In this June 20, 1996 ruling, the California Supreme Court gave judges the power to ignore the state's "three strikes and you're out" rule. The court said judges should be allowed to retain their authority to consider different factors when imposing a sentence. Under the California law, anyone with two violent felony convictions could be sent to jail for 25 years to life for any third felony conviction, no matter how minor, unless the prosecutor approved a lesser sentence. Some 20 states and Congress have passed laws calling for mandatory sentences after three convictions.

Cite as 96 C.D.O.S. 4494

THE PEOPLE, Petitioners,

v.

SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;
JESUS ROMERO, Real Party in Interest.

No. S045097

In the Supreme Court of California

Ct. App. D022175

Fourth Appellate District

Division One

Super. Ct. No. SCD103345

San Diego County Superior Court, Hon. William D. Mudd, Judge

COUNSEL

Edwin L. Miller, Jr., District Attorney, Thomas F. McArdle, Paul M.
Morley, Charles E. Nickel, Craig E. Fisher and Paul J. Pfingst,
Deputy District Attorneys, for Petitioner.

Daniel E. Lungren, Attorney General, George Williamson, Chief
Assistant Attorney General, Ronald A. Bass, Assistant Attorney
General, Ronald E. Niver, Gerald Engler, David H. Rose and Sanjay
T. Kumar, Deputy Attorneys General, Gil Garcetti, District Attorney
(Los Angeles), George M. Palmer, Brentford J. Ferreira and Diana L.
Summerhayes, Deputy District Attorneys, Gary T. Yancey, District
Attorney (Contra Costa), L. Douglas Pipes, Deputy District Attorney,
and Kent S. Scheidegger as Amici Curiae on behalf of Petitioner.

No apperance for Respondent.

Francis J. Bardsley, Public Defender, and Gary R. Nichols, Deputy
Public Defender, for Real Party in Interest.

Michael P. Judge, Public Defender (Los Angeles), Albert J. Menaster,
Tracy Mooney and Alex Ricciardulli, Deputy Public Defenders,
Charles H. James, Public Defender (Contra Costa), Ron Boyer,
Deputy Public Defender, John T. Philipsborn and R. Clayton
Seaman, Jr., as Amici Curiae on behalf of Real Party in Interest.

Filed Jne 20, 1996

WERDEGAR, J.:

Penal Code section 1385, subdivision (a), authorizes a trial court to
dismiss a criminal action "in furtherance of justice" on its own motion.
(All further statutory citations are to the Penal Code except as noted.)
We have held that the power to dismiss an action includes the lesser
power to strike factual allegations relevant to sentencing, such as the
allegation that a defendant has prior felony convictions. (People v.
Thomas (1992) 4 Cal.4th 206, 209-210; People v. Burke (1956) 47
Cal.2d 45, 50-51.) This case raises the question whether a court may,
on its own motion, strike prior felony conviction allegations in cases
arising under the law known as "Three Strikes and You're Out."
(section 667, subds. (b)-(i), added by Stats. 1994, ch. 12, section 1,
effective Mar. 7, 1994; see also section 1170.12, added by initiative,
Gen. Election Nov. 8, 1994 [Proposition 184].) Although the
Legislature may withdraw the statutory power to dismiss in
furtherance of justice, we conclude it has not done so in the Three
Strikes law. Accordingly, in cases charged under that law, a court
may exercise the power to dismiss granted in section 1385, either on
the court's own motion or on that of the prosecuting attorney, subject,
however, to strict compliance with the provisions of section 1385 and
to review for abuse of discretion.

I. BACKGROUND

A. The Three Strikes Law

The Three Strikes law consists of two, nearly identical statutory
schemes designed to increase the prison terms of repeat felons. The
earlier provision, which the Legislature enacted, was codified as
section 667, subdivisions (b) through (i). The later provision, which
the voters adopted through the initiative process, was codified as
section 1170.12.[FOOTNOTE 1]

The legislative version of the Three Strikes law began as Assembly
Bill No. 971, which was introduced on March 1, 1993. (Assem. Bill
No. 971 (1993-1994 Reg. Sess.).) As originally introduced, the bill
would have added a new section 1170.12 to the Penal Code, imposing
doubled sentences on second time felons and life sentences on third
time felons. The bill failed in the Assembly Committee on Public
Safety on April 20 of that year. A motion to reconsider was granted,
but no further hearings on the bill would take place until 1994.

Meanwhile, on October 7, 1993, a petition to add Proposition 184 to
the ballot for the November 1994 General Election began to circulate
for signatures. The initiative was loosely based on Assembly Bill No.
971 and likewise proposed to add a new section 1170.12 to the Penal
Code. A notable difference between the original bill and the initiative
was that the bill counted all prior felonies as "strikes" in determining
the defendant's sentence, while the initiative counted prior felonies
only if they were defined as "violent" or "serious" in other sections of
the Penal Code. (See section 667.5, subd. (c) [defining "violent
felony"]; section 1192.7, subd. (c) [defining "serious felony"].)
Another notable difference was that the initiative permitted the
prosecutor to move to strike prior felony conviction allegations "in the
furtherance of justice pursuant to section 1385," while the bill
permitted a motion to strike only for insufficient evidence.

On January 3, 1994, while Proposition 184 was circulating, the
sponsors of Assembly Bill No. 971 amended it to conform to the
language of the initiative, with minor exceptions. The bill underwent
its only further significant amendment on January 13, when the
proposal was made to codify its provisions as subdivisions (b)
through (i) of section 667, rather than as a new section 1170.12. Both
the Senate and the Assembly approved the bill on March 3, 1994. The
Governor signed it on March 7. It took effect as an urgency measure
the same day.

March 7, 1994, was also the last day on which Proposition 184 could
lawfully circulate for signatures. On April 6, 1994, the Secretary of
State certified the initiative for the ballot, and the voters approved it at
the general election on November 8, 1994. It took effect the next day,
codified as section 1170.12.

The case before us involves a crime committed on May 9, 1994. It
thus arises under the legislative statute (section 667, subds. (b)-(i))
rather than under the initiative statute (section 1170.12). While the two
statutes differ in minor respects, no such difference affects the
questions before us in this case.[FOOTNOTE 2] In summary, both
statutes have this effect: When a defendant is convicted of a felony,
and it is pleaded and proved that he has committed one or more prior
felonies defined as "violent" or "serious," sentencing proceeds under
the Three Strikes law "[n]otwithstanding any other law" (section 667,
subd. (c); section 1170.12, subd. (a).) Prior felonies qualifying as
"serious" or "violent" are taken into account regardless of their age.
(section 667, subd. (c)(3); section 1170.12, subd. (a)(3).) The current
felony need not be "violent" or "serious." (section 667, subd. (c);
section 1170.12, subd. (a).) If the defendant has only one qualifying
prior felony conviction, the prescribed term of imprisonment (or the
minimum term if the current offense calls for an indeterminate
sentence) is "twice the term otherwise provided as punishment for the
current felony conviction." (section 667, subd. (e)(1); section
1170.12, subd. (c)(1).) If the defendant has two or more prior
qualifying felonies, the prescribed sentence is "an indeterminate term
of life imprisonment . . . ." (section 667, subd. (e)(2)(A); section
1170.12, subd. (c)(2)(A).) Those defendants who are sentenced to
life become eligible for parole on a date calculated by reference to a
"minimum term." The "minimum term" is the greater of: (a) three
times the term otherwise provided for the current conviction; (b) 25
years; or (c) the term required by section 1170 for the current
conviction, including any enhancements (the Determinate Sentencing
Act of 1976), the term required by section 190 (concerning homicide),
or the term required by section 3046 (concerning life sentences).
(section 667, subd. (e)(2)(A)(i)-(iii); section 1170.12, subd. (c)(2)(A)
(i)-(iii).) Sentencing on all current offenses is generally consecutive
(section 667, subds. (c)(6)-(8); section 1170.12, subds. (a)(6)-(8))
without any aggregate term limitation (section 667, subd. (c)(1);
section 1170.12, subd. (a)(1)). In sentencing, the court may not grant
probation, suspend execution or imposition of sentence (section 667,
subd. (c)(2); section 1170.12, subd. (a)(2)), divert the defendant, or
commit the defendant to any facility other than state prison (section
667, subd. (c)(4); section 1170.12, subd. (a)(4)).

B. Facts

On June 3, 1994, the District Attorney of San Diego County filed an
information in the superior court charging defendant Jesus Romero
with possession of a controlled substance, namely 0.13 grams of
cocaine base, in violation of Health and Safety Code section 11350,
subdivision (a). The information also alleged defendant had
previously been convicted of the following felonies on the dates
indicated: second degree burglary (section 459) on June 25, 1980;
attempted burglary of an inhabited dwelling (sections 459, 664) on
November 16, 1984; first degree burglary of an inhabited dwelling
(section 459) on September 2, 1986; and possession of a controlled
substance (Health & Saf. Code, section 11350, subd. (a)) on April 6,
1992, and June 8, 1993.

Defendant's two prior serious felonies (see section 667, subd. (d)(1);
section 1192.7, subd. (c) [defining "serious felony"]), namely
burglary and attempted burglary of inhabited dwellings, made him
eligible for a life sentence under the Three Strikes law. (section 667,
subd. (e)(2).) Without the prior felony conviction allegations,
defendant's sentence would fall between one and six years. The
current offense, possession of a controlled substance (Health & Saf.
Code, section 11350, subd. (a)), is punishable by sixteen months,
two years, or three years in state prison (ibid.; section 18). The three
prior felonies for which defendant served prison terms within the last
five years, unless stricken pursuant to section 1385, would result in
three consecutive one-year enhancements added to the base term for
possession of a controlled substance. (section 667.5, subd. (b).)
Defendant's prior felonies do not call for five-year enhancements
(section 667, subd. (a)) because the current offense is not defined as a
"serious felony." (section 1192.7, subd. (c).)

