Filed 6/2/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE ASSOCIATION OF DEPUTY B310845
DISTRICT ATTORNEYS FOR
LOS ANGELES COUNTY, (Los Angeles County
Super. Ct. No. 20STCP04250)
Plaintiff and Respondent,
v.
GEORGE GASCÓN, as District
Attorney, etc., et al.
Respondents and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, James C. Chalfant, Judge. Affirmed in part
and reversed in part with directions.
Hogan Lovells, Stephanie Yonekura, Neal Kumar Katyal,
Jo-Ann Tamila Sagar, and Danielle Desaulniers Stempel; Rodrigo
A. Castro-Silva, County Counsel, Adrian G. Gragas, Assistant
County Counsel, and Jonathan C. McCaverty, Deputy County
Counsel; Kendall Brill & Kelly, Robert E. Dugdale and Laura W.
Brill for Respondents and Appellants.
Michael Romano, Erwin Chemerinsky, and Miriam Krinsky
for 67 Current and Former Elected Prosecutors and Attorneys
General as Amicus Curiae on behalf of Respondents and
Appellants.
Ricardo D. García, Public Defender (Los Angeles County),
Albert J. Menaster, Head Deputy Public Defender, and Mark
Harvis, Deputy Public Defender as Amicus Curiae on behalf of
Respondents and Appellants.
Summer Lacey and Tiffany M. Bailey for American Civil
Liberties Union Foundation of Southern California as Amicus
Curiae on behalf of Respondents and Appellants.
Browne George Ross O’Brien Annaguey & Ellis, Eric M.
George, Thomas P. O’Brien, Chistopher Landau, Nathan J.
Hochman, David J. Carroll, and Matthew O. Kussman for
Petitioner and Respondent.
Greg D. Totten; Robert P. Brown, Chief Deputy District
Attorney (San Bernardino) for California District Attorneys
Association as Amicus Curiae on behalf of Petitioner and
Respondent.
_____________________________
INTRODUCTION
This appeal raises two questions concerning the scope of
prosecutorial discretion. The first is: Can the voters, through the
initiative process, or the Legislature, through legislation, require
prosecutors to plead and prove prior convictions to qualify a
defendant for the alternative sentencing scheme prescribed by
the three strikes law? Our answer: Yes for pleading, no for
proving. The second question is: Can courts require prosecutors,
when moving to eliminate (by dismissal or amendment) from a
2
charging document allegations of prior strikes and sentence
enhancements, to base the motion on individualized factors
concerning the defendant or the alleged crime? Our answer: No,
but courts do not have to grant those motions. (See People v.
Nazir (June 2, 2022, B310806) Cal.App.5th (Nazir).)
These questions arise out of the decision on November 3,
2020 by the voters of Los Angeles County to elect George Gascón
as their district attorney. In December 2020 the new district
attorney adopted several “Special Directives” concerning
sentencing, sentence enhancements, and resentencing that made
significant changes to the policies of his predecessor. In essence,
the Special Directives prohibited deputy district attorneys in
most cases from alleging prior serious or violent felony
convictions (commonly referred to as “strikes”) under the three
strikes law or sentence enhancements and required deputy
district attorneys in pending cases to move to dismiss or seek
leave to remove from the charging document allegations of
strikes and sentence enhancements. The Special Directives’
stated objectives, through these policies, were to promote the
“interests of justice and public safety” by reducing “long
sentences” that “do little” to deter crime.
The Association of Deputy District Attorneys for Los
Angeles County (ADDA) is the certified exclusive bargaining
representative for Bargaining Unit 801, which consists of
approximately 800 deputy district attorneys in Los Angeles
County. ADDA sought a writ of mandate and a preliminary
injunction to prevent the district attorney from enforcing the
Special Directives, arguing they violated a prosecutor’s duties to
“plead and prove” prior strikes under the three strikes law (Pen.
3
Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d));1 to exercise
prosecutorial discretion in alleging and moving to dismiss under
section 1385 prior strikes and sentence enhancements on a case-
by-case basis; to continue to prosecute alleged strikes and
sentence enhancements after a court denies a motion to dismiss
under section 1385; and to prosecute certain special
circumstances allegations. The trial court largely agreed with
ADDA and issued a preliminary injunction enjoining the district
attorney from enforcing certain aspects of the Special Directives.
In this appeal the district attorney argues that ADDA lacks
standing to seek mandamus relief on behalf of its members, that
he does not have a ministerial duty to comply with the legal
duties ADDA alleges he violated, that the trial court’s
preliminary injunction violates the doctrine of separation of
powers, and that the balance of the harms does not support
preliminary injunctive relief. The district attorney did not
challenge in the trial court, and does not challenge on appeal, the
preliminary injunction’s application to special circumstances
allegations.
On the issue of standing, we conclude ADDA has
associational standing to seek relief on behalf of its members. On
the merits, we conclude the voters and the Legislature created a
duty, enforceable in mandamus, that requires prosecutors to
plead prior serious or violent felony convictions to ensure the
alternative sentencing scheme created by the three strikes law
applies to repeat offenders. This duty does not violate the
separation of powers doctrine by materially infringing on a
prosecutor’s charging discretion; to the contrary, the duty affirms
1 Undesignated statutory references are to the Penal Code.
4
the voters’ and the Legislature’s authority to prescribe more
severe punishment for certain recidivists. But we also conclude
neither the voters nor the Legislature can create a duty
enforceable in mandamus to require a prosecutor to prove
allegations of prior serious or violent felony convictions, an
inherently and immanently discretionary act. Nor, we conclude,
is mandamus available to compel a prosecutor to exercise his or
her discretion in a particular way when moving to dismiss
allegations of prior strikes or sentence enhancements under
section 1385 or when seeking leave to amend a charging
document. Therefore, we affirm the trial court’s order in part and
reverse it in part.
