P. v. Lawson

Filed 1/9/09 P. v. Lawson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Introduction

Under Welfare and Institutions Code section 3052, a defendant who has been convicted of a violent felony (Pen. Code, 667.5, subd. (c)(21)) is not eligible to be committed to a state rehabilitative facility for drug treatment. In this case, we hold that a court lacks discretion under Penal Code section 1385 to dismiss a violent felony allegation in order to commit a defendant to the California Rehabilitation Center (CRC).[1]

Statement of the Case

Defendant Jon Paul Lawson appeals from a judgment entered after he pleaded no contest to two counts of residential burglary and two counts of receiving stolen property and admitted an allegation that one of the burglaries was a violent felony. ( 459, 460, subd. (a), 496, subd. (a), 667.5, subd. (c)(21), Cal. Rules of Ct., rule 8.304(b)(4)(B).) On appeal, he claims the court erred in refusing to consider committing him to the CRC.

We affirm the judgment

Facts and Procedural History

During 2006, defendant burglarized numerous homes in Monterey County and stole antiques, jewelry, electronics, cash, credit cards, passports, guns, and vehicles. During one burglary, the home owners 13-year-old son was present and hid while defendant collected and then left with more than $11,600 worth of property.

Defendant was charged with five counts of residential burglary, seven counts of receiving stolen property, one count of attempted burglary, and one count of auto theft. Later, under a negotiated agreement, defendant pleaded no contest to two counts of residential burglary and two counts of receiving stolen property and admitted that one of the burglaries was a violent felony in exchange for a maximum sentence of eight years eight months and dismissal of the remaining charges.[2]

Before the sentencing hearing, defendant filed a Statement in Mitigation listing mitigating circumstances that, he argued, made it appropriate for the court to consider felony probation for drug treatment, including the fact that he acknowledged his guilt, helped recover stolen property, lacked a significant criminal history, did not use violence or a weapon, and suffered from drug addiction. ( 462, subd. (a) [no probation for residential burglary except in unusual cases where the interests of justice would best be served]; Cal. Rules of Ct., rules 4.413(c)(2), 4.423(b)(1) & (b)(3).) Defendant also attached a psychological evaluation in which Doctor Thomas Marra opined that defendant was a good candidate for drug treatment.

The probation report listed numerous factors in aggravation, including that one burglary involved great violence or the threat of great bodily harm, the victim was vulnerable, the crimes showed planning and sophistication and involved great monetary damage and contraband, defendants conduct made him a serious danger to society, he committed the crimes while on probation, and his performance on probation was unsatisfactory. (Cal. Rules of Ct., rule 4.421 (a)(1), (a)(3), (a)(8), (a)(9), (a)(10), (b)(1), (b)(4), & (b)(5).) Although the report also noted two mitigating factorsdefendants insignificant prior criminal record and early admission of wrongdoingit recommended that the court deny probation and impose a prison term.

At the sentencing hearing, the prosecutor argued that there were no unusual circumstances to warrant probation and urged the court to impose the maximum term allowed under the plea bargain. Defense counsel reiterated the contents of the Statement in Mitigation and asked the court to place defendant on probation for drug treatment. He suggested referring defendant to the Department of Corrections and Rehabilitation (DCR) for a 90-day diagnostic evaluation. (See 1203.03 [authorizing referral].)

The court found that defendants crimes were all drug related and ordered a referral for diagnostic evaluation to determine defendants potential for success on probation or other supervision. In its report, the DCR recommended a prison term rather than probation.[3]

At the next hearing, the court noted the numerous burglaries and the impact on the victims and concluded that this was not an unusual case that warranted felony probation. However, at defense counsels suggestion, the court agreed to consider a CRC commitment and directed the prosecutor to file a petition under section 3051. Thereafter, however, the prosecutor filed a memorandum asserting that section 3052 barred a CRC commitment because one of defendants offenses was a violent felony.[4] In opposition, defendant acknowledged his statutory ineligibility but argued that the court could order a CRC commitment if the case is unusual and the interest of justice would best be served . . . .

