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People v. Tanner

Supreme Court of California
Dec 22, 1978
23 Cal.3d 16 (Cal. 1978)

Opinion

        Opinion on pages 16-54 omitted.

        REHEARING GRANTED

        For Opinion on Rehearing, see 156 Cal.Rptr. 450, 596 P.2d 328.

        See 24 Cal.3d 514 for subsequent opinion.

        John K. Van de Kamp, Dist. Atty., Los Angeles, Harry B. Sondheim and Maurice H. Oppenheim, Deputy Dist. Attys., as amici [151 Cal.Rptr. 301] curiae on behalf of plaintiff and appellant.

         Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Gloria DeHart and Patrick G. Golden, Deputy Attys. Gen., for plaintiff and appellant.

        Thomas J. Nolan, Jr., Palo Alto, under appointment by the Supreme Court, for defendant and respondent.

        Wilbur F. Littlefield, Public Defender, Los Angeles, Harold E. Shabo and Dennis A. Fischer, Deputy Public Defenders, Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Michael G. Millman and Harriet R. Wiss, Deputy State Public Defenders, George C. Martinez, San Francisco, Monroe & Riddet, Keith C. Monroe and Roger S. Hanson, Santa Ana, as amici curiae on behalf of defendant and respondent.


        TOBRINER, Justice.

        In the present case we hold that the Legislature in enacting Penal Code section 1203.06, did not intend to remove from the trial judge the power that it had given that judge under section 1385 to strike a charge that a defendant used a gun and to grant probation when the interests of justice so dictate. We shall explain that if the Legislature did intend to remove that power from the court under section 1385 it should have explicitly so provided because "the discretion of the judge (under section 1385) is absolute except where the Legislature has specifically curtailed it." (People v. Superior Court (Howard) (1969) 69 Cal.2d 491, 502, 72 Cal.Rptr. 330, 337, 446 P.2d 138, 145.)

Unless otherwise indicated, all statutory references are to the Penal Code.

Further, under certain circumstances section 1203.06 may preclude probation, but it does not require a commitment to state Prison. An offender may be sentenced to the California Youth Authority if under 21 years old; to the California Rehabilitation Center if a narcotics addict or in imminent danger of becoming a narcotics addict; to a state hospital or "an appropriate public or private mental health facility" if the offender is a mentally disordered sex offender who could benefit from such treatment; or to a state hospital if the offender is a mentally retarded person who is a danger to himself or others.

There is no expression in the "concurring opinion" of the Chief Justice that she concurs in any portion of the lead opinion.

        Over 20 years ago, in People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241, we stated that in the absence of unambiguous statutory language specifically limiting a trial court's power to strike a charge under section 1385, we would not interpret a statute to annul the court's traditional power to dismiss charges in order to avoid imposition of unjust punishment. Section 1203.06 contains no specific language explicitly limiting a trial court's power to strike a charge under section 1385, and thus does not foreclose a trial court from exercising such authority.

        Although we confirm the trial court's power to strike a charge of the use of a gun, the courts should use this power most carefully. The public has a compelling interest in deterring illegal use of guns, and the threat of certain punishment is an important deterrent. Thus the trial court should employ its power to strike a use of a gun charge only in extraordinary cases.

        The present case a sham robbery designed to prove the inadequacy of a store's security system is such an extraordinary case, a case in which punishment of the defendant by a term in state prison would accomplish no useful purpose. Even after striking the use charge, the judgment of the trial court required defendant to serve one year in the county jail as a condition of probation; surely on the facts of this case the trial court did not abuse its discretion.

        Finally, we do not preclude further legislative action. If the Legislature believes that the compelling importance of deterring illegal use of guns can be promoted only by denying trial courts the power to strike charges of the use of guns under section 1385, it has the power specifically to enact such legislation. But because such a limitation on the trial court's authority will result in unjust punishment in extraordinary cases such as the present case, we believe that the legislative intention to deny the power to strike a use charge should appear in clear and unequivocal language. Absent such language we must hold, as we do today, that the trial courts retain the power to strike such findings in the interest of justice.

1. The facts

        In the early morning hours of January 9, 1976, defendant, a 27-year-old employee of a company that provided security services to retail establishments, entered a 7-11 grocery store in East Palo Alto and, pointing an unloaded but operable handgun at the store clerk, took approximately $40 from the store's cash registers and safe. Aside from his appropriation of the money, however, defendant did not conduct himself as an ordinary armed robber. In the course of the robbery, defendant engaged the store [151 Cal.Rptr. 302] clerk in a friendly conversation, telling the clerk not to worry, that he (defendant) was also employed by 7-11 stores, and that the clerk should call the police, identify defendant as the robber and "play it straight." Upon leaving the store, defendant reminded the clerk to turn in an alarm and notify the police, and then held the front door of the store open for an entering customer.

        The clerk immediately called the police, who arrested defendant in the vicinity of the store approximately a half-hour after the crime. Thereafter, defendant was charged by information and complaint with robbery (§ 211); a separate allegation of the information, "pursuant to sections 12022.5 and 1203.06 of the Penal Code," charged defendant with having used a firearm in the commission of the offense.

        At trial defendant admitted the robbery but explained that he had committed the crime to convince the owner of the 7-11 store of the need for additional security and specifically to induce the owner to resubscribe to the security service offered by defendant's employer, a service which the owner had recently terminated. Defendant testified that he thought the gun he had used was inoperable and that he had specifically chosen to commit the robbery when the particular clerk in question was on duty because that clerk had been robbed on previous occasions and would not be unduly frightened. Defendant maintained that at all times he intended to return the stolen money to the store owner, but that he was apprehended before he could do so. Finally, in response to his counsel's questioning, defendant related his participation in mock crime detection dramas in the past, describing how 10 years earlier, when he and his brother were in their late teens, they had dressed up as Batman and Robin and had roamed the streets "climbing on rooftops, swinging over . . . doing somersaults off of roofs (and) (t)hings like that."

        Despite defendant's testimony, the jury returned a verdict finding defendant guilty of first degree robbery and also finding that he had used a firearm in the commission of the offense.

        Before imposing sentence, the trial court instructed the county probation department to prepare a probation report. After conducting a thorough investigation of defendant's background and the circumstances of the offense, the probation officer recommended that defendant be placed on probation for three years, on condition, inter alia, that he serve six months in the county jail. The report disclosed that defendant had never been previously convicted or arrested for any offense, that defendant's past employers had all given him good recommendations and that the investigating police detective in the instant case did not believe defendant should be sentenced to state prison.

        After reviewing the probation report and listening to argument from the parties, the trial court indicated that in light of the unusual circumstances of this crime the court intended to exercise its power to strike the use finding for purposes of both section 12022.5 and section 1203.06. When the district attorney objected that section 1203.06 precluded the striking of a use finding for purposes of granting probation, the trial court suggested that if section 1203.06 were so interpreted the provision would be unconstitutional as an improper legislative invasion of the judicial sentencing function. The court thereupon entered an order striking the use finding for purposes of both sections 12022.5 and 1203.06, committed defendant to the Department of Corrections for the term prescribed by law, but suspended execution of sentence and placed defendant on five years probation on condition, inter alia, that he participate in a psychiatric program and serve one year in the county jail.

        On this appeal, the People challenge the trial court's order only insofar as it purports to strike the use finding for purposes of rendering defendant eligible for probation. The People contend, first, that [151 Cal.Rptr. 303] section 1203.06 should be interpreted to preclude a trial court from striking a use finding for the purposes of granting probation, and second, that, as so interpreted, the section is not unconstitutional. Because we [587 P.2d 1116] have concluded that section 1203.06 does not preclude a court from exercising its section 1385 authority to strike a use finding for purposes of granting probation, we need not reach the constitutional issue to which the trial court adverted.

Although the People's notice of appeal indicated that the appeal was taken from the order striking the use finding for purposes of both section 12022.5 and section 1203.06, the People have not briefed the question of the propriety of the trial court's action with respect to section 12022.5, but have confined their argument to the question of the propriety of the court's action with regard to section 1203.06. Under these circumstances, we conclude that the People have abandoned any challenge to the court's action for purposes of section 12022.5. (See generally 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 425, pp. 4391-4393 and cases cited.)

When the defendant in Cortez committed his offenses, selling or offering to sell heroin was proscribed by former Health and Safety Code section 11501 (see now, Health & Saf.Code, § 11352).

Section 1203.06 provides in pertinent part: "Notwithstanding the provisions of section 1203: (a) Probation Shall not be granted to . . . : (1) any person who uses a firearm during the commission . . . of any of the following crimes: . . . (iii) Robbery, in violation of Section 211. . . ." (Italics added.)

In their opening brief in the Court of Appeal, the People additionally claimed that the trial court order striking the use finding was defective because the trial court had failed to file a formal statement of reasons for its action as required by section 1385. (See, e. g., People v. Orin (1975) 13 Cal.3d 937, 943-945, 120 Cal.Rptr. 65, 533 P.2d 193.) The trial court subsequently entered a nunc pro tunc order in the official minutes of the court, reiterating the unusual circumstances of the crime that it had noted at the time of sentencing in its oral comments in open court. At no time since the filing of the nunc pro tunc order have the People pursued the argument that the order is invalid for lack of a proper statement of reasons; rather the People have argued only that, in light of section 1203.06, the court had no power to strike the use finding for purposes of granting probation. Under these circumstances, we have no occasion to address the propriety of the trial court's nunc pro tunc procedure. (See, e. g., People v. Hunt (1977) 19 Cal.3d 888, 897, fn. 10, 140 Cal.Rptr. 651, 568 P.2d 376.)

Health and Safety Code section 11370 was a recodification of former Health and Safety Code section 11715.6, which had been the statute involved in People v. Cortez, supra, 6 Cal.3d 78, 98 Cal.Rptr. 307, 490 P.2d 819. (Stats.1972, ch. 1407, § 2, p. 2987; Stats.1972, ch. 1407, § 3, p. 3020.)

Burke does not even hold to the proposition cited by the majority. In that case there were findings of a narcotics violation and a prior narcotics conviction which, pursuant to the controlling statute, required the defendant be imprisoned. The trial court dismissed the finding of the prior conviction, however, and sentenced defendant to jail. In response to the People's contention the court could not strike a jury finding or an admission of the prior conviction, the Burke court discusses the issue in terms on which the majority here rely, but it makes no holding thereon. It affirms the judgment and order of dismissal on the ground that because the People did not object in the trial court to the striking (People v. Burke, supra, 47 Cal.2d 45, 53, 301 P.2d 241) they must be deemed to have assented to the striking. It noted too the People failed to exercise a right to appeal from the order of dismissal. Thus the Burke court concluded there was no "finding" of a prior conviction and, in any event, the People were precluded from raising the issue because they had not appealed. (Id. at p. 54, 301 P.2d 241.) All the language of the Burke opinion on which the lead opinion relies is dicta.

