People v. Tanner

¶1Concurring. — I agree with Justice Tobriner as to the disregard for precedential cases that seems to inhere in Justice Clark’s opinion. My aim in concurring separately is to explain why, even apart from those cases, the majority opinion should be regarded as sui generis, likely to evanish as a “legislative history” precedent affecting California’s jurisprudence.

¶2The overriding issue in this case cannot be analyzed facilely. The statutes before us are technical and complex; the legislative histories of several of them are intricate. “How To Interpret Statutes Correctly” is a subject dealt with in a million and more pages, many of them penned by first-rate jurists.

¶3One lesson learned from those writings is that conscientious judges glean only minimal aid from so-called canons of construction; e.g., “A specific provision relating to a particular subject will govern a general provision . , . .” (See p. 521 of the maj. opn., ante; cf. fn. 16 of Justice Tobriner’s opn.; Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed (1950) 3 Vand.L.Rev. 395, 401.)

¶4Valid and reliable rules of statutory interpretation do exist. Three of them ought to be stressed here. First, in the words of Learned Hand: “When we ask what Congress [or another legislature] ‘intended’, usually there can be no answer, if what we mean is what any person or group of persons actually had in mind. Flinch as we may, what we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion.” (United States v. Klinger (2d Cir. 1952) 199 F.2d 645, 648.) The distingúished justice added, “He who supposes that he can be certain of the result, is the least fitted for the attempt.”1

¶5Second, a judge should approach all legislative histories and related extrinsic aids with observable caution and care. They are data. They also are shards, too fragmented most of the time to tell us much about the whole urn or the deeds of those who helped craft it.

¶6*539Third, authentic interpretation requires that complete laws be examined. To use snippets from laws is perilous. “When an attorney begins to analyze possible ambiguities without a complete list of all statutory words that affect his inquiry, he is as vulnerable as the engineer who in his calculations relies on an incomplete formula. Sentences, sections, and whole statutes must be read from beginning to end.”2

¶7Here we are specially concerned with words that appear in chapter 1004 of laws the California Legislature enacted in 1975. That chapter is labeled “An act to amend Section 1203 of, and to add Section 1203.06 to, the Penal Code, relating to probation.” Both those code sections are set forth verbatim; § 1203 in 107 lines; § 1203.06, 43 lines.

¶8Section 1203.06 is the basic statute we must construe. It begins, “Notwithstanding the provisions of Section 1203 . . . [probation shall not be granted to . . . [a]ny person who used a firearm [etc.].” (The italics are mine. Justice Tobriner has set forth the full text in his fn. 4.)

¶9The precise issue in this appeal from the trial court is whether the Legislature — even though its drafters wrote “Notwithstanding the provisions of Section 1203” — really meant to say, instead, “Notwithstanding any other provision of law”. The issue arises because the Legislature has placed many probation statutes that are analogous to § 1203 and § 1203.06 in chapter 1, title 8, part 2 of the Penal Code, where § 1203 and § 1203.06 also appear. Yet most of those statutes do not mention § 1203. They rather provide that, in certain kinds of cases (not including this case), probation may not be granted “Notwithstanding any other provision of law . . . .”

¶10Illustrating the Legislature’s having distinguished between “Notwithstanding the provisions of Section 1203” and other, more comprehensive phrases is this short summary of several statutes pertaining to our analyses here:

¶11(A) With § 1203.06 and § 1203.07 (both enacted in 1975), which begin “Notwithstanding the provisions of Section 1203”, we must compare the adjoining § 1203.08 (enacted in 1976) and § 1203.09 (enacted in 1977), which begin “Notwithstanding any other provision of law . . . .” (See too Justice Tobriner’s comments re § 1203.08 on pp. 533-535 of his opinion.)

¶12*540(B) With § 1202.5, which deals with theft and probation, which was enacted in 1978, and which reads “[H] Notwithstanding the provisions of Section 1203” and “[1Í2] Notwithstanding Section 1203.1”, we must compare § 1170.1(g) (enacted in 1977); § 1203.14 (enacted in 1973), § 1203c (enacted in 1935), § 1208(a)[2d 1Í] (enacted in 1972), and § 2601 (enacted in 1975), each of which provides “Notwithstanding any other provision of law . . . .” See too § 12032 (“Notwithstanding any provision of law or of any local ordinance to the contrary”).

¶13(C) Generally for words that in effect do seem parallel to “Notwithstanding any other provision of law” we must consider laws such as § 264.2 (“Probation shall not be granted [no exceptions]”); § 12311 (“No person . . . shall be granted probation”); § 337a.6 (a) and (b) and also Health and Safety Code § 11550 (“In no event does the court have the power”; cf. People v. Ruiz (1975) 14 Cal.3d 163, 166 [120 Cal.Rptr. 872, 534 P.2d 712]); and Senate Bill No. 278 (which in 1975 amended § 1203 and added § 1203.06) as it read when introduced by Senators Deukmejian and Presley on January 23, 1975. Their original § 1203(d), which allegedly allowed no exceptions, was of course changed by the Assembly’s amendment of August 28, 1975, discussed below.