Defendant pled not guilty. At a subsequent hearing, the court indicated
its willingness to consider striking the prior felony conviction
allegations if defendant changed his plea to guilty as charged on all
counts. The prosecutor objected to that procedure, arguing the court
had no power to dismiss prior felony allegations in a Three Strikes
case unless the prosecutor asked the court to do so. The court
disagreed. To interpret the Three Strikes law in this way, the court
reasoned, would violate the constitutional doctrine of separation of
powers. (Cal. Const., art. III, section 3; see People v. Tenorio (1970)
3 Cal.3d 89.) After cautioning defendant that the court "was making
no promises in the case," the court permitted defendant to change his
plea and struck the prior felony conviction allegations. At the
sentencing hearing, the court heard further argument by the
prosecuting attorney on the propriety of striking the prior felony
conviction allegations. The court considered the prosecutor's
arguments about the requirements of the Three Strikes law,
defendant's criminal history and history of drug abuse, and the court's
knowledge of sentences imposed in similar cases. Having done so,
the court reaffirmed its decision to strike the prior felony conviction
allegations and imposed a sentence of six years in state prison. This
sentence represented the upper term for possession of a controlled
substance (section 11350, subd. (a)) plus three consecutive one-year
enhancements for defendant's prior felony convictions (section 667.5,
subd. (b)).

The district attorney petitioned for a writ of mandate to require the
superior court to vacate its order striking the prior felony conviction
allegations and to resentence defendant accordingly. The Court of
Appeal concluded the trial court had no power to dismiss prior felony
allegations on its own motion in a Three Strikes case; the court
therefore directed issuance of a writ requiring the trial court to vacate
the sentence and to permit defendant to withdraw his plea. We granted
defendant's petition for review.

II. DISCUSSION

The ultimate question before us is whether a trial court may dismiss
prior felony conviction allegations in furtherance of justice on its own
motion in a case brought under the Three Strikes law. In answering
this question, two statutes are of central importance. The first is
section 1385 (hereafter section 1385, 1385(a), or 1385(b), as
appropriate). It provides as follows: "(a) The judge or magistrate may,
either of his or her own motion or upon the application of the
prosecuting attorney, and in the furtherance of justice, order an action
to be dismissed. The reasons for the dismissal must be set forth in an
order entered in the minutes. No dismissal shall be made for any cause
which would be ground of demurrer to the accusatory pleading.
[para.] (b) This section does not authorize a judge to strike any prior
conviction of a serious felony for purposes of enhancement of a
sentence under Section 667."[FOOTNOTE 3]

As mentioned, we have construed section 1385(a) as permitting a
judge to dismiss not only an entire case, but also a part thereof,
including the allegation that a defendant has previously been convicted
of a felony. (People v. Thomas, supra, 4 Cal.4th at pp. 209-210;
People v. Burke, supra, 47 Cal.2d at pp. 50-51.) When a court strikes
prior felony conviction allegations in this way, it "'does not wipe out
such prior convictions or prevent them from being considered in
connection with later convictions.'" (People v. Burke, supra, 47
Cal.2d at p. 51.) Instead, the order striking such allegations simply
embodies the court's determination that, "'in the interest of justice'
defendant should not be required to undergo a statutorily increased
penalty which would follow from judicial determination of [the
alleged] fact." (Id. at p. 50.)

The other statute of central importance to this case is section 667,
subdivision (f) (hereafter section 667(f), 667(f)(1), or 667(f)(2), as
appropriate). A part of the Three Strikes law, the statute provides as
follows: "(f)(1) Notwithstanding any other law, subdivisions (b) to
(i), inclusive, shall be applied in every case in which a defendant has a
prior felony conviction as defined in subdivision (d). The prosecuting
attorney shall plead and prove each prior felony conviction except as
provided in paragraph (2). [para.] (2) The prosecuting attorney may
move to dismiss or strike a prior felony conviction allegation in the
furtherance of justice pursuant to Section 1385, or if there is
insufficient evidence to prove the prior conviction. If upon the
satisfaction of the court that there is insufficient evidence to prove the
prior felony conviction, the court may dismiss or strike the
allegation." The initiative version of the statute contains an identically
worded provision. (section 1170.12, subd. (d).)

Defendant argues that the Three Strikes law, if interpreted to permit a
court to strike a prior felony conviction allegation only on the
prosecutor's motion, violates the doctrine of separation of powers.
The doctrine became a part of California law through the adoption of
article III, section 3, of the state Constitution. The section provides
that "[t]he powers of state government are legislative, executive, and
judicial. Persons charged with the exercise of one power may not
exercise either of the others except as permitted by this Constitution."
(Ibid.) We have said the doctrine's "primary purpose is to prevent the
combination in the hands of a single person or group of the basic or
fundamental powers of government." (Parker v. Riley (1941) 18
Cal.2d 83, 89.) Of the many decisions articulating the separation of
powers doctrine, defendant relies primarily on People v. Tenorio,
supra, 3 Cal.3d 89, and opinions following Tenorio. (People v.
Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 64-68; People v.
Navarro (1972) 7 Cal.3d 248, 256-265; In re Cortez (1971) 6 Cal.3d
78, 82-90; Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 124-
128; People v. Clark (1970) 3 Cal.3d 97, 98-99; People v. Clay
(1971) 18 Cal.App.3d 964, 965-971.)

We examine the impact of the separation of powers doctrine at the
outset because constitutional considerations necessarily inform our
interpretation of the statutory language. "If a statute is susceptible of
two constructions, one of which will render it constitutional and the
other unconstitutional in whole or in part, or raise serious and
doubtful constitutional questions, the court will adopt the construction
which, without doing violence to the reasonable meaning of the
language used, will render it valid in its entirety, or free from doubt as
to its constitutionality, even though the other construction is equally
reasonable. [Citations.] The basis of this rule is the presumption that
the Legislature intended, not to violate the Constitution, but to enact a
valid statute within the scope of its constitutional powers." (Miller v.
Municipal Court (1943) 22 Cal.2d 818, 828; see also San Francisco
Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 581;
cf. Crowell v. Benson (1932) 285 U.S. 22, 62 [52 S.Ct. 285, 296,
76 L.Ed. 598] ["When the validity of [an] act of Congress is drawn in
question, and even if a serious doubt of constitutionality is raised, it is
a cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question may
be avoided" (footnote omitted).].)

We begin with the leading case, People v. Tenorio, supra, 3 Cal.3d
89. The defendant in Tenorio was charged with possession of
marijuana in violation of Health and Safety Code section 11350. The
prosecutor alleged the defendant had previously been convicted of the
same offense. While the statute did not mandate a prison sentence for
a first offense, for a second offense the statute required the trial court
to impose a term of two to ten years. A related statute purported to bar
the court from striking the prior-conviction allegation without the
prosecutor's consent, in these words: "''[n]o allegation of fact which,
if admitted or found to be true, would change the penalty for the
offense charged from what the penalty would be if such fact were not
alleged and admitted or proved to be true may be dismissed by the
court or stricken from the accusatory pleading except upon motion of
the district attorney.'" (3 Cal.3d at p. 91, quoting former Health &
Saf. Code, section 11718.) Despite this statute, the trial court struck
the prior-conviction allegation, reasoning that the Legislature had
violated the separation of powers doctrine by giving the prosecutor the
power to veto the court's decision to dismiss. The People appealed,
and we granted review.

We had addressed the same issue just eight years earlier in People v.
Sidener (1962) 58 Cal.2d 645. In an opinion for a majority of four,
Justice Traynor wrote that Health and Safety Code section 11718 did
not violate the separation of powers doctrine; instead, section 11718
merely adopted part of the prosecutor's common law power of nolle
prosequi. California's first Legislature had abolished the doctrine of
nolle prosequi in a statute that later became Penal Code section
1386.[FOOTNOTE 4] (Crim. Prac. Act of 1850, section 630, Stats.
1850, ch. 119, p. 323.) Nevertheless, Justice Traynor reasoned, a
prosecutor who had enjoyed the power of nolle prosequi would have
been able to dismiss charges at any time - before the jury was
impaneled, while the case was before the jury, or after verdict. "It
would exalt form over substance," Justice Traynor wrote, "to hold
that broad constitutional principles of separation of powers and due
process of law permit vesting complete discretion in the prosecutor
before the case begins, but deny him all discretion once the
information is filed." (58 Cal.2d at pp. 650-651.)

Justice Schauer, joined by Justices McComb and White, dissented.
(People v. Sidener, supra, 58 Cal.2d 645, 652 (dis. opn. of Schauer,
J.); see also id. at p. 674 (dis. opn. of White, J.).) Justice Schauer
criticized Justice Traynor's historical premise, arguing that the power
of nolle prosequi had never existed in California or the territories that
became California. (People v. Sidener, supra, 58 Cal.2d at pp. 658-
662 [dis. opn. of Schauer, J.].) Furthermore, Justice Schauer
reasoned, the disposition of pending charges was a judicial, rather
than a prosecutorial or executive, function; accordingly, the statute in
question "violate[d] [the] requirement of separation of powers by
subjecting the exercise of an inherently judicial function to the
unfettered and unreviewable discretion of the district attorney, a
member of the executive branch of government." (Id. at p. 671.)

In People v. Tenorio, supra, 3 Cal.3d 89, the court unanimously
overruled People v. Sidener, supra, 58 Cal.2d 645, largely adopting
the reasoning of Justice Schauer's dissenting opinion in that case. The
author of the opinion in Tenorio, and one other justice, had signed
Justice Traynor's opinion in Sidener. Nevertheless, having
"reexamined the views expressed therein," the court "conclude[d] that
Sidener must be overruled." (People v. Tenorio, supra, 3 Cal.3d at p.
91.)

Because the precise holding in People v. Tenorio, supra, 3 Cal.3d 89,
is critically important to the case before us, it is perhaps best to let the
court that decided Tenorio speak in its own words. These are the
court's reasons for overruling its decision in People v. Sidener, supra,
58 Cal.2d 645, and holding unconstitutional a statute purporting to
empower a prosecutor to veto a court's decision to dismiss a prior
conviction allegation:

"Because of the uncertainties in the law prior to 1850 [regarding the
power of nolle prosequi], we agree with all of the justices in Sidener
that arguments based upon California's legal history prior to that date
are undeterminative.

