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.
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.
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.
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.
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
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.
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
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). [¶] (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).)
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:
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.
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.)
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
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.
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
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
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
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
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.
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.
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)
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.
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
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,
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
"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.
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
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.
The district attorney finds an implicit prohibition on the striking of prior felony allegations in section 667, subdivision (c)(2), which provides as
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.
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
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].)
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
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
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.
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
"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
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."].)
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
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.
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.,
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.
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.
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 above.
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.