Opinion
[Opinion certified for partial publication. ]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts III(B) and (C).
See footnote, ante, page 1837.
[Reprinted without change for tracking pending review and disposition by the Supreme Court.]
Superior Court of Contra Costa County, No. 940950-9, Edward L. Merrill, Judge. [Copyrighted Material Omitted] COUNSEL
Melissa W. Johnson for Defenant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Thomas A. Brady and Aileen Bunney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KING, J.
I. Introduction
In this case we hold that the legislative version of California's new "Three Strikes" law (Pen. Code, section 667, subds. (b)-(i)) does not abrogate existing trial court authority to dismiss an allegation of a prior serious or violent felony conviction in the furtherance of justice (section 1385, subd. (a)), and thus trial judges retain discretion to dismiss, on their own motion, a prior "strike" allegation under the Three Strikes law.
Unless otherwise noted, all section references are to the Penal Code.
All subsequent statutory references are to the Penal Code.
II. Background
Rudolph Casillas choked Dorothy Amaral Casillas, causing her to lose consciousness. A jury convicted him of corporal injury on a spouse or cohabitant (section 273.5) and aggravated assault (section 245, subd. (a) (1)), and the court determined he had been convicted of robbery in 1983 and burglary in 1978 and 1983. The court imposed a sentence of 25 years to life under the legislative version of California's new Three Strikes law (section 667, subds. (b)-(i)).
III. Discussion
A. Trial Court Discretion to Dismiss a Prior Strike Allegation
The primary issue in this case is whether trial courts have discretion to dismiss, on their own motion, an allegation of a prior serious or violent felony conviction-i.e., a strike-under the Three Strikes law. This issue is pending before the California Supreme Court in People v. Superior Court (Romero) (1995) 35 Cal.App.4th 1313 [37 Cal.Rptr.2d 364], review granted April 13, 1995 (S045097).
The pertinent portion of the Three Strikes law is subdivision (f) (2) of section 667, which states: "The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to [Penal Code] 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." Section 1385 authorizes the court, on motion of the prosecutor or on the court's own motion "and in the furtherance of justice," to order an "action" to be dismissed. (section 1385, subd. (a); cf. People v. Thomas (1992) 4 Cal.4th 206, 209 [14 Cal.Rptr.2d 174, 841 P.2d 159] [power to dismiss "action" includes power to dismiss or strike enhancement].)
The People's position is that subdivision (f) (2) of section 667 operates to preclude the trial court from dismissing a prior strike allegation under the Three Strikes law except on motion of the prosecutor. The People rely on a maxim of statutory construction-expressio unius est exclusio alterius-which means a specific legislative grant of power implies that no other power passes. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196 [132 Cal.Rptr. 377, 553 P.2d 537].) In other words, the People contend that because subdivision (f) (2) authorizes the prosecutor to move to dismiss a prior strike allegation under section 1385 or because of insufficient evidence, but only authorizes the court to dismiss due to insufficient evidence, by implication the court is deprived of authority to dismiss a prior strike allegation under section 1385.
Casillas asserts two rejoinders: first, the Three Strikes law does not in fact abrogate existing trial court authority under section 1385 to dismiss a prior strike allegation; second, any legislation which conditions such authority on prosecutorial approval violates the constitutional separation of powers. (See People v. Tenorio (1970) 3 Cal.3d 89 [89 Cal.Rptr. 249, 473 P.2d 993].) We do not address the second point, because we are persuaded by the first.
The critical rule of law is set forth in People v. Fritz (1985) 40 Cal.3d 227, 230 [219 Cal.Rptr. 460, 707 P.2d 833]. That case dealt with the original version of section 667, added by initiative, which prescribed only the five-year sentence enhancement for a prior serious felony conviction. (That provision now appears wholly in subdivision (a) of section 667; the Three Strikes law appears in subdivisions (b) through (i) of the statute.) Fritz held that although section 667 contained mandatory language stating that there "shall" be a five-year enhancement for a prior serious felony conviction, the statute did not abrogate the trial court's power under Penal Code section 1385 to dismiss a five-year enhancement allegation in the furtherance of justice, because there was no "clear expression of legislative intent in this regard." (People v. Fritz, supra, 40 Cal.3d at p. 230.) The Supreme Court relied on the fact that neither section 667 nor a concomitant constitutional amendment contained "any express language indicating that it was intended to eliminate a trial court's section 1385 power with respect to the serious felony enhancement adopted in section 667, and nothing in the ballot analysis or arguments which were before the voters suggests such a purpose." (40 Cal.3d at pp. 230-231.) Absent such clear expression of intent to abrogate section 1385 power, trial courts retained their authority to dismiss a five-year enhancement allegation. (40 Cal.3d at p. 231.)
