*1 рroving insanity defendant could not sustain the burden of his mitigation penalty assumes that the evidence offered necessarily identical with the evidence that would have sanity hearing. been offered on a Even if defendant would have right jury to a evidence, introduced the same his determination sanity precludes determining his this court from that issue appeal. the first time on Peters, J., J., Tobriner, concurred.
Appellant’s petition for rehearing was denied November Traynor, J., Peters, J., Tobriner, J., 1962. were petition opinion granted. should No. 7014. In Bank. Oct.
[Crim. 1962.] PEOPLE, THE Respondent, Plaintiff v. ROBERT
KARL SIDENER, Appellant. Defendant and *2 Ellery Cuff, Defender, Public Fred Kilbride and E. James Defenders, McCormick, Deputy Public for Defendant and L. Appellant.
Stanley Attorney Sokolow, Mosk, General, and Norman H. Respondent. Attorney General, for Plaintiff and Deputy judgment appeals TRAYNOR, J. Defendant possession charging him an information conviction on Safety Health (heroin) in violation of and Code a narcotic charge found to true 11500. The trial court also section violating had the same that defendant been convicted hearing probation At the and section sentencing 1955. judge trial dismissal of refused consider ground on the that the district required attorney motion for had made no dismissal as Safety Health section 11718. Probation was denied (Health Code, 11715.6) & Saf. and defendant was sentenced § (Health to an increased term as second offender. & Saf. Code, 11500.) Legislature has determined recidivists should be punished severely more (e.g., than first Code, offenders Pen. 3020, 644, 1203, 3024, 3047-3048.5; Health & Saf. §§ 11500, 11501, 11531, 11532, 11540, 11557, §§ charges 11715.6) has directed that in nar- recidivism except upon cotics shall not cases be dismissed motion of the attorney. district Defendant contends that the charges to dismiss such exclusively
is vested VI, the courts article section l2 III, article section l3 of Constitution, the California Health and Code section 11718 is therefore invalid. Any This contention is implications unsound. statements People v. Burke, People 47 Cal.2d P.2d 241], and [301 Valenti, 633], contrary Cal.2d to the necessary were not holdings those cases are dis- approved. In Legislature adopted 11718 the *3 prosecutor’s of power common-law prosequi, of nolle included the allegations to strike that would increase punishment. (State Burke, Maine 574, v. 38 Me. 575; Anonymous, 31 590; Me. Tuck, (20 Commomvealth v. 37 Mass. Pick.) 356, 364-367; Briggs, (7 Commonwealth v. 24 Mass. Pick.) 177, 178-179; Baker Ohio, v. 12 214, State Ohio St. 217-218.) That power, years hundreds old4 and 1 any provision any proceeding “In for violation of of this criminal true, allegation which, if or division no of fact admitted charged found to be penalty change penalty for from what the would would be may the offense alleged proved if and admitted or to be true such fact were accusatory pleading or the court stricken from the dismissed ’ ’ attorney. upon except motion of the district 2 judicial power sitting Senate, State shall be “The vested impeachment, Suprеme Court, appeal, as a court of a district courts of courts, municipal courts, justice superior courts.” powers 3 “The of the Government of the State California shall be separate departments—the legislative, executive, divided into three judicial; person charged powers properly and no be the exercise departments any longing taining apper to shall exercise one these functions others, except expressly of the to either this Constitution ’’ permitted. directed Campbell’s in 2 4 An Lives incident related of the Chancellors 173 imprisonment interest group this connection. After he had ordered the of a “Prophets” language, of fanatics called seditious Lord Holt by Lacy, friends, was visited one their who informed a servant that he
648 having recognized many jurisdictions constitutional
still provisions essentially 1 of article VI with section identical F.Supp. 100, 101; (United (D.C. Ill.) 60 States v. Brokaw 90, ; State v. Broussard, v. La. So.2d State [46 48] Charles, PI.) 543, 545; (Ohio 129 N.E.2d State Kearns Com. 241-243), see 69 A.L.R. ; S.C. S.E. 466] phrase “judicial abrogated The was not that section. meaning never power” reasonably given a that it has cannot thought other state to in this before been have only Legislature. are not the Courts invalidate act public constitutionally agencies empowered to determine punitive consequences of recidivism. prosecutors common- that never had the The contention have solely prosequi in this based
law of nolle state legislative (Stats. first second the enactment at the sessions prede 323; 29, p. 279) eh. of the 119, p. eh. Stats. Thus it was of Penal Code sections and 1386.5 cessors legislative act, provision, deprived not a constitutional prosecutors power in California. In the exercise rejected Legislatures same which the 1850 Legislature part. it in prosequi, nolle the 1959 chose to restore necessary to fact that 1385 and 1386 were The sections prosecu give power traditionally courts this vested abrogated was not tors demonstrates by the common-lawrule vesting “ju general language of the Constitution power” in dicial the courts. prosecu- rejected completely never Legislature Legisla- prosequi. same power of nolle tor’s common-law Lacy message God.” was admitted and told Lord “from the carried “ God, prophet you the Lord has sent from a who I come to Holt: Lord me his prosequi Atkins, grant thee, nolle for John thee have would prison.’’ replied: into Lord Holt servant, east thou hast whom lying prophet, If and a knave. the Lord God had false “Thou art a Attorney-General, Tcnowsthat He been have thee would sent it grant I, prosequi; a nolle hut helongeth Justice not to Chief grant Justice, a warrant to commit thee to hear him com- can as Chief (9th Wharton, Pleading 1889) (See and Practice ed. pany.” Criminal 2.) 383, p. 268, fn. may, provides: “The of its either own motion or 5 Section prosecuting attorney, application and in furtherance of upon *4 The reasons of justice, be dismissed. the dismissal the minutes. No dismissal an action order upon order entered forth set must be ground any which would be of demurrer to the for cause made be shall ’’ accusatory pleading. prosequi entry abolished, provides: “The of a nolle 1386 Section attorney attorney-general nor the district can discontinue and neither except offense, provided public prosecution a for a abandon or section.’’ last
649 predecessors that ture enacted the of section 1385 and adopted predecessor 1850 and 1851 also of Penal Code provides: “When two more defendants accusatory may, are same pleading, included the court any gone at time have defense, before defendants into their application prosecuting attorney, any on the direct may discharged, defendant that he abe witness for the people.” added.) People Bruzzo, (Italics 41, In 24 Cal. question court was confronted with whether a court had authority without a motion for dismissal the district attor- ney joint might a to dismiss defendant he so that become people. witness for the attorney, present The district as in the case, had declined to It was held that “The move dismissal. power discharge law, Court has no Bruzzo at common nor under the Act of on the motion of his own counsel.” (24 p. 51.) Cal. at The Bruzzo power case demonstrates that the of dismissal exclusively
