Supreme Court of California Justia
Docket No. S118052
People v. Thomas


Filed 4/18/05

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S118052
v.
) Ct.App.
5
F037501
ALONZA RYDELL THOMAS, JR.,
Kern
County
Defendant and Appellant.
Super. Ct. No. SC081072A

When a minor is charged with certain serious criminal offenses, the
prosecutor can file the charges against the minor directly in the criminal division
of the superior court (criminal court). (See Welf. & Inst. Code, §§ 602, subd. (b),
707, subd. (d).) If the minor is convicted, the criminal court has discretion under
Penal Code section 1170.19, subdivision (a)(4), to “order a juvenile disposition
under the juvenile court law, in lieu of a sentence under [the Penal] code” – but
only if the prosecutor consents to that disposition.
We agree with the Court of Appeal that the prosecutorial consent provision
is invalid because it violates California’s separation of powers doctrine (Cal.
Const., art. III, § 3). But we further conclude that contrary to the Court of
Appeal’s view, the trial court’s discretionary authority under Penal Code section
1170.19, subdivision (a), to commit a minor to the Youth Authority applies only
when the minor meets the eligibility requirements of Welfare and Institutions
Code section 1732.6. Because defendant here admitted committing robbery and
1


personally using a firearm in the commission of that felony, his sentence, when
added to his age, exceeds 25 years – which makes him ineligible for Youth
Authority commitment under subdivision (a) of section 1732.6. We therefore
reverse the judgment of the Court of Appeal and direct that court to affirm the
judgment and sentence of the trial court.
I.
On March 21, 2000, defendant, then 15 years old, entered a market wearing
a black bandana over his face and holding a handgun. He pointed the gun at the
store clerk and demanded money. Another clerk grabbed defendant’s hand and a
struggle ensued during which the gun discharged. A third clerk subdued
defendant by hitting him over the head with a bottle. The clerks held defendant at
gunpoint until the police arrived.
The district attorney brought charges in criminal court, as authorized by
Welfare and Institutions Code section 707, subdivision (d)(2) (personal use of a
firearm). He charged defendant with three counts of second degree robbery (Pen.
Code, §§ 211, 212.5), one count of assault with a firearm (Pen. Code, § 245, subd.
(a)), and enhancements for personal use of a firearm (Pen. Code, §§ 12022.53,
subds. (b) and (c), 12022.5, subd. (a)).
On December 21, 2000, defendant entered a negotiated plea of guilty to one
count of robbery and admitted use of a firearm in violation of Penal Code section
12022.53. Under the plea agreement, defendant would not be sentenced to more
than 13 years in prison.
Defendant asserted that under Penal Code section 1170.19 the criminal court
had discretion to order him committed to the Youth Authority, a less restrictive
confinement than state prison. Section 1170.19, subdivision (a)(4), states in
relevant part: “Subject to the knowing and intelligent consent of both the
prosecution and the person being sentenced pursuant to this section, the court may
2

order a juvenile disposition under the juvenile court law, in lieu of a sentence
under this code, upon a finding that such an order would serve the best interests of
justice, protection of the community, and the person being sentenced.” (Italics
added.)
When defendant here asked the criminal court for a disposition under the
juvenile court law, the prosecution objected. Under the italicized language in
Penal Code section 1170.19 just quoted, that objection barred the trial court from
considering a juvenile disposition. Defendant argued to the trial court that the
requirement for prosecutorial consent violated the separation of powers provision
of the California Constitution. (See Cal. Const., art. III, § 3.)1 The trial court,
however, ruled that under Welfare and Institutions Code section 1732.6 it had no
authority to impose a juvenile disposition in defendant’s case.
The Court of Appeal affirmed the conviction, but it struck the prison sentence
and remanded the case for the trial court to exercise its discretion whether to order
a juvenile disposition. We granted the Attorney General’s petition for review and
returned the matter to the Court of Appeal with directions to vacate its decision and
to reconsider it in light of Penal Code section 1732.6, which limits the criminal
court’s discretion to order a Youth Authority commitment when a minor is found to
have personally used a firearm in violation of Penal Code section 12022.53.
Thereafter, the Court of Appeal held: (1) The provision in Penal Code section
1170.19, subdivision (a), requiring the prosecutor’s consent to a juvenile court
disposition in a case filed directly in criminal court violates the separation of