¶14Enlightenment flows also from Penal Code § 4. It declares that all the code’s provisions are to be “construed according to the fair import of their terms, with a view to effect its objects and to promote justice.” In truth, what seems to be the fair import of “Notwithstanding the provisions of Section 1203”? Is it not that the words of § 1203.06 are to apply regardless of what the Legislature has pronounced in § 1203? To conclude that those quoted words (“Notwithstanding the provisions of Section 1203”), still unamended, import also that § 1203.06 is to override laws other than § 1203 (e.g., § 1385) seems to distort plain meaning, to extend the words so that they voice not what the drafters intended but rather what some people now think those drafters should have intended.

¶15None of the opinions written by my colleagues in this case suggests that the interpretation I thus propose, limiting § 1203.06’s exclusion to § 1203, would in any way obstruct the “objects” of the Penal Code or the goal of promoting “justice”. Accordingly the specific tests prescribed by § 4 of that code, on how we are to construe it, have been met.

¶16Justice Clark’s Extrinsic Aids

¶17Justice Clark’s opinion suggests that his and his majority colleagues’ conclusion as to the meaning of “Notwithstanding the provisions of *541Section 1203” is supported “by pertinent and timely expression of legislative intent existing when section 1203.06 was enacted” (p. 520 of the maj. opn.). He cites three documents; a Legislative Counsel “summary”, a Senate committee staff memo, and a press release issued by the Governor’s office. The Legislative Counsel document reads as follows:

¶18“Existing law provides, except in unusual cases in the interest of justice, for denial of probation to a person convicted of robbery, burglary or arson who unlawfully was armed with a deadly weapon at the time of arrest or perpetration of the crime, or to a person previously convicted of any felony.

¶19“Existing law also provides, except in unusual cases in the interest of justice, for the denial of probation to a person who is convicted of other specified felonies while unlawfully armed with a deadly weapon, or convicted of a crime in which a deadly weapon is used or attempted to be used or in which great bodily injury is inflicted or convicted, or who has been twice previously convicted of felonies, and for various other crimes.

¶20“This bill would revise these provisions so that (1) probation and suspension of sentence would be denied, without any exception in unusual cases in the interest of justice, to any person who uses a firearm during the commission of various felonies, including murder, robbery, first degree burglary, prison escape, and various assaults, rapes and kidnappings, but probation would not be denied in such cases solely on the ground of being unlawfully armed with a firearm in the absence of use as specified above; (2) probation and suspension of sentence would be denied, without any exception in unusual cases in the interest of justice, to any person who is previously convicted of such felonies while armed during the commission of any subsequent felony or unlawfully armed at the time of arrest instead of being denied on the ground of a previous conviction of any felony; and (3) this bill would retain the provisions for denial of probation, except in unusual cases in the interests of justice, but would limit the application of such provisions as they presently relate to using, attempting to use, or being unlawfully armed with deadly weapons, in cases other than where a person was previously convicted once of any felony, to deadly weapons other than firearms.

¶21“This bill would also delete an existing provision, which is inoperative, relative to the requirement of the concurrence of the district attorney for the grant of probation in certain cases.” (Italics added.)

¶22*542Those four paragraphs were printed with the bill when it was introduced on January 23, 1975. Not one word was altered or added by the Legislative Counsel when the bill was amended in the Senate on May 13 and again, in the Assembly, on August 28. The phrase that concerns us, “Notwithstanding the provisions of Section 1203”, was not included in the bilí until the Assembly passed its August 28th amendment.

¶23Why did the Legislative Counsel not revise his summary after the August 28th amendment? Possibly he and his staff were much too busy during the final, hectic days of that legislative session. A juridical explanation, however, is that no revision was appropriate. Why not? Because the four paragraphs quoted above suggest that the Legislative Counsel, from January 23 on, regarded the bill as nothing more than an amendment to § 1203. Why is that so? Because both the Januaiy 23 and the May 13 versions of the bill were labeled “An act to amend Section 1203 of the Penal Code, relating to probation”; and when words of the proposed amendment were, on August 28, removed from § 1203 and utilized to create § 1203.06, the only pertinent change was to add, at the beginning of § 1203.06, “Notwithstanding the provisions of Section 1203 99

¶24What did the Legislative Counsel mean when he said “without any exception in unusual cases in the interest of justice”? (See the words italicized in parts (1) and (2) of his third paragraph quoted above.) Apparently what he meant was that the exclusion from § 1203 of “unusual cases in the interest of justice” would not apply. (See the words italicized in paragraphs 1 and 2 quoted above, and also part (3) of the third paragraph.) His phrase “[ejxisting law”, in paragraphs 1 and 2, refers to § 1203 only. It does not refer to § 1385 or to the line of cases discussed in Justice Tobriner’s opinion.

¶25The Senate Committee Staff Memo

¶26Justice Clark says that the Legislative Counsel’s paragraphs are consistent with a staff memo stating that the bill (apparently as introduced on Jan. 23) “Prohibits, without exception, the granting of probation to persons who have carried or used firearms in connection with certain crimes, for which probation may be obtained under existing law in unusual cases in the interests of justice.” Unfortunately that quotation has been bobtailed. The memo appears in appendix B of the Attorney General’s brief filed on October 8, 1976. As therein set forth its opening paragraph reads: “Prohibits, without exception, the granting of *543probation to persons who have carried or used firearms, in connection with certain crimes, for which probation may be obtained under existing law in unusual cases in the interests of justice (paras. (1) & (2), subd. (d), Sec. 1203, Pen. C.).”