is not courts, given vested but to the prosecutor by Legislature. Health and Code section gives attorney power respect the district the same charges to dismissal of recidivism narcotics cases Penal gives respect Code section 1099 him with to dismissal charges against joint partial defendants. Both sections are legislative adoption prosecutor’s common-law prosequi. nolle The Bruzzo distinguished ease cannot be ground on the dismissal of of a only conviction is effective sentencing purposes. The common-law prosequi nolle prosecution entirely included dismissal sepa- Charges rable could be entry dismissed thereof. of a prosequi jury nolle was before the impanelled, while the case jury, (See before the or after verdict. Wharton, Criminal Pleading (9th 1889) 448, p. 313; Practice ed. 14 Am. § Jur., Law, 296-298, Criminal pp. 22A 967-968; C.J.S., §§ 457a, pp. Law, 3-4.) Criminal meaning provisions, constitutional however, is not scope static, and the in history not found The definition and public classification of alone. offenses and punishment legislative therefor (Harbor are matters. Co., Comrs. v. Excelsior Redwood 88 Cal. P. [26 Am.St.Rep. Cox, Ex; 21; Parte 321] 63 Cal. Moore v. Municipal Court, Cal.App.2d 196].) charges If not been pursuant authority dismissed have to the granted by pass Legislature, the court must sentence as *5 650 may impose not (Pen. Code, 12) and prescribed by statute § Gonzales, (People v. any prescribed. other than that sentence ; also Pen. 1203 Cal.App. P. see 784 § 407] [173 probation sentences.) relating suspension to seq. et present prior charge case of a authority. pursuant legislative dismissed
has not been charge and was therefore bound found that the was true court prescribed by law. The court could impose the sentence statutory authority than this without no more dismiss charge against any convicted of defendant it could dismiss may any murder, arson, rape or other A feel crime. Legislature for a punishment prescribed that by dismissing is too severe or that narcotics offender recidivist imposed charges punishment be that would one can or more charges him. To dismiss the better serve to rehabilitate 11718, however, section would face Health and arrogant legislative power and an flagrant usurpation abe punishment rehabil affectation wisdom matter Legislature. Certainly superior VI, to that of the article itation III, article do endow courts with section 1 and power. given greater weight prior convictions are now The fact that they distinguish than were does not them the host once penology given greater now of other are considerations they weight compel than once were conclusion or lesser punitive pre- is for the courts alone. Like that their effeсt aforethought bodily or malice homicide or harm meditation prior operative been made kidnapping, convictions have punishment. Every prose- day for the facts determination powers respect. cuting attorneys broad It is exercise charged if they is to be crime who decide what crime Supervisors Simpson, (Board charged. is Cal.2d ; Klein, Attorney’s District see Dis- 14] Prosecute, 323-334; Not L.A.B. Note, Bull. cretion Remedy Attorneys’ District A Un- Private Prosecution: Remington Inaction, 209; Joseph, 65 Yale L.J. & warranted Multiple Sentencing the Charging, Convicting, and Criminal 528, 530; Wright, Offender, L. Duties 1961 Wis. Rev. of only Moreover, Prosecutor, 293-295.) Conn. B.J. they Legislature so are directed that bound to because (Pen. prior Code, 969) once the charge all convictions deci- form prosecute It would exalt over substance sion made. principles separation constitutional to hold broad vesting process complete powers permit of law dis- and due prosecutor begins, deny cretion before the case but him all such discretion once the information is filed.
There are innumerable facts other than the commission bearing punish the crime itself that far have more on the imposed ment only than If not convictions. their exist punishment solely ence but their effect must determined by courts, legislative sentence law indeterminate *6 power grant probation restrictions on court’s to must fall. the sustained, hоwever, The on law indeterminate sentence has been theory the judicially it that conviction carries with deter liability mined sion for maximum that the sentence and remis may by from that maximum be determined an administra agency (In tive re Lee, 690, P. 958]; 177 Cal. 692-693 [171 In Wells, Smith, re 889, 35 947]; Cal.2d 893 P.2d In re [221 662]), subject only 33 Cal.2d 804-805 P.2d to [205 judicial McLain, (In limited review. re 55 Cal.2d 87 [9 Cal.Rptr. 824, provide 1080].) Legislature P.2d The 357 could imprisonment life as for the maximum term all narcotics con possibility probation, victions without solely and it could leave Authority punitive to Adult to determine the effect govern It convictions. set out to could standards Authority provide judicial findings Adult for itsof review respect provide example, to might, relevant facts. It for that prior at the trial determined, convictions be not should by subsequent hearing subject but Authority Adult at a judicial to Surely reasonably review. be it could not contended proceeding power that in such a review included only facts, review the but to instruct the Authority ignore Adult them. Legislature given express The has been constitutional officers, agencies may determine what or boards exercise by Authority scope now exercised the Adult and the powers.6 Legislature provide The authorized that powers might otherwise exercised Authority Adult alone shall attorneys. be exercised district X, (formerly 7) 6 Article section 1 section California Constitu ‘ ‘ provides: Legislature may provide establishment, gov tion for the superintendence ernment, persons all all institutions purpose, Legislature may delegate convicted of government, charge For this felonies. superintendence any pub of such institutions governmental agency agencies, officers, boards, lic now or board or or whether existing Any agencies, officers, or hereafter created it. of such powers, perform boards shall have such such duties and exercise such func respect reformatory penal matters, Legislature tions in may prescribe. other as the ’ ’ attorney than the determining that the district rather In primary respon Authority court shall have or the trial Adult determining punitive consequences of sibility recidi Legislature case, narcotics vism the individual simply power has chosen one exercise of its constitutional may judges think public rather than another. Some officer determination; dis they qualified to some are best make they attorneys may think that are; think others trict attorneys judges nor should entrusted with neither district responsibility. section Health and In attorney Legislature designated district Code the public policy of the state. that can best effect the the officer “ 1 Legislature has whether the is not our concern [I]t might most suit adopted what we think to be wisest and ” objects.’ accomplishing (State able means of of Califor Com., 7], P.2d nia v. Industrial Cal.2d [310 Acc. quoting City Silveira, Walnut Cal.2d Creek v. 453].) judgment is affirmed. J., Peters, concurred. Gibson, J., Tobriner, J., C. Dissenting. SCHAUER, J., In my view *7 (both by аpplied Safety terms and as the Health and its Code1 during superior court here the trial of the defendant the felony charge drug possessing on the of a narcotic in violation of under code) section of the same unconstitutional in that it both the Constitutions United States and California adjudication of process denies of the defendant due law affecting probation (U.S. Const., material issues sentence and particular, I, 13). 