"The history from and after the 1850 Legislature, however, is clear:
No decision, and no legislation, prior to the adoption of [Health and
Safety Code] section 11718 denied that the judiciary has that power to
dismiss which was originally codified in the forerunner of section
1385. The prosecutor has never been able to 'exercise' the power to
dismiss a charged prior - he has only been able to invite the judicial
exercise of that power. Section 11718 provides that no prior found
true 'may be dismissed by the court or stricken from the accusatory
pleading except upon motion of the district attorney.' (Italics added.)
As Justice Schauer argued, the section itself recognizes that the
dismissal power is still exercised by the court, but purports to
condition that exercise upon a prosecutor's prior approval. Thus, even
if the Legislature could constitutionally remove the power to strike
priors from the courts, it has not done so, but rather has purported to
vest in the prosecutor the power to foreclose the exercise of an
admittedly judicial power by an appropriate judicial officer. It is no
answer to suggest that this is but a lesser included portion of the
prosecutor's discretion to forego prosecution, as the decision to
forego prosecution does not itself deprive persons of liberty.

"When the decision to prosecute has been made, the process which
leads to acquittal or to sentencing is fundamentally judicial in nature.
Just as the fact of prosecutorial discretion prior to charging a criminal
offense does not imply prosecutorial discretion to convict without a
judicial determination of guilt, discretion to forego prosecution does
not imply discretion to sentence without a judicial determination of
those factors which the Legislature has never denied are within the
judicial power to determine and which relate to punishment. The
judicial power is compromised when a judge, who believes that a
charge should be dismissed in the interests of justice, wishes to
exercise the power to dismiss but finds that before he may do so he
must bargain with the prosecutor. The judicial power must be
independent, and a judge should never be required to pay for its
exercise." (People v. Tenorio, supra, 3 Cal.3d at p. 94.)

One may fairly summarize the court's reasoning in this way: Whether
or not the power of nolle prosequi ever existed, and conceding the
Legislature's power to bar a court from dismissing certain charges
altogether, when the Legislature does permit a charge to be dismissed
the ultimate decision whether to dismiss is a judicial, rather than a
prosecutorial or executive, function; to require the prosecutor's
consent to the disposition of a criminal charge pending before the
court unacceptably compromises judicial independence.

The court in People v. Tenorio, supra, 3 Cal.3d 89, expressly
declared that its holding would apply retroactively. (Id. at p. 95, fn.
2.) The court included in its opinion the specific direction that "[a]ny
prisoner suffering a sentence imposed after the effective date of Health
and Safety Code section 11718 (Sept. 18, 1959) and augmented by
virtue of a prior narcotics conviction may file a habeas corpus petition
with the superior court inviting the exercise of discretion to dismiss
the prior conviction." (Ibid.) Subsequently, the court unanimously
granted relief to defendants who had been sentenced before the
decision in Tenorio by trial courts who had, for that reason,
misunderstood the scope of their discretion. (People v. Clark, supra,
3 Cal.3d 97; In re Cortez, supra, 6 Cal.3d 78.)

In subsequent cases, the court relied on Tenorio, supra, 3 Cal.3d 89,
to hold unconstitutional other statutes purporting to give prosecutors
the power to veto similar judicial decisions related to the sentencing or
other disposition of criminal charges. In People v. Navarro, supra, 7
Cal.3d at pages 258-260, the court unanimously held unconstitutional
a statute (former Welf. & Inst. Code, section 3051) requiring a trial
court to obtain the prosecutor's consent before sentencing a defendant
to a treatment program for narcotics addicts. In Esteybar v. Municipal
Court, supra, 5 Cal.3d at pages 124-128, the court unanimously
invalidated a statute (former section 17, subd. (b)(5)) forbidding a trial
court, without the prosecutor's approval, to treat a "wobbler" as a
misdemeanor rather than as a felony. In People v. Superior Court (On
Tai Ho), supra, 11 Cal.3d at pages 64-68, the court struck down a
law (former section 1000.2) permitting a prosecutor to veto a court's
decision to divert a defendant charged with a narcotics offense to a
pretrial program of treatment and rehabilitation. (See also People v.
Clay, supra, 18 Cal.App.3d at pages 967-970 [relying on Tenorio to
invalidate a statute (former section 1203) permitting the court to grant
probation in certain cases only with the concurrence of the district
attorney].) Following each of these decisions, the Legislature repealed
the invalid statute or amended it to remove the provision purporting to
give a prosecutor the power to veto a judicial decision.[FOOTNOTE
5]

In construing the Three Strikes law we cannot ignore the closely
relevant holding of Tenorio, supra, 3 Cal.3d 89, because we must
give the law a constitutional interpretation if that is reasonably
possible. (See ante, page 9.) The statute this court invalidated in
Tenorio provided that "no allegation of fact which, if admitted or
found to be true, would change the penalty for the offense charged
from what the penalty would be if such fact were not alleged and
admitted or proved to be true may be dismissed by the court or
stricken from the accusatory pleading except upon motion of the
district attorney." (Former Health & Saf. Code, section 11718.) The
applicable provision of the Three Strikes law (section 667(f)(2);
section 1170.12, subd. (d)(2)), if construed as the district attorney
would have us construe it, would have precisely the same effect: A
court that was convinced, in the proper exercise of its discretion, that
justice demanded the dismissal of a prior felony conviction allegation
pursuant to section 1385, would have no power to dismiss unless the
prosecutor consented. So interpreted, the statute would appear to
violate the doctrine of separation of powers.[FOOTNOTE 6]

The district attorney, and amici curiae supporting his position, argue
the Three Strikes law can be construed as barring a court from
dismissing prior felony conviction allegations sua sponte pursuant to
section 1385 without violating the separation of powers doctrine. The
argument may be summarized as follows: The Legislature may
completely eliminate a trial court's power to strike prior felony
allegations. (People v. Thomas, supra, 4 Cal.4th at pp. 210-211;
People v. Valencia (1989) 207 Cal.App.3d 1042, 1045; cf. People v.
Tanner (1979) 24 Cal.3d 514, 519, fn. 3.) If the Legislature, having
eliminated that power, chooses to exercise additional control over the
criminal process by subjecting the prosecutor's charging discretion to
judicial oversight, then that additional step does not violate the
separation of powers. The Three Strikes law, to continue the
argument, can be interpreted as having such an effect: It requires a
prosecutor to plead and prove all known prior felony convictions (see
section 667(f)(1); section 1170.12, subd. (d)(1)), but permits the
prosecutor to ask the court to strike any prior felony conviction
allegations on which the prosecutor, in furtherance of justice or for
insufficient evidence, does not wish to proceed (see section 667(f)(2);
section 170.12, subd. (d)(2)). The combined effect of these
provisions, to conclude the argument, amounts to judicial oversight of
the prosecutor's charging discretion rather than a limitation on the
court's power to strike, and enhances judicial power rather than
restricting it.

This view of the statute is impossible to accept. To describe the statute
as subjecting the prosecutor's charging discretion to judicial oversight
is sophistic. The statute does not purport to require the court to
oversee the prosecutor's charging decisions. Nor does the court, in
reality, exercise any power over the prosecutor's charging decisions.
Any decision to dismiss is necessarily made after the prosecutor has
invoked the court's jurisdiction by filing criminal charges. "[O]nce the
state is ready to present its case in a judicial setting, 'the prosecutorial
die has long since been cast.'" (People v. Superior Court (Greer)
(1977) 19 Cal.3d 255, 263, quoting People v. Superior Court (On Tai
Ho), supra, 11 Cal.3d at p. 650.) In comparison, the restriction on the
court's power to dismiss is real: Construing the law as the district
attorney construes it, the court may not dismiss or strike a prior felony
allegation except on the prosecutor's motion.

The notion that a statute with the effect described may be construed
and justified as dealing with charging discretion, rather than with the
court's disposition of pending charges, was expressly and flatly
rejected in Tenorio, supra, 3 Cal.3d at page 94 (see ante, p. 11):
"When the decision to prosecute has been made, the process which
leads to acquittal or to sentencing is fundamentally judicial in nature."
(See also People v. Superior Court (On Tai Ho), supra, 11 Cal.3d at
p. 66 [ "[W]hen the jurisdiction of a court has been properly invoked
by the filing of a criminal charge, the disposition of that charge
becomes a judicial responsibility."]; Esteybar v. Municipal Court,
supra, 5 Cal.3d at p. 127 [same].)

The Attorney General suggests the Three Strikes law serves the
purpose of the separation of powers doctrine by making the decision
to dismiss under section 1385 a "joint" decision, in the sense that the
court and the prosecutor each may veto the other's preferred
disposition. The restriction on the prosecutor's charging discretion
contained in the Three Strikes law (see section 667(f)(1) [requiring the
prosecutor to "plead and prove" all prior felony convictions]), the
Attorney General argues, distinguishes the Three Strikes law from the
statute involved in Tenorio, supra, 3 Cal.3d 89, which limited the
court's power without also limiting the prosecutor's charging
discretion. This view of the statute, however, does not avoid
Tenorio's holding that the disposition of a charge is a judicial
responsibility. Interference with the traditional prerogatives of the
executive cannot justify interference with the independence of the
judiciary.[FOOTNOTE 7]

The Attorney General also argues that events subsequent to our
decision in Tenorio, supra, 3 Cal.3d 89, afford a basis for questioning
its validity. "Since Tenorio," he writes, "the Legislature and the
electorate have repeatedly applied the rule that judicial discretion under
section 1385 may be curtailed. (See People v. Thomas, supra, 4
Cal.4th at p. 208; People v. Tanner, supra, 24 Cal.3d at pp. 520-521;
People v. Valencia [supra, 207 Cal.App.3d at p. 1045].) While it may
have been true when Tenorio was decided that from 1850 until then
'no legislation . . . denied that the judiciary has that power to dismiss
which was originally codified in the forerunner of section 1385'
(People v. Tenorio, supra, 3 Cal.3d at p. 94), such is obviously not
the case today."

The Attorney General has misconstrued the quoted passage from
Tenorio, supra, 3 Cal.3d at page 94. In context, the court was not
claiming a power to dismiss, in furtherance of justice, that would be
exempt from legislative restriction. Instead, the court maintained only,
as its next sentence explains, that "[t]he prosecutor has never been
able to 'exercise' the power to dismiss a charged prior - he has only
been able to invite the judicial exercise of that power." (Ibid., italics
added.) In other words, dismissal - for whatever reason - is a judicial
rather than an executive function. While the power of nolle prosequi
might permit a prosecutor to make the unilateral decision to abandon a
prosecution, the power does not exist. (section 1386.) Therefore, the
prosecutor may ask the court to dismiss pursuant to section 1385, but
"neither the Attorney General nor the district attorney can discontinue
or abandon a prosecution for a public offense, except as provided in
Section 1385." (section 1386.)