¶27What is the significance of that closing citation “(paras. (1) & (2), subd. (d), Sec. 1203, Pen. C.)”, which is not mentioned in the majority opinion? It tells us that the writer of the Senate committee memo, like the Legislative Counsel, was concerned with § 1203 only. His reference was to the existing § 1203(d) and its exclusion of “unusual cases in the interest of justice”. Nothing in the six-page memo or in any other document suggests that the writer or the Senate committee ever considered the impact of the August 28th amendment on § 1385 or on the cases stressed by Justice Tobriner. (See the memo’s full text in annex A, infra. The words “without exception” in comment 2 on page 553 clearly involve the reference in comment 1 on page 552 to § 1203(d)’s exclusion (“Except in ‘unusual cases’ where probation would serve ‘the interests of justice’ ”). No words in the memo express or imply any knowledge of or concern with any other Penal Code section.3)

¶28The Governor’s Press Release

¶29The press release from which Justice Clark quotes appears in appendix A of the Attorney General’s brief filed on October 8, 1976. (It is also in annex B, infra.) It indicates that the Governor with some vehemence did declare his views on “those who use guns to commit crimes”. Yet none of its words indicates that the Governor or his advisers had any knowledge regarding legislative intention with respect to the crucial phrase “Notwithstanding the provisions of Section 1203”. The press release, like the Legislative Counsel document and the Senate committee memo, *544evidences no official concern whatsoever that affects the August 28th amendment or § 1385 or Justice Tobriner’s cases. (See too the second paragraph of Justice Tobriner’s fn. 6.)

¶30Other Extrinsic A ids

¶31Counsel have referred us to a congeries of other documents, some of which merit comment. Consider, for instance, the Attorney General’s letter of March 14, 1979, which reads in part: “[W]e invite the court’s attention to the view of Alan Sieroty, Chairman of the Assembly Committee on Criminal Justice in a colloquy with Louis Katz, an attorney from San Diego, representing the Criminal Defense Lawyers (see attachment — excerpts from hearing, supra). This makes it clear that the chairman of the committee understood that the discretion of the court to strike the allegation had been eliminated. This is consistent with all of the legislative histoiy presented to the court, and although it is a view expressed subsequent to the passage of the legislation, it may be considered.”

¶32That is a puzzling inference. The paraphrased colloquy was reported as follows (italics added): “Chairman Sieroty: An armed robbeiy case, Mr. Katz, is kind of interesting. Under our law now, the judge would have no discretion to grant them probation.

¶33“Mr. Katz: That’s right; under SB 42.

¶34“Chairman Sieroty: No, under 287, was it? 278. That man would go to prison. He would not have any opportunity for probation. The only opportunity would be that you could convince the district attorney, as to what to say, and he might change the charge, or something else.

¶35“Mr. Katz: Well, if they strike the allegation . . .

¶36“Chairman Sieroty: Strike the allegation of utilization of a weapon in robbeiy. Then there would be a different situation. So what that bill has done is to change who exercises the discretion?

¶37“Mr. Katz: The district attorney instead of the judge.

¶38“Chairman Sieroty: That’s right. That is what I see happening in this process.

¶39*545“Mr. Katz; And that’s what really concerns me that the charging authority, the'district attorney, will have the power to decide who does, or doesn’t, go to prison. Without the benefit of the Judicial System, the district attorney relies on the police report, and true, he has, maybe, the man’s past record, but then about how he charges the defendant is deciding either he goes to trial, or how the man is going to be sentenced, because if they charge an allegation of being armed, the judge has no discretion, and this is the thing we’re concerned about. . . .”

¶40What exactly was meant by the chairman’s words, “Strike the allegation of utilization of a weapon in robbery. Then there would be a different situation.”? The only justifiable inferences, I submit, are (1) that both the chairman and Mr. Katz indeed did know about the § 1385 exception, and (2) that the chairman regarded “strike” cases as “different”, relevant generally perhaps but nonetheless beyond the scope of his on-going inquiry into Senate Bill No. 278, § 1203, and § 1203.06.

¶41There are also letters from the Attorney General to the Assembly and its committee, to the Senate committee, and to the Governor. I have appended them here (as annexes D, E, F, G) first, because starkly they decorate footnote 8 in Justice Tobriner’s opinion;4 and second, because it will be seen that none of them contains any hint that its author’s concerns in any way extended beyond “. . . the provisions of Section 1203”.

¶42“Subsequent” Legislative History

¶43Readers may recall that the excerpt above from the Attorney General’s letter of March 14, 1979 recounts “a view expressed subsequent to the passage of the legislation”. Among many views like that one which might have affected our holding, most were expressed and commented upon during recent months — on TV and radio, in dispatches, editorials, letters to the editor, in tavern and town. The politicization of this proceeding *546after the summer of 1978 became phantasmagoric. A shrill, clamorous campaign — inspired and nurtured by experienced, well-financed, ambitious, and posse-like “hard on crime” advocates — has had a still incalculable but dismal impact on the judicial process in California.

¶44As first presented to the Court of Appeal and then to us, this case might have been a useful vehicle for a much-needed examination of questions involving subsequent legislative history and its proper use by courts. In our letter of February 20, 1979 to counsel we sought comment on “the advisability of utilizing post hoc legislative declarations in litigation generally”. (See annex H, infra.)