At the next hearing, the prosecutor reiterated that defendants conviction for a violent felony rendered him ineligible for a CRC commitment. Defense counsel asked the court to exercise its discretion under section 1385 to dismiss the violent felony allegation so that it could order a CRC commitment. In response, the prosecutor asserted that the plea bargain did not contemplate that the allegation would be dismissed.

The court declined to dismiss the allegation. It noted that the sheer number of burglaries and value of the property taken (well over $120,000) made this . . . the most aggravated case I have seen . . . . Accordingly, [t]here is just no way that I can stretch the sentencing rules and find that this is an unusual case. The court continued, Im sorry for that, because I have triedI tried to come up with alternative options for you, and there just arent any that I canI dont think I have the discretion to strike the [violent felony] allegation, regarding the inhabited dwelling; and it was not part of the agreement on this case that I would be staying sentences on any count. (Italics added.) The court then imposed a prison term of five years four months along with other orders, including restitution. On the prosecutors motion, the court dismissed the remaining counts.

Discretion to Dismiss under Section 1385

Defendant contends that the court erred in concluding that it lacked discretion to dismiss the violent felony allegation under section 1385. We disagree.

Section 1385, subdivision (a) provides, in relevant part, The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.

The only action that may be dismissed under Penal Code section 1385, subdivision (a), is a criminal action or a part thereof[,] and action has been construed to mean individual charges and allegations in a criminal action. (People v. Hernandez (2000) 22 Cal.4th 512, 521-522, 523, 524.) Thus, a court has discretion to dismiss individual counts in accusatory pleadings [citation], sentencing enhancements [citation], allegations that the defendant has suffered a prior conviction [citation], and allegations that the defendant has suffered a prior strike [citations].[5] (In re Varnell, supra, 30 Cal.4th at p. 1134, fn. omitted.)

Although section 1385 has potentially broad application, the Legislature (or electorate) can restrict a courts discretion to dismiss. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 518; People v. Valencia (1989) 207 Cal.App.3d 1042, 1045.) However, it is settled that, if the Legislature intends to restrict discretion, it must make that intent clear and unmistakable. (People v. Fritz (1985) 40 Cal.3d 227, 230; People v. Williams (1981) 30 Cal.3d 470, 482; see People v. Rodriguez (1986) 42 Cal.3d 1005, 1019.) Accordingly, courts will not interpret a statute as eliminating courts power under section 1385 absent clear legislative direction to the contrary. [Citation.] (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 518, quoting People v. Thomas (1992) 4 Cal.4th 206, 210 (Thomas).)

For example, in People v. Price (1984) 151 Cal.App.3d 803, 820, the court upheld the trial courts discretion to dismiss weapon-use enhancements in sex cases because it could find no persuasive evidence of legislative intent to remove [such enhancements] from the operation of section 1385. Similarly, in People v. Sutton(1985) 163 Cal.App.3d 438 (disapproved on other grounds in People v. Equarte (1986) 42 Cal.3d 456, 465, fn. 12), the court held that trial courts had the authority to strike enhancements under section 12022.3 for use of a deadly weapon because the mere absence of that statute from the list of enhancements which may be stricken under section 1170.1, subdivision (h) does not constitute specific indication of intent to withhold discretion to strike . . . .  (People v. Sutton, supra, 163 Cal.App.3d at p. 446.)

In contrast, the Legislature has expressly restricted discretion under section 1385 in numerous statutes. (E.g., 1385, subdivision (b) [providing that section 1385 does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667]; 1203.06, subd. (a) [barring probation to those convicted personally using a firearm to commit certain crimes and further providing nor shall a finding bringing the defendant within this section be stricken pursuant to Section 1385];1203.066, subd. (a) [same]; 1203.075, subd. (a) [same]; 12022.5, subd. (c) [Notwithstanding Section 1385 . . . , the court shall not strike an allegation under this section]; 12022.53, subd. (h) [same]; 1385.1 [same] 667.61, subd. (g) [same]; 667.71, subd. (d) [same].)

Although the Legislature must make its intent to restrict clear, it need not directly refer to section 1385 or expressly state its restrictive intent. (Thomas, supra, 4 Cal.4th at p. 211.) Rather, courts will infer a restrictive intent where there is a statutory scheme designed to effect a particular result and where the invocation of section 1385 would nullify that result. (People v. Luckett (1996) 48 Cal.App.4th 1214, 1219.)