5th In Amends.; Const., and 14th Cal. art. of his deprived section at bench the defendant judge) right (the a trial constitutional to have officer exclusively in hear, the of discretion vested exercise of a important of dismissal determine, question that officer the prior VI, 1, 5; (Cal. a Const., of art. Pen. §§ provides: 1 Health and section enacted any any provision proceeding “In for of of criminal violation allegation [“Narcotics,” in- an [in division no §§ 11000-11797] of fact true, which, would would dictment if found to be or admitted or information] change penalty penalty charged what the the for offense from the alleged proved if fact or to be true such were not and admitted except hy accusatory pleading he dismissed the court or stricTcen the upon attorney.” added.) (Italics motion the district furthermore, by subjecting 995, 1238, 13852); §§ inherently judicial function to the the exercise of unreview- subject branch, of a discretion member of the executive the able separation rеquirement the constitutional violates powers Const., (Cal. Ill, §1). art. general majority powers of the as to the asseverations Legislature to criminals, for differ- punishments to fix among entiate crimes and recidi- between first offenders probation vists, prescribe parole, to or for conditions etc., unquestioned. are of course But the elaboration such undoubted to fundamentals should not be allowed obscure Certainly absolutely Legislature prohibit issue. could granting parole anyone nar- probation or of a convicted (or any any cotics minimum other) offense; or could ordain mandatory fit, and maximum terms it sees life term with- parole nondiseretionary penalty out or even a death Legislature transgressing But offenses. cannot—without our powers—transfer judi- constitutional division of from the cial government power to the branch either executive grant deny, preclude judicial of, or to or to resolution motion entry felony made judgment in a criminal action, ruling rights on which will affect the substantial of the judgment defendant under follow. actually goes seg- Section 11718 farther than to transfer upon may, 2 Seetion1385 reads: “The court either of own motion or application prosecuting justice, attorney, furtherance order an action to be set dismissed. The reasons of the dismissal must be upon forth in an order entered the minutes. No dismissal shall be made ground acсusatory cause which would be of demurrer to the ’’ pleading. (none which, such, Section 995 defines certain situations as is mate- except recognizing act) rial here wherein the the inherent of the court to ‘‘ ” upon indictment or information must set aside motion of the defendant. implied powers Section 1238 by providing evidences trial appeal may “An people: be taken setting “1. information, From an indictment, order aside the complaint; . . . affecting judgment, “5. From an order made after the substantial rights people; modifying “6. finding by From an order reducing the verdict or degree punishment imposed.” of the offense or the (as It should be noted here hereinafter the text shown in more detail) cause—including to control the dis- *8 accusatory miss or created Constitution the pleading portion to set aside an or thereof—is not by the mentioned code sections. That stems from the merely regulated proceduratty and is by the directives of pertinent statute, as, e.g., 1385, requiring such rea- the sons for the dismissal of an action be set forth in an order entered in the minutes. unquestionably judicial power It to the executive. ment jurisdiction by granting to court purports to curtail the the attorney the unreviewable and absolute the district preclude to prescribed exercise) for (with no its standard ruling a exercising any on a motion in judge discretion substantially affect criminal an which would action for оrder parole and the terms eligibility probation, for the defendant’s Legislature, imprisonment. It reiteration that his course, bears probation, eligibility general laws can control imprisonment, parole it cannot abort term of but and the judicial process by subjecting judge to the control attorney. district very tacitly recognizes—as under Section 11718 its terms jurisdiction implicit—that the court has to the Constitution pass relief. But entertain on motion for relevant jurisdiction ruling judge’s to of the court’s exercise any allegation of fact “no motion the statute directs that which, an or information filed with the indictment court] [in penalty change true, if would admitted found be penalty charged be if such from what the would the offense alleged proved to be true and admitted fact were accusatory stricken from be the court or dismissed attorney.” upon (Italics pleading except district motion jurisdiction of the to act cannot added.) court Constitutional whimsy of attor- on and off at the district be turned ney either system of Legislature. power to act under our or the The independent government means the servilely on the discretion, not to wait exercise pleasure of executive. p. (ante, 646) the trial court’s majority summarize charge of defendant’s question on the of dismissal of the action following illuminating conviction, quote but fail prior judge: trial language of the legal why judgment Is there cause passed? “The Court: ... pronounced and sentence should not public I am [deputy : doubt— defender] “Mr. Kilbride yet I do not know what legal cause other than there is no Attorney was. the District decision of ‘ ‘ you at this let that be made known : I will The Court Attorney due deliberation declined District time. after alleged. It to initiate motion strike ties hands therefore & Saf. § 11718] [Health (Italics added.) no Court has discretion.” in which the Court subject (deeming statute to Accordingly, the court *9 jurisdiction of its valid) determine, not the exercise but did compelled by attorney’s deny, proba- action to the district was tion (Health post, 12) & Saf. 11715.6 and to sen- fn. prison (Health to for an tence defendant state increased term Code, §11500). judge’s imposing & action Saf. compelled by legislative increased term was not determination longer prescribed that the term in section 11500 must in only by offense, follow of the event conviction but the deter- attorney—on prescribed mination of the district no standard by particular pre- law—that as to this he defendant would exercising clude the court from in a discretion matter jurisdiction. which otherwise within In the court’s other words, attorney the district his exercised discretion absolute compelled judge and section to abdicate the function judge, of his In next follow, office. ease to the same before attorney (again subject prescribed standard) the district might to no permit elect tо that to have the benefit defendant judge’s exercise of discretion the same motion. Has equal process protection defendant here due had law? Legislature, course, prescribed longer could have punishment for defined; offense but it could judicial judge transfer from the to the executive—from the lawyer judicial state—any power;
mental mously, nor could it power to curb the principle 86 A.L.R. Vidal create in the v. Backs judiciary. 1134], government executive ‘‘ [W] As declared e a must bear in applying 218 Cal. totalitarian by to constitutional mind type court, of super a funda [2] unani courts they independent to the effect that branch constitute government hampered which cannot in the or limited discharge of its functions either of the other two branches.” (Italics added.) VI, Article section of the California provides Constitution “The of the State shall be vested in the Senate, sitting as impeachment, a court of in Supreme a Court, superior district and of appeal, courts courts, municipal courts, ’’ justice courts. 5 of Section specifies same article superior “The original jurisdiction courts shall have in all. . . criminal amounting eases felony. ...” The criminal action against defendant, which was on superior trial judge’s when was curtailed force of the district attorney’s action in reliance on the statute, charged simple possession narcotic, felony. a Neither section nor distinguishes 11718 of Health and possession simple possession by a and like sick addict between judge can—for obvious humanitarian A trial nonaddict. It is this the trial that distinction. reasons—make universality judge temper harsh law which makes important important justice. It this case the cause government integrity for reasons of our constitutional fully developed. which will be more
