nevertheless, having "reexamined the views expressed therein," the court
"conclude[d] that Sidener must be overruled." (People v. Tenorio, supra,
3 Cal. 3d at p. 91.)
Because the precise holding in People
v. Tenorio, supra, 3 Cal. 3d 89, is critically important to the case before
us, it is perhaps best to let the court that decided Tenorio speak in its
own words. These are the court's reasons for overruling its decision in
People v. Sidener, supra, 58 Cal. 2d 645, and holding unconstitutional
a statute purporting to empower a prosecutor to veto a court's decision
to dismiss a prior conviction allegation:
"Because of the uncertainties in
the law prior to 1850 [regarding the power of nolle prosequi], we agree
with all of the justices in Sidener that arguments based upon California's
legal history prior to that date are undeterminative.
" The history from and after the
1850 Legislature, however, is clear: No decision, and no legislation, prior
to the adoption of [Health and Safety Code] section 11718 denied that the
judiciary has that power to dismiss which was originally codified in the
forerunner of section 1385. The prosecutor has never been able to 'exercise'
the power to dismiss a charged prior--he has only been able to invite the
judicial exercise of that power. Section 11718 provides that no prior found
true 'may be dismissed by the court or stricken from the accusatory pleading
except upon motion of the district attorney.' (Italics added.) As Justice
Schauer argued, the section itself recognizes that the dismissal power
is still exercised by the court, but purports to condition that exercise
upon a prosecutor's prior approval. Thus, even if the Legislature could
constitutionally remove the power to strike priors from the courts, it
has not done so, but rather has purported to vest in the prosecutor the
power to foreclose the exercise of an admittedly judicial power by an appropriate
judicial officer. It is no answer to suggest that this is but a lesser
included portion of the prosecutor's discretion to forego prosecution,
as the decision to forego prosecution does not itself deprive persons of
liberty.
"When the decision to prosecute has
been made, the process which leads to acquittal or to sentencing is fundamentally
judicial in nature. Just as the fact of prosecutorial discretion prior
to charging a criminal offense does not imply prosecutorial discretion
to convict without a judicial determination of guilt, discretion to forego
prosecution does not imply discretion to sentence without a judicial determination
of those factors which the Legislature has never denied are within the
judicial power to determine and which [p. 512] relate to punishment.
The 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." (People v. Tenorio, supra,
3 Cal. 3d at p. 94.)
One may fairly summarize the court's
reasoning in this way: Whether or not the power of nolle prosequi ever
existed, and conceding the Legislature's power to bar a court from dismissing
certain charges altogether, when the Legislature does permit a charge to
be dismissed the ultimate decision whether to dismiss is a judicial, rather
than a prosecutorial or executive, function; to require the prosecutor's
consent to the disposition of a criminal charge pending before the court
unacceptably compromises judicial independence.
The court in People v. Tenorio, supra,
3 Cal. 3d 89, expressly declared that its holding would apply retroactively.
(Id. at p. 95, fn. 2.) The court included in its opinion the specific direction
that "[a]ny prisoner suffering a sentence imposed after the effective date
of Health and Safety Code section 11718 (Sept. 18, 1959) and augmented
by virtue of a prior narcotics conviction may file a habeas corpus petition
with the superior court inviting the exercise of discretion to dismiss
the prior conviction." (Ibid.) Subsequently, the court unanimously granted
relief to defendants who had been sentenced before the decision in Tenorio
by trial courts who had, for that reason, misunderstood the scope of their
discretion. (People v. Clark, supra, 3 Cal. 3d 97; In re Cortez, supra,
6 Cal. 3d 78.)
In subsequent cases, the court relied
on People v. Tenorio, supra, 3 Cal. 3d 89, to hold unconstitutional other
statutes purporting to give prosecutors the power to veto similar judicial
decisions related to the sentencing or other disposition of criminal charges.
In People v. Navarro, supra, 7 Cal. 3d at pages 258-260, the court unanimously
held unconstitutional a statute (former Welf. & Inst. Code, §
3051) requiring a trial court to obtain the prosecutor's consent before
sentencing a defendant to a treatment program for narcotics addicts. In
Esteybar v. Municipal Court, supra, 5 Cal. 3d at pages 124-128, the court
unanimously invalidated a statute (former § 17, subd. (b)(5)) forbidding
a trial court, without the prosecutor's approval, to treat a "wobbler"
as a misdemeanor rather than as a felony. In People v. Superior Court (On
Tai Ho), supra, 11 Cal. 3d at pages 64-68, the court struck down a law
(former § 1000.2) permitting a prosecutor to veto a court's decision
to divert a defendant charged with a narcotics offense to a pretrial program
of treatment and rehabilitation. (See also People v. Clay, supra, 18 Cal.
App. 3d [p. 513] at pp. 967-970 [relying on Tenorio to invalidate
a statute (former § 1203) permitting the court to grant probation
in certain cases only with the concurrence of the district attorney].)
Following each of these decisions, the Legislature repealed the invalid
statute or amended it to remove the provision purporting to give a prosecutor
the power to veto a judicial decision. [n. 5]
The district attorney, and amici
curiae supporting his position, argue the Three Strikes law can be construed
as barring a court from dismissing prior felony conviction allegations
sua sponte pursuant to section 1385 without violating the separation of
powers doctrine. The argument may be summarized as follows: The Legislature
may completely eliminate a trial court's power to strike prior felony allegations.
(People v. Thomas, supra, 4 Cal. 4th at pp. 210-211; People v. Valencia
(1989) 207 Cal. App. 3d 1042, 1045 [255 Cal. Rptr. 180]; cf. People v.
Tanner (1979) 24 Cal. 3d 514, 519, fn. 3 [156 Cal. Rptr. 450, 596 P.2d
328].) If the Legislature, having eliminated that [p. 514] power,
chooses to exercise additional control over the criminal process by subjecting
the prosecutor's charging discretion to judicial oversight, then that additional
step does not violate the separation of powers. The Three Strikes law,
to continue the argument, can be interpreted as having such an effect:
It requires a prosecutor to plead and prove all known prior felony convictions
(see § 667(f)(1); § 1170.12, subd. (d)(1)), but permits the prosecutor
to ask the court to strike any prior felony conviction allegations on which
the prosecutor, in furtherance of justice or for insufficient evidence,
does not wish to proceed (see § 667(f)(2); § 1170.12, subd. (d)(2)).
The combined effect of these provisions, to conclude the argument, amounts
to judicial oversight of the prosecutor's charging discretion rather than
a limitation on the court's power to strike, and enhances judicial power
rather than restricting it.
This view of the statute is impossible
to accept. To describe the statute as subjecting the prosecutor's charging
discretion to judicial oversight is sophistic. The statute does not purport
to require the court to oversee the prosecutor's charging decisions. Nor
does the court, in reality, exercise any power over the prosecutor's charging
decisions. Any decision to dismiss is necessarily made after the prosecutor
has invoked the court's jurisdiction by filing criminal charges. "[O]nce
the state is ready to present its case in a judicial setting, 'the prosecutorial
die has long since been cast.' " (People v. Superior Court (Greer) (1977)
19 Cal. 3d 255, 263 [137 Cal. Rptr. 476, 561 P.2d 1164], quoting People
v. Superior Court (On Tai Ho), supra, 11 Cal. 3d at p. 650.) In comparison,
the restriction on the court's power to dismiss is real: Construing the
law as the district attorney construes it, the court may not dismiss or
strike a prior felony allegation except on the prosecutor's motion.