Fritz thus prescribed the following rule: there must be a clear expression of intent to abrogate section 1385 power, in express statutory language or legislative/initiative history, for such power to be abrogated.
, italics added (dis. opn. of Lucas, J.)), but discerned such clear indication in that case (id. at p. 237). The dissent in Fritz agreed that "section 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly indicated a contrary intent" (People v. Fritz, supra, 40 Cal.3d at p. 235
The majority's additional language-"and nothing in the ballot analysis or arguments [concerning Proposition 8] which were before the voters suggests such a purpose" (Fritz, supra, 40 Cal.3d. at pp. 230-231)-is difficult to read as rejecting the strict rule of Williams; i.e., as an acknowledgment by the Fritz majority that the Williams rule may be disregarded in favor of collateral evidence of legislative intent, because of the majority's observation that no such evidence existed.
The Supreme Court subsequently applied this rule, though with a different result, in People v. Thomas, supra, 4 Cal.4th 206. That case concerned the legislative deletion of firearm use enhancements (section 12022.5) from the list of statutory enhancements that a trial court might, in its discretion, strike if sufficient circumstances in mitigation exist (section 1170.1, subd. (h)). The issue was whether judges retained discretion to strike such firearm use enhancements in the furtherance of justice under section 1385. The court first acknowledged Fritz, then observed "it is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation," and reiterated that " 'Section 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly evidenced a contrary intent.' " (People v. Thomas, supra, 4 Cal.4th at p. 211, quoting People v. Williams (1981) 30 Cal.3d 470, 482 [179 Cal.Rptr. 443, 637 P.2d 1029], italics added.) The court then analyzed legislative history, which included an express statement in the Legislative Counsel's Digest that the bill would delete existing law authorizing a court to strike the firearm use enhancement (4 Cal.4th at pp. 209, 211) as well as a synopsis by the Senate Committee on Judiciary stating the bill would provide that such enhancements shall never be stricken (id. at p. 213). The legislative history provided clear evidence of intent to abrogate section 1385 power, and thus the court concluded "... we find clear legislative intent to withhold such authority." (4 Cal.4th at p. 208.)
Thomas did not change the rule of Fritz; rather, the court's application of that rule yielded a different result than in Fritz. To like effect is People v. Tanner (1979) 24 Cal.3d 514 [156 Cal.Rptr. 450, 596 P.2d 328]- the "use a gun go to prison" case-which Thomas described as involving "sufficient indicia of legislative intent" to abrogate section 1385 authority. (People v. Thomas, supra, 4 Cal.4th at p. 211.) In Tanner, the Supreme Court relied on several items of legislative history which contained clear and explicit statements that the statutory proscription against probation for gun users would have no exceptions, not even an exception in unusual cases in the interests of justice. (People v. Tanner, supra, 24 Cal.3d at p. 520.) The legislative pronouncement of intent to abrogate section 1385 authority was express, not implicit-i.e., clearly evidenced.
Thus, a single doctrinal thread-the requirement of clearly evidenced legislative intent to abrogate section 1385 power-runs through Tanner, Fritz and Thomas. Only the application of that requirement differs among those cases.
In 1986, shortly after Fritz was decided, the Legislature provided the express statutory language found wanting in Fritz with regard to the five-year enhancement, adding subdivision (b) to section 1385, which states, "This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under section 667." The enactment was accompanied by an express statement of legislative intent to restrict the authority of trial courts to dismiss a prior serious felony conviction allegation when imposing an enhancement under section 667. (Stats. 1986, ch. 85, section 3, pp. 211-212.)
The Legislature abrogated Fritz's short-lived perpetuation of trial court authority to strike a five-year enhancement allegation, but the underlying legal principle set forth in Fritz and reiterated in Thomas remains valid and is binding on us under the doctrine of stare decisis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) That principle, requiring a clear expression of intent to abrogate section 1385 authority, in express statutory language or legislative/initiative history, precludes application of the maxim expressio unius est exclusio alterius in the present context. This is because the maxim invokes only an implication-that is, an "implied negative" suggesting that no power passes other than that specified. (Wildlife Alive v. Chickering, supra, 18 Cal.3d at p. 196.) Fritz and Thomas require more than an implication to abrogate section 1385 authority; they require a clear expression of intent, in express language, in order to do so.