That the Legislature and the electorate may eliminate the courts' power
to make certain sentencing choices may be conceded. "[S]ubject to the
constitutional prohibition against cruel and unusual punishment, the
power to define crimes and fix penalties is vested exclusively in the
legislative branch." (Keeler v. Superior Court (1970) 2 Cal.3d 619,
631; see also People v. Thomas, supra, 4 Cal.4th at pp. 210-211;
People v. Tanner, supra, 24 Cal.3d at p. 519, fn. 3.) It does not
follow, however, that having given the court the power to dismiss, the
Legislature may therefore "condition its exercise upon the approval of
the district attorney." (People v. Navarro, supra, 7 Cal.3d at p. 260.)
This court has not upheld any law purporting to subject to
prosecutorial approval the court's discretion to dispose of a criminal
charge. Instead, we have consistently held such laws unconstitutional.
(See People v. Superior Court (On Tai Ho), supra, 11 Cal.3d at pp.
64-68; People v. Navarro, supra, 7 Cal.3d at pp. 256-265; In re
Cortez, supra, 6 Cal.3d at pp. 82-90; Esteybar v. Municipal Court,
supra, 5 Cal.3d at pp. 124-128; People v. Clark, supra, 3 Cal.3d at
pp. 98-99; People v. Clay, supra, 18 Cal.App.3d at pp. 965-971.)
The Legislature, as indicated (ante, p. 14), has deferred to the
constitutional principle declared in those decisions by repealing or
amending the invalid statutes.

The cases cited by the Attorney General are not to the contrary. In
People v. Thomas, supra, 4 Cal.4th 206, we upheld a law (section
12022.5, subd. (a)) requiring the court to impose an enhanced
sentence on any person who personally uses a firearm in the
commission or attempted commission of a felony. Because the law
made no exception for cases in which the prosecutor requested the
court to strike, the separation of powers question at issue in this case
was not implicated. The same is true of People v. Tanner, supra, 24
Cal.3d 514, in which we upheld a law (section 1203.06) barring
probation for certain defendants who used firearms in committing their
offenses, and of People v. Valencia, supra, 207 Cal.App.3d 1042, in
which the Court of Appeal upheld a law (section 1385(b))
withdrawing courts' power to strike prior serious felony conviction
allegations made for the purpose of enhancing sentence under section
667, subdivision (a). None of these statutes purported to make the
exercise of a judicial power subject to the prosecutor's approval.

Nor is there anything to the contrary in Davis v. Municipal Court
(1988) 46 Cal.3d 64, in which the court upheld statutes (sections
1001.2, subd. (b), 1001.50, subd. (b)) granting local district
attorneys the authority to approve or disapprove local diversion
programs. The design of diversion programs is not historically, or
necessarily, a judicial function. Moreover, the statute avoided any
separation of powers problem related to the disposition of charges
with the provision that nothing therein "shall authorize the prosecutor
to determine whether a particular defendant shall be diverted." (section
1001.2, subd. (b).) We recognized in Davis that a prosecutor might,
in effect, preclude diversion in a particular case by charging a
"wobbler" as a felony rather than as a misdemeanor; this was possible
because the statute permitted local agencies to adopt programs barring
diversion for defendants initially charged with felonies. But this
result, we reasoned, was entirely consistent with Tenorio, supra, 3
Cal.3d 89, and its progeny, because "in all of those cases the
challenged statutory provisions purported to give a prosecutor the
right to veto a decision made by a court after criminal charges had
already been filed. None of those cases suggests that the exercise of
prosecutorial discretion prior to the filing of such charges improperly
subordinates the judicial branch to the executive in violation of the
Constitution, even though the prosecutor's exercise of such charging
discretion inevitably affects the sentencing or other dispositional
options available to the court." (Davis v. Municipal Court, supra, 46
Cal.3d at p. 82, italics in original.)

Thus, each of the decisions cited by the Attorney General respects the
principle that underlies Tenorio, supra, 3 Cal.3d at p. 94: When the
jurisdiction of a court has been properly invoked by the filing of a
criminal charge, the disposition of that charge becomes a judicial
responsibility. (See also People v. Superior Court (On Tai Ho),
supra, 11 Cal.3d at p. 66; Esteybar v. Municipal Court, supra, 5
Cal.3d at p. 127.) As the foregoing discussion demonstrates, there is
grave doubt whether the statute before us could be construed as the
district attorney would construe it without overruling Tenorio and
rejecting the principle underlying that decision. Yet the holding in
Tenorio represents the considered view of a unanimous court,
expressly overruling a divided opinion announced only eight years
earlier. (People v. Sidener, supra, 58 Cal.2d 645.) In subsequent
opinions this court has followed Tenorio and extended its reasoning to
analogous situations. (See People v. Superior Court (On Tai Ho),
supra, 11 Cal.3d at pp. 64-68; People v. Navarro, supra, 7 Cal.3d at
pp. 256-265; In re Cortez, supra, 6 Cal.3d at pp. 82-90; Esteybar v.
Municipal Court, supra, 5 Cal.3d at pp. 124-128; People v. Clark,
supra, 3 Cal.3d at pp. 98-99; People v. Clay, supra, 18 Cal.App.3d at
pp. 965-971.) Under these circumstances, no sufficient reason to
reconsider the decision appears to exist.[FOOTNOTE 8]

It is against this background that we consider the language of the
Three Strikes law to determine whether the Legislature (and the
electorate) did, or did not, intend to give prosecuting attorneys the
power to veto judicial decisions to dismiss prior felony conviction
allegations in furtherance of justice under section 1385. In doing so,
as explained at the outset, we construe the law to avoid serious doubts
as to its constitutionality if that can be done without doing violence to
the reasonable meaning of the statutory language. (San Francisco
Taxpayers Assn. v. Board of Supervisors, supra, 2 Cal.4th at p. 581;
Miller v. Municipal Court, supra, 22 Cal.2d at p. 828.) "It is not to be
presumed that the Legislature would deliberately enact a statute
prohibited by the Constitution." (People v. Navarro, supra, 7 Cal.3d
at p. 260.)

As mentioned, the judicial power to reduce a defendant's sentence by
striking a sentencing allegation in furtherance of justice is statutory.
Because the power is statutory, the Legislature may eliminate it.
(People v. Thomas, supra, 4 Cal.4th at pp. 210-211; People v.
Valencia, supra, 207 Cal.App.3d at p. 1045.) To do so, the
Legislature need not expressly refer to section 1385. (People v.
Thomas, supra, 4 Cal.4th at p. 211.) This does not mean, however,
that any statute defining the punishment for a crime can be read as
implicitly eliminating the court's power to impose a lesser punishment
by dismissing, or by striking sentencing allegations, under section
1385. This is because the statutory power to dismiss in furtherance of
justice has always coexisted with statutes defining punishment and
must be reconciled with the latter. (See Stats. 1850, ch. 119, section
629, p. 323.) For this reason, we will not interpret a statute as
eliminating courts' power under section 1385 "absent a clear
legislative direction to the contrary." (People v. Thomas, supra, 4
Cal.4th at p. 210; see also People v. Rodriguez (1986) 42 Cal.3d
1005, 1019 [section 1385 is inapplicable in the face of a "more
specific proscription on the court's power"]; People v. Fritz (1985) 40
Cal.3d 227, 230 [requiring "clear language eliminating a trial court's
section 1385 authority whenever such elimination is intended"];
People v. Williams (1981) 30 Cal.3d 470, 482 ["Section 1385 permits
dismissals in the interest of justice in any situation where the
Legislature has not clearly evidenced a contrary intent."].)

We thus arrive at this question: Does the Three Strikes law contain a
"clear legislative direction" that courts may not strike sentencing
allegations in furtherance of justice under section 1385 without the
prosecutor's approval? The need for a clear direction, as demanded by
the cases cited in the preceding paragraph, is increased in this instance
by the grave constitutional questions that would follow from the
recognition of a prosecutorial veto power.

As an initial matter we may quickly reject the argument, which various
amici curiae mention but do not seriously urge, that the Three Strikes
law permits a court to dismiss a prior felony allegation only when
there is insufficient evidence. To read the last sentence of section
667(f)(2)[FOOTNOTE 9] in this simplistic fashion renders
meaningless the preceding sentence's declaration that "[t]he
prosecuting attorney may move to dismiss or strike a prior felony
conviction allegation in the furtherance of justice pursuant to Section
1385 . . . ." No rational drafter would give the prosecutor express
permission to bring a motion the court may not grant.

We may, then, accept as self-evident that the Legislature assumed a
court would at least have the power to grant the prosecutor's motion to
strike a prior felony allegation in the furtherance of justice. The
question then becomes: Does the court also have the power to strike
such an allegation on its own motion? If so, the power must be
granted in a statute, either expressly or by implication. This is
because, as already discussed, the court has no such extra-statutory
power.

Defendant locates the grant of power squarely in section 1385. The
Legislature, he argues, granted the power in that section and did not
take it away in the Three Strikes law. Indeed, defendant contends, the
Three Strikes law confirms that the court retains its powers under
section 1385: Because section 667(f)(2) permits the prosecuting
attorney to "move to dismiss or strike a prior felony conviction
allegation in the furtherance of justice pursuant to Section 1385"
(italics added), a fortiori the court must have power to grant the
motion pursuant to section 1385. The Legislature's reference to
section 1385 is best and most simply read as indicating that the section
still is in full force and effect. That being the case, defendant
concludes, in Three Strikes cases, as in other cases, the trial judge
may dismiss a prior felony conviction allegation not just on the
prosecutor's motion, but also on "his or her own motion," as section
1385 expressly provides.

The district attorney, in opposition, argues that one need not look to
section 1385 to find the court's authority to grant the prosecutor's
motion to strike. Instead, the court's power to grant the prosecutor's
motion is implicit in the language of section 667(f)(2) authorizing the
prosecutor to make the motion. Under this interpretation, section
667(f)(2)'s reference to section 1385 is surplusage, or perhaps merely
intended to illustrate what is meant by a dismissal "in the furtherance
of justice."