¶45Regrettably that needed examination will have to be postponed. Its essential focus has been caricatured, somewhat bizarrely, in several briefs and other statements made before, during, and after oral argument on rehearing here. Thus it is not timely yet for us to reweigh this oft-quoted dictum in Hilder v. Dexter (1902) A.C. 474, 477: “My Lords, I have more than once had occasion to say that in construing a statute I believe the worst person to construe it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed.”5 See part II of the State Public Defenders’s amicus brief filed on March 2, 1979 (“The statement in the Condit and Hanelt brief regarding legislative intent is unreliable and irrelevant to this case and should not be considered by this court”); Final Report of the Subcommittee on Legislative Intent of the Assembly Committee on Rules (1963) seriatim; Forsyth, Declaratory Legislation in California (1948) 36 Cal.L.Rev. 634; Dickerson, The Interpretation and Application of Statutes (1975) page 181: “[T]he court’s general duty of deference to the legislature would in many cases be better served by acting consistently with the enacted will of the Legislature than by acting consistently with the unenacted later will, despite the fact that the unenacted expression of intent was the more recent legislative expression.”

¶46*547Finally, because in years ahead the chroniclers of this rehearing and of the whole melancholy tale may lack awareness of pertinent events and diverse pressures that have become so tangled, I think that I should review briefly some of the November 1978 to June 1979 developments regarding § 1203.06.

¶47The trial court’s critical action here was during July 1976. On July 21, 1977, after the Court of Appeal had reversed that action, we granted a hearing; and oral argument was heard on February 6, 1978. Tutored and harsh comment began to appear at least as early as June 1978. (See Nicholson, People v. Tanner: An Update, L.A. Daily J. Rep. (Jan. 24, 1979) p. 4, at p. 6; cf. Nicholson & Condit, The Ultimate Human Right, Met. News (May 23, 1978) p. 2.)

¶48During 1977 and 1978 the Legislature could of course have amended the law. In § 1203.06 the phrase “Notwithstanding the provisions of Section 1203” could have been replaced by “Notwithstanding any other provision of law”, “With no exceptions”, or similar words. Except for a perplexing attack by the Republican gubernatorial candidate on October 10 and 11, 1978, however, the hullabaloo did not begin till November 1978. “If the State Supreme Court throws out California’s law mandating prison terms for criminals who use guns, Governor Brown said ... he will lead a fight to reinstate that law. ‘We will have mandatory prison sentences if I have to write the new law or a new amendment to the Constitution,’ Brown said.” (S. F. Chronicle, Nov. 9, 1978.) In early December, “Attorney General-elect George Deukmejian pledged to lead the fight to reinstate mandatory prison sentencing laws if they are overturned by the state Supreme Court.” (L. A. Daily J., Dec. 5, 1978.) “A freshman Assemblyman . . . proposed a constitutional amendment in anticipation of a controversial Supreme Court decision that may overturn a state sentencing law.” (The Recorder, Dec. 13, 1978.)

¶49This court’s initial opinions were filed on December 22. “In Sacramento, Governor Brown reacted sharply .... [B]oth Brown and . . . Deukmejian promised to push for reinstatement of the mandatory prison penalty for gun-wielding criminals . . . .” (This World, Dec. 31, 1978.) The San Francisco Chronicle editorialized: “This law . . . must be *548re-enacted .... And it must be drawn in such a way that the California Supreme Court will have no leg to stand on if it should set out again to override the undoubted will of the people.” (Sunday Punch, Dec. 31, 1978. ) “Sen. Jerry Smith . . . said he saw no or little resistance to passage of the measure, since ‘all legislators feel strongly about this.’ ” Also, “[t]o help expedite matters Smith . . . received permission by a unanimous vote of the upper house to hold a hearing on the measure . . . next Tuesday [Jan. 9]”. (S. F. Examiner, Jan. 3, 1979.)

¶50By that time the Governor seemingly had found that other matters were for him more pressing. “The leadoff witness in favor of the measure was newly inaugurated Republican Atty. Gen. George Deukmejian”, and the committee endorsed the bill unanimously. (L. A. Times, Jan. 10, 1979. ) Two days later it passed the Senate unanimously.6

¶51Meanwhile, back at the Assembly committee where doubts had been expressed at a first meeting on January 8, the inquiry attracted notably fewer media people than did the Senate proceedings. Yet the questions raised there did seem more penetrating and perceptive, and several editorialists began to pronounce their second thoughts. See, e.g., page 6 of part II of the January 11th Los Angeles Times: “Now that the controversy over the Supreme Court’s decision has abated somewhat, the Legislature should take the time required to carefully debate a new statute. The . . . law must be just, and must have some flexibility to provide for the ‘extraordinary cases’ cited by Tobriner.”

¶52Committee action eventually was postponed, and the prospect of new legislation is blurred. See the San Francisco Banner’s Assembly to bypass all sentencing bills . . . , May 4, 1979 (“labeled a ‘death wish’ by Michael Rushford, director of the California Chamber of Commerce Anti-Crime Department”); also the related dispatch from Sacramento in The Recorder, May 10, 1979 (“the Assembly Criminal Justice Committee yesterday approved two moderate measures on dangerous mentally ill offenders, but killed other, tougher sentencing proposals”). Concerning the views of “George Nicholson, a former Alameda County prosecutor who lobbies for the California District Attorneys Association, and Rod *549Blonien, chief legislative lobbyist for Attorney General George Deukmejian,” the San Francisco Examiner had earlier reported (Feb. 7, p. 5) that “their hope for an omnibus blanket for all mandatory terms is bogging down, as a legislative staff review of these laws begins to turn up inconsistencies and anomalies.”7

¶53As noted above, all that seemed needed during the months that have followed December 22, 1978 was a simple amendment that replaced “Notwithstanding the provisions of Section 1203” with “Notwithstanding any other provision of law” or an equivalent phrase. To date, the Assembly’s representatives have chosen not to observe the many ex cathedra edicts typified by the quote on my preceeding pages 547-548 from the San Francisco Chronicle, as well as these words from the San Francisco Examiner (Dec. 27, 1978): “The Legislature should make its intent so clear on this law that that issue never again could be raised by this court. And it should make achievement of the goal Act I as it assembles to face the tasks of the New Year.”