Significantly, VI nor neither elsewhere article *10 to a definition Constitution there be found of content judicial phrase, power State,” of the used in “The as corollary necessary general section 1. It a to that follows that by language principle up set is the courts are “Our any special hence the courts limitations; Constitution without vigorously im have and should maintain all the inherent and necessary plied powers properly effectively to and function as P. been Superior (id. (Brydonjack (1948) separate department 1018, this court at continuingly p. 32 Cal.2d 66 Court 442) ; A.L.R. v. long State (1956) 1507].) respected ago integrity Bar in 436 143 as 1929 as [3] (1929) Cal.App.2d 745, The latter scheme (see, e.g., of this [196 208 being P.2d principle our holding Cal. Garrison v. Rourke 884] “now undebatable” state 439, 753 [6] [300 ; has heretofore Kirstowsky government.” was described 442 [1] [281 P.2d v. 163]). ation.” P. 69]
remove tively exercise within 2d tive Tiffith created those which article 305].) The 406, 409-410 definition;3 ; implied VI, it the all obstructions Certain Rivas v. nor circumscribed (Millholen section are power of powers the fundamental of these [2] necessary County but 1. Cal.App.2d Suрp. v. “A in Riley (1930) 211 of a self-preservation, to its successful Cal.Rptr. implied powers have received each instance court set to Los constitutionally created court are enable powers thus defined. Angeles 829] judicial power granted by up by ; the enactment to Arc indeed, the Cal. (1961) properly Investment Co. convenient Constitution [7] [330 33 Cal.App. [4] Thus, as neither legisla oper effec [293 has to provides: of Civil Procedure section 3 Code “ proceedings. Every respecting have court shall conduct of Powers power: presence; preserve in its enforce order immediate To “1. “2. To enforce it, person proceedings before a order before or judicial investigation persons empowered under its or to conduct a authority; provision of footnote Penal hereinabove noted of its motion or may, own that “The court either section prosecuting attorney, in fur application of the upon the an to be is not action dismissed” justice, order therance particular way in a jurisdiction dispose to grant of virtue the consti court, pending before it. actions already complete provisions mentioned, above tutional only judicial review, fully subject to adjudicate and, encompassed in the constitutional finally dispose of, all causes (“The language in reasons grant. The additional upon forth set оrder entered of the dismissal must be any cause which No shall made minutes. dismissal accusatory pleading.”) ground of demurrer to the would be jurisdiction obviously or court not limit the does only procedural justice cause relates but to control the implied powers essentially inherent matters. impracticable impossible if not are nature their enumeration.4 all-inclusive it, orderly provide proceedings itsor before “3. To for the conduct officers; orders, compel judgments, process, and To "4. obedience court, proceeding pend- judge action or orders of out in an ing therein; justice, conduct of its ministerial To control in furtherance of “5. officers, persons and of all manner connected with a other proceeding it, every appertaining thereto; before matter compel testify persons "6. To the attendance an action *11 provided
proceeding pending therein, in the and manner in this eases code; proceeding pending therein, in an “7. To administer oaths action or may necessary it in its and in all other eases where the of exercise duties; powers and process amend To and control and orders so as them ‘‘8. to make justice.” conformable to law and provides: of Civil Procedure section 177 Every proceedings. judi- of as "Powers officers to conduct of power: shall cial officer have preserve presence, order "1. To and enforce in his immediate and in proceedings him, engaged performance is in before when he the of official duty; compel provided code; his "2. To "3. To obedience to lawful orders in this compel testify persons proceeding the attendance of to in a provided him, code; in the in before cases and manner this persons proceeding pending To to "4. administer oaths in a before him, his necessary may in and all other eases where it in the exercise powers and duties.” implicitly recognized, context, 4 This fact in in one Civil Code of section Procedure 187: carry jurisdiction jurisdiction is, by "Means to into When effect. other the code, by any statute, or constitution conferred on a court judicial officer, necessary carry all the means it to into effect also are given; ...” trying support for majority, Legislature’s to find the attempt empower superior to the executive to curtail say jurisdiction premises, court’s in the that “In section 11718 adopted Legislature part prosecutor’s common- prosequi, of nolle law included the to allegations punishment.” (Ante, strike that would increase majority p. purport proceed 647.) stating, In so to assumption (ante, pp. 647-648) that in the undocumented prosequi California common law nolle “was not abrogated by” adoption VI, of article of1, our majority point neglect Constitution. But the to out that his- torically prosequi appears the common-law doctrine nolle have in in It to never to been is not shown California. force part it law nor was have been the Mexican ever enacted by Legislature adopted People. or otherwise As the majority appear facts, short have overlooked these excur- legal history necessary propo- sion into demonstrate this sition.
California, governmental aas entity, is not of common-law ancestry. At the time the first influx of American settlers early operating judicial system 1840’s the was Mexican. system appears been rudimentary That to have at best in the portion province southern nonexistent the north. (See Mason, History Constitutional California, in Consti tution of the State California and (1961, Other Documents p. Senate), Wilson, Calif. 319; System State The Alcalde (1852), in 1 574-575.) Cal. However, California extent that any government laws of the central of Mexico were in California, province fact governed observed the Constitution of May 1837 and laws of March 20 and year.5 same An May examination of the law of relat ing organization jurisdiction to the of the courts, the powers Attorney duties and General, and civil and procedure, provision authorizing criminal reveals no the Attor ney power resembling General exercise prosequi nolle under the common-law. And well be doubted that еxisted, custom to that effect (1) view of the traditional emphasis authority magistrate, civil-law necessarily powers broad exercised the alcaldes Halleclt, 5 The latter enactments are set forth relevant Trans Digest portions lation and of such of the Mexican Laws of March 20th May 23d, 1837, supposed adapted and the in as are to be still force *12 present (1849), reprinted Browne, of conditions California in Debates (1850), Appendix, pp. of Convention California XXIV-XL. primitive justice of a meting out the justices peace in .6 province and troubled remote (Bear Flag) proclamation of the California Neither the military conquest and Republic nor 14, 1846, on June ulti- July 7, 1846, nor the beginning of occupation California Treaty by the of to the United States mate cession California operated to abro- Hidalgo 2, 1848) Guadalupe (February of many American gate existing Although law. local by the personal affairs and business and their settlers conducted common only they guides rules customs knew—the necessity authorization of law—they did so out without body. By principles international governing established to a territory is conquered or transferred usage, when ceded political, sovereign law, new “the denominated regulates inter- necessarily although changed, that which force, general