1
California Constitution, article III, section 3 provides: “The powers of state
government are legislative, executive, and judicial. Persons charged with the
exercise of one power may not exercise either of the others except as permitted by
this Constitution.”
3


powers provision (Cal. Const., art. III, § 3); and (2) Welfare and Institutions Code
section 1732.6 has been impliedly repealed by the enactment of Welfare and
Institutions Code section 602.3, and hence does not limit a trial court’s discretion to
transfer a case to juvenile court under Penal Code section 1170.19, subdivision (a).
We granted the Attorney General’s petition for review of the latter issue. We
later asked the parties to brief also the issue of the constitutionality of the
prosecutorial consent provision in Penal Code section 1170.19.
II.
In a supplemental brief filed with this court, the Attorney General concedes
that the prosecutorial consent provision of Penal Code section 1170.19,
subdivision (a) is unconstitutional. We accept the Attorney General’s concession,
which, as discussed below, finds support in the decisions of this court.2
In
People v. Tenorio (1970) 3 Cal.3d 89, 91-95 (Tenorio), we held that a
statute requiring a trial court to secure a prosecutor’s consent to dismiss an
allegation of a prior conviction violates the state Constitution’s separation of
powers clause by improperly invading the constitutional province of the judiciary.
We said: “When the decision to prosecute has been made, the process which leads
to acquittal or to sentencing is fundamentally judicial in nature. Just as the fact of
prosecutorial discretion prior to charging a criminal offense does not imply
prosecutorial discretion to convict without a judicial determination of guilt,
discretion to forego prosecution does not imply discretion to sentence without a
judicial determination of those factors which the Legislature has never denied are
within the judicial power to determine and which relate to punishment. The

2
Our analysis and much of the language in this section follows the opinion
of the Court of Appeal.
4


judicial power is compromised when a judge, who believes that a charge should be
dismissed in the interests of justice, wishes to exercise the power to dismiss but
finds that before he may do so he must bargain with the prosecutor. The judicial
power must be independent, and a judge should never be required to pay for its
exercise.” (Id. at p. 94.)
In the years after Tenorio, we have applied its rationale to several
analogous situations. In Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 122,
this court held that a statute requiring a magistrate to secure a prosecutor’s consent
to determine that an offense is a misdemeanor rather than a felony violates the
separation of powers doctrine (see Pen. Code, § 17, subd. (b)). We said: “Since
the exercise of a judicial power may not be conditioned upon the approval of
either the executive or legislative branches of government, requiring the district
attorney’s consent in determining the charge on which a defendant shall be held to
answer violates the doctrine of separation of powers.” (Esteybar v. Municipal
Court, supra, at p. 127.)
The next year, in People v. Navarro (1972) 7 Cal.3d 248, we held that
requiring a trial court to obtain a prosecutor’s consent to order a posttrial
commitment to a narcotic detention, treatment, and rehabilitation facility violates
the separation of powers doctrine: “The imposition of sentence and the exercise of
sentencing discretion are fundamentally and inherently judicial functions.
[Citation.] . . . [¶] . . . [¶] . . . ‘It bears reiteration that the Legislature, of course,
by general laws can control eligibility for probation, parole and the term of
imprisonment, but it cannot abort the judicial process by subjecting a judge to the
control of the district attorney.’ ” (Id. at pp. 258-259, fns. omitted, quoting People
v. Sidener (1962) 58 Cal.2d 645, 654 (dis. opn. of Schauer, J.).)
Then,
in
People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 61, we
held that a statute requiring a court to get a prosecutor’s consent to order pretrial
5

diversion to a narcotic treatment and rehabilitation program violates the separation
of powers doctrine: “[W]hen the jurisdiction of a court has been properly invoked
by the filing of a criminal charge, the disposition of that charge becomes a judicial
responsibility. . . . With the development of more sophisticated responses to the
wide range of antisocial behavior traditionally subsumed under the heading of
‘crime,’ alternative means of disposition have been confided to the judiciary.” (Id.
at p. 66.)
Thereafter,
in
Davis v. Municipal Court (1988) 46 Cal.3d 64, this court
held that a local rule precluding the trial court from diverting persons charged with
felonies to a drug treatment program while permitting diversion for those charged
with misdemeanors did not violate the separation of powers doctrine (Id. at pp. 69-
74 (plur. opn. of Arguelles, J.)). The local rule granted the prosecutor discretion to
be exercised before the filing of a criminal charge, in contrast to the statutes
invalidated in Tenorio, supra, 3 Cal.3d 89, and its progeny, which purported to
give a prosecutor the right to veto a trial court’s decision made after criminal
charges had already been filed. Davis concluded that the exercise of prosecutorial
discretion before the filing of charges does not improperly subordinate the judicial
branch to the executive branch in violation of the state Constitution. (Davis v.
Municipal Court, supra, at p. 82.)
Recently,
in
Manduley v. Superior Court (2002) 27 Cal.4th 537, which
upheld the constitutionality of an initiative measure that gave the prosecutor
discretion to file charges against some juveniles directly in criminal court, this
court again stressed the critical distinction between prosecutorial discretion before
and discretion after the filing of a criminal charge: “[This court’s decisions]
establish that the separation of powers doctrine prohibits the legislative branch
from granting prosecutors the authority, after charges have been filed, to control
the legislatively specified sentencing choices available to a court. A statute
6