¶54Conclusion

¶55The incumbent Attorney General has advised as to what he and his colleagues “obviously intended”. Justice Clark’s opinion pronounces that “the Legislature has not assisted us in discerning its intent”.

¶56With greater perception Justice Tobriner states, “The legislative disapproval of the trial court’s pre-1975 probation practice ... is by no means irreconcilable with a legislative decision to leave the trial courts’ section 1385 power intact; the Legislature may well have desired to disapprove the trial courts’ quite liberal pre-1975 probation practice without completely stripping such courts of their traditional power to strike allegations or findings in the truly extraordinary or exceptional case. [If] Indeed, the lead opinion’s ultimate determination to relieve Tanner of a prison sentence is eloquent testimony to the strength of the traditional, underlying judicial policies in this area, recognizing that exceptional circumstances — unforeseen by the Legislature — may in rare cases warrant a departure from a generally appropriate sentence.”

¶57*550I share those views, and that four colleagues have not felt impelled to explain fully their reasons for disagreement is saddening. My own discussion has converged on evidence regarding the Assembly’s crucial amendment of August 28, 1975. That evidence, I believe, supports a finding that influential legislators who helped guide the final vote desired to restrict the discretion conferred by § 1203 but to retain the discretion conferred by § 1385. At first glance the former section’s stress on “the interests of justice” seems like the latter’s requirement that trial court action be “in furtherance of justice”. Analysis of the legislative and judicial histories helps prove, though, that the aims as well as the applications of the two sections have differed significantly.

¶58*551Annex A

¶59

¶60*552

¶61*553

¶62*554

¶63*555

¶64*556

¶65*557Annex B

¶66

¶67*558

¶68*559Annex C

¶69

¶70*560

¶71*561Annex D

¶72

¶73*562

¶74*563Annex E

¶75

¶76*564

¶77*565Annex F

¶78

¶79*566

¶80*567Annex G

¶81

¶82*568Annex H

¶83

¶103Concurring and Dissenting. — I agree with my colleague, Justice Newman, that this case and its rehearing present a “melancholy tale.” As he so succinctly points out, “[t]he politicization of this proceeding after the summer of 1978 became phantasmagoric. A shrill, clamorous campaign — inspired and nurtured by experienced, well-financed, ambitious, and posse-like ‘hard on crime’ advocates — has had a still incalculable but dismal impact on the judicial process in California.” (Cone. opn. of Newman, J., ante, at pp. 545-546.)

¶104The original decision in this case was filed on December 22, 1978, and at that time the position advocated by today’s majority did not prevail. (See 151 Cal.Rptr. 299.) Nothing new has come before us other than some additional work on legislative history compiled by Justices Newman and Tobriner. Today’s majority does not make any attempt to deal with this new material.

¶105Moreover, the result reached by this new majority is contrary to the results that three of them so strenuously urged just a few months ago. This is nothing more than an attempt to carve a compromise of expediency. The law has been twisted out of shape to achieve then-unique result. To avoid criticism that they have made the defendant a pawn in this process, the majority exempt him from the very standard that will be applied to all other defendants. And what is most discouraging, the majority give short shrift to the difficult issues of legislative intent and constitutional validity in a headlong rush to find a popular solution for an unpopular case.

¶106Have we forgotten that justice is not a matter of expediency? It is not a cloak in which we can wrap ourselves when we find its protection most convenient. It is, rather, a matter of principle, plain and simple. If we hope to maintain a legal system characterized by justice, we cannot defer its application as to even a single case that comes before us.

¶107The challenging points on legislative history and constitutional validity deserve careful consideration. Yet the majority’s discussion deals with these issues primarily by silence. It would appear that each justice on this court agrees on certain basic principles relating to the separation of powers clause of our Constitution. (Art. Ill, § 3.) As Justice Clark has stated in this case, “[t]here has never been any doubt that the courts are exclusively vested under the separation of powers doctrine to make adjudication of any issue affecting the penalty to be imposed in a criminal proceeding.” (151 Cal.Rptr. at p. 321, italics added [former dis. opn.].) Yet my colleagues honor this principle only in its breach.

¶108*570The exercise of this adjudicatory power in no way invades any legislative power to fix the range of possible punishments for a crime. The imposition of a legislatively prescribed sentence on a defendant does not come about until after all the issues and factors relative to guilt and to punishment have been finally adjudicated. After the adjudication process is completed, the trial court pronounces judgment* within the limits of the options provided by the Legislature and the other provisions of the Constitution (see, e.g., In re Lynch (1972) 8 Cal.3d 410, 414-415 [105 Cal.Rptr. 217, 503 P.2d 921]). Thus, the legal power and duty of the court to impose a sentence or render a judgment within those limits are distinct from its legal power to adjudicate “any issue affecting the penalty to be imposed.”