The notion that a statute with the
effect described may be construed and justified as dealing with charging
discretion, rather than with the court's disposition of pending charges,
was expressly and flatly rejected in People v. Tenorio, supra, 3 Cal. 3d
at page 94 (see ante, p. 511): "When the decision to prosecute has been
made, the process which leads to acquittal or to sentencing is fundamentally
judicial in nature." (See also People v. Superior Court (On Tai Ho), supra,
11 Cal. 3d at p. 66 ["[W]hen the jurisdiction of a court has been properly
invoked by the filing of a criminal charge, the disposition of that charge
becomes a judicial responsibility."]; Esteybar v. Municipal Court, supra,
5 Cal. 3d at p. 127 [same].)
The Attorney General suggests the
Three Strikes law serves the purpose of the separation of powers doctrine
by making the decision to dismiss under section 1385 a "joint" decision,
in the sense that the court and the prosecutor [p. 515] each may
veto the other's preferred disposition. The restriction on the prosecutor's
charging discretion contained in the Three Strikes law (see § 667(f)(1)
[requiring the prosecutor to "plead and prove" all prior felony convictions]),
the Attorney General argues, distinguishes the Three Strikes law from the
statute involved in People v. Tenorio, supra, 3 Cal. 3d 89, which limited
the court's power without also limiting the prosecutor's charging discretion.
This view of the statute, however, does not avoid Tenorio's holding that
the disposition of a charge is a judicial responsibility. Interference
with the traditional prerogatives of the executive cannot justify interference
with the independence of the judiciary.
The Attorney General also argues
that events subsequent to our decision in People v. Tenorio, supra, 3 Cal.
3d 89, afford a basis for questioning its validity. "Since Tenorio," he
writes, "the Legislature and the electorate have repeatedly applied the
rule that judicial discretion under section 1385 may be curtailed. (See
People v. Thomas, supra, 4 Cal. 4th at p. 208; People v. Tanner, supra,
24 Cal. 3d at pp. 520-521; People v. Valencia[, supra, 207 Cal. App. 3d
at p. 1045].) While it may have been true when Tenorio was decided that
from 1850 until then 'no legislation . . . denied that the judiciary has
that power to dismiss which was originally codified in the forerunner of
section 1385' (People v. Tenorio, supra, 3 Cal. 3d at p. 94), such is obviously
not the case today."
The Attorney General has misconstrued
the quoted passage from People v. Tenorio, supra, 3 Cal. 3d at page 94.
In context, the court was not claiming a power to dismiss, in furtherance
of justice, that would be exempt from legislative restriction. Instead,
the court maintained only, as its next sentence explains, that "[t]he prosecutor
has never been able to 'exercise' the power to dismiss a charged prior--he
has only been able to invite the judicial exercise of that power." (Ibid.,
italics added.) In other words, dismissal--for whatever reason--is a judicial
rather than an executive function. While the power of nolle prosequi might
permit a prosecutor to make the unilateral decision to abandon a prosecution,
the power does not exist. (§ 1386.) Therefore, the prosecutor may
ask the court to dismiss pursuant to section 1385, but "neither the Attorney
General nor the district attorney can discontinue or [p. 516] abandon
a prosecution for a public offense, except as provided in Section 1385."
(§ 1386.)
That the Legislature and the electorate
may eliminate the courts' power to make certain sentencing choices may
be conceded. "[S]ubject to the constitutional prohibition against cruel
and unusual punishment, the power to define crimes and fix penalties is
vested exclusively in the legislative branch." (Keeler v. Superior Court
(1970) 2 Cal. 3d 619, 631 [87 Cal. Rptr. 481, 470 P.2d 617, 40 A.L.R.3d
420]; see also People v. Thomas, supra, 4 Cal. 4th at pp. 210-211; People
v. Tanner, supra, 24 Cal. 3d at p. 519, fn. 3.) It does not follow, however,
that having given the court the power to dismiss, the Legislature may therefore
"condition its exercise upon the approval of the district attorney." (People
v. Navarro, supra, 7 Cal. 3d at p. 260.) This court has not upheld any
law purporting to subject to prosecutorial approval the court's discretion
to dispose of a criminal charge. Instead, we have consistently held such
laws unconstitutional. (See People v. Superior Court (On Tai Ho), supra,
11 Cal. 3d at pp. 64-68; People v. Navarro, supra, 7 Cal. 3d at pp. 256-265;
In re Cortez, supra, 6 Cal. 3d at pp. 82-90; Esteybar v. Municipal Court,
supra, 5 Cal. 3d at pp. 124-128; People v. Clark, supra, 3 Cal. 3d at pp.
98-99; People v. Clay, supra, 18 Cal. App. 3d at pp. 965-971.) The Legislature,
as indicated (ante, pp. 512-513), has deferred to the constitutional principle
declared in those decisions by repealing or amending the invalid statutes.
The cases cited by the Attorney General
are not to the contrary. In People v. Thomas, supra, 4 Cal. 4th 206, we
upheld a law (§ 12022.5, subd. (a)) requiring the court to impose
an enhanced sentence on any person who personally uses a firearm in the
commission or attempted commission of a felony. Because the law made no
exception for cases in which the prosecutor requested the court to strike,
the separation of powers question at issue in this case was not implicated.
The same is true of People v. Tanner, supra, 24 Cal. 3d 514, in which we
upheld a law (§ 1203.06) barring probation for certain defendants
who used firearms in committing their offenses, and of People v. Valencia,
supra, 207 Cal. App. 3d 1042, in which the Court of Appeal upheld a law
(§ 1385(b)) withdrawing courts' power to strike prior serious felony
conviction allegations made for the purpose of enhancing sentence under
section 667, subdivision (a). None of these statutes purported to make
the exercise of a judicial power subject to the prosecutor's approval.
Nor is there anything to the contrary
in Davis v. Municipal Court (1988) 46 Cal. 3d 64 [249 Cal. Rptr. 300, 757
P.2d 11], in which the court upheld statutes (§ 1001.2, subd. (b),
1001.50, subd. (b)) granting local district attorneys the authority to
approve or disapprove local diversion programs. [p. 517] The design
of diversion programs is not historically, or necessarily, a judicial function.
Moreover, the statute avoided any separation of powers problem related
to the disposition of charges with the provision that nothing therein "shall
authorize the prosecutor to determine whether a particular defendant shall
be diverted." (§ 1001.2, subd. (b).) We recognized in Davis that a
prosecutor might, in effect, preclude diversion in a particular case by
charging a "wobbler" as a felony rather than as a misdemeanor; this was
possible because the statute permitted local agencies to adopt programs
barring diversion for defendants initially charged with felonies. But this
result, we reasoned, was entirely consistent with People v. Tenorio, supra,
3 Cal. 3d 89, and its progeny, because "in all of those cases the challenged
statutory provisions purported to give a prosecutor the right to veto a
decision made by a court after criminal charges had already been filed.
None of those cases suggests that the exercise of prosecutorial discretion
prior to the filing of such charges improperly subordinates the judicial
branch to the executive in violation of the Constitution, even though the
prosecutor's exercise of such charging discretion inevitably affects the
sentencing or other dispositional options available to the court." (Davis
v. Municipal Court, supra, 46 Cal. 3d at p. 82, italics in original.)
Thus, each of the decisions cited
by the Attorney General respects the principle that underlies People v.
Tenorio, supra, 3 Cal. 3d at page 94: When the jurisdiction of a court
has been properly invoked by the filing of a criminal charge, the disposition
of that charge becomes a judicial responsibility. (See also People v. Superior
Court (On Tai Ho), supra, 11 Cal. 3d at p. 66; Esteybar v. Municipal Court,
supra, 5 Cal. 3d at p. 127.) As the foregoing discussion demonstrates,
there is grave doubt whether the statute before us could be construed as
the district attorney would construe it without overruling Tenorio and
rejecting the principle underlying that decision. Yet the holding in Tenorio
represents the considered view of a unanimous court, expressly overruling
a divided opinion announced only eight years earlier. (People v. Sidener,
supra, 58 Cal. 2d 645.) In subsequent opinions this court has followed
Tenorio and extended its reasoning to analogous situations. (See People
v. Superior Court (On Tai Ho), supra, 11 Cal. 3d at pp. 64-68; People v.