individuals, in conduct of remains course, newly power of until altered created the stаte.” (1 (American (1828) Pet.) Insurance Canter U.S. v.Co. Harrison [Louisiana]; accord, Cross 542 L.Ed. [7 242] (16 U.S. L.Ed. How.) 889] [Cali- fornia].) in existing municipal fact that law remained Mexican with force in not in California to the extent it was conflict repeatedly States, the Constitution laws of was the United recognized subject period. for ex during asserted, was It (March 1, ample, proclamation Kearny of General taking government 1847) military of Cali command proclamation fornia Polk; under orders of President announcing (August 7, 1848) Colonel Mason ratification Treaty Guadalupe proclamation of Hidalgo; Riley calling (June 3, 1849) General first constitutional widely convention.7 more known the content The need make existing order of publication, local law to the led Riley (July 1849), Translation and General of Halleck’s Digest 5), “intended (ante, Mexican Laws fn. said Mexico, 1844, partially adopted Mexican Constitution of regarded California, never laws as in nor force was it known here these May by any materially March [of were modified 1837] ’ ’ Congress. (Halleck, p. (ante, decrees or orders of the fn. XXV Mexican 5).) proclamation observed, example, 7 In the latter it was that “The California, laws, laws of inconsistent Constitution States, force, treaties the United still are and must continue in ’ ’ changed by competent authority. (Reprinted Browne, force till De 3.) (1850), p. bates in the Convention California *13 temporary guide
aas and assistance to the inferiоr officers complete of Government, prepared till more can treaties by competent persons.” (Ibid.) early And of volumes Reports replete the California are with decisions of this court applying law, by local Spanish often elucidated as writers, years prior Mexican in in causes which arose Thus, 1850. the transfer “Between of California to the United by treaty States, Guadalupe Hidalgo, of and the admission government of Union, this state into no territorial was purely municipal here established. The law of Mexico con territory in force within tinued tirely this until modified or en (Lux changed appropriate authority.” gin Hag (1886) 255, 919, 674].) Cal. P. 10 P. [4 and adoption Nor did the ratification of the Constitution operate of directly adopt prosequi nolle even abrogate existing any law in local material It is true sense. provisions that most of the of that Constitution were modelled corresponding provisions Iowa, Constitutions York, jurisdictions New (see other common law Sander in son, J., dissenting C. Bourland v. Hildreth 26 Cal. 167, generally 258; Hunt, see The Genesis of California’s (1895)) determining First Constitution and that “In meaning of provision, presumed a constitutional it will be adopted that those who framed and it were conversant with interpretation put upon which had been it under (Lord copied” constitution which it was v. Dunster (1889) 79 477, 865]). Cal. P. But the is a rule latter only, give way contempor which must construction before ary contrary of a evidence intent. Here such evidence is ample adopting show that the Judicial Article—or provision—of other Constitution 1849 the framers did thereby existing not intend to substitute the common law for Mexican law as the rule of decision California. This intent plain by adoption made was of the Schedule Constitution, provided relevant “all adoption laws force at of this Consti time tution, therewith, and not inconsistent until altered or re pealed by Legislature, if shall continue as same had adopted.” (Reprinted 1850, p. 34.) been in Stats.
Any might doubt that otherwise exist as to the matter Legislature. set at rest April the first On session ‘1 body 13,1850, passed declaring act that The Common England, repugnant Law of so as it is not to or inconsis far tent States, with the Constitution of the United or the Con California, shall rule or laws the State be the stitution (Italics added.) all the Courts State.” decision 219.)8 p. Shortly Legis 95, eh. thereafter the (Stats. 1850, explicitly provided section 630 the Criminal lature (Stats. 1850, p. 323) that “Neither the Act eh. Practice Attorney Attorney, shall nor the District hereafter General, public prosecution offense, ex abandon discontinue cept Code, 629, now provided last section Pen. [§ (See Pen. 1385, cmte, fn. also §§ 2].”9 immunity party specifically defendant providing charge against him is the court in order dismissed when the *14 1099) People (§ the either for that he be a witness Legislature passed Finally, (§ 1100).) the for a codefendant State, ex declaring “all an аct that laws now in force by Legislature, adopted the cept passed or such as have been eh. (Stats. 1850, hereby repealed. (Italics added.) . .” are 125, . p. 342.) manifestly prosequi power of nolle was As the common law the laws of the State “repugnant to or with . . . inconsistent of the Criminal expressed in of California” as although Legisla- the Act, supra, Practice it is obvious general of decision adopted the law as the rule ture common adopt of the common expressly portion it declined to prose- prosequi in the power of nolle law which the vested Act re-enacted was 630 of the Criminal Practice cutor. Section almost verbatim as Legislature the the second session (Stats. Act of section 598 the Criminal Practice super- in force until p. 279) eh. that statute remained and at addition The section 1386.10 seded Penal Code is it prosequi nolle entry a words, of the “The that time confirmatory i.e., only; abolished,” explanatory and Legislature (Decem interesting message to the 8 It is that in his to note adoption 21, 1849) the of the ber English Burnett had Governor recommended law, English law of criminal commercial evidence and the petition sup A and the Louisiana port Code and of Practice. Civil Code proposal was to the Senate Committee of the Governor’s referred Judiciary, 27, 1850) reviewing report (February on some and Law, at a filed law, length rеspective merits of civil law the common recommending (Report adoption on Civil and Common of the latter. 588-604.) reprinted in 1 Cal. based, respectively, 629 and 630 9 Sections were sections 671 and of the New York of Criminal Procedure. entry provides prosequi a 10 Section as follows: "The is nolle abolished, attorney-general attorney neither nor district can prosecution public offense, except pro discontinue or abandon a for last vided section.” nothing except added legal confirmation to the effect of its predecessors under the 1850 and manifestly acts could not then abolish that which had never existed in Cali- fornia.11 majority’s The appeal history to the England Maine, states as Massachusetts, Ohio, Louisiana South Carolina emphasize serves but to authority the lack of under California Legislature’s law for attempt to trans- portion fer a superior constitutionally granted court’s jurisdiction judicial from the department to the executive government. question how defendant’s case is is of importance decided anyone little other that the de- ; fendant question but of who decides it—the district at- torney or the major court—is of importance to all citizens