2. Because section 1203.06 does not in explicit terms restrict a trial court's power to strike under section 1385, the provision cannot be interpreted to preclude a trial court's exercise of such power in light of People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241.

        From at least as early as 1850, trial courts in California have enjoyed broad authority to dismiss criminal actions in furtherance of the interests of justice. (Stats.1850, ch. 119, p. 323; Stats.1851, ch. 29, p. 279; see, e. g., People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993; People v. Sidener (1962) 58 Cal.2d 645, 648-649, 658-663, 25 Cal.Rptr. 697, 375 P.2d 641.) For more than a century this judicial authority has been codified in section 1385 which provides in relevant part that "(t)he court may, either of its own motion or upon application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed."

        Although section 1385's language refers explicitly to the dismissal of an entire criminal action, our court has long recognized that the section also authorizes a trial court to dismiss or "to strike" only a portion of the accusatory pleading, permitting the court, for example, to dismiss one or more counts of a multicount complaint or to strike allegations of prior convictions which may increase a defendant's punishment or restrict the nature of his sentence. (See, e. g., People v. Ruiz (1975) 14 Cal.3d 163, 166, 120 Cal.Rptr. 872, 534 P.2d 712; People v. Orin, supra, 13 Cal.3d 937, 946, 120 Cal.Rptr. 65, 533 P.2d 193; People v. Navarro (1972) 7 Cal.3d 248, 257, 102 Cal.Rptr. 137, 497 P.2d 481; In re Cortez (1971) 6 Cal.3d 78, 83-85, 98 Cal.Rptr. 307, 490 P.2d 819; People v. Tenorio, supra, 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993; People v. Burke, supra, 47 Cal.2d 45, 50-51, 301 P.2d 241.)

        The relevant decisions additionally establish that a trial court may exercise its section 1385 power at the time of sentencing, as the trial court did here, and that a court may utilize this power to strike a count or an allegation even if the jury or court has found the defendant guilty of such count or has found the allegation to be true. As our court explained in People v. Burke, supra, 47 Cal.2d 45, 50-51, 301 P.2d 241, 244: "The procedure of 'striking' or setting aside or dismissing, a charge of a prior conviction (or any of multiple counts or allegations of an indictment or information) at the time of sentence . . . is commonly used in trial courts, not only where the prior conviction has not been legally established, but also where the fact of the conviction has been shown but the trial court has concluded that 'in the interest of justice' defendant [151 Cal.Rptr. 304] should not be required to undergo a statutorily increased penalty which would follow from judicial determination of that fact. (Citations.)"

        In the instant case, the trial court did not utilize its section 1385 power to strike an allegation of a Prior conviction as in Burke or in many of our other cases, but instead utilized its authority to strike a Use of a firearm allegation and finding. As the above quotation from Burke demonstrates, however, in that case we explicitly recognized that the authority to strike conferred by section 1385 extends beyond allegations of prior convictions to other "allegations of an indictment or information" (47 Cal.2d at p. 50, 301 P.2d at p. 244) which might subject a defendant to increased punishment. In People v. Dorsey (1972) 28 Cal.App.3d 15, 104 Cal.Rptr. 326, the Court of Appeal specifically held that a trial court has authority under section 1385 to strike a use finding at the time of sentencing, at least for the purpose of avoiding the increased five-year punishment that would be otherwise mandated by section 12022.5. Since the People do not challenge the trial court's striking of the use allegation with regard to the application of section 12022.5, they apparently acknowledge that, at least in general, the power to strike conferred by section 1385 includes the power to strike a use allegation.

At the time of Dorsey, section 12022.5 provided in relevant part:

This concession contradicts the dissent's contention elsewhere that the judicial power to strike a penalty enhancement factor is not "constitutionally vested" but rather "is dependent upon legislative enactments" authorizing such action. (Post, at p. 320 of 151 Cal.Rptr., at p. ---- of --- P.2d.)

The lead opinion's plea to the Legislature that it should respond to a 1972 statement in People v. Dorsey (1972) 28 Cal.App.3d 15, 104 Cal.Rptr. 326, that if the Legislature "intends that the provisions of Penal Code section 12022.5 not be subject to dismissal, it could and should so indicate" (Ante, p. 307 of 151 Cal.Rptr., p. ---- of --- P.2d), is not really relevant to the issues. In the first place Dorsey deals with dismissal of a use finding for purposes of augmenting the term of imprisonment and, as noted, the Legislature has responded to that matter. (§ 1170.1, subd. (g).) Second, even if it be deemed the Dorsey invitation applies also to dismissal of a use finding for purposes of probation, what could constitute a clearer response than the 1975 enactment of section 1203.06? In clear language the Legislature has defined more limited areas in which judicial discretion may be exercised and, because such definition cannot be deemed meaningless, it cannot be subordinated to an exercise of discretion pursuant to section 1385.

Subsequent to the trial court's ruling in this case, the Legislature amended section 12022.5 to effectively codify the Dorsey Rule. (See Stats.1976, ch. 1139, § 305, p. 5061.) Section 1170.1 subdivision (g), enacted in 1977 as part of the so-called "Boatwright Amendments" to the Determinate Sentence Act, now provides: "Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in . . . (section) 12022.5 . . . if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment."

I do not understand the dissent by Justice Clark to contend that the adjudication process as to a penalty enhancement factor is complete simply when a defendant has admitted the enhancement or a judge or a jury has found it to be true. Such a contention would, of course, be meritless. (See generally, People v. Burke, supra, 47 Cal.2d at pp. 50, 51, 301 P.2d at p. 244 (discussing the court's power to strike or dismiss a prior conviction "regardless of whether (the prior conviction) has or has not been admitted or established by evidence"); People v. Sidener, supra, 58 Cal.2d at pp. 665-666, 25 Cal.Rptr. at p. 710, 375 P.2d at p. 654 (dis. opn. by Schauer, J.) (the power to hear and determine the question of dismissing "a charge of prior conviction which is found to be true" is an implied constitutional power of the courts of this state).)

The concurring opinion purports to deal only with the power to apply or disregard "penalty enhancing factors" apparently a limited power necessarily included within the broad power to provide for punishment after a judicial determination of criminal misconduct. However, if the broad power to fix sentences is constitutionally vested in the legislative branch of government it reasonably follows that such branch is vested with power over all aspects of penalty fixing.

        The People argue, however, that even if the trial court may exercise its power to strike a use finding for purposes of avoiding an increased sentence under section 12022.5, the court may not utilize this section 1385 power to render an otherwise ineligible defendant eligible for probation. In the past, courts have utilized the section 1385 power to strike to achieve a number of purposes in the sentencing context: in some cases the power to strike has been utilized to render a defendant eligible for imprisonment in county jail rather than in state prison or to enable an otherwise ineligible defendant to participate in a narcotics rehabilitation program (see, e. g., People v. Burke, supra ; People v. Navarro, supra, 7 Cal.3d 248, 258, 102 Cal.Rptr. 137, 497 P.2d 481); in other cases section 1385 has been invoked to afford the defendant the benefit of a shorter minimum or maximum sentence (see, e. g., People v. Tenorio, supra, 3 Cal.3d 89, 95 fn. 1, 89 Cal.Rptr. 249, 473 P.2d 993; People v. Dorsey, supra ; see generally Burke, Striking Priors (1958) 33 State Bar J. 556); in still other cases, however, contrary to the [151 Cal.Rptr. 305] implication of the People's argument, the section 1385 power to strike has been explicitly exercised to render an otherwise ineligible defendant eligible for probation. (See, e. g., People v. Ruiz, supra, 14 Cal.3d 163, 166, 120 Cal.Rptr. 872, 534 P.2d 712; In re Cortez, supra, 6 Cal.3d 78, 85, 98 Cal.Rptr. 307, 490 P.2d 819; In re Gomez (1973) 31 Cal.App.3d 728, 107 Cal.Rptr. 609.)

In this regard, the People assert that the striking of a use finding for purposes of section 12022.5 does not Necessarily eliminate the use finding for purposes of section 1203.06. In this case, however, we have no occasion to decide whether the striking of a use finding (or a prior) to achieve one sentencing objective Necessarily eliminates the finding for all sentencing purposes or whether a trial court retains discretion to limit the effect of such striking, for here the trial court made it clear that it was exercising its discretion to strike the use finding for purposes of both section 12022.5 and section 1203.06.

"Thus we have concluded that Justice Schauer (in his dissenting opinion in People v. Sidener (1962) 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641) was correct in finding section 11718 violative of the California constitutional separation of powers, as that concept demands that the branches of government be coequal and that a prosecutor not be vested with power to foreclose the exercise of a judicial power recognized in section 11718 itself." (People v. Tenorio, supra, 3 Cal.3d 89, 95, 89 Cal.Rptr. 249, 253, 473 P.2d 993, 997.)

        Indeed, in In re Cortez, supra, our court emphatically declared that "One of the paramount purposes of a motion to strike priors is to make the defendant eligible for probation. The thrust of the motion is to persuade the sentencing judge that, despite the existence of the prior, the petitioning (defendant) is a fit subject for probation." (Emphasis added.) (6 Cal.3d at p. 85, 98 Cal.Rptr. at p. 311, 490 P.2d at p. 823.) Hence, the fact that the trial court undertook its action in this case to render the defendant eligible for probation does not in any way indicate that the court did not appropriately exercise its power under section 1385.

        The People additionally assert, however, that even if section 1385 authorizes a trial court to strike a use finding and even if, In general, section 1385 may be utilized to render an otherwise ineligible defendant eligible for probation, the trial court could not properly exercise such power for such a purpose in the instant case because of the specific provisions of section 1203.06. Section 1203.06, enacted in 1975, provides in part that "Notwithstanding the provisions of section 1203 (the general probation section) . . . (p)robation shall not be granted to, nor shall the execution or imposition of sentence be suspended for . . . Any person who used a firearm during the commission or attempted commission Of any of the following crimes. . . . (iii) Robbery, in violation of Section 211." (Emphasis added.) Section 1203.06 goes on to define "used a firearm" to mean "to display a firearm in a menacing manner, to intentionally fire it, or to intentionally strike or hit a human being with it" (§ 1203.06, subd. (b)(3)), and also provides that in order to bar probation under the section the defendant's use of the firearm must be alleged in the information or indictment and either be admitted by the defendant or be found true by the jury or the court. (§ 1203.06, subd. (b)(1).)