The district attorney's' argument is not persuasive. Section 667(f)(2)
says in so many words that the prosecutor may move to dismiss prior
felony allegations "pursuant to Section 1385" (italics added) and not
as if pursuant to the section. The words used clearly indicate the
Legislature proceeded from the assumption that section 1385 remained
in effect in Three Strikes cases. If the Legislature had wanted to
authorize a motion to dismiss in furtherance of justice without
invoking section 1385, it could easily have done so simply by deleting
the words "pursuant to Section 1385."

Indeed, the Legislature considered doing just that. A few days before
passing the final version of Assembly Bill No. 971, the Senate
rejected language that would have removed the reference to section
1385 from section 667(f)(2) and declared that the court might strike
prior felony allegations "only" on the prosecutor's motion. Had the
amendment been adopted, section 667(f)(2) would have provided as
follows: "The court may dismiss or strike a prior felony conviction
allegation only upon motion of the prosecuting attorney made on the
ground that there is insufficient evidence to prove the prior felony
conviction or in the furtherance of justice." (Senate Floor Amend. RN
9406668 to Assem. Bill No. 971 (1993-1994 Reg. Sess.), Mar. 2,
1994.) That the amendment was not adopted makes it difficult to view
the final wording of section 667(f)(2), including the reference to
section 1385, as anything but a purposeful choice.

Nor is it likely that the phrase, "pursuant to section 1385," was
intended merely to illustrate what was meant by a dismissal in
furtherance of justice without implicitly confirming the court's power
to act under that section. In view of the long history in this state of
dismissals in furtherance of justice, which have been authorized since
1850 (Stats. 1850, ch. 119, p. 323) and discussed prominently in
case law (e.g., People v. Burke, supra, 47 Cal.2d 45; People v.
Sidener, supra, 58 Cal.2d 645; People v. Tenorio, supra, 3 Cal.3d
89; People v. Tanner, supra, 24 Cal.3d 514; People v. Fritz, supra,
40 Cal.3d 227; People v. Williams, supra, 30 Cal.3d 470), there is no
realistic chance the concept of a dismissal in furtherance of justice
would have been misunderstood absent an illustrative reference to a
section giving the court a power the Legislature supposedly wished to
nullify.

The opinions cited in the preceding paragraph are some of the most
controversial this court has ever written. At issue in each was whether
a trial court had power to strike, in furtherance of justice under section
1385, particular allegations relevant to sentencing. In view of the
section's prominent and contentious history, the argument that the
Legislature might authorize a motion to be made "pursuant to section
1385" (section 667(f)(2), italics added; section 1170.12, subd.
(d)(2)), without also intending for courts to retain their powers under
the section, is difficult to accept.

A brief review of the history of section 1385 in the decisions of this
court will emphasize the point. Some of the relevant decisions have
already been mentioned. In People v. Burke, supra, 47 Cal.2d 45, a
1956 decision, the court unanimously held that section 1385 gave a
trial court the power to strike sentencing allegations in furtherance of
justice. In People v. Sidener, supra, 58 Cal.2d 645, decided in 1962,
the court upheld, by a vote of four to three, a statute forbidding trial
courts to strike prior-narcotics-offense allegations in narcotics cases
under section 1385 except on the prosecutor's motion. Eight years
later, in People v. Tenorio, supra, 3 Cal.3d 89, the court unanimously
overruled Sidener and declared unconstitutional, as a violation of
separation of powers, the statute purporting to give the prosecutor the
power to veto dismissals in narcotics cases. In doing so, as already
noted, the court largely incorporated Justice Schauer's dissenting
opinion in Sidener. The unanimous court in Tenorio included two of
the Justices who had signed the majority opinion in Sidener.

Controversy over the application of section 1385 continued. In People
v. Tanner, the court had originally decided that trial judges acting
under section 1385 could strike certain firearm-use allegations (section
1203.06) in furtherance of justice. The court subsequently granted
rehearing and reached the opposite conclusion. (People v. Tanner,
supra, 24 Cal.3d 514, 521.) In People v. Williams, supra, 30 Cal.3d
470, a 1981 opinion, the court held that a trial court acting under
section 1385 could strike special circumstance allegations in capital
cases (see section 190.2) in furtherance of justice. The electorate
subsequently limited that power, while not altogether abolishing it,
with an initiative statute that bars a court from striking a special
circumstance allegation after it has been admitted or found to be true.
(section 1385.1, added by initiative, Gen. Elec. [Proposition 115]; see
Tapia v. Superior Court (1991) 53 Cal.3d 282, 298, fn. 17.) Finally,
in People v. Fritz, supra, 40 Cal.3d 227, a 1985 decision, the court
held that a trial judge could strike in furtherance of justice, under
section 1385, prior serious felony conviction allegations made under
section 667, subdivision (a), which mandates a five-year enhancement
for each such conviction. The Legislature responded by adding section
1385(b), which expressly withdrew the court's power to strike such
allegations. (Stats. 1985, ch. 85, section 2, p. 211.)

As the foregoing discussion illustrates, there is a long history of
dispute among the various branches of state government over the
application of section 1385 to sentencing allegations. This history
makes it unlikely in the extreme that legislators, or other drafters,
would expressly authorize motions to be made "pursuant to section
1385" (section 667(f)(2), italics added; section 1170.12, subd. (d)(2))
unless their intent was to confirm that courts would retain their power
to act pursuant to the section. The lesson of section 1385's
controversial history is that references to the section in sentencing
statutes are not lightly or thoughtlessly made. The drafter's express
invocation of section 1385 in the Three Strikes law, together with the
absence of any language purporting to bar courts from acting pursuant
to it, virtually compels the conclusion no such prohibition was
intended.

The Attorney General, appearing as amicus curiae, endorses the
district attorney's position that section 667(f)(2) eliminates the court's
power to strike prior felony conviction allegations sua sponte under
section 1385. The Attorney General, however, argues the point
somewhat differently: He applies the maxim expressio unius est
exclusio alterius.

"We believe," the Attorney General writes, "the plain meaning [of
section 667(f)(2)] is that a prosecutor has power under the statute to
move to strike a prior felony conviction for two separate reasons,
either (1) in the furtherance of justice, or (2) for insufficient evidence.
The contrast is stark between that provision and the provision
regarding the trial court, which provides that the trial court can strike
the prior only for insufficient evidence. If this common sense plain
interpretation needs Latin support, the principle 'expressio unius est
exclusio alterius' provides that the expression of the trial court's
power to strike solely for insufficient evidence plainly implies an
exclusion of that court's power to strike in furtherance of justice. That
common sense interpretation is only strengthened by the contrast
between the statement of the trial court's power, with its single
ground, and the statement in the same paragraph of the prosecutor's
power, with its two grounds."

The argument is not persuasive. The Attorney General contends, in
essence, that section 667(f)(2) exhaustively enumerates the court's
powers on the subject of striking prior felony allegations. Yet, while
acknowledging the court has the power to grant the prosecutor's
motion to strike in furtherance of justice, the Attorney General cannot
point to any language in the statute enumerating that power. Because
of this omission from the statute, to view it as an exhaustive
enumeration of the court's powers on the subject of striking
allegations is impossible. Nor is there any need to view the statute as
an exhaustive enumeration or to look therein for permission to grant
the prosecutor's motion; the section, as already discussed, expressly
refers to section 1385 and declares that the prosecutor's motion is
made "pursuant to" that section.

More importantly, the enumeration of powers in section 667(f)(2),
read in context, has a purpose the Attorney General does not consider.
The immediately preceding subdivision purports to eliminate the
prosecutor's charging discretion in Three Strikes cases, with these
words: "The prosecuting attorney shall plead and prove each prior
felony conviction except as provided in paragraph (2)." (section
667(f)(1), italics added; see also section 1170.12, subd. (d)(1)
[same].) This language ("shall plead and prove") would seem to bar
the prosecutor from moving to strike prior felony conviction
allegations, in the absence of the additional language in paragraph (2)
expressly authorizing such a motion. Thus, on its face, paragraph (2)
purports to be an exception to the prosecutor's duty to prove all prior
felony convictions, rather than a limitation on the court's discretion to
strike. In other words, section 667(f) first purports to remove the
prosecutor's charging discretion completely, and then purports to
replace that discretion with permission to file a motion to strike
"pursuant to section 1385," which the court may or may not
grant.[FOOTNOTE 10]

The theme of subjecting certain prosecutorial decisions to judicial
oversight continues in the next sentence of section 667(f)(2): "If upon
the satisfaction of the court that there is insufficient evidence to prove
the prior felony conviction, the court may dismiss or strike the
allegation." The evident purpose of this language is to require the
court, before granting the prosecutor's motion to strike for insufficient
evidence, to satisfy itself that the evidence truly is insufficient. There
was no need to include language empowering the court to dismiss, on
its own motion, factually unsupported allegations. A statute cannot
constitutionally force a court to impose criminal sanctions based on
insufficient evidence. (See Jackson v. Virginia (1979) 443 U.S. 307,
313-316; cf. In re Winship (1970) 397 U.S. 358, 361-364.)

Next, the district attorney argues the Legislature forbade the court to
act under section 1385 in Three Strikes cases with the first sentence of
section 667(f)(1). The sentence declares: "Notwithstanding any other
law, subdivisions (b) to (i), inclusive, shall be applied in every case in
which a defendant has a prior felony conviction as defined in
subdivision (d)." (Italics added; see also section 1170.12, subd.
(d)(1) [same].) This sentence means, the district attorney contends,
that the sentences mandated in the Three Strikes law (section 667,
subds. (b)-(i)) shall be applied "[n]otwithstanding any other law." In
other words, a court may not employ its powers under section 1385 to
reduce a defendant's sentence.

This is not, however, what the quoted sentence says. It says, rather,
that "subdivisions (b) to (i)" of section 667 - namely the entire Three
Strikes law - "shall be applied in every case in which a defendant has a
prior felony conviction . . . ." (section 667, subd. (f)(1), italics
added.) Section 667 (f)(2), which courts are to apply
"[n]otwithstanding any other law," expressly authorizes the
prosecutor to move to strike prior felony convictions "pursuant to
Section 1385." Thus, the command of the Three Strikes law - that it
shall be applied "[n]otwithstanding any other law" - cannot literally be
followed without reference to and, if appropriate, action "pursuant
to," section 1385.

