THE PEOPLE, Plaintiff and Respondent, v. ROBERT CLIFFORD FRITZ, JR., Defendant and Appellant, 40 Cal. 3d 227

Opinion KAUS, J. The sole question presented in this case is whether a trial court, in sentencing a defendant who has previously been convicted of a “serious felony” within the meaning of Penal Code

section 667, 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 furtherance of justice” under

section 1385 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 667 and

article I,

section 28, subdivision (f)—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 voters 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. Unless otherwise noted, all

section references are to the Penal Code.

Section 1385 provides in relevant part: “The judge or magistrate may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reason of the dismissal must be set forth in an order entered upon the minutes.”

Section 667 provides in full: “(

a) Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively, [¶] (

b) This

section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. There is no requirement of prior incarceration or commitment for this

section to apply, [¶] (

c) The Legislature may increase the length of the enhancement of sentence provided in this

section by a statute passed by majority vote of each house thereof, [¶] (

d) As used in this

section ‘serious felony’ means a serious felony listed in subdivision (

c) of

Section 1192.7. [¶] (

e) The provisions of this

section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.”

Article I,

section 28, subdivision (

f) provides in full: “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”