People v. Superior Court (Romero)

• Decision Date: 20 June 1996
• Docket Number: No. S045097,S045097
• Citation: 917 P.2d 628,13 Cal.4th 497,53 Cal.Rptr.2d 789
• Court: California Supreme Court
• Parties: , 917 P.2d 628, 65 USLW 2017, 96 Cal. Daily Op. Serv. 4494, 96 Daily Journal D.A.R. 7229 The PEOPLE, Petitioners, v. SUPERIOR COURT of San Diego County, Respondent; Jesus ROMERO, Real Party in Interest.

Page 789

53 Cal.Rptr.2d 789

13 Cal.4th 497, 917 P.2d 628, 65 USLW 2017,

96 Cal. Daily Op. Serv. 4494,

96 Daily Journal D.A.R. 7229

The PEOPLE, Petitioners, v. SUPERIOR COURT of San Diego County, Respondent Jesus ROMERO, Real Party in Interest.

No. S045097.

Supreme Court of California.

June 20, 1996.

As Modified on Denial of Rehearing Aug. 21, 1996.

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

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 Petitioners.

No appearance 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.

WERDEGAR, Justice.

Penal Code section 1385, subdivision (a), authorizes a trial court to dismiss a criminal action "in furtherance of justice" on its own motion. (All further statutory citations are to the Penal Code except as noted.) We have held that the power to dismiss an action includes the lesser power to strike factual allegations relevant to sentencing, such as the allegation that a defendant has prior felony convictions. (People v. Thomas (1992) 4 Cal.4th 206, 209-210, 14 Cal.Rptr.2d 174, 841 P.2d 159; People v. Burke (1956) 47 Cal.2d 45, 50-51, 301 P.2d 241.) This case raises the question whether a court may, on its own motion, strike prior felony conviction allegations in cases arising under the law known as "Three Strikes and You're Out." (§ 667, subds. (b)-(i), added by Stats.1994, ch. 12, § 1, effective Mar. 7, 1994; see also § 1170.12, added by initiative, Gen. Elect. (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. 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 § 667.5, subd. (c) [defining "violent felony"]; § 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 (§ 667, subds. (b)-(i)) rather than under the initiative statute (§ 1170.12). While the two statutes differ in minor respects, no such difference affects the questions before us in this case. 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" (§ 667, subd. (c); § 1170.12, subd. (a).) Prior felonies qualifying as "serious" or "violent" are taken into account regardless of their age. (§ 667, subd. (c)(3); § 1170.12, subd. (a)(3).) The current felony need not be "violent" or "serious." (§ 667, subd. (c); § 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." (§ 667, subd. (e)(1); § 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...." (§ 667, subd. (e)(2)(A); § 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) twenty five 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). (§ 667, subd. (e)(2)(A)(i)-(iii); § 1170.12, subd. (c)(2)(A)(i)-(iii).) Sentencing on all current offenses is generally consecutive (§ 667, subds. (c)(6)-(8); § 1170.12, subds. (a)(6)-(8)) without any aggregate term limitation (§ 667, subd. (c)(1); § 1170.12, subd. (a)(1)). In sentencing, the court may not grant probation, suspend execution or imposition of sentence (§ 667, subd. (c)(2); § 1170.12, subd. (a)(2)), divert the defendant, or commit the defendant to any facility other than state prison (§ 667, subd. (c)(4); § 1170.12, subd. (a)(4)).

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 (§ 459) on June 25, 1980; attempted burglary of an inhabited dwelling (§§ 459, 664) on November 16, 1984; first degree burglary of an inhabited dwelling (§ 459) on September 2, 1986; and possession of a controlled substance (Health & Saf.Code, § 11350, subd. (a)) on April 6, 1992, and June 8, 1993.

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

Defendant pled not guilty. At a subsequent hearing, the court indicated its willingness to consider striking the prior...