A simpler reading of the language in question ("[n]otwithstanding any
other law") that more likely describes its probable intent is this: The
Three Strikes law, when applicable, takes the place of whatever law
would otherwise determine defendant's sentence for the current
offense. The language thus eliminates potential conflicts between
alternative sentencing schemes.

The phrase "[n]otwithstanding any other law" can also be found at the
beginning of subdivisions (c) and (d) of section 667. The former
subdivision addresses sentencing, and the latter defines "prior
conviction of a felony." Neither subdivision imposes a command that
is necessarily inconsistent with the court's power to strike under
section 1385.[FOOTNOTE 11]

The district attorney finds an implicit prohibition on the striking of
prior felony allegations in section 667, subdivision (c)(2), which
provides as follows: "Probation for the current offense shall not be
granted, nor shall execution or imposition of the sentence be
suspended for any prior offense." (Italics added.) The district attorney
reads this language ("prior offense") as referring to prior felony
conviction allegations. "The only authorized procedure," he argues,
"for not imposing sentence on a prior conviction at the time of
sentencing is to strike the prior." Thus, he concludes, section 667,
subdivision(c)(2) independently bars a court from acting under section
1385, because the former operates "[n]otwithstanding any other law .
. . ." (section 667, subd. (c) [first paragraph].)

To construe the words "prior offense" in subdivision (c)(2) (italics
added) as meaning prior felony convictions makes no sense in
context. Throughout the Three Strikes law, when the Legislature
intended to refer to a previous conviction of an offense, as it did in
many instances, it properly used the word "conviction." (section 667,
subds. (d), (d)(1), (d)(2), (d)(3), (e), (e)(1), (e)(2), (f)(1), (f)(2),
(g).) Furthermore, the court does not "impos[e] . . . sentence" for a
prior conviction; instead, a prior conviction lengthens the sentence for
the current offense. Thus, the language of section 667, subdivision
(c)(2) literally applies only to a defendant who has not yet been
sentenced for an offense at the time he is sentenced under the Three
Strikes law. This might be the case, for example, when a defendant
committed the felony subject to the Three Strikes law while on
probation for a prior offense. The apparent purpose of section 667,
subdivision (c)(2), is to ensure that such a defendant will be sentenced
on all pending charges.

The district attorney next argues that section 1385(b) independently
bars a court from striking prior felony allegations in Three Strikes
cases, regardless of the language of the Three Strikes law. Section
1385(b) has already been mentioned. It qualifies the general power to
dismiss granted to courts in section 1385(a), in these words: "This
section does not authorize a judge to strike any prior conviction of a
serious felony for purposes of enhancement of a sentence under
Section 667." (section 1385(b).) The Three Strikes law, the district
attorney contends, was codified as part of section 667 and articulates a
sentence "enhancement" within the meaning of section 1385(b). Thus,
he concludes, section 1385(b) expressly bars a court from acting
pursuant to section 1385(a) in Three Strikes cases.

Defendant makes three arguments in opposition to the district
attorney's construction of section 1385. As will appear, we need not
finally resolve them in order to reject the district attorney's
construction.

Defendant's first argument is that section 1385(b) cannot fairly be read
as referring to the Three Strikes law. In 1986, when section 1385(b)
was added to the Penal Code, section 667 did not contain the Three
Strikes law. Instead, former section 667 (now section 667,
subdivision (a)) contained only the provisions mandating five-year
enhancements for prior serious felonies. The Legislature enacted
section 1385(b) later, after the court in People v. Fritz, supra, 40
Cal.3d 227 construed section 667 as not precluding a court from
acting under section 1385 to strike prior serious felony conviction
allegations. Section 1385(b) was enacted by the Legislature "expressly
for the purpose of abrogating People v. Fritz." (People v. Valencia,
supra, 207 Cal.App.3d 1042, 1045.) When a statute such as section
1385(b) refers to the provisions of another statute such as section 667,
defendant argues, "such provisions are incorporated in the form in
which they exist at the time of the reference and not as subsequently
modified . . . ." (Palermo v. Stockton Theaters, Inc. (1948) 32 Cal.2d
53, 58-59.) Consequently, defendant concludes, section 1385(b)
refers to section 667 as it existed at the time section 1385(b) was
enacted, and not as later amended by the Three Strikes law.

Defendant's second argument is that, even if section 1385(b) were
construed as referring to the legislative version of the Three Strikes
law incorporated in section 667, it does not matter, because the only
valid Three Strikes law is the initiative version contained in section
1170.12. The initiative version, which was enacted after the legislative
version, implicitly repeals the earlier version appearing in section 667.
Defendant relies on the rule that, "where two statutes deal with the
same subject matter, the more recent enactment prevails as the latest
expression of the legislative will." (2B Sutherland, Statutory
Construction (5th ed. 1992) section 51.02, p. 122, fn. omitted; see
City of Petaluma v. Pac. Tel. & Tel. Co. (1955) 44 Cal.2d 284, 288;
Stafford v. L. A. etc. Retirement Board (1954) 42 Cal.2d 795, 798.)
Defendant concludes: If the initiative version of the Three Strikes law,
by superseding the legislative version with a statute (section 1170.12)
to which section 1385(b) does not refer, restored the court's discretion
to strike prior felony conviction allegations in furtherance of justice,
then that ameliorative change in the law applies retroactively to his
benefit. (See In re Estrada (1965) 63 Cal.2d 740, 742-
748.)[FOOTNOTE 12]

Defendant's third argument takes issue with the district attorney's
reading of the term "enhancement," as used in section 1385(b). The
section, as mentioned, withdraws permission "to strike any prior
conviction of a serious felony for purposes of enhancement of a
sentence under Section 667." The term "enhancement," defendant
contends, has acquired the technical meaning under the state's
Determinate Sentencing Act of "an additional term of imprisonment
added to the base term." (See Cal. Rules of Ct., rule 405(c); see also
People v. Bright (1994) 12 Cal.4th 652, 656, fn. 2.) The Three
Strikes law, like the older "Habitual Offender Law" (section 667.7)
construed in People v. Jenkins (1995) 10 Cal.4th 234, articulates an
alternative sentencing scheme for the current offense rather than an
enhancement. (See id. at p. 254 ["Neither section 667.7, nor an
indeterminate life term imposed under that section, involves a sentence
enhancement."]; see also People v. Bright, supra, 12 Cal.4th at p.
656, fn. 2 [section 664, which increases punishment for attempted,
premeditated murders, "strictly speaking . . . does not constitute an
'enhancement' within the meaning of rule 405(c)"].)

On this single point, the Attorney General appears to agree more with
the defendant than with the district attorney. "We have," the Attorney
General writes, "previously made plain our belief that the three strikes
statute is not an 'enhancement'. This precept, for purposes of the
extremely similar section 667.7 has been accepted by this Court in
People v. Jenkins [supra, 10 Cal.4th 234]. As such, we believe that
the argument that section 1385(b) applies to bar the trial court from
striking 'strikes' under section 667, subdivisions (b) through (i) is
somewhat strained."

As the Attorney General suggests, one cannot reasonably assign much
weight to the argument that section 1385(b) refers to the Three Strikes
law. Nevertheless, as he also observes, "it cannot be avoided that the
Legislature did place the three strikes statute, rather awkwardly, in
section 667. As such, it seems that the Legislature may well have
intended that the [T]hree [S]trikes statute fall within the bar of section
1385(b)."

Certainly legislative intent is the governing consideration. If one could
clearly show the Legislature's purpose in placing the Three Strikes
law within section 667 was to make its provisions subject to section
1385(b), then that purpose would prevail. The only basis, however,
for concluding this was the Legislature's purpose is an inference that
arises from the numbering of various sections of the Penal Code.
Contrary inferences arise from the language of the Three Strikes law,
itself ("pursuant to section 1385" [section 667(f)(2); section 1170.12,
subd. (d)(2)]), from defendant's arguments regarding the time at
which section 1385(b) is deemed to speak, and from the technical
meaning of the term "enhancement." Defendant's additional argument
that Proposition 184 (section 1170.12) superseded the legislative
version codified in section 667 would also, if accepted, refute the
district attorney's argument, regardless of the Legislature's purpose in
enacting the superseded law.

It is not, however, necessary to answer all of these arguments.
Concerning the Legislature's intent on this subject, two points appear
to be determinative. First, for all of the reasons set out above, the
Legislature's decision to place the Three Strikes law within section
667 falls short of a "clear legislative direction" (People v. Thomas,
supra, 4 Cal.4th at p. 210) to eliminate courts' power to strike prior
felony allegations sua sponte. The principal reason it falls short, as
previously discussed, is that the Three Strikes law expressly
authorizes "[t]he prosecuting attorney [to] move to dismiss or strike a
prior felony conviction allegation in the furtherance of justice pursuant
to Section 1385 attorney's argument, followed to its logical
conclusion, would allow the prosecutor to move to dismiss in
furtherance of justice pursuant to section 1385, but deny the court
power to grant the motion because of subdivision (b) of that section.
To construe the law in this way would make no sense. Second, as
also discussed, the Legislature declined to add proposed language that
would have deleted the reference to section 1385 and, in addition,
would clearly have eliminated the court's power to strike prior felony
allegations in furtherance of justice sua sponte. Thus, the language in
the Three Strikes law permitting action "pursuant to section 1385"
(section 667(f)(2); section 1170, subd. (d)(2)) cannot realistically be
seen as inadvertent. Accordingly, we cannot conclude that the Three
Strikes law discloses a "clear legislative direction" eliminating the
court's power to act on its own motion pursuant to section 1385.

The district attorney sees the legislative history differently. The Three
Strikes initiative was motivated, he observes, by the voters' desire for
longer sentences and by a mistrust of judges. The proponents of the
initiative argued in its favor that "soft-on-crime judges, politicians,
defense lawyers and probation officers care more about violent felons
than they do victims. They spend all of their time looking for
loopholes to get rapists, child molesters and murderers out on
probation, early parole, or off the hook altogether." (Ballot Pamp.,
rebuttal to the argument against Proposition 184, as presented to the
voters, Gen. Elec. (Nov. 8, 1994) p. 37.)