Section 1203.06 provides in full:

Cortez, of course, is distinguishable on a ground earlier discussed herein. In 1971 section 1203 was then deemed to vest in a trial court discretionary authority to dismiss a prior narcotics conviction for the purpose of making a defendant eligible for probation. Among other distinctions, section 1203.06 has been enacted in the interim. The discretionary authority vested in the trial court by section 1203 is now denied in those particular cases dealt with in section 1203.06. The instant case is such a case Cortez is not. Even today a court may still be vested with authority to dismiss the prior in the circumstances of Cortez, but could not properly dismiss the use finding in the instant case.

        [151 Cal.Rptr. 306]The People argue that since the mandatory language of section 1203.06, emphasized above, denies probation without exception to any robber who has been found to have used a firearm in the commission of his offense, it must follow that the trial court in the instant case retained no power under section 1385 to strike the use finding so as to render the present defendant eligible for probation.          As noted at the outset of this opinion, our court faced a very similar contention in People v. Burke, supra, 47 Cal.2d 45, 301 P.2d 241. In Burke, the defendant was convicted of possession of marijuana, then a felony. The information had alleged that defendant had previously been convicted of a similar marijuana offense, and at arraignment defendant admitted the existence of the prior conviction. At that time, section 11712 of the Health and Safety Code provided that "(a)ny person convicted under this division for having in possession any narcotic (defined to include marijuana) . . . shall be punished by imprisonment in the county jail for not more than one year, or in the state prison for not more than 10 years. (P) If such person has been previously convicted of any offense described in the division . . . the previous conviction shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or (if) admitted by the defendant, He shall be imprisoned in the state prison for not less than two years nor more than 20 years." (Emphasis added.)

        Notwithstanding section 11712, which ostensibly mandated a state prison sentence since defendant had admitted a prior marijuana conviction, the trial court at the time of sentencing struck the charge as to the prior conviction and sentenced the defendant to county jail. On appeal the People argued, as they do in the present case, that in light of the mandatory nature of section 11712's prescriptions, the trial court had no authority under section 1385 to strike the admitted prior for purposes of avoiding a state prison sentence.

        In Burke, our court rejected the People's contention, observing that the statutory language on which the People relied "(does) not purport to divest the trial court (or to hold that the court constitutionally could be divested) of the power to control the proceedings before it insofar as the essentials of the judicial process are concerned; i. e., to find the defendant guilty or not guilty of any offense charged, or of a lesser included offense, or to dismiss the action In toto or to strike or dismiss as to any or all of multiple counts or charges of prior convictions." (47 Cal.2d at p. 52, 301 P.2d at p. 245.) In the absence of an explicit statutory directive that the Legislature had intended to eliminate or restrict the trial court's general power to strike under section 1385, the Burke court concluded that the statute should not be so construed. Accordingly, Burke upheld the trial court's action in striking the prior conviction.

        Subsequent decisions of this court have reaffirmed the Burke holding that, in the absence of an explicit legislative restriction of the trial court's power under section 1385, a restriction on that power will not generally be implied. See, e. g., People v. Superior Court (Howard) (1969) 69 Cal.2d 491, 502, 72 Cal.Rptr. 330, 337, 446 P.2d 138, 145 ("the discretion of the judge (under section 1385) is absolute Except where the Legislature has specifically curtailed it ") (emphasis added).) In People v. Dorsey supra, 28 Cal.App.3d 15, 104 Cal.Rptr. 326, the Court of Appeal reiterated this established principle in finding that the mandatory sentencing provisions of section 12022.5 (see fn. 4, Ante ) did not preclude a court's exercise of its section 1385 power to strike a use finding.

        As the Dorsey court explained, in California "(t)he imposition of sentence and the exercise of sentencing discretion" (28 Cal.App.3d at p. 18, 104 Cal.Rptr. at p. 327) have traditionally been viewed as "fundamentally judicial in nature" (see, e. g., People v. Tenorio, supra, 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473, P.2d 993; People v. Superior [151 Cal.Rptr. 307] Court (On Tai Ho) (1974) 11 Cal.3d 59, 66, 113 Cal.Rptr. 21, 520 P.2d 405), and section 1385 has long been recognized as an essential tool to enable a trial court "to properly individualize the treatment of the offender." (28 Cal.App.3d at p. 18, 104 Cal.Rptr. at p. 328; see generally Burke, Striking Priors (1958) 33 State Bar J. 556.) [587 P.2d 1120] Emphasizing the significance of the section 1385 power with respect to the court's fulfillment of its traditional judicial responsibility in the sentencing context, the Dorsey court put the Legislature on notice that the judiciary would not infer a legislative intent to restrict a court's power to dismiss or to strike under section 1385 in the absence of an Explicit legislative restriction of the section 1385 power. The Dorsey court stated in this regard: "If the Legislature intends that the provisions of Penal Code section 12022.5 not be subject to dismissal, It could and should so indicate." (Emphasis added; 28 Cal.App.3d, at p. 19, 104 Cal.Rptr. at p. 328.)

Recently, in Lockett v. Ohio (1978) 438 U.S. 586, ----, 98 S.Ct. 2954, 2963-2964, 57 L.Ed.2d 973, Chief Justice Burger took note of a trial court's traditional authority to individualize sentences: "(T)he concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country. See Williams v. New York ((1949)) 337 U.S. (241), 247-248, 69 S.Ct. 1079, 93 L.Ed. 1337; Pennsylvania ex rel. Sullivan v. Ashe ((1937)) 302 U.S. (51) 58 S.Ct. 59, 82 L.Ed. 43. Consistent with that concept, sentencing judges have traditionally taken a wide variety of factors into account. . . ."

Although the lead opinion purports to hold that the Legislature does not intend the provisions of section 1203.06 to be mandatory, there is in fact no majority holding to such effect. Only three members of this court subscribe to that rationale. While a fourth member reaches the same end result insofar as our disposition of the case is concerned, she does so by an entirely different rationale. We may thus imply that she rejects the determination of legislative intent proposed in the lead opinion. If so, there are a majority four members of this court of the view the Legislature intends the provisions of section 1203.06 to be mandatory.

        The People concede that section 1203.06, enacted several years after the Burke, Howard and Dorsey decisions, contains no provision which purports expressly to eliminate or restrict a trial court's power to strike under section 1385. The People argue, however, that despite the absence of an explicit statutory restriction on the power to strike, the legislative history of section 1203.06 demonstrates that the Legislature generally intended to curtail trial courts' discretion in this area, and that, as a consequence, a limitation on a trial court's power to strike is necessarily Implied in the legislative action. In this regard, the People point to a number of statements by both legislative and executive spokesmen to demonstrate that a principal purpose behind the enactment of section 1203.06 was the elimination of the limited discretion trial courts had previously enjoyed under section 1203 to grant probation in a case in which a gun was used in the commission of a serious offense.

Thus, for example, the legislative counsel's summary of the legislation states that "This bill would revise (the provisions of section 1203) so that (1) probation and suspension of sentence would be denied, without any exception in unusual cases in the interest of justice (the former language of section 1203), to any person who uses a firearm during the commission of various felonies, including . . . robbery. . . ." (Leg. Counsel's Dig. of Sen. No. 278, 1 Stats.1975 (Reg.Sess.) Summary Dig., ch. 1004, p. 262.) In a similar light, the Governor, in signing the legislation, issued a press release stating: "By signing this bill, I want to send a clear message to every person in this state that using a gun in the commission of a serious crime means a stiff prison sentence. (P) Whatever the circumstances, however eloquent the lawyer, judges will no longer have discretion to grant probation even to first offenders."

        The legislative history upon which the People rely unquestionably indicates as indeed, does the explicit language of section 1203.06 itself that one of the main purposes of the enactment of section 1203.06 was to curtail, in the specific instances enumerated in section 1203.06, the discretion to grant probation which had previously been accorded trial courts Under section 1203. [151 Cal.Rptr. 308] None of the legislative materials to which the People refer, however, makes any mention of the specific question presented by [587 P.2d 1121] this case, namely whether the provisions of section 1203.06 additionally purported to repeal a trial court's traditional section 1385 power to strike priors or use allegations.

Prior to enactment of the 1975 legislation, section 1203 generally prohibited the granting of probation to a defendant who committed a serious offense while armed with a deadly weapon, but provided an exception for "unusual cases where the interests of justice demand" the granting of probation. (Former § 1203, enacted Stats.1971, ch. 706, § 1, p. 1367.)

In addition to denying probation to anyone convicted of an enumerated offense who is found to have Used a firearm, section 1203.06 also purports to deny probation to anyone who has suffered a Prior conviction of one of the enumerated offenses and who is found to have Been armed during the commission of a subsequent felony. (§ 1203.06, subd. (a)(2), quoted in fn. 7, ante.) Although the Legislature must have been aware, under prior decisions of this court (e. g., In re Cortez, supra ), that a trial court possessed the power under section 1385 to avoid the denial of probation under subdivision (a)(2) by striking an allegation of such a prior conviction, the Legislature failed to include any statutory language to preclude such striking. This omission provides additional support for our conclusion that the trial court's power to strike is not affected by section 1203.06.

Significantly, although the Attorney General's office communicated with the legislative committees considering the 1975 legislation on several occasions, advocating the passage of the legislation to supplement, inter alia, the sentencing provisions of section 12022.5 (which, of course, had already been held to be subject to the trial court's power to strike (People v. Dorsey, supra )), at no time did the Attorney General or his staff indicate that the provisions of the proposed legislation would eliminate a trial court's power to strike under section 1385. Since the Attorney General's office had directly participated in all of the earlier litigation involving the section 1385 issue, the Attorney General surely would have suggested a modification of the legislation to specifically restrict a trial court's section 1385 power to strike had such a restriction been intended.

        It is well settled in this state, of course, that "(r)epeals by implication are not favored . . . ." (See, e. g., Rexstrew v. City of Huntington (1942) 20 Cal.2d 630, 634, 128 P.2d 23, 26.) Furthermore, as we have seen, at the time of the enactment of section 1203.06 in 1975, the Burke, Howard and Dorsey decisions had made it quite clear that no matter how "mandatory" the terms of a sentencing provision appear, such a provision would not be interpreted to curtail a trial court's power under section 1385 to strike in the absence of explicit statutory language that specifically and unambiguously restricted such power. A cardinal principle of statutory interpretation proclaims, of course, that "in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing on them." (Buckley v. Chadwick (1955) 45 Cal.2d 183, 200, 288 P.2d 12, 22, see, e. g., In re Phyle (1947) 30 Cal.2d 838, 845, 186 P.2d 134.) Accordingly, inasmuch as section 1203.06 contains no provision purporting to restrict a trial court's section 1385 power to strike, we must assume that the Legislature did not intend to eliminate such power.