Navarro, supra, 7 Cal. 3d at pp. 256-265; In re Cortez, supra, 6 Cal. 3d
at pp. 82-90; Esteybar v. Municipal Court, supra, 5 Cal. 3d at pp. 124-128;
People v. Clark, supra, 3 Cal. 3d at pp. 98-99; People v. Clay, supra,
18 Cal. App. 3d at pp. 965-971.) Under these circumstances, no sufficient
reason to reconsider the decision appears to exist. [n. 8]
As mentioned, the judicial power
to reduce a defendant's sentence by striking a sentencing allegation in
furtherance of justice is statutory. Because the power is statutory, the
Legislature may eliminate it. (People v. Thomas, supra, 4 Cal. 4th at pp.
210-211; People v. Valencia, supra, 207 Cal. App. 3d at p. 1045.) To do
so, the Legislature need not expressly refer to section 1385. (People v.
Thomas, supra, 4 Cal. 4th at p. 211.) This does not mean, however, that
any statute defining the punishment for a crime can be read as implicitly
eliminating the court's power to impose a lesser punishment by dismissing,
or by striking sentencing allegations, under section 1385. This is because
the statutory power to dismiss in furtherance of justice has always coexisted
with statutes defining punishment and must be reconciled with the latter.
(See Stats. 1850, ch. 119, § 629, p. 323.) For this reason, we will
not interpret a statute as eliminating courts' power under section 1385
"absent a clear legislative direction to the contrary." (People v. Thomas,
supra, 4 Cal. 4th at p. 210; see also People v. Rodriguez (1986) 42 Cal.
3d 1005, 1019 [232 Cal. Rptr. 132, 728 P.2d 202] [section 1385 is inapplicable
in the face of a "more specific proscription on the court's power"]; People
v. Fritz (1985) 40 Cal. 3d 227, 230 [219 Cal. Rptr. 460, 707 P.2d 833]
[requiring "clear language eliminating a trial court's section 1385 authority
whenever such elimination is intended"]; People v. Williams (1981) 30 Cal.
3d 470, 482 [179 Cal. Rptr. 443, 637 P.2d 1029] ["Section 1385 permits
dismissals in the interest of justice in any situation where the Legislature
has not clearly evidenced a contrary intent."].)
We thus arrive at this question:
Does the Three Strikes law contain a "clear legislative direction" that
courts may not strike sentencing allegations in furtherance of justice
under section 1385 without the prosecutor's approval? The need for a clear
direction, as demanded by the cases cited in [p. 519] the preceding
paragraph, is increased in this instance by the grave constitutional questions
that would follow from the recognition of a prosecutorial veto power.
As an initial matter we may quickly
reject the argument, which various amici curiae mention but do not seriously
urge, that the Three Strikes law permits a court to dismiss a prior felony
allegation only when there is insufficient evidence. To read the last sentence
of section 667(f)(2) [n. 9] in this simplistic fashion renders meaningless
the preceding sentence's declaration that "[t]he prosecuting attorney may
move to dismiss or strike a prior felony conviction allegation in the furtherance
of justice pursuant to Section 1385 . . . ." No rational drafter would
give the prosecutor express permission to bring a motion the court may
not grant.
Defendant locates the grant of power
squarely in section 1385. The Legislature, he argues, granted the power
in that section and did not take it away in the Three Strikes law. Indeed,
defendant contends, the Three Strikes law confirms that the court retains
its powers under section 1385: Because section 667(f)(2) permits the prosecuting
attorney to "move to dismiss or strike a prior felony conviction allegation
in the furtherance of justice pursuant to Section 1385" (italics added),
a fortiori the court must have power to grant the motion pursuant to section
1385. The Legislature's reference to section 1385 is best and most simply
read as indicating that the section still is in full force and effect.
That being the case, defendant concludes, in Three Strikes cases, as in
other cases, the trial judge may dismiss a prior felony conviction allegation
not just on the prosecutor's motion, but also on "his or her own motion,"
as section 1385 expressly provides.
The district attorney, in opposition,
argues that one need not look to section 1385 to find the court's authority
to grant the prosecutor's motion to strike. Instead, the court's power
to grant the prosecutor's motion is implicit in the language of section
667(f)(2) authorizing the prosecutor to make the [p. 520] motion.
Under this interpretation, section 667(f)(2)'s reference to section 1385
is surplusage, or perhaps merely intended to illustrate what is meant by
a dismissal "in the furtherance of justice."
The district attorney's argument
is not persuasive. Section 667(f)(2) says in so many words that the prosecutor
may move to dismiss prior felony allegations "pursuant to Section 1385"
(italics added) and not as if pursuant to the section. The words used clearly
indicate the Legislature proceeded from the assumption that section 1385
remained in effect in Three Strikes cases. If the Legislature had wanted
to authorize a motion to dismiss in furtherance of justice without invoking
section 1385, it could easily have done so simply by deleting the words
"pursuant to Section 1385."
Indeed, the Legislature considered
doing just that. A few days before passing the final version of Assembly
Bill No. 971, the Senate rejected language that would have removed the
reference to section 1385 from section 667(f)(2) and declared that the
court might strike prior felony allegations "only" on the prosecutor's
motion. Had the amendment been adopted, section 667(f)(2) would have provided
as follows: "The court may dismiss or strike a prior felony conviction
allegation only upon motion of the prosecuting attorney made on the ground
that there is insufficient evidence to prove the prior felony conviction
or in the furtherance of justice." (Sen. Floor Amend. RN 9406668 to Assem.
Bill No. 971 (1993-1994 Reg. Sess.) Mar. 2, 1994.) That the amendment was
not adopted makes it difficult to view the final wording of section 667(f)(2),
including the reference to section 1385, as anything but a purposeful choice.
Nor is it likely that the phrase,
"pursuant to section 1385," was intended merely to illustrate what was
meant by a dismissal in furtherance of justice without implicitly confirming
the court's power to act under that section. In view of the long history
in this state of dismissals in furtherance of justice, which have been
authorized since 1850 (Stats. 1850, ch. 119, § 630, p. 323) and discussed
prominently in case law (e.g., People v. Burke, supra, 47 Cal. 2d 45; People
v. Sidener, supra, 58 Cal. 2d 645; People v. Tenorio, supra, 3 Cal. 3d
89; People v. Tanner, supra, 24 Cal. 3d 514; People v. Fritz, supra, 40
Cal. 3d 227; People v. Williams, supra, 30 Cal. 3d 470), there is no realistic
chance the concept of a dismissal in furtherance of justice would have
been misunderstood absent an illustrative reference to a section giving
the court a power the Legislature supposedly wished to nullify.
The opinions cited in the preceding
paragraph are some of the most controversial this court has ever written.
At issue in each was whether a trial court had power to strike, in furtherance
of justice under section 1385, [p. 521] particular allegations relevant
to sentencing. In view of the section's prominent and contentious history,
the argument that the Legislature might authorize a motion to be made "pursuant
to section 1385" (§ 667(f)(2), italics added; § 1170.12, subd.
(d)(2)), without also intending for courts to retain their powers under
the section, is difficult to accept.
A brief review of the history of
section 1385 in the decisions of this court will emphasize the point. Some
of the relevant decisions have already been mentioned. In People v. Burke,
supra, 47 Cal. 2d 45, a 1956 decision, the court unanimously held that
section 1385 gave a trial court the power to strike sentencing allegations
in furtherance of justice. In People v. Sidener, supra, 58 Cal. 2d 645,
decided in 1962, the court upheld, by a vote of four to three, a statute
forbidding trial courts to strike prior-narcotics-offense allegations in
narcotics cases under section 1385 except on the prosecutor's motion. Eight
years later, in People v. Tenorio, supra, 3 Cal. 3d 89, the court unanimously
overruled Sidener and declared unconstitutional, as a violation of separation
of powers, the statute purporting to give the prosecutor the power to veto
dismissals in narcotics cases. In doing so, as already noted, the court
largely incorporated Justice Schauer's dissenting opinion in Sidener. The
unanimous court in Tenorio included two of the justices who had signed
the majority opinion in Sidener.
Controversy over the application
of section 1385 continued. In People v. Tanner, the court had originally
decided that trial judges acting under section 1385 could strike certain
firearm-use allegations (§ 1203.06) in furtherance of justice. The
court subsequently granted rehearing and reached the opposite conclusion.