conferring upon prosecutors the discretion to make certain decisions before the
filing of charges, on the other hand, is not invalid simply because the prosecutor’s
exercise of such charging discretion necessarily affects the dispositional options
available to the court.” (Id. at p. 553.)
The discretion that Penal Code section 1170.19, subdivision (a)(4), grants
to a criminal court to order a juvenile disposition in some cases where the
prosecutor has filed charges directly in criminal court indisputably constitutes a
judicial responsibility. (See Davis v. Municipal Court, supra, 46 Cal.3d at p. 83.)
Like the statutes in Tenorio and its progeny, section 1170.19, subdivision (a)(4),
authorizes “the exercise of a prosecutorial veto after the filing of criminal charges,
when the criminal proceeding has already come within the aegis of the judicial
branch.” (Davis v. Municipal Court, supra, at p. 83.) Thus, the requirement of
section 1170.19, subdivision (a)(4), that the criminal court must secure the
prosecutor’s consent before it can order a Youth Authority commitment violates
the state Constitution’s separation of powers doctrine. (Cal. Const., art. III, § 3.)
III.
We now consider the issue of the criminal court’s discretionary authority
under Penal Code section 1170.19 to order a disposition under the juvenile court
laws in a case that the prosecution filed directly in criminal court. Resolving this
issue requires the interpretation and cross-referencing of five statutes from two
different codes.
We start our analysis with Penal Code section 1170.17, subdivision (a),
which states: “When a person is prosecuted for a criminal offense committed
while he or she was under the age of 18 years and the prosecution is lawfully
initiated in a court of criminal jurisdiction without a prior finding that the person is
not a fit and proper subject to be dealt with under the juvenile court law, upon
subsequent conviction for any criminal offense, the person shall be subject to the
7

same sentence as an adult convicted of the identical offense, in accordance with
the provisions set forth in subdivision (a) of Section 1170.19, except under the
circumstances described in subdivision (b) or (c).” (The circumstances described
in subdivisions (b) and (c) are inapplicable here.)
Penal Code section 1170.19, subdivision (a)(1), to which Penal Code section
1170.17 refers, states that a person sentenced pursuant to section 1170.17 “may be
committed to the Youth Authority only to the extent the person meets the eligibility
criteria set forth in Section 1732.6 of the Welfare and Institutions Code.”
Subdivision (a) of Welfare and Institutions Code section 1732.6 provides:
“(a) No minor shall be committed to the Youth Authority when he or she is
convicted in a criminal action for an offense described in subdivision (c) of
Section 667.5 or subdivision (c) of Section 1192.7 of the Penal Code and is
sentenced to incarceration for life, an indeterminate period to life, or a determinate
period of years such that the maximum number of years of potential confinement
when added to the minor’s age would exceed 25 years. Except as specified in
subdivision (b), in all other cases in which the minor has been convicted in a
criminal action, the court shall retain discretion to sentence the minor to the
Department of Corrections or to commit the minor to the Youth Authority.”
Defendant was convicted in criminal court of robbery (Pen. Code, §§ 211,
212.5), with a sentence enhancement for personal use of a firearm during the
commission of the robbery (Pen. Code, § 12022.53, subd. (b)). Welfare and
Institutions Code section 1732.6, subdivision (a), restricts the criminal court’s
discretion to order a Youth Authority commitment for minors convicted of any
offense described in subdivision (c) of Penal Code section 667.5. Among the
offenses so described are “[a]ny robbery,” and “[a]ny violation of [Penal Code]
Section 12022.53.” (Pen. Code, § 667.5, subd. (c)(9) and (22).) Minors convicted
of such offenses cannot be committed to the Youth Authority if they have been
8