as well as to the defendant, process.- to whom it denies due implied powers observed, As of the courts hereinabove impracticable impossible are if not of all-inсlusive enumera they authority Yet tion. flow from common source—the every proceedings court “to control before it insofar judicial process as the essentials of are concerned” (People concept v. Burke of what (1956) 47 Cal.2d an essential 45, 52 [6] 241]). process, quality nor fixed time. however, is neither static majority People 24 Cal. Bruzzo cite 11 In connection there before us. The record relevant to the issue but the case indictment; joint trial; request joint p. 51) (id. ease of at “a showed Prosecuting Attorney of the defendants for one or call two; examining against purpose stand vol him he takes the the other *15 objection call; untarily takes he invites and without in answer to the form, comprehensive and, under instructions which in its most the oath exception solicited, previously which takes no when and to he he himself; given, and and on these antecedents his associates criminates witness, pursuance previously given, of a notice of the the counsel moves the Court not prosecution, against merely discharge particular the witness effect, finally acquit him, alleged the crime hut to added.) (Italics It was him.” held that “The Court has no law, discharge at nor Bruzzo common under the Act of 1851 368, 1851, 29, p. 252, 1099], the, [i.e., now § $ Stats. eh. Pen. on ’’ (Ihid.) ques But no such is of his own counsel. here motion tion, charge prior only dismissal of a conviction is as the effective expunge sentencing purposes and does not that conviction from the de in Bruzzo Nor the reference to the common fendant’s record. law of imply any significance It cannot be taken to that here. the common law adopted 1849, in this state Constitution of as it has been was although that the fact otherwise. And shown hereinabove the court common law as as in Bruzzo looked to the well to the statutes in search judicial power discussion, of the there of evidence under it not does from that fact that the ease at bench follow the common law prosequi adopted of despite should be deemed to somehow nolle have been express rejection by Legislature, first session of
663 the view Air stood in make tional meet the needs prior conviction was Equalization 723].) in 1849 or 1872 hearing istration and determination 1063].) The real Its scope judicial process Lines, of stale ” aof grants (California Motor of the Constitution necessarily changes as earlier advancing Inc. justice developing determination is (1955) 133 usage a [1954] stages power, and issue, changes, to meet 1879; rather, an essential affairs exclusively therefore, 42 strait-jacket society. Cal.App.2d question of that Cal.2d Express, Ltd. v. State of men.” aas would be today To define development “would be part of the in terms document the issue 621, machinery of the admin an not 237, the new conditions confining dismissing ’ (People Western essential 635 directly contrary to whether 242 the essentials is whether expanding “to [19] judicial [5b] [283 our part of that v. law charge of Board constitu hearing process 1 P.2d P.2d process. recently point Only had occasion to out that we “The
statutory today pleading procedure in criminal rules actions only aspects but in from, are different certain are of, those contraversions which existed under the Practice prior Act of 1851 and even under the Penal Code to the (People (1962) amendments of 1915 and 1927.” v. Tideman Cal.Rptr. 207, 574, 1007].) 57 Cal.2d In 370 P.2d [1] [21 century many changes alone there have been law, procedural, criminal both give substantive prior to a if conviction, force and effect found true, not have could been foreseen the framers of our two Constitutions our first codes. This effect is throughout process. felt begin now the entire To with, mandatory charging prior of all known convictions is now attorney. (Pen. Code, 969; the district In § (1959) re [la, lb, Tartar Cal.2d 254-255 3] [339 553]; People (1961) Cal.App.2d P.2d see also Williams Cal.Rptr. People ; (1957) v. Dunbar [9] [14 279] App.2d 517]; People 153 Cal. P.2d v. Ash [1] [314 Cal.App.2d 820, 676].) [5] [292 craft The finding defendant has suffered two or more adju convictions certain felonies will now result criminality (Pen. Code, 644), dication habitual extending its attendant effect in the minimum term of im prisonment being eligible that he must serve before
parole (id., 3047-3048.5). Even if he adjudged is not §§ criminal, finding prior habitual conviction certain felonies will now destroy eithеr diminish eligibility his probation (id., may for 1203), mandatory result in a § increase the minimum term that can be fixed Authority Adult under the Indeterminate Sentence (id., Act 3020, 3023, 3024). §§ particularly respect More violations, narcotics (Health statutes & 10) Saf. in force at the div. (5 time stantial defendant’s 1960) gave October sub- finding prior effect to a Eleven conviction. offenses chapter were then defined in (“Illegal Narcotics”) of regard division 10 of the code, and eight to no less than provided of them the mandatory statute for charging of prior narcotics punishment convictions and increased dependent corresponding findings (id., 11500, 11501, §5 11502, 11530, 11531, 11532, 11540, 11557). Thus, the at (presuming validity case bench of Health & Saf. Code, 11718, ante, 1) compelled deny probation fn. § (id., 11715.6)12 prison and to sentence defendant to state § statutorily twenty years, increased term of two to rather than year the basic term county jail of not more than one or not years prison.13 more than ten in state In this connection we take note fact that the difference, standpoint punishment from the and rehabili- tation, treating giving between a man a first offender effect greater conviction will be even under the new (Stats. narcotics laws. Section 11500 was amended in 1961 1961, 274, 1) prior felony provide, ch. the case of one § conviction,14 narcotics the defendant “shall be im- provided 12 Seetion 11715.6 in relevant as follows at the time of any person [any defendant’s conviction: “In no case shall convicted of 10, 5, of the narcotics offenses defined in div. eh. the code] ... granted probation by court, the trial nor shall the execution of the sen imposed upon person suspended by court, person tence such if previously has been convicted of offense described in this division [except 11721, use of . .’’ . narcotics] (Stats. 1961, 12) The 1961 amendment to section 11715.6 eh. (55 adds but 11530.5) references to two new narcotics offenses 11500.5 and changes wording makes no substantial or effect of the section. Safety provided 13 Health and Code section as it at the time of defendant’s conviction. (added by 14 Health and Code section 11504 Stats. ch. 5) provides: 1, “Illegal “As Sale, used Transportation’’] Possession, article [art. ‘felony Administration and offense,’ ‘pun and offense ’ felony ishable as a refer to an prescribes offense for which the law
665 years nor than five for not less prison the state prisoned in eligible upon release not be years, and shall 20 more than for any other basis parole, or on sentence, or on completion of (Italics prison.” years than not less he has served until five prior narcotics convic- more of two or added.) ease In the life, years to from 15 corresponding term is now tions years. (Ordinarily, of 15 time served required minimum awith imprisonment term of prisoner “whose minimum course, a at time after paroled year, one morе than is (Pen. Code, term.” the minimum one-third of expiration of chapter 2 of articles 1 and remaining sections of 3049.)) The (Stats. 1961, similarly amended Narotics”) were (“Illegal 5 punishment increasing in instance each 2-11), eh. §§ in cases of time served required minimum imposed and prior convictions.15 narcotics or one more charge prior con- inescapable that The conclusion far has serious and be true now found to which is viction prison imprisonment an in the state either alternative or the sole regardless particular penalty, the sentence received.” defendant added.) (Italics reference, following respec 15 For convenience chart sets out the laws, effects, striking, striking new narcotics under the or of tive true, charged finding prior felony one or more to be convictions: Disposition of & Minimum Health Maximum Time priors charged sections Sentence Sentence served (years) (years) (years) Prior struck or found 11500 Simple posses- 2 5 not true: 10 2 prior (except 1 found true: 20 sion 5 priors marijuana) 2 or more true: 15 found 15 life Prior struck found 11500.5 2y3 not true: 5 15 Possession prior 1 2 found 10 15 true: life life 6 sale or more true: 15 Prior struck or found 11501 gift 5 not true: life life life 3 Sale or offer or or give prior 1 10 15 10 true: transport 2 or more 15 true: furnish found Prior struck or 11502 gift 10 life life 5 not true: Sale or 10 10 true: to minor life or more true: or found Prior struck 11502.1 — life not true Minor’s sale or gift life 1 or more found true: minor — page.) (Footnote on next сontinued