        Other sentencing provisions, enacted in the same legislative session as section 1203.06, make it quite clear that the Legislature has no difficulty explicitly restricting a trial court's power to strike when it intends to do so. (See Veh.Code, § 23102, subd. (g) enacted Stats.1975, ch. 385, § 1, p. 859.) Thus, [151 Cal.Rptr. 309] at least some legislators may well have been willing to accede to the seemingly inflexible provisions of section 1203.06 precisely[587 P.2d 1122] because of their awareness that the section did not purport to remove all "safety valves" to further the ends of justice in a particular case, either through a trial court's exercise of the section 1385 power or by virtue of a prosecutor's exercise of his traditional discretion. (See fn. 9, Ante.)

Section 23102 subdivision (g) provides: "Except in unusual cases where the interests of justice demand an exception, The court shall not strike a prior (drunk driving) conviction . . . for purposes of sentencing in order to avoid imposing as part of the sentence or term of probation the minimum time in confinement in the county jail (48 hours) and the minimum fine ($250) as provided in subdivision (f)." (Emphasis added.)

In Rockwell v. Superior Court (1976) 18 Cal.3d 420, 441-445, 134 Cal.Rptr. 650, 556 P.2d 1101, we held that the Legislature had not intended to permit trial courts to exercise discretion under section 1385 in sentencing defendants under a death penalty statute enacted subsequent to the United States Supreme Court decision in Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, but in reaching that conclusion we relied heavily on pervasive indications that the Legislature had believed that any such sentencing discretion would have rendered the statute unconstitutional under Furman. No similar evidence suggests that in enacting section 1203.06 the Legislature thought that removal of All discretion from the trial courts was necessary to sustain the constitutionality of the enactment.

        Moreover, although the People make much of the fact that the legislative history of section 1203.06 demonstrates that the Legislature enacted the section for the purpose of curtailing discretion previously enjoyed by trial courts, this circumstance in no way distinguishes the present case from the situation prevailing in People v. Burke, supra. As we have seen, in Burke our court held that the provisions of Health and Safety Code section 11712, which prescribed a mandatory State prison sentence for anyone convicted of a narcotics offense who had been previously convicted of a similar narcotics offense, did not prohibit a trial court from striking the prior conviction and sentencing the defendant to county jail. As the Burke court noted (47 Cal.2d at p. 51, 301 P.2d 241), section 11712 derived from a statute first enacted in 1929. (Stats.1929, ch. 216, § 7, p. 385.) As initially enacted, the section provided that a first offender could be confined in county jail or state prison for not more than six years, and that one convicted of a second or subsequent offense could be confined in county jail or state prison from six months to ten years. Thus, this initial version explicitly afforded a trial judge discretion to sentence a defendant with a prior to either county jail or state prison.

The 1929 legislation provided: "Any person convicted under this act for having in possession any of the drugs . . . mentioned in section 1 (including marijuana) . . . shall upon conviction for the first offense be punished by imprisonment in the county jail or in the state prison for not more than six years, for the second and each subsequent offense of which said person so convicted shall be found guilty, said person shall be punished by imprisonment in the county jail or in the state prison for not less than six months nor more than ten years."

        In 1935, the statute was amended to provide, inter alia, that a second or subsequent offender "shall be imprisoned in the State prison for not less than six months nor more than ten years" (emphasis added) (Stats.1935, ch. 813, § 5c, p. 2208), and it was this version that ultimately became Health and Safety Code section 11712. Although the 1935 amendment, like the enactment of section 1203.06, appears to have been specifically intended to eliminate the trial court's prior discretion to sentence a second offender to county jail, our Burke decision made clear that such a revision, without an explicit restriction of the section 1385 power to strike, would not preclude a trial court from striking the prior conviction. [151 Cal.Rptr. 310] Accordingly, the Burke decision cannot be distinguished from the instant case.          In essence, the People maintain that section 1203.06 presents a "special case" in which a trial court's section 1385 power should be curtailed because of the assertedly clear legislative intent to remove all trial court discretion in granting probation. In reality, however, our acceptance of the People's argument in this case would logically preclude a trial court from striking priors or other allegations for purposes of sentencing in most of the circumstances in which the section 1385 power has traditionally been invoked.

The 1935 legislation provided:

Although the People contend that section 1203.06 is a "specific" statute which should take precedence over the more "general" terms of section 1385, it is not at all clear in this context which statute is "specific" and which "general." While section 1203.06 deals directly with the question of probation, as we have seen that section does not address the question of a trial court's power to strike. Thus, with respect to the narrow class of cases which may properly invoke the court's traditional power to strike, section 1385 may constitute the more "specific" statute, and section 1203.06 may be viewed as the provision dealing with the more "general" rule.

        As we have already noted, our decisions in Ruiz, Navarro, Cortez, Tenorio and Burke establish that "one of the paramount purposes" of a trial court's authority to strike is to enable the court to render a defendant eligible for probation or for county jail or for a less severe prison sentence, Notwithstanding some other statutory sentencing provision that, standing alone, would bar such a disposition. Were we to hold, as the People suggest, that section 1203.06's limitation on trial court discretion Impliedly eliminates the court's power to strike either a use finding or a prior for purposes of granting probation, a similar unstated implication would logically flow from all other mandatory sentencing provisions and would virtually eliminate the traditionally important role played by section 1385 in the sentencing context.

For example, in People v. Ruiz, supra, we held that a trial court could strike a prior narcotics conviction so as to render a defendant eligible for probation, notwithstanding Health and Safety Code section 11370, which at that time provided that "(a)ny person convicted of violating (designated narcotics offenses) Shall not, in any case, be granted probation by the trial court or have the execution of sentence imposed upon him suspended by the court, if he has been previously convicted of (designated narcotic offenses)." (Emphasis added.) Under the People's analysis, the Ruiz case would have unquestionably been decided differently.

        As we have discussed, we explicitly refused in People v. Burke,supra, to draw such a broad inference from similar statutory language, and instead indicated that if the Legislature intended to restrict a court's section 1385 power it should do so with unmistakable clarity. Inasmuch as section 1203.06 contains no such explicit restriction on a trial court's section 1385 power, we conclude that the trial court in the instant case retains authority to strike the use finding and to place defendant on probation notwithstanding the provisions of section 1203.06.

In the instant case, of course, the record makes it clear that the trial court recognized that it retained the power to strike under section 1385. In other cases, however, when the trial court has denied probation, the record may not explicitly reveal whether the sentencing court's denial of probation was rendered under a mistaken interpretation of section 1203.06. In light of our decision today, we conclude that in those cases presently pending on appeal in which the defendant can demonstrate that he made a timely claim that the trial court retained the power to strike a use allegation or finding notwithstanding the provisions of section 1203.06 and probation was nonetheless denied, the defendant is entitled to have the trial court reconsider its decision on probation so long as the record does not clearly indicate that the trial court would have denied probation even if it had been aware that its power to strike under section 1385 remained intact.

         In sum, past California decisions have established that in light of the historically important role played by section 1385 in the sentencing process, a sentencing statute will not be interpreted as abrogating the authority accorded by section 1385 in the absence of explicit statutory language mandating that result. The Legislature, presumably aware of this well-established line of California authority, enacted section 1203.06 but failed specifically to provide that a trial court's traditional authority under section 1385 was to be eliminated in this context. Consistent with past decisions, we can only conclude that the enactment does not eliminate the trial court's power to strike under section 1385.

        If the Legislature had meant to strip the courts of the powers set forth in section 1385 it would have specifically so declared. A myriad of interpretations of section 1203.06 cannot substitute for a single legislative statement that the latter section should overcome the former. That legislative statement is lacking, and we do not believe that we should supply or construct it, thereby arbitrarily removing a time-honored judicial function, long and universally recognized by the decisions.

        The judgment is affirmed.

        MOSK and NEWMAN, JJ., concur.

        BIRD, Chief Justice, concurring and dissenting.

        This court should not substitute its judgment for that of the Legislature when an issue of statutory interpretation is involved. We "must give full weight" to the intent of the Legislature. (People v. Caudillo (1978) 21 Cal.3d 562, 589, 146 Cal.Rptr. 859, 580 P.2d 274 (conc. opn. of Bird, C. J.).) After consideration of the legislative history of Penal Code section 1203.06, I agree with my colleagues, Justices Manuel, Richardson, and Clark, that the Legislature intended to remove from courts the power to give probation when an individual is convicted of one of the felonies enumerated in that section and a gun is displayed.

        However, this does not end our inquiry, for this case involves more than statutory interpretation. As judges, we have taken an oath of office to uphold the Constitution of this state. Thus, when a legislative enactment contravenes the Constitution, this court cannot defer to the Legislature and remain true to its constitutional mandate. However controversial the question, the court cannot avoid an issue which goes to "the very core of our judicial responsibility." (People v. Anderson (1972) 6 Cal.3d 628, 640, 100 Cal.Rptr. 152, 159, 493 P.2d 880, 887; see also, Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 248-249, 256-257, 149 Cal.Rptr. 239, 583 P.2d 1281 (conc. and dis. opn. of Bird, C. J.).) If we were to shrink from the obligations of our oath, the Declaration of Rights would become meaningless. To decide cases based on what is most popular at the moment will ultimately destroy the judiciary as a third branch of government.

        This case presents an issue that goes to the heart of our existence as an independent and coequal partner in government. Article III, section 3 of the California Constitution requires that the legislative, executive, and judicial powers be separately exercised by the three branches of government. If we are to remain faithful to that section of the Constitution, we must affirm the judgment of the trial court.

        I

        This court must perform the difficult task of removing itself from the politics of the moment without isolating itself from the realities of the day. No one condones the use of a firearm to secure an illegal end. As judges, we share with all citizens the [151 Cal.Rptr. 312] sense of outrage at those who would take the life or property of another at gunpoint. Justice and respect for human life demand nothing less from us. Such actions not only injure individuals, they inevitably tear at the fabric of our society. But just as every human life is irreplaceable, every human being is unique and each situation must be judged individually.          The actual issue before us has been obscured by a number of myths. One such myth is that a defendant who is granted felony probation avoids incarceration. In fact, an individual who is placed on probation for a felony may receive up to one year in the county jail for each offense he has committed. That is exactly what happened in the present case.