Plainly the Three Strikes initiative, as well as the legislative act
embodying its terms, was intended to restrict courts' discretion in
sentencing repeat offenders. We may accept the ballot arguments as
evidence of that intent. (E.g., Hill v. National Collegiate Athletic
Assn. (1994) 7 Cal.4th 1, 16.) Both versions of the Three Strikes law
expressly declare that a court, in sentencing, may not grant probation,
suspend execution or imposition of sentence (section 667, subd.
(c)(2); section 1170.12, subd. (a)(2)), divert the defendant, or commit
the defendant to any facility other than state prison (section 667, subd.
(c)(4); section 1170.12, subd. (a)(4)). But to say the intent of a law
was to restrict judicial discretion begs the question of how judicial
discretion was to be restricted. The answer to that question can be
found only by examining the language of the act. In it, one finds the
express restrictions on the courts' power mentioned above, but no
others.

The initiative, moreover, was less restrictive on the subject of striking
prior-felonies than the original version of Assembly Bill No. 971, on
which the initiative was loosely based. On this subject the bill
provided that "[t]he prosecuting attorney may move to dismiss a prior
felony conviction allegation if there is insufficient evidence to prove
the prior conviction. If upon the satisfaction of the court that there is
insufficient evidence to prove the prior felony conviction, the court
may dismiss the allegation." (Assem. Bill No. 971 (1993-1994 Reg.
Sess.) as introduced Mar. 3, 1993.) The drafters of the initiative
added the language permitting the prosecutor to move to strike "in the
furtherance of justice" and to make the motion "pursuant to Section
1385." (section 1170.12, subd. (d)(2); section 667(f)(2).) For this
reason as well, to infer from the very general ballot arguments a more
specific intention to bar courts from acting under section 1385 appears
unwarranted.

Various amici curiae supporting the district attorney make one final
argument regarding the probable intent of the drafters of the Three
Strikes law. As already mentioned, it was in 1985, in reaction to
People v. Fritz, supra, 40 Cal.3d 227, that the Legislature enacted the
provision withdrawing courts' power to "strike any prior conviction
of a serious felony for purposes of enhancement of a sentence under
Section 667." (section 1385(b).) Like the former section 667
(presently section 667, subdivision (a)), the Three Strikes law attaches
additional penal consequences to prior serious felony convictions. It
would be irrational, amici curiae suggest, to attribute to the drafters the
intent to restore a power so recently withdrawn.

The argument is not sound. The drafters of the Three Strikes law
could rationally have chosen to give courts more discretion under that
law than under section 667, subdivision (a). Both statutory schemes
address the sentencing of defendants who have previously committed
serious felonies. The five-year enhancements mandated by section
667, subdivision (a), however, apply only when the defendant's
current offense is a "serious felony" within the meaning of section
1192.7, subdivision (c), while the sentences mandated by the Three
Strikes law apply whether or not the current felony is "serious." To
give judges more discretion in sentencing under a law that is triggered
by any felony, serious or not, than in sentencing under a law
applicable only when the defendant's current felony is serious, is not
necessarily irrational. Nor is it necessarily irrational to give judges
more discretion in applying a law providing for life sentences than a
law providing for five-year enhancements. Indeed, these distinctions
can be defended as serving the ends of justice. In any event, to give
judges this measure of discretion certainly is not so irrational as to
compel us, for that reason alone, to give the statute a contrary
interpretation.

For these reasons, we conclude that section 1385(a) does permit a
court acting on its own motion to strike prior felony conviction
allegations in cases brought under the Three Strikes law. Our holding
respects the principle that legislative acts are construed, if at all
possible, to be constitutional. (See ante, p. 9.) Our holding also
avoids conflict with the principle that ambiguous penal statutes are
construed to favor the defendant. (People v. Jones (1988) 46 Cal.3d
585, 599; United States v. Bass (1971) 404 U.S. 336,
348.)[FOOTNOTE 13]

To guide the lower courts in the exercise of their discretion under
section 1385(a), whether acting on their own motion or on motion of
the prosecuting attorney, we emphasize the following: A court's
discretion to strike prior felony conviction allegations in furtherance of
justice is limited. Its exercise must proceed in strict compliance with
section 1385(a), and is subject to review for abuse. We reviewed the
applicable principles in People v. Orin, supra, 13 Cal.3d 937:

"The trial court's power to dismiss an action under section 1385,
while broad, is by no means absolute. Rather, it is limited by the
amorphous concept which requires that the dismissal be 'in
furtherance of justice.' As the Legislature has provided no statutory
definition of this expression, appellate courts have been faced with the
task of establishing the boundaries of the judicial power conferred by
the statute as cases have arisen challenging its exercise. Thus, in
measuring the propriety of the court's action in the instant case, we are
guided by a large body of useful precedent which gives form to the
above concept.

"From the case law, several general principles emerge. Paramount
among them is the rule 'that the language of [section 1385],
"furtherance of justice," requires consideration both of the
constitutional rights of the defendant, and the interests of society
represented by the People, in determining whether there should be a
dismissal. [Citations.]' [Citations.] At the very least, the reason for
dismissal must be 'that which would motivate a reasonable judge.'
[Citations.]." (13 Cal.3d at p. 945.) "Courts have recognized that
society, represented by the People, has a legitimate interest in 'the fair
prosecution of crimes properly alleged.' [Citation.] '"[A] dismissal
which arbitrarily cuts those rights without a showing of detriment to
the defendant is an abuse of discretion." [Citations.]'" (Id. at p. 947.)

From these general principles it follows that a court abuses its
discretion if it dismisses a case, or strikes a sentencing allegation,
solely "to accommodate judicial convenience or because of court
congestion." (People v. Kessel (1976) 61 Cal.App.3d 322, 326.) A
court also abuses its discretion by dismissing a case, or a sentencing
allegation, simply because a defendant pleads guilty. (People v. Orin,
supra, 13 Cal.3d at p. 949.) Nor would a court act properly if "guided
solely by a personal antipathy for the effect that the three strikes law
would have on [a] defendant," while ignoring "defendant's
background," "the nature of his present offenses," and other
"individualized considerations." (People v. Dent (1995) 38
Cal.App.4th 1726, 1731.)

A court's discretionary decision to dismiss or to strike a sentencing
allegation under section 1385 is also reviewable. "[W]here the court's
action lacks reason it may be invalidated upon timely challenge."
(People v. Orin, supra, 13 Cal.3d at p. 949.) Section 1385
anticipates, and facilitates, appellate review with the requirement that
"[t]he reasons for the dismissal must be set forth in an order entered
upon the minutes." (section 1385(a).) "The statement of reasons is not
merely directory, and neither trial nor appellate courts have authority
to disregard the requirement. It is not enough that on review the
reporter's transcript may show the trial court's motivation; the minutes
must reflect the reason 'so that all may know why this great power
was exercised.'" (People v. Beasley (1970) 5 Cal.App.3d 617, 637;
see also People v. Orin, supra, 13 Cal.3d at p. 943-944 ["It is settled
law that this provision is mandatory and not merely directory."].)

Having decided that section 1385(a) applies to this case, we must
determine the appropriate disposition. The district attorney argued in
the Court of Appeal that the trial court abused its discretion by striking
the prior felony conviction allegation and by participating in an illegal
plea bargain. The Court of Appeal did not reach these issues because it
held, contrary to our decision today, that section 1385 did not apply in
a case brought under the Three Strikes law. Under these
circumstances we would ordinarily remand the case to the Court of
Appeal to resolve the remaining issues.

To ask the Court of Appeal to consider the remaining claims is not
appropriate in this instance, however, because the record does not
contain all of the material a reviewing court should consider in
deciding whether the trial court properly exercised its discretion. This
is because the trial court did not set forth its reasons for striking the
prior felony conviction allegations in the relevant minute order, as
required by section 1385(a). The order contains only this explanation
of the court's decision: "Court finds [Penal Code section 667] is
unconstitutional and violates separation of powers and strikes the
[prior felony conviction] allegation[s]." This statement explains why
the court found section 1385 applicable, but does not explain "the
reasons for the dismissal" (section 1385(a)), that is, why the court felt
it was proper to exercise its discretion under the section to strike the
prior felony conviction allegations in this particular case. Under settled
law such an order is ineffective. (People v. Orin, supra, 13 Cal.3d at
pp. 943-944 ["'[I]f the reasons are not set forth in the minutes, the
order dismissing may not be considered a dismissal under section
1385.' [Citations.]"]; People v. Beasley, supra, 5 Cal.App.3d at p.
638, and cases cited therein.)

The conclusion that the trial court's order was ineffective necessarily
affects the disposition. At the time defendant pled guilty, the trial court
had indicated its willingness to consider striking the prior felony
conviction allegations. This factor manifestly influenced defendant's
decision to plead guilty. Under these circumstances, the appropriate
remedy is to vacate the judgment, to permit defendant to withdraw his
plea, and otherwise to proceed in conformity with this opinion. If, on
remand, the trial court again decides to exercise its discretion to strike
the prior felony conviction allegations in furtherance of justice under
the standards articulated above and in the relevant case law, the court
must set forth the reasons for that decision in strict compliance with
section 1385(a). Any such decision will be reviewable for abuse of
discretion according to the procedures generally applicable to such
decisions.

III. DISPOSITION

The judgment of the Court of Appeal is affirmed in part and reversed
in part. The cause is remanded to the Court of Appeal, which shall
vacate the writ of mandate previously issued and direct the issuance of
a new writ ordering the trial court to vacate the sentence, permit
defendant to withdraw his plea, and to proceed thereafter in
accordance with the views expressed in this opinion.

GEORGE, C.J., MOSK, J., KENNARD, J., BAXTER, J.,
LUCAS, J., [FOOTNOTE *], concurring.

CHIN, J.; concurring:

I agree that because the "three strikes" statute does not contain "a clear
legislative direction to the contrary" (People v. Thomas (1992) 4
Cal.4th 206, 210), the trial court retains discretion under Penal Code
section 1385 to dismiss prior felony conviction allegations.

I write separately to disassociate myself from the lengthy discussion
whether this statute would violate the separation of powers doctrine if,
contrary to our interpretation, it did remove discretion from the trial
court. Relying on People v. Tenorio (1970) 3 Cal.3d 89 and its
progeny, the majority effectively decides that such a statute would
violate the separation of powers. The majority's statutory
interpretation stands on its own and renders the constitutional analysis
unnecessary. Moreover, because the statute the majority considers is
quite different from that confronted in Tenorio, that analysis is
questionable.