reaching punishment on offender, effects of the hence possibility being his rehabilitation. eventual This hearing so, important question and determination of the of dismissing purpose such a of individualiz- ing punishment encouraging rehabilitation—which society chiefly to the ultimate benefit of as a whole, concepts— n distinguishes penology modern older today, importantly must more past, even than in the judicial process. deemed an essential And the question must, to hear and determine that under principles hereinabove, implied forth set be deemed con- stitutional the courts this state.16 cognizance
Neither section 11718 nor section 11500 takes culp- fact there is a vast difference between the ability possessor-pusher of a non-addict hand, on the one *18 other, impoverished who, that of and the sick addict desperate the drug, pushes possess for it in order to it. Trial judges—before enactment section recognize 11718—could (by that striking charged prior difference and a in what experience evidence their probably a told them was 11530 Prior struck found or Simple posses- not 1 2 true: 10 1 2 prior sion of 1 true: 20 marijuana* 2 or more true: 5 life 5 11530.5 Prior struck or found Possession of marijuana not true: 2 5 10 15 2 prior 1 2 true: 3 6 sale or more true: 10 life 11531 Prior struck found or gift Sale or not 5 true: life 3 import prior 1 or or of 5 5 true: life life transport marijuana 2 or more 10 10 true: Prior struck or found gift Sale or not true: 10 10 15 life life life marijuana prior 10 15 true: to minor or more true: appears opinion * It be observed that there to be medical that marijuana system forming habit less human is less toxic to the than obvious, therefore, is may It tobacco. seems that at some later date a court considering equally respect be some drastic with to enactment many years affecting quite It is bacco. not did since we face similar laws possession beverages. of alcoholic agreement 16 I am full thus in the Committee on Criminal Law which, report and Procedure of the State Bar in of California its recent recommending sponsor to the Board Governors the State Bar repeal ing 11718, gave opinion prosecut of section as its that “To make the only person prior conviction, officer the who can move to set a aside away judicial pronouncing takes legis all discretion sentence and is a upon proper judicial power.” (35 lative encroachment State Bar J. 432 (I960).) scope Authority greater give to Adult deserving case) very help- as an individual—a sick an addict treat such person a be who could but some cases individual, less rehabilitated and cured. it in footnote 15 makes obvious the chart Reference prosecutor’s (in contrast to discretion need important in zeal) may eases wherein violation be even more charged. Undеr Health prior years (with youth—exactly old one
that section marijuana cigarette charged true)—who and found shared absolutely be youth day younger, would with another one prior actually years prison. required to With the serve 10 Authority fit, might be youth, if the saw struck the Adult years case, it paroled of five served. In either after minimum prior charge of conviction is to noted, whether open to the Adult true, struck or maximum sentence found Authority imprisonment. application a situa- In its is life being tion from unconstitu- of this kind section aside pen- concept of tional, is a toward an abandoned throwback ology. cross-purposes at with the indeterminate It works objectives. plan sentence foregoing In connection with the discussion should accusatory striking from an remembered that the dismissal pre- pleading allegation of an conviction does Authority considering the of a clude the Adult prisoner’s prior fact fixing imprisonment the term of any. parole, if and the time for and conditions of and The direct striking important effect of the court’s dismissal Authority’s to broaden the area Adult imprisonment fixing discretion deserving the minimum term of protection But for the eases. solicitude law *19 against society of the confirmed offenders makes sure Authority acquainted all facts Adult shall be which against early, any, parole. The militate provide or even statutes keep
that: of shall com- “The Director Corrections plete custody prisoners depart- of all of case records under the ment, . . . information include all received records shall “Case probation officers, courts, from the of Corrections the Director attorneys . district . . and other police departments, sheriffs, (Pen. 2081.5.) Reports Code, of agencies. . . .” interested mandatory. (Pen. 11115,11116; Code, are dispositions §§ court 3024, 3041, 3046.) Furthermore Code, also Pen. §§ see
“any person discharged paroled who is hereafter or from a penal institution where he was confined because of the com- any thirty mission days offense . . . shall within [narcotics] any coming county city register or ... his into . . . police (Health with the chief of or ... sheriff” & the Saf. Code, §11850). ago years substantially six Just similar context the question presented deliberately same to us we con- passed (People sidered and on it v. Burke 47 Cal.2d 241]). We were then unanimous and held we (at p. [4]) power to proceed- : “The strike or dismiss the ing prior power to a conviction is within the referred to provides section 1385 the Penal that ‘The upon may, court either motion or application own the prosecuting of the attorney, and justice, furtherance of authority order action be dismissed. . .’ The to dis- . includes, course, miss the whole to dismiss or of the Health and ‘strike out’ a “ [6] People argue part. . . . Code that if a by providing prior in section 11712 conviction, whethеr of felony, misdemeanor or ‘is de- admitted fendant, imprisoned prison’ (italics he shall be the state added) Legislature intended to take court prior or dismiss strike a if charge. defendant According People, admits to the required trial prison court was to sentence defendant to state judgment purpose should be reversed directing it to do so. . . . ‘‘ The cited to— [P. cases—and the statutes referred 52] purport (or do not to divest trial court hold that constitutionally divested) could proceedings control the before insofar as the essentials judicial process the guilty concerned; i.e., are to find the defendant guilty any or charged, in- offense of a lesser offense, cluded or to dismiss action in or to toto or strike multiple charges dismiss as to or all of counts validly—and question respect conviction. The statutes in do constitutionally judicial power they purport vested neither validly than—prescribe to nor could do more the sentence imposed upon appropriate adjudication which must guilt judicial of the substantive crime and determination punishment. factor which results increased Such adjudication inherently are determination essentially province punishment of the court as the even
669
may
which
or must follow the offense adjudicated, either with
punishment augmentation
or without a
essentially
factor,
is
Legislature except
may
for the
itas
vest аn area of discretion
in the court or
body. (See People
administrative
Gowasky
v.
”
(1927)
Peoples v.Martin (1924)
District
mines to be
torney]
court’s
jurisdiction to dismiss
631]),
“The action of the trial court on such a motion
jurisdiction,
cutors,
(1921)
declared;
broad
Pen.