        That is not the only myth surrounding this case. The slogan "Use a gun, go to prison" has been portrayed as an accurate description of Penal Code section 1203.06. As is often the case with slogans, their simplicity is only exceeded by their inaccuracy. If a person uses a gun in the commission of an offense, he is not necessarily denied probation nor required to go to state prison. Section 1203.06 does not cover many serious crimes. For example, if an individual commits an assault with a deadly weapon (Pen.Code, § 245, subd. (a)), and he shoots and wounds his victim, he is eligible for probation. Nor does section 1203.06 apply to other dangerous felonies such as assault or battery on a peace officer (Pen.Code, §§ 241, 243), assault with a deadly weapon on a peace officer (Pen.Code, § 245, subd. (b)), battery resulting in a serious bodily injury (Pen.Code, § 243), arson (Pen.Code, § 447a), child molestation (Pen.Code, § 288), lynching (Pen.Code, § 405a), mayhem (Pen.Code, § 203), forcible sodomy (Pen.Code, § 286), and forcible oral copulation (Pen.Code, § 288a). Similarly, felonies such as second-degree burglary (Pen.Code, §§ 459, 460) with the use of a firearm are excluded from the scope of section 1203.06.

        Further, the prosecutor has complete discretion as to whether to invoke section 1203.06 in those cases where it applies. He may decide not to allege a firearm has been used even when it has. Even after the use of a firearm has been alleged, the prosecutor may move to have the allegation stricken. (See Pen.Code, § 1385.) The prosecutor may agree to dismiss the firearm allegation in exchange for a guilty plea to the underlying offense during plea bargaining. If the prosecutor agrees to a "charge-bargain," he may allow a defendant to plead guilty to an offense which is not covered by section 1203.06. 1

        The point in all these cases is that even though a firearm may have been used, the offender is not automatically stripped of his eligibility for probation and sentenced to state prison. The so-called mandatory gun law is not mandatory at all. In section 1203.06, the Legislature has in effect vested in the representative of the executive branch, the prosecutor, all discretion as to a local disposition (probation with a county jail sentence) and withdrawn such discretion totally from the judicial branch.

        Historically, sentencing has been considered an inherently Judicial function since it requires, like all adjudications, a neutral magistrate who will fairly consider both sides of a question. In enacting Penal Code section 1203.06, the Legislature apparently intended to remove from the court the power to grant probation when an individual is found to have displayed a gun while committing one of the felonies enumerated in that section. After much thought, I am convinced that such a legislative fiat violates the express provisions of article III, section 3 of the California Constitution. By dictating to judges what they can and cannot do in adjudicating with respect to a [151 Cal.Rptr. 313] penalty enhancement factor, the Legislature has violated basic principles of separation of powers and taken away from judges their historic power to match the judgment to the facts of the individual case.

        Consider the facts now before us. An experienced trial judge, who handled this matter, found it to be a "very, very rare case." The nature of the offense was described as "bizarre." (See maj. opn., Ante, at pp. 301, 302 of 151 Cal.Rptr., ---- of --- P.2d.) The investigating detective from the sheriff's office recommended that Mr. Tanner "be placed on probation with a short county jail sentence." The detective did "not feel that the defendant is a candidate for State Prison." He felt that Mr. Tanner's "good record up to the present offense" was an important factor to consider and that "the defendant ha(d) learned a lesson."

        The trial judge concluded that Mr. Tanner had a "clean background" and that the firearm was unloaded at all relevant times with "no real intent to use (the) weapon as such" being demonstrated. Mr. Tanner had been honorably discharged from the Army after service in Korea. Formerly he had been the manager of a large department store's branch in the East Bay. Following a divorce, he slipped into a long period of depression. He had no prior criminal record. The trial judge concluded that in this unusual case he would incarcerate Mr. Tanner for one year in the county jail, and require five years of probation with a suspended state prison sentence. The question once again is posited. Does the Legislature have the power to preclude a judge from considering this punishment when a penalty enhancement factor is present? The legal question is ultimately one of the separation of constitutional powers.

        II

        It is the constitutional duty of this court to ensure that the essential functions of the judicial branch of government are safeguarded from encroachment by the coequal legislative or executive branches. (Cal.Const., art. III, § 3.) Three times in this decade this court has unanimously held that sentencing courts Alone have the power to determine whether a penalty should be enhanced. (People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993; In re Cortez (1971) 6 Cal.3d 78, 98 Cal.Rptr. 307, 490 P.2d 819; People v. Ruiz (1975) 14 Cal.3d 163, 120 Cal.Rptr. 872, 534 P.2d 712.) The constitutional principles outlined in these decisions clearly control this case.

        Article III, section 3 of the California Constitution provides that "(t)he powers of state government are legislative, executive, and judicial." The judicial power of state government is vested by the Constitution in the courts alone. (Cal.Const., art. VI, § 1; cf. Cal. Const., art. IV, § 1 ("The legislative power of this State is vested in the California Legislature . . . ."); Cal.Const., art. V, § 1 ("The supreme executive power of this State is vested in the Governor.").)

        The Constitution further provides that "(p)ersons charged with the exercise of one power (of state government) may not exercise either of the others except as permitted by this Constitution." (Cal.Const., art. III, § 3.) Thus, because of this requirement of separation of powers, "the exercise of a judicial power may not be conditioned upon the approval of either the executive or legislative branches of government . . . ." (Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 127, 95 Cal.Rptr. 524, 529, 485 P.2d 1140, 1145.) "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, 89 Cal.Rptr. at p. 252, 473 P.2d at p. 996.)

        This court suggested more than 20 years ago that "in respect to constitutionally vested judicial power" the adjudication and determination of penalty enhancement factors are "inherently and essentially the province of the court." (People v. Burke (1956) 47 Cal.2d 45, 52, 301 P.2d 241, 245.) The court reasoned that a trial judge has inherent constitutional power under the separation of powers clause to "control the proceedings before it insofar as the essentials of the judicial process are concerned . . ." and that among such "essentials of the judicial process" is the power "to strike or dismiss as to any or all of multiple counts or [151 Cal.Rptr. 314] charges of prior conviction." (Ibid.) As Justice Schauer later explained in his noted dissent in People v. Sidener (1962) 58 Cal.2d 645, 665-666, 25 Cal.Rptr. 697, 710, 375 P.2d 641, 654, "a charge of prior conviction which is found to be true now has serious and far reaching effects on the punishment of the [587 P.2d 1127] offender . . . ." Thus, he concluded, the power to hear and determine "the important question of dismissing such a charge . . . must . . . be deemed an essential part of the judicial process (and) . . . an implied constitutional power of the courts of this state." (Id., at p. 666, 25 Cal.Rptr. at p. 711, 375 P.2d at p. 655, fn. omitted.)

        Justice Schauer's dissent in Sidener was approved by this court, and the principles of Burke were applied, in People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993. In Tenorio, the Legislature had promulgated a statute which forbade a sentencing judge from exercising at sentencing the "judicial power to grant a motion to strike priors" without the consent of the prosecutor. (3 Cal.3d at p. 93, 89 Cal.Rptr. at p. 251, 473 P.2d at p. 995.) This court held that "the power to strike priors is an essential part of the judicial power" (Ibid.) vested by the Constitution exclusively in the courts. Therefore, the exercise of that power could not be overruled or curtailed by a representative of another branch of government. The basic premise of Tenorio was clearly consistent with Burke: "When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature." (Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. at p. 252, 473 P.2d at p. 996.)

        Tenorio was followed one year later by In re Cortez, supra, 6 Cal.3d 78, 98 Cal.Rptr. 307, 490 P.2d 819, which involved a defendant who had been convicted of selling or offering to sell heroin 2 with a prior felony narcotic conviction. At the time the defendant was to be sentenced, former Health and Safety Code section 11715.6 provided that "(i)n no case shall any person convicted of (selling or offering to sell narcotics) be granted probation by the trial court, nor shall the execution of the sentence imposed upon such person be suspended by the court, if such person has been previously convicted of any felony offense described in this division . . . ." (Stats.1961, ch. 274, § 12, p. 1308.) Although the statute "flatly prohibit(ed) probation" to an individual who had a prior narcotic felony conviction (In re Cortez, supra, 6 Cal.3d at p. 85, 98 Cal.Rptr. 307, 490 P.2d 819), this court held that article III and article VI, section 1 of the California Constitution permitted the trial court to strike the prior conviction in order to make the defendant eligible for probation.

        In People v. Ruiz, supra, 14 Cal.3d 163, 120 Cal.Rptr. 872, 534 P.2d 712, this court reiterated and applied the separation of powers principles in a case legally indistinguishable from the present case. In Ruiz, the defendant had been convicted at trial of possession for sale of heroin with a prior felony conviction for possession of narcotics. On appeal, the possession for sale conviction was reduced to simple possession. The case was remanded for resentencing, even though the defendant was still "technically ineligible for probation." (Id., at p. 166, 120 Cal.Rptr. 872, 534 P.2d 712.) Health and Safety Code section 11370, subdivision (a) 3 provided that "(a)ny person convicted of (possession of heroin) shall Not, in any case, be granted probation by the trial court or have the execution of the sentence imposed upon him suspended by the court, if he has been previously convicted of (possession of narcotics)." (Emphasis added.)

        The Ruiz court, with my colleague Justice Clark concurring, held that the trial court [151 Cal.Rptr. 315] could strike the prior conviction in order to place the defendant on probation. Despite the language of section 11370, the defendant was held to be "entitled to a new probation hearing wherein the court may make a new judgment relative to his Fitness for probation in light of the crime of which he [587 P.2d 1128] now stands convicted." (People v. Ruiz, supra, 14 Cal.3d at p. 167, 120 Cal.Rptr. at p. 875, 534 P.2d at p. 715, emphasis added.) The constitutional origin of this holding was reemphasized by the court's reference to the "comprehensive range of the (sentencing court's) Constitutional discretion." (Ibid., emphasis added.)

        The statute involved in the present appeal is in all relevant respects Identical to the statutes discussed in Cortez and Ruiz. (See maj. opn., Ante, p. 305, fn. 7, of 151 Cal.Rptr., p. ----, fn. 7 of --- P.2d.) All three statutes purport to deny probation to defendants when certain penalty-enhancing factors have been found to be true. Since the trial court could strike the enhancing factors in order to find Mr. Cortez and Mr. Ruiz eligible for probation, the lower court in this case had that same power.