“sentenced to incarceration for life, an indeterminate period to life, or a
determinate period of years such that the maximum number of years of potential
confinement when added to the minor’s age would exceed 25 years.” (Welf. &
Inst. Code, § 1732.6, subd. (a).)
Defendant was sentenced to three years imprisonment for robbery plus 10
years for the personal use of a firearm, minus 97 days’ credit for time served. His
sentence, when added to his age, exceeds 25 years. Defendant is therefore
ineligible for a Youth Authority commitment.
Defendant, however, argues that Welfare and Institutions Code section
1732.6’s restrictions on Youth Authority commitment were removed by the
Legislature’s enactment of Welfare and Institutions Code section 602.3,
subdivision (a). That provision reads: “Notwithstanding any other law and
pursuant to the provisions of this section, the juvenile court shall commit any
minor adjudicated to be a ward of the court for the personal use of a firearm in the
commission of a violent felony . . . to placement in a juvenile hall, ranch, camp, or
with the Department of the Youth Authority.” The apparent purpose of this
provision was to limit judicial discretion in firearm use cases prosecuted in
juvenile court.
The amendment to Welfare and Institutions Code section 1732.6, which
restricted the criminal court’s discretion to place minors with the Youth Authority
was enacted by the voters as part of Proposition 21’s revision of juvenile court
law. Welfare and Institutions Code section 602.3 was enacted by the Legislature
before the voters approved Proposition 21, but took effect after Proposition 21.
The parties therefore dispute whether section 602.3 is a later enactment that
supersedes amended section 1732.6, or whether it is an earlier enactment that
cannot supersede amended section 1732.6. We need not resolve this controversy,
however, because section 602.3 does not apply to defendant. It concerns only a
9

minor “adjudicated to be a ward of the court for the personal use of a firearm in the
commission of a violent felony.” Defendant has not been adjudicated to be a ward
of the juvenile court; instead, he was charged and pled guilty in criminal court.
Defendant insists that notwithstanding Penal Code section 1170.19 and
Welfare and Institutions Code section 1732.6, the trial court had discretion under
Penal Code section 1385 to commit him to the Youth Authority after his guilty
plea. We disagree. Penal Code section 1385 allows a trial court, in the interests of
justice, to strike individual charges and allegations in a criminal action. (In re
Varnell (2003) 30 Cal.4th 1132, 1137; People v. Hernandez (2000) 22 Cal.4th
512, 524.) It does not permit the court to disregard statutory limits on sentencing
for charges and allegations that have not been stricken. (See In re Varnell, supra,
30 Cal.4th at pp. 1137-1139.) Moreover, Penal Code section 12022.5, subdivision
(c), expressly forbids the trial court from striking an allegation of personal firearm
use.
Finally, defendant notes that under the express language of Penal Code
section 1170.19 and Welfare and Institutions Code section 1732.6, it is only his
commitment to the Youth Authority that would be barred. He contends, therefore,
that his case should be remanded to the trial court so it can exercise its discretion
whether to order a juvenile disposition other than a Youth Authority commitment,
such as placement at a county youth ranch.
The offenses listed in Welfare and Institutions Code section 1732.6 are very
serious crimes. When a minor is convicted of such an offense, usually the only
suitable sentencing options would be Youth Authority commitment or sentencing
as an adult; a disposition less restrictive than Youth Authority commitment, such as
a county ranch facility, would not be appropriate to the severity of the offense.
Through Proposition 21 the voters of this state took that sentencing choice from the
criminal court by barring a Youth Authority commitment when the sentence, as
10

in this case, would require the defendant to be confined beyond his 25th birthday.
(See Manduley v. Superior Court, supra, 27 Cal.4th at p. 555.) That enactment
demonstrates that, in the voters’ view, such minors need more restrictive
confinement. For us to conclude that the criminal court lacks discretion to order a
Youth Authority commitment but retains discretion to order an even less restrictive
disposition would conflict with the intent of the voters.
For the reasons given above, we conclude that the trial court correctly ruled
that under Welfare and Institutions Code section 1732.6 it had no authority to
commit defendant to the Youth Authority or to a less restrictive juvenile
disposition.
DISPOSITION
We reverse the judgment of the Court of Appeal and remand the matter to
that court with directions to affirm the judgment and sentence of the trial court.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Thomas
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted XXX 109 Cal.App.4th 1520
Rehearing Granted

__________________________________________________________________________________

Opinion No.