There is no such language in the legislative version of the Three Strikes law, although the Legislature must have known how it could accomplish the task in light of Fritz and the Legislature's 1986 response to it. Section 667, subdivision (f) (1) states that "[n]otwithstanding any other law" subdivisions (b) to (i) shall be applied in every case where a defendant has a strike prior, but this merely tells us that subdivision (f) (2) will always apply in such cases; it tells us nothing about whether subdivision (f) (2) abrogates section 1385 authority.
Nor, unlike Thomas and Tanner, is there any such language in the Three Strikes law's legislative history: no expression of any expectation that the law would abrogate the existing authority to dismiss as in Thomas, and no expression of any understanding that the Three Strikes sentencing provisions would apply without exception as in Tanner. To the contrary, the legislative history is unclear on this point, and if anything suggests intent to retain, not abrogate, section 1385 power.
The initial version of section 667, subdivision (f) (2), included no reference whatever to section 1385, stating only that the prosecutor could move to dismiss a strike allegation and the court could grant the motion if "there is insufficient evidence to prove the prior conviction." (Assem. Bill No. 971 (1993-1994 Reg. Sess.) pp. 4-5.) This provision was subsequently amended to add that the prosecutor could also move to "dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385 ...." (Assem. Amend. to Assem. Bill No. 971 (1993-1994 Reg. Sess.) Apr. 12, 1993, p. 5.) The amendment tells us nothing, however, about legislative intent regarding the court's exercise of section 1385 power on its own motion, beyond the implication of expressio unius est exclusio alterius that would arise but for Fritz and Thomas.
A report by the Senate Committee on Judiciary, analyzing and commenting on the amended version of section 667, subdivision (f) (2), opined that the law contained no provision for the prosecutor or judge to dismiss a prior strike allegation in the furtherance of justice and thus "appears to be constitutionally infirm." (Sen. Com. on Judiciary Rep., Sentencing: Three Strikes (Feb. 17, 1994) pp. 7-8 (1993-1994 Reg. Sess.).) This suggests a legislative understanding that the court could never exercise section 1385 power, even on the prosecutor's statutorily authorized motion. Such understanding would be quite illogical, however, given the express prescription of prosecutorial authority to move to dismiss a prior strike allegation in the furtherance of justice pursuant to section 1385. (section 667, subd. (f) (2).) If the prosecutor may make such a motion, then a fortiori the judge must have authority to grant it. Given the illogic of the report's perception of a total ban on exercise of section 1385 power, we can hardly glean from the report a clear expression of intent to abrogate section 1385 power to dismiss on the court's own motion.
Perhaps more significant is a proposed amendment to the Three Strikes law that was not adopted. That amendment would have replaced the last sentence of section 667, subdivision (f) (2), with the following: "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. Com. on Judiciary Rep., Sen. Floor Amends., Com. Analysis (proposed amendments to Assem. Bill No. 971) (Mar. 2, 1994) pp. 1-2 (1993-1994 Reg. Sess.).) The failed amendment would have made clear that a court could not dismiss prior strike allegations on its own motion pursuant to section 1385. Under a settled rule of statutory construction, the proposed amendment's rejection indicates that the Legislature did not intend to abrogate such authority. (People v. Superior Court (Guerrero) (1962) 199 Cal.App.2d 303, 310 [18 Cal.Rptr. 557]; 2A Sutherland, Statutory Construction (5th ed. 1992) section 48.18, p. 369.) We do not ascribe conclusive significance to this point; this rule of statutory construction, like expressio unius est exclusio alterius, invokes only an implication, and thus is not equivalent to a clear expression of legislative intent. But it certainly militates against a finding of intent to abrogate section 1385 power. In short, given the absence of a clear expression of legislative intent to abrogate the courts' dismissal authority under section 1385, and the implication of contrary intent from rejection of a proposed amendment to subdivision (f) (2) of section 667, we can only conclude that " 'the Legislature has not clearly evidenced' " (People v. Thomas, supra, 4 Cal.4th at p. 211, quoting People v. Williams, supra, 30 Cal.3d at p. 482) an intent to abrogate section 1385 power in either the express statutory language of the Three Strikes law or its legislative history.