¶109Only the latter “adjudicatory” power of the court is involved in the present case. Before any sentence or judgment could have been imposed on Mr. Tanner by the trial judge, the allegation that Tanner had used a firearm within the meaning of Penal Code section 1203.06 had to be finally adjudicated. (Post, at pp. 558-559.) The adjudicatory process was not completed at the time the jury rendered its verdict. It was not completed until the trial judge ruled on Tanner’s motion to strike the use of a firearm. (See cases collected, post, atp. 559, fn. 5, and accompanying text.) Since it is clear that the courts are vested under the separation of powers doctrine with the responsibility for the adjudication of any issue affecting a criminal penalty to be imposed, that constitutional principle was violated when the Legislature attempted to arrogate to itself both the adjudicatory as well as the sentencing function.

¶110Since nothing has changed since this court’s initial decision was filed on December 22d, my original concurring and dissenting opinion is set out below.†

¶111This court should not substitute its judgment for that of the Legislature when an issue of statutory interpretation is involved. We “must give full weight” to the intent of the Legislature. (People v. Caudillo (1978) 21 Cal.3d 562, 589 [146 Cal.Rptr. 859, 580 P.2d 274] (cone. opn. of Bird, C. J.).) After consideration of the legislative history of Penal Code section 1203.06, I agree with my colleagues, Justices Manuel, Richardson, and Clark, that the Legislature intended to remove from courts the power to give probation when an individual is convicted of one of the felonies enumerated in that section and a gun is displayed.

¶112*571However, this does not end our inquiry, for this case involves more than statutory interpretation. As judges, we have taken an oath of office to uphold the Constitution of this state. Thus, when a legislative enactment contravenes the Constitution, this court cannot defer to the Legislature and remain true to its constitutional mandate. However controversial the question, the court cannot avoid an issue which goes to “the very core of our judicial responsibility.” (People v. Anderson (1972) 6 Cal.3d 628, 640 [100 Cal.Rptr. 152, 493 P.2d 880]; see also, Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 248-249, 256-257 [149 Cal.Rptr. 239, 583 P.2d 1281] (cone, and dis. opn. of Bird, C. J.).) If we were to shrink from the obligations of our oath, the Declaration of Rights would become meaningless. To decide cases based on what is most popular at the moment will ultimately destroy the judiciary as a third branch of government.

¶113This case presents an issue that goes to the heart of our existence as an independent and coequal partner in government. Article III, section 3 of the California Constitution requires that the legislative, executive, and judicial powers be separately exercised by the three branches of government. If we are to remain faithful to that section of the Constitution, we must affirm the judgment of the trial court.

¶114I

¶115This court must perform the difficult task of removing itself from the politics of the moment without isolating itself from the realities of the day. No one condones the use of a firearm to secure an illegal end. As judges, we share with all citizens the sense of outrage at those who would take the life or property of another at gunpoint. Justice and respect for human life demand nothing less from us. Such actions not only injure individuals, they inevitably tear at the fabric of our society. But just as eveiy human life is irreplaceable, every human being is unique and each situation must be judged individually.

¶116The actual issue before us has been obscured by a number of myths. One such myth is that a defendant who is granted felony probation avoids incarceration. In fact, an individual who is placed on probation for a felony may receive up to one year in the county jail for each offense he has committed. That is exactly what happened in the present case.

¶117That is not the only myth surrounding this case. The slogan “Use a gun, go to prison” has been portrayed as an accurate description of Penal Code section 1203.06. As is often the case with slogans, their simplicity is only exceeded by their inaccuracy. If a person uses a gun in the commission of an offense, he is not necessarily denied probation nor *572required to go to state prison. Section 1203.06 does not cover many serious crimes. For example, if an individual commits an assault with a deadly weapon (Pen. Code, § 245, subd. (a)), and he shoots and wounds his victim, he is eligible for probation. Nor does section 1203.06 apply to other dangerous felonies such as assault or battery on a peace officer (Pen. Code, §§ 241, 243), assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (b)), battery resulting in a serious bodily injury (Pen. Code, § 243), arson (Pen. Code, § 447a), child molestation (Pen. Code, § 288), lynching (Pen. Code, § 405a), mayhem (Pen. Code, §" 203), forcible sodomy (Pen. Code, § 286), and forcible oral copulation (Pen. Code, § 288a). Similarly, felonies such as second degree burglary (Pen. Code, §§ 459, 460) with the use of a firearm are excluded from the scope of section 1203.06.

¶118Further, the prosecutor has complete discretion as to whether to invoke section 1203.06 in those cases where it applies. He may decide not to allege a firearm has been used even when it has. Even after the use of a firearm has been alleged, the prosecutor may move to have the allegation stricken. (See Pen. Code, § 1385.) The prosecutor may agree to dismiss the firearm allegation in exchange for a guilty plea to the underlying offense during plea bargaining. If the prosecutor agrees to a “charge-bargain,” he may allow a defendant to plead guilty to an offense which is not covered by section 1203.06.1

¶119The point in all these cases is that even though a firearm may have been used, the offender is not automatically stripped of his eligibility for probation and sentenced to state prison. The so-called mandatory gun law is not mandatory at all In section 1203.06, the Legislature has in effect vested in the representative of the executive branch, the prosecutor, all discretion as to a local disposition (probation with a county jail sentence) and withdrawn such discretion totally from the judicial branch.