For example, in People v. Tanner (1979) 24 Cal.3d 514 (Tanner), the Supreme Court inferred an intent to restrict courts from exercising discretion to dismiss enhancement allegations in order to grant probation from language in an enhancement statute that prohibited probation. At that time, the enhancement statutesection 1203.06provided, in pertinent part, Notwithstanding the provisions of section 1203: [] (a) Probation shall not be granted to . . . [] (1) Any person who uses a firearm during the commission . . . . of any of the following crimes: [] . . . [] (iii) Robbery, in violation of Section 211 . . . . (See Stats. 1975, ch. 1004, 2, p. 2357, italics added.) The court acknowledged that the statute did not expressly prohibit dismissal and opined that the Legislature had not assisted us in discerning its intent . . . . (Tanner, supra, 24 Cal.3d at p. 519.) However, the court observed that the history of probation eligibility since 1923 revealed a continuing legislative interest in limiting the privilege of probation for persons using firearms in committing serious crimes. (Ibid.) The court noted that between 1923 and 1957, such persons were not eligible for probation. Between 1957 and 1975, the Legislature gave courts limited discretion in certain exceptional circumstances. In 1975, it restricted discretion to cases not coming within section 1203.06, and thereafter, section 1203 barred probation for those convicted of certain conduct except in unusual cases where the interests of justice would best be served. The court pointed out that [t]he section 1203.06 prohibition against granting probation, however, goes even beyond that of section 1203, denying probation to criminals convicted of enumerated crimes, providing for no exception in the interest of justice or otherwise. (Id. at pp. 519-520.)

In light of this history, the court concluded that the Legislature intends discretion may be exercised in the case of crimes falling within section 1203 but not within section 1203.06. Any other construction restores the pre-1975 law allowing a court to grant probation to any criminal if the court deems that to do so would be in the interest of justice. Such judicial resurrection renders the 1975 legislation a nullity. (Tanner, supra, 24 Cal.3d at p. 520; accord, People v. Williams, supra, 30 Cal.3d at p. 483 [affirming Tanner analysis and conclusion].)

In support of its analysis, the court cited the Legislative Councils Digest, staff memoranda, and statements by then Governor Brown, all of which indicated that section 1203.06 would eliminate discretion to grant probation even in unusual cases in the interests of justice. (Tanner, supra, 24 Cal.3d at p. 520.) The court further noted that while section 1385 is general in nature, section 1203.06 is specific, and, as a rule, specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates. (Id. at p. 521.)

In subsequent cases, courts have consistently followed Tanner and held that trial courts lack discretion to dismiss under section 1385, where the applicable statute, like section 1203.06, contains the prohibitive phrase probation shall not be granted. (People v. Neild (2002) 99 Cal.App.4th 1223 [ 1203, subd. (k)]; People v. McGuire (1993) 14 Cal.App.4th 687, 693 [ 1203.07, subd. (a)(11)]; People v. Cowan (1987) 194 Cal.App.3d 756, 759 [ 1203.066]; People v. Pacheco (1985) 176 Cal.App.3d 100, 102-104 [ 1203.07]; People v. Enriquez (1985) 173 Cal.App.3d 990, 994-995 [same]; People v. Hesslink (1985) 167 Cal.App.3d 781, 792-794 ( 1203.065]; People v. Ibarra (1980) 114 Cal.App.3d 60, 65-66 [ 1203.07, subd. (a)(1)]; People v. Cooper (1979) 95 Cal.App.3d 844, 854 [ 1203.07].)

In Thomas, supra, 4 Cal.4th 206, the Supreme Court inferred an intent to restrict discretion from legislative action rather than from prohibitive language. In particular, Thomas involved an amendment to section 1170.1, subdivision (h) that deleted section 12022.5 (firearm-use enhancement) from the list of statutory enhancements that a trial court had discretion to dismiss if it found sufficient circumstances in mitigation. (Compare Stats. 1988, ch. 1487, 2, pp. 5272-5274 [including 12022.5 enhancement] with Stats. 1989, ch. 1044, 1, pp. 3627-3630 [deleting it].) The defendant argued that, despite the deletion, the trial court retained discretion to dismiss under section 1385 in furtherance of justice. (Thomas, supra, 4 Cal.4th at p. 208.)

