THE PEOPLE, Plaintiff and Respondent, v. ROBERT KARL SIDENER, Defendant and Appellant, 58 Cal. 2d 645

TRAYNOR, J. 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. 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 l and

article III,

section l of the California Constitution, 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 of Maine v. Burke, 38 Me. 574, 575; Anonymous, 31 Me. 590; Commomvealth v. Tuck, 37 Mass. (20 Pick.) 356, 364-367; Commonwealth v. Briggs, 24 Mass. (7 Pick.) 177, 178-179; Baker v. State of Ohio, 12 Ohio St. 214, 217-218.) That power, hundreds of years old 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. PI.) 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, eh. 119, p. 323; Stats. 1851, eh. 29, p. 279) of the predecessors of Penal Code sections 1385 and 1386. 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 ease 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. (Harbor Comrs. v.

Excelsior Redwood Co., 88 Cal. 491, 493 [26 P. 375, 22 Am.St.Rep. 321] ; 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 by 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 be determined by an administrative agency (In re Lee, 177 Cal. 690, 692-693 [171 P. 958]; In re Wells, 35 Cal.2d 889, 893 [221 P.2d 947]; In re Smith, 33 Cal.2d 797, 804-805 [205 P.2d 662]), subject only to limited judicial review. (In re McLain, 55 Cal.2d 78, 87 [9 Cal.Rptr. 824, 357 P.2d 1080].) The Legislature could provide life imprisonment as the maximum term for all narcotics convictions without possibility of probation, and it could leave it solely to the Adult Authority to determine the punitive effect of prior convictions.

It could set out standards to govern the Adult Authority and provide for judicial review of its findings with respect to relevant facts. It might, for example, provide that prior convictions should be determined, not at the trial but by the Adult Authority at a subsequent hearing subject to judicial review. Surely it could not reasonably be contended that in such a review proceeding the judicial power included not only a review of the facts, but the power to instruct the Adult Authority to ignore them.

The Legislature has been given express constitutional power to determine what officers, agencies or boards may exercise the power now exercised by the Adult Authority and the scope of such powers. The Legislature is authorized to provide that part of the powers that might otherwise be exercised by the Adult Authority alone shall be exercised by district attorneys.

In determining that the district attorney rather than the Adult Authority or the trial court shall have primary responsibility for determining the punitive consequences of recidivism in the individual narcotics case, the Legislature in the exercise of its constitutional power has simply chosen one public officer rather than another. Some judges may think they are best qualified to make this determination; some district attorneys may think they are; others may think that neither judges nor district attorneys should be entrusted with that responsibility. In

section 11718 of the Health and Safety Code the Legislature has designated the district attorney as the officer that can best effect the public policy of the state. “ 1 [I]t is not our concern whether the Legislature has adopted what we might think to be the wisest and most suitable means of accomplishing its objects.’ ” (State of California v. Industrial Acc. Com., 48 Cal.2d 365, 372 [310 P.2d 7], quoting City of Walnut Creek v. Silveira, 47 Cal.2d 804, 811 [306 P.2d 453].) The judgment is affirmed. Gibson, C.

J., Peters, J., and Tobriner, J., concurred. “In any criminal proceeding for violation of any provision of this division 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. ’ ’ “The judicial power of the State shall be vested in the Senate, sitting as a court of impeachment, in a Supreme Court, district courts of appeal, superior courts, municipal courts, and justice courts.” “The powers of the Government of the State of California shall be divided into three separate departments—the legislative, executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except as in this Constitution expressly directed or permitted. ’ ’ An incident related in 2 Campbell’s Lives of the Chancellors 173 is of interest in this connection.

After he had ordered the imprisonment of a group of fanatics called “Prophets” for seditious language, Lord Holt was visited by Lacy, one of their friends, who informed a servant that he carried a message “from the Lord God.” Lacy was admitted and told Lord Holt: “ I come to you a prophet from the Lord God, who has sent me to thee, and would have thee grant a nolle prosequi for John Atkins, his servant, whom thou hast east into prison.’’ Lord Holt replied: “Thou art a false prophet, and a lying knave.

If the Lord God had sent thee it would have been to the Attorney-General, for He Tcnows that it helongeth not to the Chief Justice to grant a nolle prosequi; hut I, as Chief Justice, can grant a warrant to commit thee to hear him company.” (See Wharton, Criminal Pleading and Practice (9th ed. 1889) § 383, p. 268, fn. 2.)

Section 1385 provides: “The court 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 reasons of the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading. ’ ’

Section 1386 provides: “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 the last section.’’

Article X,

section 1 (formerly

section 7) of the California Constitution provides: ‘ ‘ The Legislature may provide for the establishment, government, charge and superintendence of all institutions for all persons convicted of felonies. For this purpose, the Legislature may delegate the government, charge and superintendence of such institutions to any public governmental agency or agencies, officers, or board or boards, whether now existing or hereafter created by it. Any of such agencies, officers, or boards shall have such powers, perform such duties and exercise such functions in respect to other reformatory or penal matters, as the Legislature may prescribe. ’ ’