        The dissent by my colleague, Justice Clark, shows a basic misunderstanding of the constitutional issue presented. That dissent concedes that "the courts are exclusively vested under the separation of powers doctrine to make adjudication of any issue affecting the penalty to be imposed in a criminal proceeding." (Post, at p. 321 of 151 Cal.Rptr., p. --- of --- P.2d.) However, it is urged that "that is not the issue here. Our concern is with the penalty to be imposed once the adjudication has been made by the court." (Ibid.)

        With all due respect, the issue the dissent concedes is precisely the issue before this court. 4 A judge's ruling on a motion to strike a penalty enhancement factor for purposes of sentencing is itself part of the adjudication process; the imposition of a sentence required or permitted by statute Follows this adjudication.

        This is apparent from numerous prior decisions of this court, some of which are cited in Justice Clark's dissent. For example, in People v. Burke, supra, 47 Cal.2d at p. 52, 301 P.2d at p. 245, this court stated that [151 Cal.Rptr. 316] judicial determination of a motion to strike a penalty enhancement factor at sentencing is "inherently and essentially the province of the court even as the punishment which may or must Follow the offense adjudicated, either with or without a punishment augmentation[587 P.2d 1129] factor, is essentially for the Legislature . . . ." (Emphasis added.) Subsequently, Justice Schauer, in his dissent in People v. Sidener, supra, 58 Cal.2d at p. 653, 25 Cal.Rptr. at p. 702, 375 P.2d at p. 646, noted that a motion to strike a prior conviction for sentencing purposes is "a motion made Prior to entry of judgment in a felony criminal action, the ruling on which will affect the substantial rights of the defendant under The judgment to follow." (Emphasis added.) As the dissent in the present case recognizes (Post, at p. 320, fn. 6, of 151 Cal.Rptr., at p. ----, fn. 6, of --- P.2d), Justice Schauer's opinion in Sidener was subsequently approved by this court. (People v. Tenorio, supra, 3 Cal.3d at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993; see also People v. Navarro (1972) 7 Cal.3d 248, 259, 102 Cal.Rptr. 137, 497 P.2d 481; People v. Clay (1971) 18 Cal.App.3d 964, 968, 96 Cal.Rptr. 213.) 5

        Since a court's ruling on a motion to strike is part of the adjudication process, Burke, Cortez and Ruiz compel the conclusion that the power to strike the penalty enhancement factor in this case is exclusively reserved to the judiciary. Continued adherence to Burke, Cortez and Ruiz is not a judicial usurpation of the Legislature's prerogative. Rather, it is a constitutional protection of the judicial function from legislative usurpation. These cases simply represent a traditional protection of the judiciary's constitutionally reserved functions as neutral arbiters in the sentencing process.

        In the present case the trial court correctly understood that its Responsibility for determining whether to strike the penalty enhancement was of constitutional dimension. Unless this court overrules Burke, Cortez, and Ruiz, and rewrites article III, section 3 of the state Constitution, the decision of the trial court must be upheld.

        CLARK, Justice, dissenting.

        I dissent.

        Three members of the court support the view by lead opinion that a trial court may dismiss a use finding because, they say, the Legislature in enacting section 1203.06 intended to clothe the trial court with discretion to do so. The so-called concurring opinion 1 firmly rejects that view, holding instead that legislative intent is irrelevant because the Legislature lacks constitutional power either to grant or withhold judicial discretion insofar as it affects authority to impose punishment or as in this case to grant leniency for criminal misconduct. I disagree with this novel and far-reaching concept and will examine it after demonstrating that the thesis of the lead opinion [151 Cal.Rptr. 317] is completely untenable and in flagrant disregard of the separation of powers doctrine.

        Defendant, having been found on substantial evidence by a properly instructed jury to have used a firearm during commission of a robbery, is clearly ineligible for probation because the mandatory provisions of Penal Code section 1203.06 so declare. 2 However, the lead opinion commends the trial court's disobedience of section 1203.06, stating that "punishment of the defendant by a term in state prison would accomplish no useful purpose." (Ante, p. 301 of 151 Cal.Rptr., p. ----of ---P.2d.) The justices joining in the lead opinion then explain in justification of their and the trial court's leniency that, as claimed by defendant, he really did not intend to rob the store at all.

        The lead opinion thus intrudes into two areas traditionally considered outside the scope of judicial review. (1) The jury necessarily found defendant Intended to rob the store clerk, else it could not have convicted him. Although the jury's finding is supported by substantial evidence, the majority superimpose their will on the issue of animus furandi, not even acknowledging the court's subordinate role as factfinder. (2) While probation is purely a creature of statute (see Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617; People v. Sidener (1962) 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641, 653; People v. Hess (1951) 104 Cal.App.2d 642, 685-686, 234 P.2d 65) and the Legislature has explicitly directed probation is Not available in the circumstances of this case, the trial court and those justices now joining in the lead opinion have deemed their judgment and authority superior to those of the Legislature.

        It is essential we recognize both what is and what is not at issue here. Those justices joining in the lead opinion contend that because section 1385 authorizes a trial court to dismiss an action "in the furtherance of justice," the court can take Any action which might be deemed a partial dismissal even though such action is contrary to applicable law specifically limiting the court in the particular area of concern. Unless such applicable statute Expressly limits the right to dismiss, according to the majority, the statute is to be governed by the so-called inherent right to dismiss embodied in section 1385. However, the issue here is probation not dismissal. The lead opinion does not take the position that dismissal is warranted in the furtherance of justice. The joining justices apparently deem defendant must stand convicted but that he should not be punished except through probation. Thus they decide a question of the Appropriate degree of punishment to be meted out, and conclude a grant of probation is most appropriate despite legislative direction otherwise.

Legislative Intent

        The justices joining in the lead opinion do not expressly reject and even pay lip service to the proposition that legislative intent is the controlling factor in all matters affecting eligibility for probation. However, by convoluted analysis of legislative intent they conclude that when the Legislature unqualifiedly states probation "shall not be granted to . . . any person who uses a firearm during the commission" of robbery, it meant to condition its language by reserving to the trial court the authority to pick and choose those defendants to whom section 1203.06 shall apply.

Misapplication of Burke

        Such reasoning begins with dicta in People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241. According to the lead opinion, the Burke court holds that a trial court, in reliance on section 1385, may strike the finding of a prior conviction when it determines in the interests of justice the defendant should not be required, because of the prior conviction, to undergo a statutorily [151 Cal.Rptr. 318] increased penalty. while it is too late in the [587 P.2d 1131] day to argue with such proposition, it should be noted that the Burke rule relates to striking a finding of a prior conviction as it relates to enhanced penalty. In contrast, our quest is for legislative authorization for striking a use finding the finding an accused used a firearm in the commission of a specified crime as it relates to probation. 3

        The justices joining in the lead opinion take the next step in their purported attempt to discover legislative intent by applying this reading of Burke as authority for the dismissal of a use finding in order to relieve defendant of an increased penalty mandated by section 12022.5. That section requires augmentation of the penalty when a defendant uses a firearm in the commission of specified crimes. The justices bolster their reasoning by looking to an inapplicable legislative amendment of section 12022.5. Contrary to the implications in the majority opinion, that legislation, even if applicable, would not authorize striking a use finding For any purpose. It authorizes striking only "the additional punishment" for the enhanced penalty provided by section 12022.5. (§ 1170.1, subd. (g).) Thus the amendment makes clear the use finding itself is not to be stricken. Moreover, as to our search for legislative authorization to strike a use finding as it relates to probation, it is indeed significant that while providing expressly for striking section 12022.5 enhancements, the Legislature has declined to make similar provisions for striking the restriction on probation provided by section 1203.06. Section 1170 provides in subdivision (a)(2) that nothing in the applicable statutes "shall affect any provision of law (i. e., § 1203.06) . . . which . . . restricts the granting of probation . . . ." If the justices joining in the lead opinion propose to look to related statutes dealing with section 12022.5 as a means of discerning legislative intent with respect to striking section 1203.06 limitations on probation, there can be but one conclusion the Legislature clearly Did not intend to authorize the striking of such limitations.

        The lead opinion next deals again at length with Burke, concluding that because this court did not pay heed to mandatory language in that case, we need not do so in this case. Again, the Burke language upon which the joining justices rely is dicta, and we deal here with striking a use finding not a finding of prior convictions. Accepting Burke for what it has come to stand for, we deal today with a narrow issue not resolved by Burke or any other reported case does the Legislature intend that a trial court may exercise its discretion to strike a use finding For the purpose of granting probation to one convicted of specified crimes?

Legislative Policy

        If it is the Legislature and not this court which determines policy matters affecting probation and the justices joining in the lead opinion support this proposition then the Legislature in its wisdom can conclude that while striking priors or even striking use findings for some purposes is a properly authorized judicial function, the court nevertheless has no discretion to strike a use finding for the purpose of granting probation. Distillation of legislative intent in related areas, as undertaken by the majority [151 Cal.Rptr. 319] [587 P.2d 1132] in this case, becomes irrelevant if we can directly ascertain intent in the enactment of section 1203.06. While direct ascertainment is available to us, the majority choose to ignore it.

        Legislative concern with the rising incidence of crime in which firearms are used is recognized as proper by the lead opinion. Statutory provisions embodied in section 1203 have long restricted probation in the case of a defendant who commits a serious offense while armed. In 1923 section 1203 was amended to prohibit probation to a criminal who uses or is armed with a deadly weapon in the commission of specified crimes. (Stats.1923, ch. 144, § 1, p. 291.) In 1927 the prohibition was extended (Stats.1927, ch. 770, § 1, p. 1493), and in 1931 it was made more specific (Stats.1931, ch. 786, § 1, p. 1633). However, in 1957 the "unusual case" exception was placed in the statute (Stats.1957, ch. 2054, § 1, pp. 3649-3650), and in 1965 the exception was broadened to allow for probation in previously prohibited cases "in which the interests of justice would be best served" (Stats.1965, ch. 1720, § 1, pp. 3867-3870). The statutes we are here concerned with were enacted in 1975. Section 1203 continues to withhold probation from defendants who use particular deadly weapons except in unusual cases where the interests of justice would best be served. Simultaneously the Legislature enacted section 1203.06 which provides in pertinent part that "(n)otwithstanding the provisions of Section 1203," which section authorizes exceptions in the interests of justice, "(p) robation shall not be granted" to a defendant who uses a firearm in the commission of robbery.