(1925)
decision
has not been
“We think that
53
for a dismissal is
Court
Cal.App.
although
scope
furtherance of
in People
“At most,
Cal.App. 105,
Appeal
185, 186
1385]
seriously
the action for
sometimes
70
v. More
respondent
said
judicial
Cal.App. 271,
merely
the motion
justice.”
[199
discretionary.”
doubted
in People
attacked
(1886)
a recommendation to the
P.
[5]
840]
[superior
To the same effect is
until
reason that it deter
[by
It will be remembered that section 11718 (ante, 1) pro fn. hearing hibits the trial court from determining the question charge prior of whether a of should “except upon dismissed, attorney.” motion of the district statute, Under this deserving no matter how the individual may judicial ease be for action, the upon court must wait the permission of attorney the proceeding district further, before permission and if forthcoming is not the court’s hands are “tied” cannot act. correctly points As defendant out, precluded “The court is exercising judgment in a it, fact situation attorney gives before unless the district judicial prerogative the might prior what be termed a ’ ” approval. department To endow a member executive him, with such a inis effect to in language authorize the of III, article to “exercise” one of the “functions appertaining judicial department. to” the It true, complex of course, that the state of modern government principle separation powers the of should not absolute, be treated as government and that each branch of necessity must of degree some exercise certain functions of judicial principle the But others. that requires, nevertheless when a by function is a exercised member of the executive branch, that ultimate control over its exercise be retained through judicial the courts the medium of review. Much of the increasingly elaborate structure of agen our administrative cies, as is known, well has upon been erected and sustained subject however, a statute,
this foundation. Under the decision attorney of to initiate a motion to the district not dismiss by any proceeding. type Thus, is not of reviewable court present propriety appeal, we cannot review attorney’s but itself, district decision must confine ourselves examining authority Indeed, to which it under was made. example, even in a narcotics where, ease offense century successfully a half earlier and the occurred defendant рeriod probation, was rehabilitated and became served attorney society, useful member of the district would not be judicially the trial accountable for a refusal to allow dismissing charge to consider of the old conviction and treating defendant a first Section 11718 is offender. also, therefore invalid this reason as nonreviewable or ulti delegated judicial power constitutionally be mate department. (Cal. Const., III, member of executive art. Optometry 1; Board Laisne State § Cal.2d California 457].) [3] [123 presumed Nor can it be that the attorney district will act judicial impartiality exercising this power. major- ity (ante, p. 651) Legislature assert that “The is authorized provide powers might otherwise be Authority exercised the Adult alone shall be exercised attorneys.” Authority district But the Adult nothing judicial process to do with leading whatsoever entry judgment. superintend It has no the trial of cases participate any way the courts in the determination guilt scope innocence or the the judgment any person brought superior conviction of court on a who to trial in the felony. Manifestly Legis- provide lature to for the of prisons pris- administration equivalent authority oners is not the to transfer a department. function to executive proposition by majority asserted is based on article *23 1, X, Constitution, of our provides section in relevant Legislature may delegate that “the government, the superintendence of prisons] any public [state governmental agency agencies, officers, or board or boards. enacting 11718, say majority, . . In Legis- .” section “the [just quoted] lature in the of exercise constitutional simply public chosen one officer than rather another.” appears (Ante, p. 652.) It to me that this contention lacks support majority’s for the substance as essential conclusion effectively Legislature superior from the transferred judge jurisdiction adjudi- attorney to the district court phase against of criminal action cate defendant. To prosecutor judgment authorize the to sit in final on the resolu- People tion of one of substantial v. issues the case of superior is, Sidener while this case was on trial in the in my opinion, flagrantly disregard painfully learned very sys- truths which are foundation our constitutional government. Legislature “simply tem of If indeed the has here public another,” chosen one officer rather than choice only dangerous nakedly not and unwise one—it violates spirit letter both the of California and Constitution the Constitution of the United States. Safety seeking If Health 11718, objective, step secure its one went further and declared application no sentence, imposed pardon, to the Governor or commutation of granted “may for a narcotics offense be” “except upon attorney,” motiоn of the district would such jurisdiction transfer of from even one executive officer to department government another in the same ? be sustained vesting powers Governor of constitutional
pardon subject commutation, control certain situ- Supreme ations Court, is no than exclusive more vesting judicial power in the constitutional courts. duty I am not legislation unmindful our to so construe as constitutionality reasonably to save its if that can be done (Erlich Municipal v. (1961) 553, Court 55 Cal.2d 558 [1] [11 Cal.Rptr. 758, Geiger 334]; Supervisors 360 P.2d Board v. (1957) 832, 48 Cal.2d 545]; P.2d Palermo v. [11] [313 Theatres, Stockton 1]), (1948) Inc. 32 Cal.2d P.2d [5] [195 my but view section 11718 of the Health and meaning Code admits no doubt either as to its to its duty In plain, these circumstances “the effect. the court is (Van fearlessly performed.” Harlingen and should be v. Doyle (1901) 134 Cal. 771]; P. 54 L.R.A. cf. [66 City Angeles Los 55 Cal.2d 113 [7] Offner Cal.Rptr. 470, 358 926].) Apart principle step majority taken today big step. in principle indubitably be a But step it is totalitarian toward concentration of in the executive; a any legislative to be exercised without standard possibility without applied review. As here it deprives process equal protection the defendant of due and of of the law. judgment should be reversed and the cause remanded *24 judicial in the circumstances means determination,
for which light expressed, of views herein the the redetermination prior question of defendant’s of the conviction, of dismissal pronouncement (but of not neces- a new judgment in with such determi- sarily accordance different) nation. J.,
McComb,
concurred.
Dissenting.
with
WHITE, J.,
I am accord
concur
legal reasoning
contained
the
historical
the
narrative
by
dissenting opinion prepared
Schauer.
Mr. Justice
empowered
place
Legislature
certain reason
While the
upon
courts,
functions
able restrictions
nevertheless,
constitutional
legis
Schauer,
pointed
as
out
Justice
Mr.
regard is
to such restrictions
prerogative in that
limited
lative
materially impair
of those
the exercise
as
not defeat or
“do
recently
People
1956, in
And,
as
[judicial]
as
functions.”
that the
241], this court held
Burke,
proper judicial power therefore, unconstitutional. judgment I would reverse the and remand to the the cause proceedings court paragraph for further below as set forth in the last opinion dissenting of Mr. Justice Schauer. McComb,J., concurred. Appellant’s petition rehearing for a was denied November J., Schauer, McComb, J., opinion 1962. were of the granted. petition
that the should be A. No. 26255. In Bank. 9, 1962.] Nov.
[L. ANGELES, CITY OF LOS Plaintiff and Respondent, v. CLINTON CORPORATION, MERCHANDISING De- Appellant. fendant and