The court first observed that, under former section 1170, subdivision (h), a trial court may strike an enhancement if it finds mitigating circumstances; and, under section 1385, a trial court may strike an enhancement in furtherance of justice. The court found that the two standards for dismissal were essentially the same because the factors relevant in deciding whether mitigating circumstances warranted dismissal mirrored the factors relevant in deciding whether to dismiss in furtherance of justice. (Thomas, supra, 4 Cal.4that pp. 211-212.) Given this similarity, the court opined that, in deleting the authorization to dismiss for mitigating circumstances, the Legislature could not have intended to preserve the discretion to dismiss in furtherance of justice. (Id. at p. 211.)

The court rejected the defendants suggestion that the Legislature intended to preserve section 1385 discretion because extrinsic circumstances, such as the protection of public interest, were relevant under section 1385 but not under section 1170.1, subdivision (h). The court pointed out that although the public interest may well favor enhancing a defendants sentence by reason of his firearm use, it would be quite rare when the public interest, but not circumstances in mitigation, would justify striking such an enhancement. . . . In most cases, if the public interest favors such relief, that fact readily could be deemed a circumstance in mitigation of the additional punishment.  [Citations.] (Thomas, supra, 4 Cal.4th at p. 212, italics in Thomas.)

Under the circumstances, the court found that deleting the enhancement clearly reflected a legislative intent to divest the courts of their statutory authority to strike firearm use enhancements, whether such power be exercised under section 1170.1, subdivision (h), or under section 1385. (Thomas, supra, 4 Cal.4th at p. 212.)

In support of its conclusion, the court observed that the amendment deleting the enhancement was part of a larger package of legislation that contained a variety of measures expanding or enhancing criminal liability for unlawful firearm use or possession. These new measures included provisions (1) restricting plea bargaining when a defendant personally used a firearm, (2) elevating certain firearm use or possession offenses from misdemeanor/felony (wobbler) status to felonies, and (3) increasing the term of imprisonment for personal use of a firearm during a felony, as well as (4) the subject provision deleting section 12022.5 from section 1170.1, subdivision (h). (Thomas, supra, 4 Cal.4th at pp. 212-213.) The court opined that the very nature of this legislative package made it highly unlikely the Legislature intended to preserve discretion under section 1385. (Id. at p. 213.) Indeed, the court opined that such a finding would effectively negate the amendment to section 1170.1, subdivision (h). (Ibid.)

Tanner and Thomas guide our analysis in this case. Section 3052 does not expressly refer to section 1385 or prohibit courts from striking allegations that establish a defendants ineligibility for a CRC commitment. However, section 3052 is functionally equivalent to the statutes in Tanner and its progeny that barred probation for certain defendants. By making section 3051 inapplicable, it effectively prohibits a CRC commitment for persons convicted of violent felonies. In light of Tanner, such a prohibition reveals a legislative intent to divest trial courts of discretion under section 1385.

Moreover, as we explain below, the legislative history of section 3051 mirrors the history of section 1170, subdivision (h)the statute at issue in Thomasand, as in Thomas, it further reveals an intent to restrict discretion.

As originally enacted, section 3051 provided, in relevant part, that [i]n unusual cases, wherein the interests of justice would be served, the judge may . . . order commitment notwithstanding Section 3052.[6] (Italics added; Stats. 1965, ch. 1226, 2, p. 3066.) However, in 1980, the Legislature amended section 3051 to delete this provision from section 3051. (Stats. 1980, ch. 822, 1, p. 2584, eff. July 29, 1980.) Thus, the Legislature eliminated discretion to dismiss that was identical to that in section 1385.