Legislative History

        Fifty-five years of legislative history make the 1975 legislative intent quite clear. Between 1923 and 1957 probation was unavailable to defendants using deadly weapons in committing specified crimes. Between 1957 and 1975 trial courts were allowed discretion in making particular exceptions in the interests of justice. However, in 1975 the Legislature again limited trial court discretion to cases Other than those falling within section 1203.06. To hold now as proposed by the lead opinion that a trial court may continue exercising discretion in All cases decimates section 1203.06. Superimposing themselves on the Legislature, those justices joining in the lead opinion would reinstate pre-1975 discretion. 4

Constitutional Basis For Judicial Power to Dismiss Use Findings

        I next discuss the proposition urged in the concurring opinion that the judiciary can act independently of legislative direction [151 Cal.Rptr. 320] in disregarding or applying penalty enhancing factors. 5

        The cases relied on in the concurring opinion do not support the view that this court has heretofore held that the power to fix or adjust a sentence is constitutionally vested in the sentencing court. In People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, we did not hold that the judicial power to strike prior convictions is constitutionally vested. The issue in that case was Not whether the judicial power to dismiss the allegation of a prior conviction was vested constitutionally or legislatively (former Health & Saf.Code, § 11718). The issue was whether, in vesting the power in the judiciary, the Legislature could condition its exercise on approval by the prosecutor. The court held that the separation of powers doctrine precluded the Legislature from so conditioning the exercise of the power to dismiss. 6

        In re Cortez (1971) 6 Cal.3d 78, 98 Cal.Rptr. 307, 490 P.2d 819 does Not hold that the judiciary is constitutionally vested with power to disregard a penalty enhancing factor there at issue. The case dealt with implementing the retroactive benefits of Tenorio. If the decision in Tenorio leaves doubts as to the fundamental law on which it is based, Cortez firmly establishes that the court's power to reject penalty enhancing factors is dependent upon legislative enactments. That case deals with a trial court's authority to strike prior narcotic convictions for purposes of making the defendant eligible for probation otherwise prohibited by operation of former Health and Safety Code section 11715.6.

        Although the language of section 11715.6 precluded a discretionary act by the court, we held without debate that a court was vested with discretionary authority to strike or dismiss a prior conviction for purposes of granting probation. In doing so we did Not rely on claimed constitutional power to determine sentences independently of legislative direction. We relied on legislation contained in section 1203 authorizing discretionary leniency in " 'mitigation of punishment prescribed by law, or (where) the ends of justice would be subserved by granting probation to the defendant.' " (Id. at p. 85, 98 Cal.Rptr. at p. 311, 490 P.2d at p. 823.) Had we recognized the power to dismiss to be constitutionally grounded, we would not have sought out legislation authorizing the dismissal. 7

        The third case relied upon in the concurring opinion People v. Ruiz (1975) 14 Cal.3d 163, 120 Cal.Rptr. 872, 534 P.2d 712 is inapplicable for reasons similar to those which make Cortez inapplicable. Again the issue in Ruiz was the applicability of Tenorio relief by striking a prior narcotics conviction. Again, we did Not rely on claimed constitutional power to disregard legislative [151 Cal.Rptr. 321] [587 P.2d 1134] direction in striking priors, and relied instead on Cortez which, as we have seen, is grounded on statutory authorization to strike priors in cases such as Ruiz and Cortez. Ruiz is also distinguishable for reasons of the different controlling statutes. (See fn. 7, Ante.)

        The concurring opinion relies further only on statements in People v. Burke, supra, 47 Cal.2d 45, 52, 301 P.2d 241 and People v. Tenorio, supra, 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993, that it is the judiciary which is constitutionally vested with power to Adjudicate and Determine penalty enhancing factors. There has never been any doubt that the courts are exclusively vested under the separation of powers doctrine to make adjudication of any issue affecting the penalty to be imposed in a criminal proceeding. But that is not the issue here. Our concern is with the penalty to be imposed once the adjudication has been made by the court. "(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, 488, 470 P.2d 617, 624; see also People v. Knowles (1950) 35 Cal.2d 175, 181, 217 P.2d 1; People v. Hess (1951) 104 Cal.App.2d 642, 685, 234 P.2d 65.) "(T)he legislative branch of the government has the power to declare that in certain . . . cases, probation may not be granted. The exercise of such power in no way impinges upon the jurisdiction of the judicial branch of the government. It does not impair, restrict nor enlarge upon the jurisdiction of the courts. The function of the courts is to determine the guilt or innocence of an accused. What disposition may thereafter be made by way of penalty is for the Legislature to determine." (People v. Hess, supra, 104 Cal.App.2d 642, 685-686, 234 P.2d 65, 93; see also Stephens v. Toomey (1959) 51 Cal.2d 864, 869-870, 338 P.2d 182; People v. Perry (1964) 230 Cal.App.2d 258, 262-263, 40 Cal.Rptr. 829, People v. Orrante (1962) 201 Cal.App.2d 553, 559-566, 20 Cal.Rptr. 480.)

        Surely it must be understood that if the concurring opinion is correct, then large portions of the Penal Code those fixing penalties for the crimes defined constitute acts in excess of constitutional limitations and would be void. However, the Chief Justice herself has in another recent expression acknowledged that it is the Legislature in which the Constitution vests authority to prescribe criminal penalties binding the judiciary. In determining the existence of great bodily injury as a penalty enhancing factor in rape, the Chief Justice stated: "(P)ersonal repugnance toward these crimes cannot be a legitimate basis for rewriting the statute as it was adopted by the Legislature. It is precisely because emotions are so easily called into play in such situations that extra precaution must be taken so that this court follows the legislative intent and not our own predelictions or beliefs. This court has no choice in this matter. It must accept the Legislature's intent despite any personal feelings to the contrary. . . . (T)he Legislature is the proper governmental body to consider whether rape per se is a basis for the enhancement of punishment and to so provide if they deem it appropriate." (People v. Caudillo (1978) 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274, conc. opn. by Bird, C. J., pp. 589-590, 146 Cal.Rptr. p. 875, 580 P.2d p. 290.)

        The matter at issue is the power to grant probation in circumstances where probation is proscribed by section 1203.06. Probation has no constitutional basis and courts have no inherent power to grant it. (People v. Westoby (1976) 63 Cal.App.3d 790, 798, 134 Cal.Rptr. 97; People v. Clay (1971) 18 Cal.App.3d 964, 969, 96 Cal.Rptr. 213; In re Oxidean (1961) 195 Cal.App.2d 814, 817-818, 16 Cal.Rptr. 193.) The power to grant probation is wholly statutory and, consistent with the cited authorities, vested exclusively in the Legislature to direct its application. If the provisions of sections 1203 and 1203.06 require clarification of legislative direction, such clarification appears in the following materials.

Legislative Clarity and Emphasis

        Is it possible for the Legislature to speak in terms more clear than in its statutory [151 Cal.Rptr. 322] [587 P.2d 1135] language? It has done so. The legislative counsel's summary of the 1975 enactments states that the discretion of the trial court to grant probation in unusual cases was eliminated so that "probation and suspension of sentence would be denied, Without any exception in unusual cases in the interest of justice, to any person who uses a firearm during the commission of various felonies, including . . . robbery . . . ." (Leg. Counsel's Dig. of Sen. Bill No. 278, 1 Stats.1975 (Reg.Sess.) Summary Dig., Ch. 1004, p. 262; italics added.) This statement is consistent with a staff memorandum prepared for the Senate Committee on the Judiciary which states that Senate Bill No. 278 (in which the 1975 amendments to section 1203 were made and section 1203.06 was introduced), "Prohibits, Without exception, the granting of probation to persons who have carried or used firearms in connection with certain crimes, for which probation may be obtained under existing law in unusual cases in the interests of justice." (Italics added.)

        The meaning and purpose of Senate Bill No. 278 were further explained by its author, who in a letter written to the Governor, stated that enactment of the bill "will tell the courts that a serious crime committed with a gun precludes the granting of probation to the criminal involved . . . and prescribes that a prison sentence is mandatory." (Letter from Senator George Deukmejian addressed to Governor Edmund G. Brown, Jr., 12 Sept. 1975.) Should it really be necessary to tell us again?

        Finally, there exists the statement of Governor Brown issued by press release in which he explained the effects of the legislation. He stated: "By signing this bill, I want to send a clear message to every person in this state that using a gun in the commission of a serious crime means a stiff prison sentence. (P) Whatever the circumstances, however eloquent the lawyer, Judges will no longer have discretion to grant probation even to first offenders." (Governor's Press Release No. 284, 23 Sept. 1975; italics added.)

        The clear message either did not reach the members of this court joining in the lead opinion or they have chosen to ignore the executive as surely as they have the legislative branch of government. 8

        The order striking the use finding, suspending execution of sentence and granting probation, should be reversed and the cause remanded to the trial court for resentencing.

        RICHARDSON, J., concurs.

        MANUEL, Justice, dissenting.

        I dissent.

        Penal Code section 1203 generally provides procedures for the grant of probation. Subdivision (d) of section 1203 sets a limit on those eligible for probation: "(E)xcept in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: . . . ." Subdivision (e) provides that "(w)hen probation is granted in a case which comes within the provisions of subdivision (d), the court shall specify the circumstances indicating that the interests of justice would best be served by such a disposition."

        Section 1203.06, by contrast, provides that "(n)otwithstanding the provisions of Section 1203: (a) Probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons: . . . ."

        A comparison of sections 1203 and 1203.06 makes two things very clear: (1) The Legislature knows how to use language giving [151 Cal.Rptr. 323] the trial court the power to grant probation in the interest of justice to otherwise ineligible[587 P.2d 1136] defendants; and (2) the Legislature does not wish those who come within the classification of section 1203.06 to be placed on probation at all.

        It is a fundamental rule of statutory construction that courts should ascertain the intent of the Legislature so as to effectuate the purpose of the law. (People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 132, 74 Cal.Rptr. 294, 449 P.2d 230.) The lead opinion seeks to escape the reach of section 1203.06 and the rule of construction here noted by stating that because section 1203.06 does not in explicit terms restrict a trial court's power to strike under section 1385, the provision cannot be interpreted to preclude a trial court's exercise of such power in light of People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241. I find this approach to be entirely too mechanical. In enacting section 1203.06 the Legislature intended to bar probation as a sentencing alternative to defendants within its scope. The failure to mention section 1385 obviously was not intended by the Legislature to allow use of that section to negate the clear purpose of section 1203.06.

        If Cortez is correct in stating that "one of the paramount purposes of a motion to strike priors is to make the defendant eligible for probation" (In re Cortez (1971) 6 Cal.3d 78, 85, 98 Cal.Rptr. 307, 310, 490 P.2d 819, 822), the Legislature must have intended to bar the striking of a use finding as a means to circumvent the operation of section 1203.06. Only that interpretation gives effect to the purpose of the statute.

