People v. Fritz
Opinions
Opinion
The sole question presented in this case is whether a trial court, in sentencing a defendant who has previously been convicted of a [229]*229“serious felony” within the meaning of Penal Code section 667,1 retains discretion to strike the prior conviction in furtherance of justice under section 1385. The Courts of Appeal have reached differing conclusions on this issue, and we granted a hearing to resolve the conflict. As we shall explain, we have concluded that on the authority of People v. Williams (1981) 30 Cal.3d 470 [179 Cal.Rptr. 443, 637 P.2d 1039], the applicable statutory and constitutional provisions cannot properly be interpreted to eliminate a trial court’s traditional section 1385 authority in this context. Because the record reveals that in this case the trial court erroneously believed it had no discretion to strike the prior, we vacate the judgment and remand the case to the trial court to permit it to resentence defendant with an accurate view of its powers.
I
In February 1983, defendant Robert Fritz pleaded nolo contendere to charges of robbery (§ 211), false imprisonment (§ 136), assault with a deadly weapon (§ 245, subd. (a)), and assault with a deadly weapon upon a peace officer (§ 245, subd. (b)) and admitted allegations relating to three weapon-use enhancements (§§ 12022.5, 1203.06, subd. (a)(1)). He also admitted a 1977 felony conviction for which he had served a separate prison term (§ 667.5), and a 1982 “serious felony” conviction of robbery (§§ 667.5, 1192.7, subd. (c)(19)). At a sentencing hearing the following month, the trial court sentenced defendant to a total of 15 years in prison, including a consecutive term of 5 years under section 667 for the 1982 serious felony robbery conviction. The record of the sentencing hearing indicates that the trial court believed that imposition of a consecutive five-year sentence for the serious felony enhancement was mandatory.
Defendant contends on appeal that the trial court erred in concluding that it had no discretion to strike the serious felony prior for purposes of sentencing. In defending the trial court’s conclusion, the People assert that the provisions of both section 667 itself and article I, section 28, subdivision (f) of the state Constitution eliminate a trial court’s traditional discretion. We conclude that under the governing authorities, the People’s contention cannot be sustained.
II
A long line of decisions, stretching over nearly 30 years, has established that a trial court’s general statutory authority to “dismiss” an action “in [230]*230furtherance of justice” under section 13852 includes the power to “strike” a prior conviction for purposes of sentencing, whether or not the conviction has been admitted or established by the evidence. (See, e.g., People v. Burke (1956) 47 Cal.2d 45, 50-51 [301 P.2d 241].) We most recently reviewed this line of decisions applying section 1385 in People v. Williams, supra, 30 Cal.3d 470, 478-483, and there is no need to reiterate that historical review here. For our purposes, the significance of the majority opinion in Williams is that—coming on the heels of this court’s decision in People v. Tanner (1979) 24 Cal.3d 514 [156 Cal.Rptr. 450, 596 P.2d 328]—it sent an unmistakable signal to drafters of sentencing provisions of the need to include clear language eliminating a trial court’s section 1385 authority whenever such elimination is intended. Williams explains that absent a clear expression of legislative intent in this regard, a sentencing statute will not be construed to abrogate a trial court’s general section 1385 power to strike. (30 Cal.3d at pp. 483-485, 489.)
Both of the provisions on which the People rely as having eliminated the trial court’s section 1385 power to strike serious felonies—section 6673 and article I, section 28, subdivision (f)4—were drafted shortly after the Williams decision and were enacted by the voters as part of Proposition 8 in the June 1982 election. Neither section, however, contains any express language indicating that it was intended to eliminate a trial court’s section 1385 power with respect to the serious felony enhancement adopted in section 667, and nothing in the ballot analysis or arguments which were before the [231]*231voters suggests such a purpose. Although section 667 does contain mandatory language—“[a]ny person convicted of a serious felony . . . shall receive ... a five-year enhancement for each such prior conviction”—Williams and Burke plainly hold that such language alone is not sufficient to eliminate a trial court’s power to strike. And whatever the “without limitation” language of article I, section 28, subdivision (f) may have been intended to mean in the enhancement of sentence context, in light of Williams this general language cannot reasonably be construed as eliminating a trial court’s power to strike in furtherance of justice. If this portion of Proposition 8 had been drafted with Williams in mind, as has been suggested, the absence of express language referring to section 1385 and the trial court’s discretion thereunder would be inexplicable.
Thus, we conclude that neither section 667 nor article I, section 28, subdivision (f) can be construed to abrogate a trial court’s well-established statutory authority to strike a prior conviction.
The judgment is vacated and the case is remanded to the trial court, with directions to resentence defendant in light of the conclusion expressed in this opinion.
Bird, C. J., Broussard, J., and Reynoso, J., concurred.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
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