(People v. Tanner, supra, 24 Cal. 3d 514, 521.) In People v. Williams,
supra, 30 Cal. 3d 470, a 1981 opinion, the court held that a trial court
acting under section 1385 could strike special circumstance allegations
in capital cases (see § 190.2) in furtherance of justice. The electorate
subsequently limited that power, while not altogether abolishing it, with
an initiative statute that bars a court from striking a special circumstance
allegation after it has been admitted or found to be true. (§ 1385.1,
added by initiative, Gen. Elec. (June 5, 1990) [Proposition 115]; see Tapia
v. Superior Court (1991) 53 Cal. 3d 282, 298, fn. 17 [279 Cal. Rptr. 592,
807 P.2d 434].) Finally, in People v. Fritz, supra, 40 Cal. 3d 227, a 1985
decision, the court held that a trial judge could strike in furtherance
of justice, under section 1385, prior serious felony conviction allegations
made under section 667, subdivision (a), which mandates a five-year enhancement
for each such conviction. The Legislature responded by adding section 1385(b),
which expressly withdrew the court's power to strike such allegations.
(Stats. 1986, ch. 85, § 2, p. 211.)
As the foregoing discussion illustrates,
there is a long history of dispute among the various branches of state
government over the application of [p. 522] section 1385 to sentencing
allegations. This history makes it unlikely in the extreme that legislators,
or other drafters, would expressly authorize motions to be made "pursuant
to section 1385" (§ 667(f)(2), italics added; § 1170.12, subd.
(d)(2)) unless their intent was to confirm that courts would retain their
power to act pursuant to the section. The lesson of section 1385's controversial
history is that references to the section in sentencing statutes are not
lightly or thoughtlessly made. The drafter's express invocation of section
1385 in the Three Strikes law, together with the absence of any language
purporting to bar courts from acting pursuant to it, virtually compels
the conclusion no such prohibition was intended.
The Attorney General, appearing as
amicus curiae, endorses the district attorney's position that section 667(f)(2)
eliminates the court's power to strike prior felony conviction allegations
sua sponte under section 1385. The Attorney General, however, argues the
point somewhat differently: He applies the maxim expressio unius est exclusio
alterius.
"We believe," the Attorney General
writes, "the plain meaning [of section 667(f)(2)] is that a prosecutor
has power under the statute to move to strike a prior felony conviction
for two separate reasons, either (1) in the furtherance of justice, or
(2) for insufficient evidence. The contrast is stark between that provision
and the provision regarding the trial court, which provides that the trial
court can strike the prior only for insufficient evidence. If this common
sense plain interpretation needs Latin support, the principle 'expressio
unius est exclusio alterius' provides that the expression of the trial
court's power to strike solely for insufficient evidence plainly implies
an exclusion of that court's power to strike in furtherance of justice.
That common sense interpretation is only strengthened by the contrast between
the statement of the trial court's power, with its single ground, and the
statement in the same paragraph of the prosecutor's power, with its two
grounds."
The argument is not persuasive. The
Attorney General contends, in essence, that section 667(f)(2) exhaustively
enumerates the court's powers on the subject of striking prior felony allegations.
Yet, while acknowledging the court has the power to grant the prosecutor's
motion to strike in furtherance of justice, the Attorney General cannot
point to any language in the statute enumerating that power. Because of
this omission from the statute, to view it as an exhaustive enumeration
of the court's powers on the subject of striking allegations is impossible.
Nor is there any need to view the statute as an exhaustive enumeration
or to look therein for permission to grant the prosecutor's motion; the
section, as already discussed, expressly refers to section 1385 and declares
that the prosecutor's motion is made "pursuant to" that section. [p. 523]
More importantly, the enumeration
of powers in section 667(f)(2), read in context, has a purpose the Attorney
General does not consider. The immediately preceding subdivision purports
to eliminate the prosecutor's charging discretion in Three Strikes cases,
with these words: "The prosecuting attorney shall plead and prove each
prior felony conviction except as provided in paragraph (2)." (§ 667(f)(1),
italics added; see also § 1170.12, subd. (d)(1) [same].) This language
("shall plead and prove") would seem to bar the prosecutor from moving
to strike prior felony conviction allegations, in the absence of the additional
language in paragraph (2) expressly authorizing such a motion. Thus, on
its face, paragraph (2) purports to be an exception to the prosecutor's
duty to prove all prior felony convictions, rather than a limitation on
the court's discretion to strike. In other words, section 667(f) first
purports to remove the prosecutor's charging discretion completely, and
then purports to replace that discretion with permission to file a motion
to strike "pursuant to section 1385," which the court may or may not grant.
The theme of subjecting certain prosecutorial
decisions to judicial oversight continues in the next sentence of section
667(f)(2): "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." The evident purpose of this language is to require
the court, before granting the prosecutor's motion to strike for insufficient
evidence, to satisfy itself that the evidence truly is insufficient. There
was no need to include language empowering the court to dismiss, on its
own motion, factually unsupported allegations. A statute cannot constitutionally
force a court to impose criminal sanctions based on insufficient evidence.
(See Jackson v. Virginia (1979) 443 U.S. 307, 313-316 [61 L. Ed. 2d 560,
569-572, 99 S. Ct. 2781]; cf. In re Winship (1970) 397 U.S. 358, 361-364
[25 L. Ed. 2d 368, 373-375, 90 S. Ct. 1068].)
Next, the district attorney argues
the Legislature forbade the court to act under section 1385 in Three Strikes
cases with the first sentence of section 667(f)(1). The sentence declares:
"Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall
be applied in every case in which a defendant has a prior felony conviction
as defined in subdivision (d)." (Italics added; see also § 1170.12,
subd. (d)(1) [same].) This sentence means, the district attorney contends,
that the sentences mandated in the Three Strikes law (§ 667, subds.
(b)-(i)) shall be applied "[n]otwithstanding any other law." In other words,
a court may not employ its powers under section 1385 to reduce a defendant's
sentence.
This is not, however, what the quoted
sentence says. It says, rather, that "subdivisions (b) to (i)" of section
667--namely the entire Three Strikes [p. 524] law--"shall be applied
in every case in which a defendant has a prior felony conviction . . .
." (§ 667(f)(1), italics added.) Section 667(f)(2), which courts are
to apply "[n]otwithstanding any other law," expressly authorizes the prosecutor
to move to strike prior felony convictions "pursuant to Section 1385."
Thus, the command of the Three Strikes law--that it shall be applied "[n]otwithstanding
any other law"--cannot literally be followed without reference to and,
if appropriate, action "pursuant to," section 1385.
A simpler reading of the language
in question ("[n]otwithstanding any other law") that more likely describes
its probable intent is this: The Three Strikes law, when applicable, takes
the place of whatever law would otherwise determine defendant's sentence
for the current offense. The language thus eliminates potential conflicts
between alternative sentencing schemes.
The phrase "[n]otwithstanding any
other law" can also be found at the beginning of subdivisions (c) and (d)
of section 667. The former subdivision addresses sentencing, and the latter
defines "prior conviction of a felony." Neither subdivision imposes a command
that is necessarily inconsistent with the court's power to strike under
section 1385. [n. 11]
The argument is not persuasive. The
very purpose of striking a sentencing allegation under section 1385 is
to effectuate the decision 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.) The Three Strikes law, itself, expressly approves
the striking of prior felony conviction allegations (§ 667(f)(2)),
presumably for the purpose of affecting sentencing, since the striking
of such allegations has no other purpose. Moreover, it is well established
that a court may exercise its power to strike under section 1385 "before,
during or after trial," up to the time judgment is pronounced. (People
v. Orin (1975) 13 Cal. 3d 937, 945 [120 Cal. Rptr. 65, 533 P.2d 193]; People
v. Superior Court (Howard) (1968) 69 Cal. 2d 491, 505 [72 Cal. Rptr. 330,
446 P.2d 138]; see 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989)
Trial, § 2546, 2547, pp. 3055-3056.) We do not find in the language
of section 667, subdivision (c), a "clear legislative direction to the
contrary." (People v. Thomas, supra, 4 Cal. 4th at p. 210; see also People
v. Rodriguez, supra, 42 Cal. 3d at p. 1019; People v. Fritz, supra, 40
Cal. 3d at pp. 229-230; People v. Williams, supra, 30 Cal. 3d at p. 482.)