        The net result of the lead opinion is that section 1203.06 accomplishes nothing. If People v. Burke presents an impediment to the implementation of the legislative purpose, as evidenced by the plain language of the statute and its legislative history, then to that extent Burke should be overruled.

        I find it clearly within the power of the Legislature to restrict the granting of probation (Cal.Const. art. IV, § 1; In re Haines (1925) 195 Cal. 605, 622, 234 P. 883), and I conclude that the Legislature has done so in section 1203.06.

"Any person who uses a firearm in the commission or attempted commission of a robbery, assault with a deadly weapon, murder, rape, burglary, or kidnapping, upon conviction of such crime, shall, in addition to the punishment prescribed for the crime of which he has been convicted, be punished by imprisonment in the state prison for a period of not less than five years. Such additional period of imprisonment shall commence upon expiration or other termination of the sentence imposed for the crime of which he is convicted and shall not run concurrently with such sentence."

While the recently enacted provisions of the Determinate Sentence Act confirm the Dorsey result, the new legislation does not purport to affect the granting or denial of probation. Section 1170 subdivision (a)(2) (Stats.1977, ch. 165, § 15, p. ---) provides in this regard that "(n)othing in this article shall affect any provision of law . . . which authorizes or restricts the granting of probation or suspending the execution or imposition of sentence . . . ."

"Notwithstanding the provisions of Section 1203:

"(a) Probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons:

"(1) Any person who used a firearm during the commission or attempted commission of any of the following crimes:

"(i) Murder.

"(ii) Assault with intent to commit murder in violation of Section 217.

"(iii) Robbery, in violation of Section 211.

"(iv) Kidnapping, in violation of Section 207.

"(v) Kidnapping for ransom, extortion, or robbery, in violation of Section 209.

"(vi) Burglary of the first degree, as defined in Section 460.

"(vii) Rape by force or violence, in violation of subdivision (2) of Section 261.

"(viii) Rape by threat of great and immediate bodily harm in violation of subdivision (3) of Section 261.

"(ix) Assault with intent to commit rape, the infamous crime against nature, or robbery, in violation of Section 220.

"(x) Escape, in violation of Section 4530, or Section 4532.

"(2) Any person previously convicted of a felony specified in subparagraphs (i) through (x) of paragraph (1), who was convicted of a subsequent felony and who was armed with a firearm at any time during its commission or attempted commission or was unlawfully armed with a firearm at the time of his arrest for the subsequent felony.

"(b)(1) The existence of any fact which would make a person ineligible for probation under subdivision (a) shall be alleged in the information or indictment, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury.

"(2) This subdivision does not prohibit the adjournment of criminal proceedings pursuant to Division 3 (commencing with Section 3000) or Division 6 (commencing with Section 6000) of the Welfare and Institutions Code.

"(3) As used in subdivision (a) 'used a firearm' means to display a firearm in a menacing manner, to intentionally fire it, or to intentionally strike or hit a human being with it.

"(4) As used in subdivision (a) 'armed with a firearm' means to knowingly carry a firearm as a means of offense or defense."

The 1975 legislation eliminated section 1203's "unusual case" exception in instances in which a defendant uses a firearm in the commission of a serious offense, but contrary to the arguments of the People and of the Governor's press release quoted in footnote 9, Ante, the legislation did not guarantee that every person who uses a firearm in the commission of a serious felony would automatically be denied probation. As noted above, the denial of probation under section 1203.06 follows only if the use of the firearm is specifically alleged in the complaint; the section does not purport to preclude a prosecutor, in his discretion, from declining to plead such an allegation in "an unusual case" nor does it purport to forbid plea bargaining in appropriate cases to avoid ineligibility for probation. (Cf. People v. Flores (1971) 6 Cal.3d 305, 308-309, 98 Cal.Rptr. 822, 491 P.2d 406.) Consequently, the legislation does not have nearly as "automatic" an effect in denying probation as the People suggest.

Indeed, at oral argument the Attorney General conceded that nothing in section 1203.06 prevents a trial court upon motion of a district attorney from striking a use finding Under section 1385 if the district attorney determines, in the exercise of his discretionary judgment, that the evidence is insufficient to support the use allegation. (Under People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, of course, a trial court could similarly strike a use allegation or finding for insufficient evidence on its own motion, without the concurrence of the district attorney.) Having conceded that the trial court retains such a power to strike a use finding under section 1385 notwithstanding section 1203.06, the Attorney General fails to explain why a trial court cannot exercise All of its traditional section 1385 power in such a case. Section 1203.06, of course, contains no provision which purports to permit a trial court to exercise only a portion of its authority under section 1385.

"Any person convicted under this act for having in possession any of the drugs or substances mentioned in section 1 . . . shall upon conviction be punished by imprisonment in the county jail or in the State prison for not more than six years; provided, however, that any such person convicted under this act . . . shall be imprisoned in the State prison for not less than six months nor more than ten years if such person has been previously convicted of a felony . . ., and such previous conviction of a felony is charged in the indictment or information and found to be true by the jury, upon a jury trial, or found to be true by the court, upon a court trial, or is admitted by the defendant."

In any event, the provisions of section 1203.06 are clearly no more "specific" than the provisions of Health and Safety Code section 11712 at issue in Burke, or the provisions of section 12022.5 at issue in Dorsey, or, indeed, the provisions of any of the other mandatory sentencing provisions which, in the past, have not been found to work a repeal of section 1385.

Thus, the suggestion in Justice Manuel's dissent (Post, p. 323 of 151 Cal.Rptr., p. ---- of --- P.2d) that the result urged by that dissent can be reached by the simple expedient of overruling the single case of People v. Burke, supra, is clearly incorrect. In addition to casting aside the decision in Burke, the dissent's suggested statutory interpretation would require the overruling of this court's decisions in Ruiz, Navarro, Cortez, and Tenorio as well as every Court of Appeal decision which has upheld the trial courts' long established practice of striking for purposes of sentencing.

In any event, this contention is without merit. "(T)he power to strike priors is an essential part of the judicial power" (People v. Tenorio, supra, 3 Cal.3d at p. 93, 89 Cal.Rptr. at p. 251, 473 P.2d at p. 995) and therefore is vested in the Judiciary alone by the separation of powers clause of our Constitution. Statutes such as Penal Code section 1385 or former Health and Safety Code section 11718, which refer to the court's power to strike, are merely "evidential of" that power. (People v. Valenti (1957) 49 Cal.2d 199, 206, 316 P.2d 633.)

"Certain of (the court's) implied powers have received legislative definition; but in each instance the enactment neither created nor circumscribed the powers thus defined. Thus, . . . Penal Code section 1385 . . . is not a Grant of jurisdiction to dispose in a particular way of the actions pending before it. The court, by virtue of the constitutional provisions above mentioned, already has the complete power to fully adjudicate and, subject only to Judicial review, finally dispose of, all causes encompassed in the constitutional grant." (People v. Sidener, supra, 58 Cal.2d at pp. 656-657, 25 Cal.Rptr. at p. 704, 375 P.2d at p. 648 (dis. opn. of Schauer, J., fn. omitted, emphasis in original); see also People v. Valenti, supra, 49 Cal.2d at p. 206, 316 P.2d 633; People v. Burke, supra 47 Cal.2d at p. 52, 301 P.2d 241; Bates v. Superior Court (1951) 107 Cal.App.2d 656, 658, 237 P.2d 544.)

The dissent seriously asserts that this court in Cortez found that Penal Code section 1203 provided legislative authorization for the trial court's power to strike the prior conviction in that case. (Post, at pp. 320, 321 of 151 Cal.Rptr., at p. ---- of --- P.2d.) That assertion is mistaken. At no time has Penal Code section 1203 dealt with or even mentioned a court's power to strike a penalty enhancement factor.

The court in Cortez did not refer to section 1203 for the reason ascribed to it by the dissent. Rather, it mentioned that section during its examination of "the purposes underlying a motion to strike prior convictions." (Ibid.) The court relied on section 1203 solely to show that If the prior conviction were stricken, then the statute which otherwise prohibited probation in Cortez' case (i. e., Health & Saf.Code, § 11715.6) no longer would apply to him and he would be eligible for probation within the terms of section 1203. This court did not even remotely suggest that section 1203 itself authorized the striking of the enhancement.

An unbroken line of decisions by the appellate courts of this state including an opinion by Justice Clark authorizes a trial court judge to strike a penalty enhancement, factor even after it has been admitted by the defendant (see, e. g., People v. Mesa (1975) 14 Cal.3d 466, 470-472, 121 Cal.Rptr. 473, 535 P.2d 337 (opn. by Clark, J.); People v. Ruiz, supra, 14 Cal.3d at pp. 166-168, 120 Cal.Rptr. 872, 534 P.2d 712; People v. Navarro, supra, 7 Cal.3d at p. 257, 102 Cal.Rptr. 137, 497 P.2d 481; People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993; People v. Hartsell (1973) 34 Cal.App.3d 8, 12-15, 109 Cal.Rptr. 627) or has been found true by a judge or jury (see, e. g., People v. Prater (1977) 71 Cal.App.3d 695, 700-703, 139 Cal.Rptr. 566; People v. Dorsey (1972) 28 Cal.App.3d 15, 104 Cal.Rptr. 326).

Unless otherwise specified, all statutory references herein are to sections of the Penal Code.

The lead opinion's further implication that insofar as conflict exists between sections 1203.06 and 1385, section 1385 is to be deemed the specific, controlling statute (see, Ante, footnote 17, pp. 309, 310 of 151 Cal.Rptr., p. ---- of --- P.2d), surely cannot be supported. Section 1385 is general in nature, relating to the broad scope of dismissals, whereas section 1203.06 relates to the limited right of dismissals of findings for purposes of probation the very matter at issue. Section 1203.06 is the later enactment adopted by the Legislature in response to the particular problem at hand. A specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates. (Rose v. State of California (1942) 19 Cal.2d 713, 723-724, 123 P.2d 505.)


Summaries of

People v. Tanner

Supreme Court of California
Dec 22, 1978
23 Cal.3d 16 (Cal. 1978)
Case details for

People v. Tanner

Case Details

Full title:The PEOPLE, Plaintiff and Appellant, v. Harold Emory TANNER, Defendant and…

Court:Supreme Court of California

Date published: Dec 22, 1978

Citations

23 Cal.3d 16 (Cal. 1978)
151 Cal. Rptr. 299

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