¶120Historically, sentencing has been considered an inherently judicial function since it requires a neutral magistrate who will fairly consider both sides of a question. In enacting Penal Code section 1203.06, the Legislature apparently intended to remove from the court the power to grant probation when an individual is found to have displayed a gun while committing one of the felonies enumerated in that section. After *573much thought, I am convinced that such a legislative fiat violates the express provisions of article III, section 3 of the California Constitution. By dictating to judges what they can and cannot do in adjudicating with respect to a penalty enhancement factor, the Legislature has violated basic principles of separation of powers and taken away from judges their historic power to match the judgment to the facts of the individual case.

¶121Consider the facts now before us. An experienced trial judge, who handled this matter, found it to be a “very, very rare case.” The nature of the offense was described as “bizarre.” (151 Cal.Rptr. 299, 301-302 [former maj. opn.].) The investigating detective from the sheriff’s office recommended that Mr. Tanner “be placed on probation with a short county jail sentence.” The detective did “not feel that the defendant is a candidate for State Prison.” He felt that Mr. Tanner’s “good record up to the present offense” was an important factor to consider and that “the defendant ha[d] learned a lesson.”

¶122The trial judge concluded that Mr. Tanner had a “clean background” and that the firearm was unloaded at all relevant times with “no real intent to use [the] weapon as such” being demonstrated. Mr. Tanner had been honorably discharged from the Army after service in Korea. Formerly he had been the manager of a large department store’s branch in the East Bay. Following a divorce, he slipped into a long period of depression. He had no prior criminal record. The trial judge concluded that in this unusual case he would incarcerate Mr. Tanner for one year in the county jail, and require five years of probation with a suspended state prison sentence. The question once again is posited. Does the Legislature have the power to preclude a judge from considering this punishment when a penalty enhancement factor is present? The legal question is ultimately one of the separation of constitutional powers.

¶123II

¶124It is the constitutional duty of this court to ensure that the essential functions of the judicial branch of government are safeguarded from encroachment by the coequal legislative or executive branches. (Cal. Const., art. Ill, § 3.) Three times in this decade this court has unanimously held that sentencing courts alone have the power to determine whether a penalty should be enhanced. (People v. Tenorio (1970) 3 Cal.3d 89 [89 Cal.Rptr. 249, 473 P.2d 993]; In re Cortez (1971) 6 Cal.3d 78 [98 Cal.Rptr. 307, 490 P.2d 819]; Peoples. Ruiz (1975) 14 Cal.3d 163 [120 Cal.Rptr. 872, 534 P.2d 712].) The constitutional principles outlined in these decisions clearly control this case.

¶125*574Article III, section 3 of the California Constitution provides that “[t]he powers of state government are legislative, executive, and judicial.” The judicial power of state government is vested by the Constitution in the courts alone. (Cal. Const., art. VI, § 1; cf. Cal. Const., art. IV, § 1 [“The legislative power of this State is vested in the California Legislature . . . .”]; Cal. Const., art. V, § 1 [“The supreme executive power of this State is vested in the Governor.”].)

¶126The Constitution further provides that “[pjersons charged with the exercise, of.-pn.e power [of state government] may not exercise either of the others except as permitted by this Constitution.” (Cal. Const., art. Ill, § 3.) Thus, because of this requirement of separation of powers, “the exercise of a judicial power may not be conditioned upon the approval of either the executive or legislative branches of government . . . .” (Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 127 [95 Cal.Rptr. 524, 485 P.2d 1140].) “The judicial power must be independent, and a judge should never be required to pay for its exercise.” (People v. Tenorio, supra,3 Cal.3d at p. 94.)

¶127This court suggested more than 20 years ago that “in respect to constitutionally vested judicial power” the adjudication and determination of penalty enhancement factors are “inherently and essentially the province of the court.” (People v. Burke (1956) 47 Cal.2d 45, 52 [301 P.2d 241].) The court reasoned that a trial judge has inherent constitutional power under the separation of powers clause to “control the proceedings before it insofar as the essentials of the judicial process are concerned . . .” and that among such “essentials of the judicial process” is the power “to strike or dismiss as to any or all of multiple counts or charges of prior conviction.” {Ibid.) As Justice Schauer later explained in his noted dissent in People v. Sidener (1962) 58 Cal.2d 645, 665-666 [25 Cal.Rptr. 697, 375 P.2d 641], “A charge of prior conviction which is found to be true now has serious and far reaching effects on the punishment of the offender . . . .” Thus, he concluded, the power to hear and determine “the important question of dismissing such a charge . . . must... be deemed an essential part of the judicial process [and]... an implied constitutional power of the courts of this state.” (Id., at p. 666, fn. omitted.)

¶128Justice Schauer’s dissent in Sidenerwas approved by this court, and the principles of Burkewere applied, in People v. Tenorio, supra,3 Cal.3d 89. In Tenorio, the Legislature had promulgated a statute which forbade a sentencing judge from exercising at sentencing the “judicial power to grant a motion to strike priors” without the consent of the prosecutor. (3 Cal.3d at p. 93.) This cou’rt held that “the power to strike priors is an essential part of the judicial power” (ibid.) vested by the Constitution *575exclusively in the courts. Therefore, the exercise of that power could not be overruled or curtailed by a representative of another branch of government. The basic premise of Tenoriowas clearly consistent with Burke: “When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature.” (Tenorio, supra, 3 Cal.3d at p. 94.)