Indeed, to strike a sentencing allegation after trial may in some cases
be preferable to striking before trial, because the court after trial has
heard the evidence relevant to the defendant's culpability and, thus, is
better prepared to decide whether the interests of justice make it advisable
to exercise the power to strike under section 1385.
To construe the words "prior offense"
in section 667, subdivision (c)(2), (italics added) as meaning prior felony
convictions makes no sense in context. Throughout the Three Strikes law,
when the Legislature intended to refer to a previous conviction of an offense,
as it did in many instances, it properly used the word "conviction." (§
667, subds. (d), (d)(1), (d)(2), (d)(3), (e), (e)(1), (e)(2), (f)(1), (f)(2),
(g).) Furthermore, the court does not "impos[e] . . . sentence" for a prior
conviction; instead, a prior conviction lengthens the sentence for the
current offense. Thus, the language of section 667, subdivision (c)(2)
literally applies only to a defendant who has not yet been sentenced for
an offense at the time he is sentenced under the Three Strikes law. This
might be the case, for example, when a defendant committed the felony subject
to the Three Strikes law while on probation for a prior offense. The apparent
purpose of section 667, subdivision (c)(2), is to ensure that such a defendant
will be sentenced on all pending charges.
The district attorney next argues
that section 1385(b) independently bars a court from striking prior felony
allegations in Three Strikes cases, regardless of the language of the Three
Strikes law. Section 1385(b) has already been mentioned. It qualifies the
general power to dismiss granted to courts in section 1385(a), in these
words: "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." (§ 1385(b).) The Three Strikes law, the district attorney contends,
was codified as part of section 667 and articulates a sentence "enhancement"
within the meaning of section 1385(b). Thus, he concludes, section 1385(b)
expressly bars a court from acting pursuant to section 1385(a) in Three
Strikes cases.
Defendant makes three arguments in
opposition to the district attorney's construction of section 1385. As
will appear, we need not finally resolve them in order to reject the district
attorney's construction.
Defendant's first argument is that
section 1385(b) cannot fairly be read as referring to the Three Strikes
law. In 1986, when section 1385(b) was added [p. 526] to the Penal
Code, section 667 did not contain the Three Strikes law. Instead, former
section 667 (now section 667, subdivision (a)) contained only the provisions
mandating five-year enhancements for prior serious felonies. The Legislature
enacted section 1385(b) later, after the court in People v. Fritz, supra,
40 Cal. 3d 227, construed section 667 as not precluding a court from acting
under section 1385 to strike prior serious felony conviction allegations.
Section 1385(b) was enacted by the Legislature "expressly for the purpose
of abrogating People v. Fritz." (People v. Valencia, supra, 207 Cal. App.
3d 1042, 1045.) When a statute such as section 1385(b) refers to the provisions
of another statute such as section 667, defendant argues, "such provisions
are incorporated in the form in which they exist at the time of the reference
and not as subsequently modified . . . ." (Palermo v. Stockton Theatres,
Inc. (1948) 32 Cal. 2d 53, 58-59 [195 P.2d 1].) Consequently, defendant
concludes, section 1385(b) refers to section 667 as it existed at the time
section 1385(b) was enacted, and not as later amended by the Three Strikes
law.
Defendant's second argument is that,
even if section 1385(b) were construed as referring to the legislative
version of the Three Strikes law incorporated in section 667, it does not
matter, because the only valid Three Strikes law is the initiative version
contained in section 1170.12. The initiative version, which was enacted
after the legislative version, implicitly repeals the earlier version appearing
in section 667. Defendant relies on the rule that, "where two statutes
deal with the same subject matter, the more recent enactment prevails as
the latest expression of the legislative will." (2B Sutherland, Statutory
Construction (5th ed. 1992) § 51.02, p. 122, fn. omitted; see City
of Petaluma v. Pac. Tel. & Tel. Co. (1955) 44 Cal. 2d 284, 288 [282
P.2d 43]; Stafford v. L. A. etc. Retirement Board (1954) 42 Cal. 2d 795,
798 [270 P.2d 12].) Defendant concludes: If the initiative version of the
Three Strikes law, by superseding the legislative version with a statute
(§ 1170.12) to which section 1385(b) does not refer, restored the
court's discretion to strike prior felony conviction allegations in furtherance
of justice, then that ameliorative change in the law applies retroactively
to his benefit. (See In re Estrada (1965) 63 Cal. 2d 740, 742-748 [48 Cal.
Rptr. 172, 408 P.2d 948].)
On this single point, the Attorney
General appears to agree more with the defendant than with the district
attorney. "We have," the Attorney General writes, "previously made plain
our belief that the three strikes statute is not an 'enhancement'. This
precept, for purposes of the extremely similar section 667.7 has been accepted
by this Court in People v. Jenkins[, supra, 10 Cal. 4th 234]. As such,
we believe that the argument that section 1385(b) applies to bar the trial
court from striking 'strikes' under section 667, subdivisions (b) through
(i) is somewhat strained."
As the Attorney General suggests,
one cannot reasonably assign much weight to the argument that section 1385(b)
refers to the Three Strikes law. Nevertheless, as he also observes, "it
cannot be avoided that the Legislature did place the three strikes statute,
rather awkwardly, in section 667. As such, it seems that the Legislature
may well have intended that the [T]hree [S]trikes statute fall within the
bar of section 1385(b)."
Certainly legislative intent is the
governing consideration. If one could clearly show the Legislature's purpose
in placing the Three Strikes law within section 667 was to make its provisions
subject to section 1385(b), then that purpose would prevail. The only basis,
however, for concluding this was the Legislature's purpose is an inference
that arises from the numbering of various sections of the Penal Code. Contrary
inferences arise from the language of the Three Strikes law, itself ("pursuant
to section 1385" [§ 667(f)(2); § 1170.12, subd. (d)(2)]), from
defendant's arguments regarding the time at which section 1385(b) is deemed
to speak, and from the technical meaning of the term "enhancement." Defendant's
additional argument that Proposition 184 (§ 1170.12) superseded the
legislative version codified in section 667 would also, if accepted, refute
the district attorney's argument, regardless of the Legislature's purpose
in enacting the superseded law.
It is not, however, necessary to
answer all of these arguments. Concerning the Legislature's intent on this
subject, two points appear to be determinative. First, for all of the reasons
set out above, the Legislature's decision to [p. 528] place the Three
Strikes law within section 667 falls short of a "clear legislative direction"
(People v. Thomas, supra, 4 Cal. 4th at p. 210) to eliminate courts' power
to strike prior felony allegations sua sponte. The principal reason it
falls short, as previously discussed, is that the Three Strikes law expressly
authorizes "[t]he prosecuting attorney [to] move to dismiss or strike a
prior felony conviction allegation in the furtherance of justice pursuant
to Section 1385 . . . ." (§ 667(f)(2), italics added.) The district
attorney's argument, followed to its logical conclusion, would allow the
prosecutor to move to dismiss in furtherance of justice pursuant to section
1385, but deny the court power to grant the motion because of subdivision
(b) of that section. To construe the law in this way would make no sense.
Second, as also discussed, the Legislature declined to add proposed language
that would have deleted the reference to section 1385 and, in addition,
would clearly have eliminated the court's power to strike prior felony
allegations in furtherance of justice sua sponte. Thus, the language in
the Three Strikes law permitting action "pursuant to section 1385" (§
667(f)(2); § 1170, subd. (d)(2)) cannot realistically be seen as inadvertent.
Accordingly, we cannot conclude that the Three Strikes law discloses a
"clear legislative direction" eliminating the court's power to act on its
own motion pursuant to section 1385.
The district attorney sees the legislative
history differently. The Three Strikes initiative was motivated, he observes,
by the voters' desire for longer sentences and by a mistrust of judges.