The statute the majority suggests would be unconstitutional, if it
existed, would apparently provide the following: The prosecution has
no charging discretion but must charge all priors for which there is
sufficient evidence. Thereafter, if both the prosecution and the court
concur, the prior may be dismissed. Neither the court nor the
prosecution could unilaterally decide not to charge or to dismiss the
prior. In effect, as the Attorney General argues, the statute would act
as a "sunshine" statute, requiring that the decision either not to
prosecute or to dismiss a prior be made in open court with reasons
stated.

As the majority recognizes, a statute giving the prosecution unlimited
charging discretion at the outset and giving the court no power to
dismiss charged priors for which there was sufficient evidence would
pass constitutional muster. (Maj. opn., ante, at pp. 16, 20-21; see
People v. Thomas, supra, 4 Cal.4th 206; Davis v. Municipal Court
(1988) 46 Cal.3d 64, 82.) It is also clear that a statute giving the
prosecution unreviewable discretion at the outset and giving the court
authority to dismiss a charged prior but conditioning that authority on
prosecutorial approval would not be constitutional. (People v.
Tenorio, supra, 3 Cal.3d 89.) The statute the majority considers
would be neither of these, but somewhere in between; neither branch
could exercise discretion without the other, or, stated slightly
differently, a prior conviction for which sufficient evidence existed
would have to be prosecuted unless both branches of government
agreed otherwise. Rather than only the executive branch's having a
veto over the judicial, as in Tenorio, both branches would have an
equal veto over each other. This would be a check and balance
arguably similar to other checks and balances in our system of
government.

This statute would differ from that declared invalid in Tenorio in two
respects: (1) it would give the two branches of government equal
authority, and (2) it would not give the prosecution unreviewable
charging discretion. Tenorio suggests these differences might be
critical. It states that the concept of separation of powers "demands
that the branches of government be coequal . . . ." (People v. Tenorio,
supra, 3 Cal.3d at p. 95.) It also stresses that the statute at issue there
gave the prosecution discretion that is "unreviewable, and may
therefore be exercised in a totally arbitrary fashion . . . ." (Ibid.) As
the Court of Appeal in this case (per Huffman, J.) pointed out in
rejecting the separation-of-powers argument, "The severely limited
prosecutorial discretion in charging and negotiating presented by the
overall 'three strikes' statutory scheme hardly equates to the
'unreviewable' and 'arbitrary' discretion vested in the prosecution
which was criticized in Tenorio, supra, 3 Cal.3d at page 95. Rather,
the statutory scheme represents tight legislative control of a prosecutor
sharply curtailing the prosecution's previous discretion in carrying out
its traditional charging function."

The majority states, "there is grave doubt whether the statute before us
could be construed as the district attorney would construe it without
overruling Tenorio . . . ." (Maj. opn., ante, at p. 21.) On the contrary,
because of the differences in the statutory schemes, Tenorio can be,
and, if the issue ever arose, perhaps should be, distinguished. It may
or may not be appropriate to extend Tenorio to the statute the majority
considers, but it would indeed be an extension. The answer to the
constitutional question is not easy; it should not be decided in a
vacuum. The majority's statutory analysis suffices to decide this case.
We should not also give an advisory opinion on a statute that does not
exist and may never be enacted.

I therefore concur in the disposition and all of the majority opinion
except the constitutional discussion.

:::::::::::::::::::: FOOTNOTES ::::::::::::::::::::

FN1. Defendant and the Attorney General, the latter appearing as
amicus curiae, have asked the court to take judicial notice of materials
relevant to the history of Assembly Bill No. 971 and of Proposition
184. Amicus curiae California Appellate Defense Counsel has asked
us to take judicial notice of Assembly staff analyses of Assembly Bill
No. 2049 (1985-1986 Reg. Sess.)), which became section 1385,
subdivision (b). These materials are of the type we ordinarily consider
in addressing questions of legislative intent. The motions are granted
as to these materials.

FN2. Because the differences between the legislative and the initiative
versions of the Three Strikes law do not affect the disposition of this
case, we do not at this time address defendant's argument that the
initiative statute superseded the legislative statute.

FN3. The district attorney's argument that section 1385(b) refers to
the Three Strikes law is discussed at page 32 et seq., post.

FN4. "The entry of a nolle prosequi is abolished, and neither the
Attorney General nor the district attorney can discontinue or abandon a
prosecution for a public offense, except as provided in Section 1385."
(section 1386.)

FN5. Former Health and Safety Code section 11718 (see People v.
Tenorio, supra, 3 Cal.3d 89) was repealed. (Stats. 1972, ch. 1407,
section 2, p. 2987.) Former Welfare and Institutions Code section
3051 (see People v. Navarro, supra, 7 Cal.3d 248) was amended.
(Stats. 1980, ch. 822, section 1, at p. 2584.) Former Penal Code
section 1000.2 (People v. Superior Court (On Tai Ho), supra, 11
Cal.3d 59) was amended. (Stats. 1975, ch. 357, section 1, at p. 801.)
Former Penal Code section 17, subdivision (b)(5) (see Esteybar v.
Municipal Court, supra, 5 Cal.3d 119) was amended. (Stats. 1975,
ch. 664, section 1, at p. 1454.) Former Penal Code section 1203 (see
People v. Clay, supra, 18 Cal.App.3d 964) was amended. (Stats.
1975, ch. 1004, section 1, at p. 2354.)

FN6. Defendant has asked us to take judicial notice of the transcript of
a sentencing hearing in another case, suggesting the transcript
discloses that at least one prosecutor has attempted to use the Three
Strikes law to control a judge's disposition of criminal charges. We
conclude that the transcript is not relevant to the statutory construction
and constitutional issues before us and, therefore, deny defendant's
motion as to the transcript.

FN7. Amicus curiae California Appellate Defense Counsel suggests
that section 667(f)(1), which requires the prosecutor to "plead and
prove" all prior felony convictions, may violate separation of powers
as between the legislative and the executive branch, since the latter has
traditionally retained broad discretion to determine whom, and for
what offenses, to prosecute. (See People v. Municipal Court
(Pellegrino) (1972) 27 Cal.App.3d 193, 203-208; People v. Smith
(1975) 53 Cal.App.3d 655, 657-660; see also People v. Superior
Court (Greer), supra, 19 Cal.3d at pp. 262-262.) The district attorney
notes the issue but does not advance it "[i]n this case." We intimate no
view on the issue.

FN8. The district attorney argues that section 667(f)(2), if determined
to violate separation of powers, would be severable. The effect of
severing subdivision (f)(2), he argues, "would be to preclude the trial
court from dismissing or striking 'three strikes' priors in the
furtherance of justice under section 1385, subdivision (a), whether on
its own motion or upon motion of the prosecution." The argument
depends on the assumption that the language of section 1385(b) does
bar a court from striking prior felony conviction allegations sua sponte
in Three Strikes cases. The assumption, as will be seen, is erroneous.

FN9. "If upon the satisfaction of the court that there is insufficient
evidence to prove the prior felony conviction, the court may dismiss
or strike the allegation."

FN10. See ante, p. 18, fn. [7].

FN11. It has also been argued that the introductory language of
section 667, subdivision (c), bars a court from striking a prior felony
conviction allegation after it has been pled and proved. The
subdivision begins: "Notwithstanding any other law, if a defendant
has been convicted of a felony and it has been pled and proved that the
defendant has one or more prior felony convictions as defined in
subdivision (d), the court shall adhere to each of the following: . . . ."
(section 667, subd. (c).) Immediately following this introductory
language is an enumeration of sentencing consequences.

The argument is not persuasive. The very purpose of striking a
sentencing allegation under section 1385 is to effectuate the decision
that "'in the interest of justice' defendant should not be required to
undergo a statutorily increased penalty which would flow from
judicial determination of that fact." (People v. Burke, supra, 47
Cal.2d at p. 50.) The Three Strikes law, itself, expressly approves the
striking of prior felony conviction allegations (section 667(f)(2)),
presumably for the purpose of affecting sentencing, since the striking
of such allegations has no other purpose. Moreover, it is well
established that a court may exercise its power to strike under section
1385 "before, during or after trial," up to the time judgment is
pronounced. (People v. Orin (1975) 13 Cal.3d 937, 945; People v.
Superior Court (Howard) 69 Cal.2d 491, 505; see 5 Witkin &
Epstein, Cal. Criminal Law (2d ed. 1989) sections 2546, 2547, pp.
3055-3056.) We do not find in the language of section 667,
subdivision (c), a "clear legislative direction to the contrary." (People
v. Thomas, supra, 4 Cal.4th at p. 210; see also People v. Rodriguez,
supra, 42 Cal.3d at p. 1019; People v. Fritz, supra, 40 Cal.3d at pp.
229-230; People v. Williams, supra, 30 Cal.3d at p. 482.) Indeed, to
strike a sentencing allegation after trial may in some cases be
preferable to striking before trial, because the court after trial has heard
the evidence relevant to the defendant's culpability and, thus, is better
prepared to decide whether the interests of justice make it advisable to
exercise the power to strike under section 1385.

FN12. See ante, p. 4, fn. [2].

FN13. Our holding, which relates only to sentencing, is fully
retroactive. (See People v. Belmontes (1983) 34 Cal.3d 335, 348, fn.
8; People v. Tenorio, supra, 3 Cal.3d at p. 95, fn. 2.) A defendant
serving a sentence under the Three Strikes law (section 667, subds.
(b)-(i); section 1170.12) imposed by a court that misunderstood the
scope of its discretion to strike prior felony conviction allegations in
furtherance of justice pursuant to section 1385(a), may file a petition
for habeas corpus to secure reconsideration of the sentence. Such a
petition should be filed in the sentencing court. (People v. Tenorio,
supra, 3 Cal.3d at p. 95, fn. 2) Such a petition may be summarily
denied if the record shows that the sentencing court was aware that it
possessed the discretion to strike prior felony conviction allegations
without the concurrence of the prosecuting attorney and did not strike
the allegations, or if the record shows that the sentencing court clearly
indicated that it would not, in any event, have exercised its discretion
to strike the allegations. (People v. Belmontes, supra, 34 Cal.3d at p.
348, fn. 8.)

FN* Hon. Malcolm M. Lucas, retired Chief Justice of the Supreme
Court, assigned by the Acting Chief Justice pursuant to article VI,
section 6, of the California Constitution.