 S118052
Date Filed: April 18, 2005
__________________________________________________________________________________

Court:

 Superior
County: Kern
Judge: Arthur E. Wallace

__________________________________________________________________________________

Attorneys for Appellant:

 Athena Shudde, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

 Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter, Jeffrey D.
Firestone, Louis M. Vasquez, Michelle L. West-Scott, Janet E. Neeley and Kathleen A. McKenna, Deputy
Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

 Athena Shudde
1762 Columbia Street
San Diego, CA 92101
(619) 234-2266

Kathleen A. McKenna
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 445-6599

Opinion Information
Date:Docket Number:
Mon, 04/18/2005S118052

Dockets
Aug 5 2003Petition for review filed
  by (AG) counsel for respondent (People)
Aug 7 2003Received Court of Appeal record
  1 doghouse
Oct 1 2003Petition for Review Granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Oct 24 2003Request for extension of time filed
  by the Attorney General for a 30-day e.o.t. to and including 11-30-2003
Oct 27 2003Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Brief on the Merits is extended to and including December 1, 2003.
Oct 31 2003Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Athena Shudde is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Nov 25 2003Request for extension of time filed
  by the A. G. for a 15-day e.o.t. to file Respondent People's Opening Brief on the Merits to 12/16/2003
Nov 26 2003Extension of time granted
  On application of Respondent People and good cause appearing, it is ordered that the time to serve and file Respondent's Opening Brief on the Merits is extended to and including December 16, 2003.
Dec 15 2003Opening brief on the merits filed
  in Fresno by Respondent People
Jan 15 2004Request for extension of time filed
  by appellant for an e.o.t. to 2/17/2004 to file the Answer Brief on the Merits.
Jan 22 2004Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including February 17, 2004.
Feb 11 2004Answer brief on the merits filed
  Appellant's
Feb 27 2004Request for extension of time filed
  (in Fresno) by respondent for a 45-day e.o.t. to 4-15-2004, to file Respondent's Reply Brief on the Merits.
Mar 8 2004Extension of time granted
  On application of Respondent and good cause appearing, it is ordered that the time to serve and file Respondent's reply brief on the Merits is extended to and including April 15, 2004.
Apr 12 2004Reply brief filed (case fully briefed)
 
Sep 29 2004Additional issues ordered
  The parties are directed to brief the following additional issue: Does Penal Code section 1170.19, subdivision (a)(4), insofar as it requires the prosecutor's consent to a juvenile court disposition, violate the separation of powers doctrine? The parties are directed to file simultaneous supplemental letter briefs on this question on or before October 20, 2004. Simultaneous reply brief may be filed on or October 27, 2004. George, C.J., was absent and did not participate.
Oct 19 2004Request for extension of time filed
  for respondent to file the supplemental letter brief, asking to 10/30/04.
Oct 20 2004Filed:
  Appellant's Supplemental Letter Brief.
Oct 26 2004Extension of time granted
  To October 29, 2004 to file respondent's supplemental letter brief.
Oct 27 2004Supplemental brief filed
  In Fresno by Respondent {The People}
Jan 12 2005Case ordered on calendar
  2/8/05 @ 9:15am - Sacramento
Jan 31 2005Received:
  Letter from the Attorney General dated 1-28-2005 re authorities respondent may cite during oral argument.
Feb 2 2005Received:
  Letter from the Attorney General dated 2-1-2005
Feb 8 2005Cause argued and submitted
 
Apr 18 2005Opinion filed: Judgment reversed
  and remanded with directions. Opinion by: Kennard, J. -- joined by George, C.J., Baxter, Werdegar, Chin, Brown, Moreno, JJ.
Apr 27 2005Request for modification of opinion filed
  (Letter) by Respondent People
May 2 2005Rehearing petition filed
  by counsel for appellant
May 4 2005Time extended to consider modification or rehearing
  to and including July 15, 2005
Jun 8 2005Opinion modified - no change in judgment
 
Jun 8 2005Rehearing denied
  Opinion modified.
Jun 8 2005Remittitur issued (criminal case)
 
Jun 16 2005Received:
  Receipt for Remittitur from CA 5.
Jun 22 2005Compensation awarded counsel
  Atty Shudde