The proponents of the initiative argued in its favor that "soft-on-crime
judges, politicians, defense lawyers and probation officers care more about
violent felons than they do victims. They spend all of their time looking
for loopholes to get rapists, child molesters and murderers out on probation,
early parole, or off the hook altogether." (Ballot Pamp., rebuttal to the
argument against Prop. 184, as presented to the voters, Gen. Elec. (Nov.
8, 1994) p. 37.)
Plainly the Three Strikes initiative,
as well as the legislative act embodying its terms, was intended to restrict
courts' discretion in sentencing repeat offenders. We may accept the ballot
arguments as evidence of that intent. (E.g., Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal. 4th 1, 16 [26 Cal. Rptr. 2d 834, 865 P.2d
633].) Both versions of the Three Strikes law expressly declare that a
court, in sentencing, may not grant probation, suspend execution or imposition
of sentence (§ 667, subd. (c)(2); § 1170.12, subd. (a)(2)), divert
the defendant, or commit the defendant to any facility other than state
prison (§ 667, subd. (c)(4); § 1170.12, subd. (a)(4)). But to
say the intent of a law was to restrict judicial discretion begs the question
of how judicial discretion was to be restricted. The answer to that question
can be found only by examining the language of the act. In it, one finds
the express restrictions on the courts' power mentioned above, but no others.
[p. 529]
The initiative, moreover, was less
restrictive on the subject of striking prior felonies than the original
version of Assembly Bill No. 971, on which the initiative was loosely based.
On this subject the bill provided that "[t]he prosecuting attorney may
move to dismiss a prior felony conviction allegation 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 the allegation." (Assem. Bill No. 971 (1993-1994
Reg. Sess.) as introduced Mar. 3, 1993.) The drafters of the initiative
added the language permitting the prosecutor to move to strike "in the
furtherance of justice" and to make the motion "pursuant to Section 1385."
(§ 1170.12, subd. (d)(2), 667(f)(2).) For this reason as well, to
infer from the very general ballot arguments a more specific intention
to bar courts from acting under section 1385 appears unwarranted.
Various amici curiae supporting the
district attorney make one final argument regarding the probable intent
of the drafters of the Three Strikes law. As already mentioned, it was
in 1985, in reaction to People v. Fritz, supra, 40 Cal. 3d 227, that the
Legislature enacted the provision withdrawing courts' power to "strike
any prior conviction of a serious felony for purposes of enhancement of
a sentence under Section 667." (§ 1385(b).) Like the former section
667 (presently section 667, subdivision (a)), the Three Strikes law attaches
additional penal consequences to prior serious felony convictions. It would
be irrational, amici curiae suggest, to attribute to the drafters the intent
to restore a power so recently withdrawn.
The argument is not sound. The drafters
of the Three Strikes law could rationally have chosen to give courts more
discretion under that law than under section 667, subdivision (a). Both
statutory schemes address the sentencing of defendants who have previously
committed serious felonies. The five-year enhancements mandated by section
667, subdivision (a), however, apply only when the defendant's current
offense is a "serious felony" within the meaning of section 1192.7, subdivision
(c), while the sentences mandated by the Three Strikes law apply whether
or not the current felony is "serious." To give judges more discretion
in sentencing under a law that is triggered by any felony, serious or not,
than in sentencing under a law applicable only when the defendant's current
felony is serious, is not necessarily irrational. Nor is it necessarily
irrational to give judges more discretion in applying a law providing for
life sentences than a law providing for five-year enhancements. Indeed,
these distinctions can be defended as serving the ends of justice. In any
event, to give judges this measure of discretion certainly is not so irrational
as to compel us, for that reason alone, to give the statute a contrary
interpretation.
For these reasons, we conclude that
section 1385(a) does permit a court acting on its own motion to strike
prior felony conviction allegations in cases [p. 530] brought under
the Three Strikes law. Our holding respects the principle that legislative
acts are construed, if at all possible, to be constitutional. (See ante,
p. 509.) Our holding also avoids conflict with the principle that ambiguous
penal statutes are construed to favor the defendant. (People v. Jones (1988)
46 Cal. 3d 585, 599 [250 Cal. Rptr. 635, 758 P.2d 1165]; United States
v. Bass (1971) 404 U.S. 336, 348 [30 L. Ed. 2d 488, 496-497, 92 S. Ct.
515].) [n. 13]
"The trial court's power to dismiss
an action under section 1385, while broad, is by no means absolute. Rather,
it is limited by the amorphous concept which requires that the dismissal
be 'in furtherance of justice.' As the Legislature has provided no statutory
definition of this expression, appellate courts have been faced with the
task of establishing the boundaries of the judicial power conferred by
the statute as cases have arisen challenging its exercise. Thus, in measuring
the propriety of the court's action in the instant case, we are guided
by a large body of useful precedent which gives form to the above concept.
"From the case law, several general
principles emerge. Paramount among them is the rule 'that the language
of [section 1385], "in furtherance of justice," requires consideration
both of the constitutional rights of the defendant, and the interests of
society represented by the People, in determining whether there should
be a dismissal. [Citations.]' [Citations.] At the very least, the reason
for dismissal must be 'that which would motivate a [p. 531] reasonable
judge.' [Citations.]" (People v. Orin, supra, 13 Cal. 3d at p. 945.) "Courts
have recognized that society, represented by the People, has a legitimate
interest in 'the fair prosecution of crimes properly alleged.' [Citation.]
' "[A] dismissal which arbitrarily cuts those rights without a showing
of detriment to the defendant is an abuse of discretion." [Citations.]'
" (Id. at p. 947.)
From these general principles it
follows that a court abuses its discretion if it dismisses a case, or strikes
a sentencing allegation, solely "to accommodate judicial convenience or
because of court congestion." (People v. Kessel (1976) 61 Cal. App. 3d
322, 326 [132 Cal. Rptr. 126].) A court also abuses its discretion by dismissing
a case, or a sentencing allegation, simply because a defendant pleads guilty.
(People v. Orin, supra, 13 Cal. 3d at p. 949.) Nor would a court act properly
if "guided solely by a personal antipathy for the effect that the three
strikes law would have on [a] defendant," while ignoring "defendant's background,"
"the nature of his present offenses," and other "individualized considerations."
(People v. Dent (1995) 38 Cal. App. 4th 1726, 1731 [45 Cal. Rptr. 2d 746].)
A court's discretionary decision
to dismiss or to strike a sentencing allegation under section 1385 is also
reviewable. "[W]here the court's action lacks reason it may be invalidated
upon timely challenge." (People v. Orin, supra, 13 Cal. 3d at p. 949.)
Section 1385 anticipates, and facilitates, appellate review with the requirement
that "[t]he reasons for the dismissal must be set forth in an order entered
upon the minutes." (§ 1385(a).) "The statement of reasons is not merely
directory, and neither trial nor appellate courts have authority to disregard
the requirement. It is not enough that on review the reporter's transcript
may show the trial court's motivation; the minutes must reflect the reason
'so that all may know why this great power was exercised.' " (People v.
Beasley (1970) 5 Cal. App. 3d 617, 637 [85 Cal. Rptr. 501]; see also People
v. Orin, supra, 13 Cal. 3d at p. 944 ["It is settled law that this provision
is mandatory and not merely directory."].)
Having decided that section 1385(a)
applies to this case, we must determine the appropriate disposition. The
district attorney argued in the Court of Appeal that the trial court abused
its discretion by striking the prior felony conviction allegation and by
participating in an illegal plea bargain. The Court of Appeal did not reach
these issues because it held, contrary to our decision today, that section
1385 did not apply in a case brought under the Three Strikes law. Under
these circumstances we would ordinarily remand the case to the Court of
Appeal to resolve the remaining issues.