The committee analysis of the proposed amendment opined, as did the committee report analyzing the Three Strikes law itself, that the law permitted dismissal of a strike allegation only on the prosecutor's motion based on insufficient evidence. (Sen. Com. on Judiciary Rep., Sen. Floor Amends., Com. Analysis (proposed amendments to Assem. Bill No. 971) supra, at p. 1; Sen. Com. on Judiciary Rep., Sentencing: Three Strikes, supra, at pp. 7-8.) The latter opinion, and evidently the former as well, were based on an assertion in the report analyzing the Three Strikes law-which we find incorrect (post, at pp. 1845-1846)-that section 1385, subdivision (b), precludes the dismissal of a strike allegation in the furtherance of justice. (Sen. Com. on Judiciary Rep., Sentencing: Three Strikes, supra, at pp. 7-8.) We ascribe little significance to this assertion in the report; the legislators may well have concluded, as have we and other courts (post, at pp. 1845-1846), that on this point the report was simply wrong.
Fritz has never been explicitly overruled by our Supreme Court. Whether Fritz has been overruled sub silentio by Thomas has not been directly addressed. This is an issue we must leave to our high court, since it has the sole authority to expressly qualify or overrule its own decision. (See People v. Triggs (1973) 8 Cal.3d 884, 890-891 [106 Cal.Rptr. 408, 506 P.2d 232]; see also Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 388 [115 Cal.Rptr. 765, 525 P.2d 669].)
Nor is there any such clear expression of intent in the language or history of the initiative version of the Three Strikes law (section 1170.12), which was added after Casillas committed the present offense. Intent of the voters to abrogate section 1385 power might conceivably be implied from a ballot argument that "soft-on-crime judges ... spend all of their time looking for loopholes to get rapists, child molesters and murders out on probation, early parole, or off the hook altogether" (Ballot Pamp. Gen. Elec. (Nov. 8, 1994), rebuttal to argument against Prop. 184, p. 37), but for repeated statements in the legislative analysis of the initiative that its provisions were "identical to" or "reaffirmed" the legislative version of the Three Strikes law (Ballot Pamp., Analysis of Prop. 184 by Legislative Analyst, Gen. Elec. (Nov. 8, 1994) pp. 32-34).) If the legislative version did not abrogate section 1385 power, then the "identical" and "reaffirming" initiative version could not have done so either.
This brings us back to expressio unius est exclusio alterius. That maxim is simply "a product of 'logic and common sense' " which "does not constitute a rule of law." (2A Sutherland, op. cit. supra, section 47.24, at p. 228.) Here, there is an overriding rule of law, set forth in Fritz and Thomas, requiring a clear expression of intent to abrogate section 1385 power. Absent the required express language of intent in the Three Strikes law or its legislative history, we are compelled to conclude, as have some (but not the majority) of our colleagues (People v. Williams (1995) 37 Cal.App.4th 1737 [44 Cal.Rptr.2d 743], review granted and briefing deferred Nov. 16, 1995 (S049295); People v. Bailey (1995) 37 Cal.App.4th 871, 891-899 [44 Cal.Rptr.2d 205] (dis. opn. of Johnson, J.), review granted and briefing deferred Nov. 16, 1995 (S048808); People v. Petty (1995) 37 Cal.App.4th 730, 736-737 [44 Cal.Rptr.2d 34] (dis. opn. of Johnson, J.), review granted and briefing deferred Nov. 2, 1995 (S048702)), that trial courts retain authority under subdivision (a) of section 1385 to dismiss, on their own motion, a prior strike allegation under the Three Strikes law.