Moreover, as originally enacted, section 3052 provided, in relevant part, Sections 3050 and 3051 shall not apply to persons convicted of, or who have been previously convicted of murder, assault with intent to commit murder, attempt to commit murder, kidnapping, robbery, burglary in the first degree, mayhem, a violation of Section 245 or a violation of any provision of Chapter 1 (commencing with Section 261) of Title 9 of Part 1 of the Penal Code (but excepting subdivision 1 of Section 261) any felonies involving bodily harm or attempt to inflict bodily harm or any offense set forth in Article 1 (commencing with Section 11500) or 2 (commencing with Section 11530) of Chapter 5 of Division 10 of the Health and Safety Code, or in Article 4 (commencing with Section 11710) of Chapter 7 of such Division 10 for which the minimum term prescribed by law is more than five years in state prison. (Stats. 1965, ch. 1226, 2, p. 3066-3067.)

As part of the same 1980 amendment, the Legislature expanded the list of offenses, types of offenders, and circumstances that would render defendants ineligible for a CRC commitment. (Stats. 1980, ch. 822, 2, p. 2584, eff. July 29, 1980; see fn. 4 [listing bases for ineligibility].)

We presume the Legislature intends to change the meaning of a law when it alters the statutory language [citation], as for example when it deletes express provisions of the prior version [citation]. (Dix v. Superior Court (1991) 53 Cal.3d 442, 461; accord, State Compensation Ins. Fund v. Workers Comp. Appeals Bd. (2008) 44 Cal.4th 230, 244.)

Here, the 1980 amendments changed the statutory scheme for CRC commitments and substantially restricted access to CRC by expanding the scope of ineligibility. (People v. Krauss (1984) 158 Cal.App.3d 274, 279.)

Under the circumstances, we find, as did the court in Thomas, that the deletion of discretion identical to that in section 1385 clearly reflects a legislative intent to divest trial courts of discretion to dismiss allegations of ineligibility in furtherance of justice not just under section 3051 but also under section 1385. Moreover, as in Tanner and Thomas, a contrary conclusion is inconsistent with the purpose of the 1980 amendments to restrict access to CRC for certain defendant and would effectively nullify the amendment to section 3051.

Defendant notes that, prior to 1997, section 1170.1, subdivision (h) authorized courts to strike an enhancement if the circumstances in mitigation warranted doing so. (See Stats. 1994, chs. 146 166, p. 1419, 1099, 2, p. 6527, 1187, 3, 3.3, 3.7, p. 7180, 1188,  12.7, p. 7202.) Then, in 1997, the Legislature repealed that provision, but, at that time, the Legislature stated, In repealing subdivision (h) of Section 1170.1, which permitted the court to strike the punishment for certain listed enhancements, it is not the intent of the Legislature to alter the existing authority and discretion of the court to strike those enhancements or to strike the additional punishment for those enhancements pursuant to Section 1385, except insofar as that authority is limited by other provisions of the law. (Stats. 1997, ch. 750, 9, 11 Wests Cal. Legis. Service, p. 4061, italics added.) In light of this explanatory provision, defendant argues that deleting the specific discretion under section 3051 does not necessarily signify an intent to eliminate a courts general discretion under section 1385. However, defendants argument does not persuade us to change our analysis and conclusion.

The Legislature is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof. [Citation.] Where a statute is framed in language of an earlier enactment on the same or an analogous subject, and that enactment has been judicially construed, the Legislature is presumed to have adopted that construction. [Citation.] (People v. Harrison (1989) 48 Cal.3d 321, 329.)

Thus, we presume that in 1997, when the Legislature repealed section 1170.1, subdivision (h), it was aware of Tanner and Thomas, which made it highly probable that subsequent courts would view the repeal as clear evidence of an intent to divest trial courts of discretion to dismiss under both sections 1170.1 and 1385. Therefore, it became incumbent on the Legislature to make the contrary intent clear and unmistakable if it did not intend to eliminate discretion under section 1385. That is exactly what it did.

Here, the Legislature amended sections 3051 and 3052 almost a year after Tanner was decided, and therefore, we presume that the Legislature was aware that prohibitive statutory language could be viewed as evidence of an intent to eliminate discretion under section 1385. Thus, if, despite the purpose and effect of the 1980 amendments, the Legislature had a contrary intenti.e., to preserve discretion under section 1385one would expect it to have made that intent clear.