To ask the Court of Appeal to consider
the remaining claims is not appropriate in this instance, however, because
the record does not contain all [p. 532] of the material a reviewing
court should consider in deciding whether the trial court properly exercised
its discretion. This is because the trial court did not set forth its reasons
for striking the prior felony conviction allegations in the relevant minute
order, as required by section 1385(a). The order contains only this explanation
of the court's decision: "Court finds [Penal Code section 667] is unconstitutional
and violates separation of powers and strikes the [prior felony conviction]
allegation[s]." This statement explains why the court found section 1385
applicable, but does not explain "the reasons for the dismissal" (§
1385(a)), that is, why the court felt it was proper to exercise its discretion
under the section to strike the prior felony conviction allegations in
this particular case. Under settled law such an order is ineffective. (People
v. Orin, supra, 13 Cal. 3d at p. 944 [" '[I]f the reasons are not set forth
in the minutes, the order dismissing may not be considered a dismissal
under section 1385.' [Citations.]"]; People v. Beasley, supra, 5 Cal. App.
3d at p. 638, and cases cited therein.)
The conclusion that the trial court's
order was ineffective necessarily affects the disposition. At the time
defendant pled guilty, the trial court had indicated its willingness to
consider striking the prior felony conviction allegations. This factor
manifestly influenced defendant's decision to plead guilty. Under these
circumstances, the appropriate remedy is to vacate the judgment, to permit
defendant to withdraw his plea, and otherwise to proceed in conformity
with this opinion. If, on remand, the trial court again decides to exercise
its discretion to strike the prior felony conviction allegations in furtherance
of justice under the standards articulated above and in the relevant case
law, the court must set forth the reasons for that decision in strict compliance
with section 1385(a). Any such decision will be reviewable for abuse of
discretion according to the procedures generally applicable to such decisions.
III. Disposition
The judgment of the Court of Appeal
is affirmed in part and reversed in part. The cause is remanded to the
Court of Appeal, which shall vacate the writ of mandate previously issued
and direct the issuance of a new writ ordering the trial court to vacate
the sentence, permit defendant to withdraw his plea, and to proceed thereafter
in accordance with the views expressed in this opinion.
George, C. J., Mosk, J., Kennard,
J., Baxter, J., and Lucas, J., concurred.
[p. 533]
I write separately to disassociate
myself from the lengthy discussion whether this statute would violate the
separation of powers doctrine if, contrary to our interpretation, it did
remove discretion from the trial court. Relying on People v. Tenorio (1970)
3 Cal. 3d 89 [89 Cal. Rptr. 249, 473 P.2d 993] and its progeny, the majority
effectively decides that such a statute would violate the separation of
powers. The majority's statutory interpretation stands on its own and renders
the constitutional analysis unnecessary. Moreover, because the statute
the majority considers is quite different from that confronted in Tenorio,
that analysis is questionable.
The statute the majority suggests
would be unconstitutional, if it existed, would apparently provide the
following: The prosecution has no charging discretion but must charge all
priors for which there is sufficient evidence. Thereafter, if both the
prosecution and the court concur, the prior may be dismissed. Neither the
court nor the prosecution could unilaterally decide not to charge or to
dismiss the prior. In effect, as the Attorney General argues, the statute
would act as a "sunshine" statute, requiring that the decision either not
to prosecute or to dismiss a prior be made in open court with reasons stated.
As the majority recognizes, a statute
giving the prosecution unlimited charging discretion at the outset and
giving the court no power to dismiss charged priors for which there was
sufficient evidence would pass constitutional muster. (Maj. opn., ante,
at pp. 513-514, 516-517; see People v. Thomas, supra, 4 Cal. 4th 206; Davis
v. Municipal Court (1988) 46 Cal. 3d 64, 82 [249 Cal. Rptr. 300, 757 P.2d
11].) It is also clear that a statute giving the prosecution unreviewable
discretion at the outset and giving the court authority to dismiss a charged
prior but conditioning that authority on prosecutorial approval would not
be constitutional. (People v. Tenorio, supra, 3 Cal. 3d 89.) The statute
the majority considers would be neither of these, but somewhere in between;
neither branch could exercise discretion without the other, or, stated
slightly differently, a prior conviction for which sufficient evidence
existed would have to be prosecuted unless both branches of government
agreed otherwise. Rather than only the executive branch's having a veto
over the judicial, as in Tenorio, both branches would have an equal veto
over each other. This would be a check and balance arguably similar to
other checks and balances in our system of government. [p. 534]
This statute would differ from that
declared invalid in Tenorio in two respects: (1) it would give the two
branches of government equal authority, and (2) it would not give the prosecution
unreviewable charging discretion. Tenorio suggests these differences might
be critical. It states that the concept of separation of powers "demands
that the branches of government be coequal . . . ." (People v. Tenorio,
supra, 3 Cal. 3d at p. 95.) It also stresses that the statute at issue
there gave the prosecution discretion that is "unreviewable, and may therefore
be exercised in a totally arbitrary fashion . . . ." (Ibid.) As the Court
of Appeal in this case (per Huffman, J.) pointed out in rejecting the separation-of-powers
argument, "The severely limited prosecutorial discretion in charging and
negotiating presented by the overall 'three strikes' statutory scheme hardly
equates to the 'unreviewable' and 'arbitrary' discretion vested in the
prosecution which was criticized in [People v.] Tenorio, supra, 3 Cal.
3d at page 95. Rather, the statutory scheme represents tight legislative
control of a prosecutor sharply curtailing the prosecution's previous discretion
in carrying out its traditional charging function."
The majority states, "there is grave
doubt whether the statute before us could be construed as the district
attorney would construe it without overruling Tenorio . . . ." (Maj. opn.,
ante, at p. 517.) On the contrary, because of the differences in the statutory
schemes, Tenorio can be, and, if the issue ever arose, perhaps should be,
distinguished. It may or may not be appropriate to extend Tenorio to the
statute the majority considers, but it would indeed be an extension. The
answer to the constitutional question is not easy; it should not be decided
in a vacuum. The majority's statutory analysis suffices to decide this
case. We should not also give an advisory opinion on a statute that does
not exist and may never be enacted.
I therefore concur in the disposition
and all of the majority opinion except the constitutional discussion.
Petitioner's application for a rehearing
was denied August 21, 1996, and the opinion was modified to read as printed.
1. Defendant and the Attorney General,
the latter appearing as amicus curiae, have asked the court to take judicial
notice of materials relevant to the history of Assembly Bill No. 971 and
of Proposition 184. Amicus curiae California Appellate Defense Counsel
has asked us to take judicial notice of Assembly staff analyses of Assembly
Bill No. 2049 (1985-1986 Reg. Sess.), which became section 1385, subdivision
(b). These materials are of the type we ordinarily consider in addressing
questions of legislative intent. The motions are granted as to these materials.
The legislative version of the Three
Strikes law began as Assembly Bill No. 971, which was introduced on March
1, 1993. (Assem. Bill No. 971 (1993-1994 Reg. Sess.).) As originally introduced,
the bill would have added a new section 1170.12 to the Penal Code, imposing
doubled sentences on second-time felons and life sentences on third-time
felons. The bill failed in the Assembly Committee on Public Safety on April
20 of that year. A motion to reconsider was granted, but no further hearings
on the bill would take place until 1994. [p. 505]
2. Because the differences between
the legislative and the initiative versions of the Three Strikes law do
not affect the disposition of this case, we do not at this time address
defendant's argument that the initiative statute superseded the legislative
statute.
B. Facts
4. "The entry of a nolle prosequi
is abolished, and neither the Attorney General nor the district attorney
can discontinue or abandon a prosecution for a public offense, except as
provided in Section 1385." (§ 1386.)
Justice Schauer, joined by Justices
McComb and White, dissented. (People v. Sidener, supra, 58 Cal. 2d 645,
652 (dis. opn. of Schauer, J.); see also id. at p. 674 (dis. opn. of White,
J.).) Justice Schauer criticized Justice Traynor's historical premise,
arguing that the power of nolle prosequi had never existed in California
or the territories that became California. (People v. Sidener, supra, 58
Cal. 2d at pp. 658-662 (dis. opn. of Schauer, J.).) Furthermore, Justice
Schauer reasoned, the disposition of pending charges was a judicial, rather
than a prosecutorial or executive, function; accordingly, the statute in
question "violate[d] [the] requirement of separation of powers by subjecting
the exercise of an inherently judicial function to the unfettered and unreviewable
discretion of the district attorney, a member of the executive branch of
government." (Id. at p. 671.)