Subdivision (b) of section 1385, which precludes dismissal of a prior conviction allegation "for purposes of enhancement of a sentence under section 667" and was enacted to eliminate judicial discretion to strike a five-year enhancement, does not support a contrary conclusion, because Three Strikes sentencing is not an enhancement. Rule 405(c) of the California Rules of Court defines enhancement as "an additional term of imprisonment added to the base term." Three Strikes sentencing does not add to the base term, but increases it (e.g., by doubling or tripling). Thus, several recent decisions have concluded, Three Strikes sentencing is not an enhancement within the ambit of subdivision (b). (People v. Martin (1995) 32 Cal.App.4th 656, 666-668 [38 Cal.Rptr.2d 776]; People v. McKee (1995) 36 Cal.App.4th 540, 547 [42 Cal.Rptr.2d 707]; People v. Glaster (1995) 36 Cal.App.4th 785, 790 [45 Cal.Rptr.2d 65], review granted and briefing deferred Oct. 19, 1995 (S048283); see also People v. Bailey, supra, 37 Cal.App.4th at p. 894 (dis. opn. of Johnson, J.); People v. Petty, supra, 37 Cal.App.4th at p. 739 (dis. opn. of Johnson, J.).) Similar conclusions appear in other sentencing contexts. (Cf. People v. Whitten (1994) 22 Cal.App.4th 1761, 1765-1766 [28 Cal.Rptr.2d 123] [prior prison term for child molestation elevating current offense to felony status under section 647.6 not an enhancement]; People v. Burkett (1991) 1 Cal.App.4th 971, 975, fn. 3 [2 Cal.Rptr.2d 330] [elevated life sentence under section 667.7 for habitual offender with two prior prison terms for violent crimes not an enhancement].)
In another case pending before us, the Attorney General concedes this point and disclaims reliance on section 1385, subdivision (b), agreeing in the People's brief that "a 'three strikes' sentence is not an 'enhancement' as defined by court rules and decisions." (Original italics.) A different local office of the Attorney General took the opposite position in People v. Petty, supra, 37 Cal.App.4th at pages 736-737, footnote 3, arguing that subdivision (b) does preclude dismissal of a prior conviction allegation for purposes of Three Strikes sentencing. In the present case, the People argue both sides of this issue, admitting that Three Strikes sentencing is not an enhancement but suggesting that the Legislature nevertheless intended the Three Strikes law to be subject to subdivision (b).
Here, the record indicates the trial judge might have exercised his discretion to dismiss under subdivision (a) of section 1385 had he believed he was so authorized. When imposing sentence, the judge commented he believed he lacked authority to dismiss but if he had such authority he "might well do so" and "I might well have sentenced him to eight or nine years." We therefore conclude that the cause must be remanded for resentencing, in order to afford the judge the opportunity to exercise his section 1385 power (as to one or more strikes) if so inclined. (People v. Fritz, supra, 40 Cal.3d at p. 229; People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [193 Cal.Rptr. 882, 667 P.2d 686].)
B., C.
IV. Disposition
The judgment is reversed as to the sentence imposed and the cause is remanded for resentencing. In all other respects the judgment is affirmed.
PETERSON, P. J.
I concur in Justice King's lead opinion. I write separately to address the effect of People v. Fritz (1985) 40 Cal.3d 227 [219 Cal.Rptr. 460, 707 P.2d 833] (Fritz), and to make certain other observations regarding troubling issues presented by this case.
As appellant suggests, Fritz requires express language on the face of Penal Code 1 section 667 curbing the trial court's section 1385 power, in order to preclude exercise of that power by striking an allegation or conviction of a section 667 enhancement in the interests of justice. (Fritz, supra, 40 Cal.3d at pp. 230-231.)
Then Justice Lucas and Justice Mosk dissented in Fritz. Adopting the opinion of Acting Presiding Justice Scott of this district (40 Cal.3d at pp. 233-238 (dis. opn. of Lucas, J.)), their analysis mirrored that later made by Chief Justice Lucas in People v. Thomas (1992) 4 Cal.4th 206, 211 [14 Cal.Rptr.2d 174, 841 P.2d 159] (Thomas): "But it is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation." (Italics added.)
A close reading of Fritz, however, conclusively establishes that the majority therein rejected the position of the dissenters, not because it was unpersuaded by the maxims and extraneous aids to statutory interpretation they discussed, but because section 667 did not on its face expressly curb a trial court's section 1385 power. (Fritz, supra, 40 Cal.3d at pp. 230-231.)