Indeed, although the 1980 amendments came before Thomas, the Legislature amended both sections 3051 and 3052 at least twice after Thomas. In doing so, however, it did not include a provision to ensure that courts retained discretion under section 1385. (Stats. 1981, ch. 540, 9, p. 2157 [section 3051]; Stats. 1992, ch. 590, 1, pp. 2681-2682 [same]; Stats. 1998, ch. 931 476, 12 Wests Cal. Legis. Service, pp. 5302-5303 [same]; Stats. 1981, ch. 540, 10, p. 2158 [section 3052]; Stats. 1998, ch. 936, 22, 12 Wests Cal. Legis. Service, p. 5460 [same].) Clearly the Legislature knew how to do so because the statutes were last amended in 1998, after the Legislature amended section 1170.1 and included the uncodified provision, noted above, that expressly stated its intent to preserve discretion under section 1385.

In sum, therefore, we conclude that the language of section 3052 and the legislative history of sections 3051 and 3052 clearly reflect a legislative intent to eliminate discretion under both section 3051 and section 1385 to dismiss violent felony allegations in furtherance of justice in order to grant a CRC commitment. Accordingly, we hold that the trial court did not err in finding that it lacked discretion to consider a CRC commitment.

Disposition

The judgment is affirmed. ______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

ELIA, J.

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[1] Except for references to Welfare and Institutions Code section 3051 and 3052, all further unspecified statutory references are to the Penal Code.

[2] Section 460 deems residential burglaryi.e., burglary of an inhabited dwelling house burglary of the first degree.

Section 667.5, subdivision (c)(21), deems [a]ny burglary of the first degree . . . wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary a  violent felony.

[3]The staff psychologist opined that defendant was a good candidate for rehabilitation and recommended probation, drug testing, and an in-patient drug program, followed by regular participation in an out-patient program. However, two members of the DCR counseling staff found defendant unsuitable for probation and recommended a prison term.

[4]Section 3051 provides, in relevant part, Upon conviction of a defendant for a felony, or following revocation of probation previously granted for a felony, and upon imposition of sentence, if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility unless, in the opinion of the judge, the defendants record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section.

Section 3052 provides (a) Sections 3050 and 3051 shall not apply to any of the following: [] (1) Persons convicted of any offense for which the provisions of Section 667.6 of the Penal Code apply, or any offense described in Chapter 1 (commencing with Section 450) of Title 13 of Part 1 of the Penal Code; or any person convicted of committing or attempting to commit any violent felony as defined in subdivision (c) of Section 667.5 of the Penal Code. [] (2) Persons whose sentence is enhanced pursuant to subdivision (b) of Section 12022 of the Penal Code, or Section 12022.3, 12022.5, 12022.53, 12022.6, 12022.7, or 12022.8 of the Penal Code; or persons whose sentence is subject to the provisions of Section 3046 of the Penal Code; or persons whose conviction results in a sentence which, in the aggregate, exclusive of any credit that may be earned pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code, exceeds six years imprisonment in state prison; or persons found to come under the provisions of Section 1203.06 of the Penal Code. []  (b) Notwithstanding the provisions of subdivision (a) of this section or Section 3053, the fact that a person comes within Section 1203.07 of the Penal Code does not mean that he or she may not be committed and treated. (Italics added.)

[5]The parties dispute whether this case involved an action subject to dismissal under section 1385 or a sentencing factor, which is not subject to dismissal. (Compare People v. Orabuena (2004) 116 Cal.App.4th 84, 96 [misdemeanor allegation is action subject dismissal in order to render defendant eligible for drug treatment under Proposition 36] with In re Varnell (2003) 30 Cal.4th 1132, 1139 [prior conviction allegation was action subject to dismissal but the fact of prior conviction was a sentencing factor which court could not disregard under section 1385].)

Given our conclusion that a court lacks discretion to dismiss a violent felony allegation, we need not address this issue.

[6]We note that the original statute also required the district attorney and the defendant to approve a discretionary CRC commitment. However, in 1972, the Supreme Court in People v. Navarro (1972) 7 Cal.3d 248 eliminated the requirement of approval by the district attorney on the ground that it violated the separation of powers doctrine. (Id. at p. 259.)