¶129Tenoriowas followed one year later by In re Cortez, supra,6 Cal.3d 78, which involved a defendant who had been convicted of selling or offering to sell heroin2 with a prior felony narcotic conviction. At the time the defendant was to be sentenced, former Health and Safety Code section 11715.6 provided that “[i]n no case shall any person convicted of [selling or offering to sell narcotics] be granted probation by the trial court, nor shall the execution of the sentence imposed upon such person be suspended by the court, if such person has been previously convicted of any felony offense described in this division . . . .” (Stats. 1961, ch. 274, § 12, p. 1308.) Although the statute “flatly prohibited] probation” to an individual who had a prior narcotic felony conviction (In re Cortez, supra, 6 Cal.3d at p. 85), this court held that article III and article VI, section 1 of the California Constitution permitted the trial court to strike the prior conviction in order to make the defendant eligible for probation.

¶130In People v. Ruiz, supra,14 Cal.3d 163, this court reiterated and applied the separation of powers principles in a case legally indistinguishable from the present case. In Ruiz, the defendant had been convicted at trial of possession for sale of heroin with a prior felony conviction for possession of narcotics. On appeal, the possession for sale conviction was reduced to simple possession. The case was remanded for resentencing, even though the defendant was still “technically ineligible for probation.” (Id., at p. 166.) Health and Safety Code section 11370, subdivision (a)3 provided that “[a]ny person convicted of [possession of heroin] shall not, in any case, be granted probation by the trial court or have the execution of the sentence imposed upon him suspended by the court, if he has been previously convicted of [possession of narcotics].” (Italics added.)

¶131The Ruiz court, with my colleague Justice Clark concurring, held that the trial court could strike the prior conviction in order to place the defendant on probation. Despite the language of section 11370, the defendant was held to be “entitled to a new probation hearing wherein *576the court may make a new judgment relative to his fitness for probation in light of the crime of which he now stands convicted.” (People v. Ruiz, supra,14 Cal.3d at p. 167, italics added.) The constitutional origin of this holding was reemphasized by the court’s reference to the “comprehensive range of the [sentencing court’s] constitutional discretion.” (Ibid., italics added.)

¶132The statute involved in the present appeal is in all relevant respects identical to the statutes discussed in Cortez and Ruiz. (See 151 Cal.Rptr. at p. 305, fn. 7 [former maj. opn.].) All three statutes purport to deny probation to defendants when certain penalty-enhancing factors have been found to be true. Since the trial court could strike the enhancing factors in order to find Mr. Cortez and Mr. Ruiz eligible for probation, the lower court in this case had that same power.

¶133The dissent by my colleague, Justice Clark, shows a basic misunderstanding of the constitutional issue presented. That dissent concedes that “the courts are exclusively vested under the separation of powers doctrine to make adjudication of any issue affecting the penalty to be imposed in a criminal proceeding.” (151 Cal.Rptr. at p. 321 [former dis. opn.].) However, it is urged that “that is not the issue here. Our concern is with the penalty to be imposed once the adjudication has been made by the court.” (Ibid.)

¶134With all due respect, the issue the dissent concedes is precisely the issue before this court.4 A judge’s ruling on a motion to strike a penalty *577enhancement factor for purposes of sentencing is itself part of the adjudication process; the imposition of a sentence required or permitted by statute follows this adjudication.

¶135This is apparent from numerous prior decisions of this court, some of which are cited in Justice Clark’s dissent. For example, in People v. Burke, supra,47 Cal.2d at page 52, this court stated that judicial determination of a motion to strike a penalty enhancement factor at sentencing is “inherently and essentially the province of the court even as the punishment which may or must follow the offense adjudicated, either with or without a punishment augmentation factor, is essentially for the Legislature . . . .” (Italics added.) Subsequently, Justice Schauer, in his dissent in People v. Sidener, supra,58 Cal.2d at page 653, noted that a motion to strike a prior conviction for sentencing purposes is “a motion made prior to entry of judgment in a felony criminal action, the ruling on which will affect the substantial rights of the defendant under the judgment to follow.” (Italics added.) As the dissent in the present case recognizes (151 Cal.Rptr. at p. 320, fn. 6 [former dis. opn.]), Justice Schauer’s opinion in Sidenerwas subsequently approved by this court. (People v. Tenorio, supra,3 Cal.3d at p. 95; see also People v. Navarro (1972) 7 Cal.3d 248, 259 [102 Cal.Rptr. 137, 497 P.2d 481]; People v. Clay (1971) 18 Cal.App.3d 964, 968 [96 Cal.Rptr. 213].)5

¶136*578Since a court’s ruling on a motion to strike is part of the adjudication process, Burke, Cortez, and Ruiz compel the conclusion that the power to strike the penalty enhancement factor in this case is exclusively reserved to the judiciary. Continued adherence to Burke, Cortez and Ruiz is not a judicial usurpation of the Legislature’s prerogative. Rather, it is a constitutional protection of the judicial function from legislative usurpation. These cases simply represent a traditional protection of the judiciary’s constitutionally reserved functions as neutral arbiters in the sentencing process.

¶137In the present case the trial court correctly understood that its responsibility for determining whether to strike the penalty enhancement was of constitutional dimension. Unless this court overrules Burke, Cortez, and Ruiz, and rewrites article III, section 3 of the state Constitution, the decision of the trial court must be upheld.