5. Former Health and Safety Code
section 11718 (see People v. Tenorio, supra, 3 Cal. 3d 89) was repealed.
(Stats. 1972, ch. 1407, § 2, p. 2987.) Former Welfare and Institutions
Code section 3051 (see People v. Navarro, supra, 7 Cal. 3d 248) was amended.
(Stats. 1980, ch. 822, § 1, p. 2584.) Former Penal Code section 1000.2
(People v. Superior Court (On Tai Ho), supra, 11 Cal. 3d 59) was amended.
(Stats. 1975, ch. 357, § 1, p. 801.) Former Penal Code section 17,
subdivision (b)(5) (see Esteybar v. Municipal Court, supra, 5 Cal. 3d 119)
was amended. (Stats. 1975, ch. 664, § 1, p. 1454.) Former section
1203 (see People v. Clay, supra, 18 Cal. App. 3d 964) was amended. (Stats.
1975, ch. 1004, § 1, p. 2354.)
In construing the Three Strikes
law we cannot ignore the closely relevant holding of People v. Tenorio,
supra, 3 Cal. 3d 89, because we must give the law a constitutional interpretation
if that is reasonably possible. (See ante, p. 509.) The statute this court
invalidated in Tenorio provided that "no allegation of fact which, if admitted
or found to be true, would change the penalty for the offense charged from
what the penalty would be if such fact were not alleged and admitted or
proved to be true may be dismissed by the court or stricken from the accusatory
pleading except upon motion of the district attorney." (Former Health &
Saf. Code, § 11718.) The applicable provision of the Three Strikes
law (§ 667(f)(2); § 1170.12, subd. (d)(2)), if construed as the
district attorney would have us construe it, would have precisely the same
effect: A court that was convinced, in the proper exercise of its discretion,
that justice demanded the dismissal of a prior felony conviction allegation
pursuant to section 1385, would have no power to dismiss unless the prosecutor
consented. So interpreted, the statute would appear to violate the doctrine
of separation of powers.
8. The district attorney argues
that section 667(f)(2), if determined to violate separation of powers,
would be severable. The effect of severing subdivision (f)(2), he argues,
"would be to preclude the trial court from dismissing or striking 'three
strikes' priors in the furtherance of justice under section 1385, subdivision
(a), whether on its own motion or upon motion of the prosecution." The
argument depends on the assumption that the language of section 1385(b)
does bar a court from striking prior felony conviction allegations sua
sponte in Three Strikes cases. The assumption, as will be seen, is erroneous.
It is against this background that we
consider the language of the Three Strikes law to determine whether the
Legislature (and the electorate) [p. 518] did, or did not, intend
to give prosecuting attorneys the power to veto judicial decisions to dismiss
prior felony conviction allegations in furtherance of justice under section
1385. In doing so, as explained at the outset, we construe the law to avoid
serious doubts as to its constitutionality if that can be done without
doing violence to the reasonable meaning of the statutory language. (San
Francisco Taxpayers Assn. v. Board of Supervisors, supra, 2 Cal. 4th at
p. 581; Miller v. Municipal Court, supra, 22 Cal. 2d at p. 828.) "It is
not to be presumed that the Legislature would deliberately enact a statute
prohibited by the Constitution." (People v. Navarro, supra, 7 Cal. 3d at
p. 260.)
9. "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." (§ 667(f)(2).)
We may, then, accept as self-evident
that the Legislature assumed a court would at least have the power to grant
the prosecutor's motion to strike a prior felony allegation in the furtherance
of justice. The question then becomes: Does the court also have the power
to strike such an allegation on its own motion? If so, the power must be
granted in a statute, either expressly or by implication. This is because,
as already discussed, the court has no such extra-statutory power.
11. It has also been argued that
the introductory language of section 667, subdivision (c), bars a court
from striking a prior felony conviction allegation after it has been pled
and proved. The subdivision begins: "Notwithstanding 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 subdivision (d), the court shall adhere to each of the following: .
. . ." (§ 667, subd. (c).) Immediately following this introductory
language is an enumeration of sentencing consequences.
The district attorney finds an implicit
prohibition on the striking of prior felony allegations in section 667,
subdivision (c)(2), which provides as [p. 525] follows: "Probation
for the current offense shall not be granted, nor shall execution or imposition
of the sentence be suspended for any prior offense." (Italics added.) The
district attorney reads this language ("prior offense") as referring to
prior felony conviction allegations. "The only authorized procedure," he
argues, "for not imposing sentence on a prior conviction at the time of
sentencing is to strike the prior." Thus, he concludes, section 667, subdivision
(c)(2), independently bars a court from acting under section 1385, because
the former operates "[n]otwithstanding any other law . . . ." (§ 667,
subd. (c) [first paragraph].)
Defendant's third argument takes
issue with the district attorney's reading of the term "enhancement," as
used in section 1385(b). The section, as mentioned, withdraws permission
"to strike any prior conviction of a serious felony for purposes of enhancement
of a sentence under Section 667." The term "enhancement," defendant contends,
has acquired the technical meaning under the state's Determinate Sentencing
Act of "an additional term of [p. 527] imprisonment added to the
base term." (See Cal. Rules of Court, rule 405(c); see also People v. Bright
(1996) 12 Cal. 4th 652, 656, fn. 2 [49 Cal. Rptr. 2d 732, 909 P.2d 1354].)
The Three Strikes law, like the older "Habitual Offender Law" (§ 667.7)
construed in People v. Jenkins (1995) 10 Cal. 4th 234 [40 Cal. Rptr. 2d
903, 893 P.2d 1224], articulates an alternative sentencing scheme for the
current offense rather than an enhancement. (See id. at p. 254 ["Neither
section 667.7, nor an indeterminate life term imposed under that section,
involves a sentence enhancement."]; see also People v. Bright, supra, 12
Cal. 4th at p. 656, fn. 2 [section 664, which increases punishment for
attempted, premeditated murders, "strictly speaking . . . does not constitute
an 'enhancement' within the meaning of rule 405(c)"].)
13. Our holding, which relates only
to sentencing, is fully retroactive. (See People v. Belmontes (1983) 34
Cal. 3d 335, 348, fn. 8 [193 Cal. Rptr. 882, 667 P.2d 686]; People v. Tenorio,
supra, 3 Cal. 3d at p. 95, fn. 2.) A defendant serving a sentence under
the Three Strikes law (§ 667, subds. (b)-(i), 1170.12) imposed by
a court that misunderstood the scope of its discretion to strike prior
felony conviction allegations in furtherance of justice pursuant to section
1385(a), may raise the issue on appeal, or, if relief on appeal is no longer
available, may file a petition for habeas corpus to secure reconsideration
of the sentence. Such a petition should be filed in the sentencing court.
(People v. Tenorio, supra, 3 Cal. 3d at p. 95, fn. 2.) Such a petition
may be summarily denied if the record shows that the sentencing court was
aware that it possessed the discretion to strike prior felony conviction
allegations without the concurrence of the prosecuting attorney and did
not strike the allegations, or if the record shows that the sentencing
court clearly indicated that it would not, in any event, have exercised
its discretion to strike the allegations. (People v. Belmontes, supra,
34 Cal. 3d at p. 348, fn. 8.)
To guide the lower courts in the
exercise of their discretion under section 1385(a), whether acting on their
own motion or on motion of the prosecuting attorney, we emphasize the following:
A court's discretion to strike prior felony conviction allegations in furtherance
of justice is limited. Its exercise must proceed in strict compliance with
section 1385(a), and is subject to review for abuse. We reviewed the applicable
principles in People v. Orin, supra, 13 Cal. 3d 937.
CHIN, J.,
Concurring.--I agree that because
the "three strikes" statute does not contain "a clear legislative direction
to the contrary" (People v. Thomas (1992) 4 Cal. 4th 206, 210 [14 Cal.
Rptr. 2d 174, 841 P.2d 159]), the trial court retains discretion under
Penal Code section 1385 to dismiss prior felony conviction allegations.