The Fritz majority relied on People v. Williams (1981) 30 Cal.3d 470 [179 Cal.Rptr. 443, 637 P.2d 1029] (Williams), stating: "[T]he significance of the majority opinion in Williams is that-coming on the heels of this court's decision in People v. Tanner [citation]-it sent an unmistakable signal to drafters of sentencing provisions of the need to include clear language eliminating a trial court's section 1385 authority whenever such elimination is intended." (Fritz, supra, 40 Cal.3d. at p. 230, italics added.) The Fritz majority further stated that neither section 667 nor article I, section 28, subdivision (f) of the California Constitution ["drafted shortly after the Williams decision"] "contains any express language" evidencing a legislative intent to eliminate a trial court's section 1385 power to strike section 667 serious felony enhancements. (Fritz, supra, 40 Cal.3d. at pp. 230-231, italics added.)
The Fritz majority's requirement that such "clear language" be found in the legislation curbing a trial court's section 1385 powers and not in collateral references to legislative history was acknowledged by the Fritz dissent. (Fritz, supra, 40 Cal.3d at pp. 237-238 (dis. opn. of Lucas, J.).)
The dissenters first found, by means the majority did not adopt (Fritz, supra, 40 Cal.3d. at pp. 230-231), clear expressions of legislative intent to curb that power by indirect means; i.e., by analysis, inter alia, of section 667, subdivision (b) (now subd. (a) (2)) (expressions of the statute's inapplicability necessarily excludes all other exceptions); section 667, subdivision (e) (now subd. (j)) (requiring a two-thirds vote of the Legislature to amend sentence enhancements established by the legislation, shows an intent to nullify the trial court's section 1385 power as to those enhancements); the "without limitation" provisions of article I, section 28, subdivision (f) of the California Constitution (from Proposition 8 concerning the use of prior convictions); and the "public dissatisfaction" with appellate decisions restricting the use of prior convictions the Supreme Court had acknowledged in People v. Castro (1985) 38 Cal.3d 301, 311-312 [211 Cal.Rptr. 719, 696 P.2d 111] (Fritz, supra, 40 Cal.3d. at pp. 233-236 (dis. opn. of Lucas, J.)).
However, in discussing this "public dissatisfaction," the Fritz dissent said, in terms which echoed the majority analysis: The same public dissatisfaction "was intended to [eliminate] our own rule, reaffirmed in People v. Williams [citation], permitting the trial courts to exercise discretion, under section 1385, to dismiss or strike statutory enhancements unless a contrary intent clearly appears on the face of the legislation." (40 Cal.3d. at p. 237 (dis. opn. of Lucas J.), italics added.)
Thus, both the majority and dissenting justices clearly acknowledged in Fritz that Williams (which Fritz followed) proscribed the curbing of a trial court's section 1385 power absent express language so providing in the applicable legislation. 2
The Legislature clearly believed Fritz required express statutory language to curb or eliminate section 1385 power. In 1986, it enacted subdivision (b) of section 1385 expressly precluding judicial power to strike a prior conviction for section 667 enhancement purposes, and announced its intention thereby "to abrogate the holding in People v. Fritz [sic] ...." (Stats. 1986, ch. 85, sections 2-3, pp. 211-212, italics added.)
Thomas, supra, 4 Cal.4th at pages 210-211 stated that a clear expression of legislative intent in curbing the power of sentencing courts to strike allegations for enhancement purposes may be gleaned from sources outside the face of the applicable legislative language. That statement is not reconcilable with the rule of Williams as interpreted by both the majority and dissent in Fritz. 3
The Fritz interpretation of Williams, and the Legislature's response to its recognized holding in 1986 (by adding subd. (b) to section 1385), presented a clear roadmap to the Legislature and electorate, which thus knew what must be done to eliminate discretionary judicial power to strike allegations of prior serious felony conviction for enhancement purposes: The legislation relied on for that result had to expressly specify it. The three strikes legislation does not do so; that alone is sufficient cause to support the lead opinion's result.
The lead opinion in this case has reconciled the Fritz-Williams rule with Thomas, but has concluded that the three strikes law and its legislative history demonstrate neither direct nor indirect "clearly evidenced legislative intent to abrogate section 1385 power ...." here at issue. (Lead opn., ante, p. 213, italics in original.)
Whether the Fritz-Williams rule is strictly applied or reconciled with Thomas, I conclude that with presumptive knowledge of either line of authority, the electorate, acting by initiative, and the Legislature, acting by statute, in enacting the three strikes legislation, deliberately chose to preserve the decades old inherent judicial power to strike prior serious felony convictions for sentencing purposes where the interests of justice so require, even though the power to strike those convictions for enhancement purposes was theretofore expressly eliminated by enactment of section 1385, subdivision (b).
