People v. Sidener

Decision Date25 October 1962
Docket NumberCr. 7014
Citation58 Cal.2d 645,25 Cal.Rptr. 697,375 P.2d 641
Parties, 375 P.2d 641 The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Karl SIDENER, Defendant and Appellant.
CourtCalifornia Supreme Court

Ellery E. Cuff, Public Defender, Fred Kilbride and James L. McCormick, Deputy Public Defenders, for defendant and appellant.

Stanley Mosk, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

TRAYNOR, Justice.

Defendant appeals from a judgment of conviction on an information charging him with possession of a narcotic (heroin) in violation of Health and Safety Code, section 11500. The trial court also found to be true the charge that defendant had been convicted of violating the same section in 1955. At the hearing on probation and sentencing the trial judge refused to consider dismissal of the charge of prior conviction on the ground that the district attorney had made no motion for dismissal as required by Health and Safety Code, section 11718. 1 Probation was denied (Health & Saf Code, § 11715.6) and defendant was sentenced to an increased term as a second offender. (Health & Saf.Code, § 11500.)

The Legislature has determined that recidivists should be punished more severely than first offenders (e. g., Pen.Code, §§ 644, 1203, 3020, 3024, 3047-3048.5; Health & Saf.Code, §§ 11500, 11501, 11502, 11530, 11531, 11532, 11540, 11557, 11715.6) and has directed that charges of recidivism in narcotics cases shall not be dismissed except upon motion of the district attorney.

Defendant contends that the power to dismiss such charges is vested exclusively in the courts by article VI, section 1 2 and ARTICLE III, SECTION 1 OF THE CALIFORNIA CONSTITUTION3, and that Health and Safety Code, section 11718 is therefore invalid. This contention is unsound. Any statements or implications in People v. Burke, 47 Cal.2d 45, 52, 301 P.2d 241, and People v. Valenti, 49 Cal.2d 199, 206, 316 P.2d 633, to the contrary were not necessary to the holdings in those cases and are disapproved.

In section 11718 the Legislature has adopted part of the prosecutor's common-law power of nolle prosequi, which included the power to strike allegations that would increase punishment. (State v. Burke, 38 Me. 574, 575; Anonymous, 31 Me. 590; Commonwealth v. Tuck, 37 Mass. (20 Pick.) 356, 364-367; Commonwealth v. Briggs, 24 Mass. (7 Pick.) 177, 178-179; Baker v. State, 12 Ohio St. 214, 217-218.) That power, hundreds of years old 4 and still recognized in many jurisdictions having constitutional provisions essentially identical with section 1 of Article VI (United States v. Brokaw, D.C.Ill., 60 F.Supp. 100, 101; State v. Broussard, 217 La. 90, 95, 46 So.2d 48; State v. Kearns, Ohio Com.Pl., 129 N.E.2d 543, 545; State v. Charles, 183 S.C. 188, 194, 190 S.E. 466; see 69 A.L.R. 240, 241-243), was not abrogated by that section. The phrase 'judicial power' cannot reasonably be given a meaning that it has never before been thought to have in this or any other state to invalidate an act of the Legislature. Courts are not the only public agencies constitutionally empowered to determine the punitive consequences of recidivism.

The contention that prosecutors have never had the common-law power of nolle prosequi in this state is based solely on the enactment at the first and second legislative sessions (Stats.1850, ch. 119, p. 323; Stats.1851, ch. 29, p. 279) of the predecessors of Penal Code, sections 1385 and 1386. 5 Thus it was a legislative act, not a constitutional provision, that deprived prosecutors of such power in California. In the exercise of the same power by which the 1850 and 1851 Legislatures rejected nolle prosequi, the 1959 Legislature chose to restore it in part. The fact that sections 1385 and 1386 were necessary to give to the courts this power traditionally vested in prosecutors demonstrates that the common-law rule was not abrogated by the general language of the Constitution vesting the 'judicial power' in the courts.

The Legislature has never completely rejected the prosecutor's common-law power of nolle prosequi. The same Legislature that enacted the predecessors of section 1385 and 1386 in 1850 and 1851 also adopted the predecessor of Penal Code, section 1099 which provides: 'When two or more defendants are included in the same accusatory pleading, the court may, at any time before the defendants have gone into their defense, on the application of the prosecuting attorney, direct any defendant to be discharged, that he may be a witness for the people.' (Italics added.) In People v. Bruzzo, 24 Cal. 41, this court was confronted with the question whether a court had authority without a motion for dismissal by the district attorney to dismiss a joint defendant so that he might become a witness for the people. The district attorney, as in the present case, had declined to move for dismissal. It was held that 'The Court has no power to discharge Bruzzo at common law, nor under the Act of 1851, on the motion of his own counsel.' (24 Cal. at p. 51.)

