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People v. Benson4/16/1997
at pp. 1314-1315.)
We now turn to subdivision (d) of section 667 which provides: "Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as: (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state. The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. None of the following Dispositions shall affect the determination that a prior conviction is a prior felony for purposes of subdivisions (b) to (i), inclusive: (A) The suspension of imposition of judgment or sentence. (B) The stay of execution of sentence."
Appellant presents us with 24 pages of briefing as to why the statute is ambiguous. We repeat the foremost rule of statutory construction: "Where the statute is clear, courts will not interpret away clear language in favor of an ambiguity that does not exist." ( People v. Coronado, supra, 12 Cal. 4th at p. 151, internal quotation marks & citation omitted.) We need go no further than the language used in the Three Strikes law and need not indulge in analysis based upon all of the various principles used when the language and intent of a statute is unclear. We must conclude, based upon the plain language of the statute, that the Legislature and the voters through the initiative process clearly intended that each conviction for a serious or violent felony counts as a prior conviction for sentencing purposes under the Three Strikes law even where the convictions were based upon conduct against a single victim committed at the same time with a single intent and were punished as a single crime pursuant to section 654. (Cf. People v. Askey (1996) 49 Cal. App. 4th 381, 386; People v. Superior Court (Arevalos) (1996) 41 Cal. App. 4th 908, 48 Cal. Rptr. 2d 833; People v. Allison (1995) 41 Cal. App. 4th 841, 844, 48 Cal. Rptr. 2d 756.)
V
Remand for Re-Sentencing
Appellant asks that we remand this case to the trial court for its exercise of discretion on whether either or both of the prior convictions should be stricken in the interest of Justice, pursuant to section 1385. (See People v. Superior Court (Romero), (supra) , 13 Cal. 4th at p. 530, fn. 13.) He also argues that the punishment imposed, as to him, violates the federal prohibition against cruel and unusual punishments and the similar state ban on cruel or unusual punishment. Respondent argues that no such violation is established, and that it would be an abuse of discretion for the trial court to strike either prior conviction.
We are satisfied that a remand is proper in this case. Because we shall remand, we need not and do not decide now whether the punishment ultimately selected is constitutionally excessive, or whether any order striking a prior conviction under section 1385 would be an abuse of discretion.
When appellate courts are faced with a "silent record" on the issue of section 1385 discretion in the context of the Three Strikes law, the usual Disposition is to deny remand. That has been the position of this division, as well as other courts. But this case does not present a truly silent record. (Cf. People v. White Eagle, supra, 48 Cal. App. 4th at p. 1523.) The issue of judicial discretion to strike a prior was raised before the court, and the Judge then presiding concluded the court lacked the p
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