When this judicial discretionary power has been curbed in the past, it has been unconditionally proscribed. (section 1385, subd. (b).) In all the past years of California legal history, the independent judicial exercise of that power has never been expressly conditioned on the decision of either the prosecutor or any other representative of the executive branch of government to move therefor. It is totally incongruous to conclude that the three strikes legislation preserves only in part the absolute discretion of trial judges to act in the interests of justice to mitigate three strikes punishment by reducing "wobblers" to misdemeanors (section 17), but proscribes exercise of that discretion in striking allegations of prior serious felony convictions for the same purpose, unless a prosecutor consents. Conditioning the exercise of this judicial power on the prior consent of a representative of the executive branch of government raises serious questions concerning violation of the doctrine of separation of powers, an issue neither I nor the lead opinion find it necessary to reach in this case. (Cf. People v. Tenorio (1970) 3 Cal.3d 89 [89 Cal.Rptr. 249, 473 P.2d 993]; Raven v. Deukmejian (1990) 52 Cal.3d 336, 354-355 [276 Cal.Rptr. 326, 801 P.2d 1077] (per Lucas, C. J.); see also People v. Williams (1995) 37 Cal.App.4th 1737, 1752 [44 Cal.Rptr.2d 743] (conc. opn. of Grignon, J.) review granted Nov. 16, 1995 (S049295).)
Fritz and Thomas dealt with issues of statutory proscription of judicial discretion to strike prior convictions, alleged for purposes of enhancement of criminal sentences. As the lead opinion correctly concludes, the three strikes legislation is not an enhancement (lead opn., ante, p. 1845), since it does not simply add a fixed term of years to the base term (Cal. Rules of Court, rule 405(c)), but increases the base term by doubling or tripling it (lead opn., ante, p. 1845).
The Thomas statement (4 Cal.4th at pp. 211-213) that legislative intent to preclude judicial striking of a prior conviction alleged to enhance a sentence may be found from sources outside the express terms of the applicable legislation cannot, in my view, be logically applied, a fortiori, to discern legislative intent where no enhancement is implicated, but criminal sentencing is. The issue here is far beyond that of striking enhancements: Did the Legislature and electorate intend by the three strikes law to transfer to district attorneys control over the judiciary's inherent power to strike, in the interests of justice, allegations of prior felony convictions for purposes of fixing the base term in criminal sentences? In the scheme of California criminal jurisprudence, and its effect on public protection, base term sentencing is usually of far greater importance than enhancement of that sentence after the choice of sentence is made by the trial judge. Logic and reason dictate that if a legislative intent truly existed to curb a trial court's more fundamental and long inherent power to strike prior convictions in fashioning an appropriate sentence, it would have been expressly set forth in the three strikes legislation; or if Thomas is controlling and Fritz-Williams is not, analysis of legislative history would so demonstrate. Analysis under either approach fails to demonstrate that intent, and for good reason.
The practice of charging or not charging all prior serious felony convictions for three strikes purposes varies widely throughout this state and this appellate district, depending on prosecutorial analysis of the maximum sentence a defendant is subject to for a contemporary crime if all or some such prior convictions are alleged, weighed against the nature of that contemporary crime. A defendant may well be subject to disparate charging and sentencing treatment for the same crime, depending on the policy of the district attorney of the county where the case is prosecuted. Prosecutors obviously do not always agree on what the interests of justice are. Vindictive or discriminatory prosecutions, although rare, are not unknown. Overcharging of criminal offenses sometimes occurs.
The judiciary's discretionary power to reduce certain charged felonies to misdemeanors, and to strike allegations of prior convictions in indictments and informations in the interests of justice for sentencing purposes, has long been the recognized and accepted judicial bulwark against prosecutorial misjudgments or abuses by the executive branch of government-an integral spoke in the wheel of governmental checks and balances.
The remand for resentencing ordered by the lead opinion is clearly warranted in this case. The Fritz-Williams rule that the section 1385 power of judges to strike enhancements must be expressly curbed, recognized and applied in 1986 by the Legislature, is doubly applicable to that power's exercise in fixing base term sentences. It should not be cavalierly discarded when, as here, neither the Legislature nor the people by initiative have expressly so directed or done so by indirect means.
HANING, J.,
Concurring.-, Seeing no disagreement therein, I concur in the opinions of both my colleagues.