The Bruzzo case demonstrates that the power of dismissal is not vested exclusively in the courts, but may be given to the prosecutor by the Legislature. Health and Safety Code, section 11718 gives the district attorney the same power with respect to dismissal of charges of recidivism in narcotics cases that Penal Code, section 1099 gives him with respect to dismissal of charges against joint defendants. Both sections are a partial legislative adoption of the prosecutor's common-law power of nolle prosequi.

The Bruzzo case cannot be distinguished on the ground that dismissal of a charge of a prior conviction is effective only for sentencing purposes. The common-law power of nolle prosequi included dismissal of the prosecution entirely or any separable part thereof. Charges could be dismissed by entry of a nolle prosequi before the jury was impanelled, while the case was before the jury, or after verdict. (See Wharton, Criminal Pleading and Practice (9th ed. 1889) § 448, p. 313; 14 Am.Jur., Criminal Law, §§ 296-298, pp. 967-968; 22A C.J.S. Criminal Law § 457a, pp. 3-4.) The meaning of constitutional provisions, however, is not static, and the scope of judicial power is not found in history alone. The definition and classification of public offenses and the punishment therefor are legislative matters. (Board of Harbor Commrs. v. Redwood Co., 88 Cal. 491, 493, 26 P. 375; Ex parte Cox, 63 Cal. 21; Moore v. Municipal Court, 170 Cal.App.2d 548, 556, 339 P.2d 196.) If charges have not been dismissed pursuant to the authority granted by the Legislature, the court must pass sentence as prescribed b statute (Pen.Code, § 12) and may not impose any sentence other than that prescribed. (People v. Gonzales, 36 Cal.App. 782, 784, 173 P. 407; see also Pen.Code, § 1203 et seq. relating to probation and suspension of sentences.)

The charge of a prior conviction in the present case has not been dismissed pursuant to legislative authority. The court found that the charge was true and was therefore bound to impose the sentence prescribed by law. The court could no more dismiss this charge without statutory authority than it could dismiss a charge against any defendant convicted of murder, arson, rape or any other crime. A court may feel that the punishment prescribed by the Legislature for a recidivist narcotics offender is too severe or that by dismissing one or more charges punishment can be imposed that would better serve to rehabilitate him. To dismiss the charges in the face of Health and Safety Code, section 11718, however, would be a flagrant usurpation of legislative power and an arrogant affectation of wisdom in the matter of punishment and rehabilitation superior to that of the Legislature. Certainly Article VI, section 1 and Article III, section 1 do not endow courts with such power.

The fact that prior convictions are now given greater weight than they once were does not distinguish them from the host of other considerations of penology that are now given greater or lesser weight than they once were or compel the conclusion that their punitive effect is for the courts alone. Like premeditation or malice aforethought in homicide or bodily harm in kidnapping, prior convictions have been made operative facts for the determination of punishment. Every day prosecuting attorneys exercise broad powers in this respect. It is they who decide what crime is to be charged or if any crime is to be charged. (Board of Supervisors v. Simpson, 36 Cal.2d 671, 676, 227 P.2d 14; see Klein, District Attorney's Discretion Not to Prosecute, 32 L.A.B. Bull. 323-334; Note, Private Prosecution: A Remedy for District Attorneys' Unwarranted Inaction, 65 Yale L.J. 209; Remington & Joseph, Charging, Convicting, and Sentencing the Multiple Criminal Offender, 1961 Wis.L.Rev. 528, 530; Wright, Duties of a Prosecutor, 33 Conn. B.J. 293-295.) Moreover, it is only because the Legislature so directed that they are bound to charge all prior convictions (Pen.Code, § 969) once the decision to prosecute is made. It would exalt form over substance 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 such discretion once the information is filed.

There are innumerable facts other than the commission of the crime itself that may have far more bearing on the punishment imposed than prior convictions. If not only their existence but their effect on punishment must be determined solely by courts, the indeterminate sentence law and the legislative restrictions on the court's power to grant probation must fall. The indeterminate sentence law has been sustained, however, on the theory that a conviction carries with it judicially determined liability for the maximum sentence and that any remission from that maximum may...

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