FACTUAL AND PROCEDURAL BACKGROUND
A. The New District Attorney Adopts Special Directives
Regarding Sentencing and Sentence Enhancements
Shortly after his election in November 2020, the new
district attorney for Los Angeles County adopted several Special
Directives to amend the Legal Policies Manual. They included:
Special Directive 20-08. On December 7, 2020 the district
attorney issued Special Directive 20-08, which stated that
“sentence enhancements or other sentencing allegations,
including under the Three Strikes law, shall not be filed in any
cases and shall be withdrawn in pending matters.” Special
Directive 20-08 stated it applied to “[a]ny prior-strike
enhancements” under the three strikes law, sections 667,
5
subdivisions (d) and (e), and 1170.12;2 “[a]ny [Proposition] 8 or
‘5 year prior’ enhancements” under section 667,
subdivision (a)(1); “‘3 year prior’ enhancements” under
section 667.5; “STEP Act enhancements (‘gang enhancements’)”
under section 186.22 et. seq.; “Special Circumstances allegations
resulting in” a sentence of life without the possibility of parole
under sections 190.1 to 190.5; and “[v]iolations of bail or [own
recognizance] release” under section 12022.1. Special
Directive 20-08 further stated: “The specified
allegations/enhancements identified in this policy directive are
not an exhaustive list of all allegations/enhancements that will
no longer be pursued by this office; however, these are the most
commonly used allegations/enhancements.”
Special Directive 20-08 stated the district attorney’s view
that “the current statutory ranges for criminal offenses alone,
without enhancements, are sufficient to both hold people
accountable and also to protect public safety” and that “studies
show that each additional sentence year causes a 4 to 7 percent
increase in recidivism that eventually outweighs the
incapacitation benefit.” An appendix to Special Directive 20-08
stated that there was no compelling evidence the over 100
2 The three strikes law is actually “not an enhancement but
rather an alternate penalty provision. . . . ‘It . . . does not add an
additional term of imprisonment to the base term. Instead, it
provides for an alternate sentence . . . when it is proven that the
defendant has suffered at least two prior serious felony
convictions.’” (People v. Flores (2021) 63 Cal.App.5th 368, 384;
see People v. Williams (2014) 227 Cal.App.4th 733, 744 [“The
Three Strikes law is a penalty provision, not an enhancement. It
is not an enhancement because it does not add an additional term
of imprisonment to the base term.”].)
6
sentence enhancements in California improved public safety, that
such enhancements contributed to prison overcrowding, and that
they “exacerbate[d] racial disparities in the justice system.” The
appendix also stated “long sentences do little” to deter crime.
Special Directive 20-14. Also on December 7, 2020 the
district attorney issued Special Directive 20-14 as the “new
Resentencing Policy.” Among other things, Special Directive 20-
14 required the deputy district attorney in charge of an open and
pending case to “join in the Defendant’s motion to strike all
alleged sentence enhancement(s)” or to “move to dismiss all
alleged sentence enhancement(s) named in the information for all
counts.” Special Directive 20-14 based the new resentencing
policy on research showing “the high cost, ineffectiveness, and
harm to people and communities caused by lengthy prison
sentences” and on the district attorney’s promise, articulated in
his successful election campaign, that he would “stop[ ] the
practice of imposing excessive sentences.”
Special Directive 20-08.1. On December 15, 2020 the
district attorney issued a clarification to Special Directive 20-08
for pending cases in which the People had alleged prior serious or
violent felony convictions under the three strikes law or sentence
enhancements. In such cases, Special Directive 20-08.1 directed
deputy district attorneys to “make the following record”:
“‘The People move to dismiss and withdraw any strike prior
(or other enhancement) in this case. We submit that punishment
provided within the sentencing triad of the substantive charge(s)
in this case are [sic] sufficient to protect public safety and serve
justice. Penal Code section 1385 authorizes the People to seek
dismissal of all strike prior(s) (or other enhancements) when in
7
the interests of justice.[3] Supreme Court authority directs this
Court to determine those interests by balancing the rights of the
defendant and those of society “as represented by the People.”
The California Constitution and State Supreme Court precedent
further vest the District Attorney with sole authority to
determine whom to charge, what charges to file and pursue, and
what punishment to seek. That power cannot be stripped from
the District Attorney by the Legislature, Judiciary, or voter
initiative without amending the California Constitution. . . .
Additional punishment provided by sentencing enhancements or
special allegations provide[s] no deterrent effect or public safety
benefit of incapacitation—in fact, the opposite may be true,
wasting critical financial state and local resources.’” If a trial
court refused under section 1385 to dismiss allegations of prior
serious or violent felony convictions under the three strikes law
or refused to dismiss sentencing allegations, Special
Directive 20-08.1 instructed deputy district attorneys to “seek
leave of the court to file an amended charging document
pursuant to Penal Code section 1009.”
Special Directive 20-08.2. On December 18, 2020 the
District Attorney issued another clarification to Special
3 Section 1385, subdivision (a), provides that a “judge or
magistrate may, either on motion of the court or upon the
application of the prosecuting attorney, and in furtherance of
justice, order an action to be dismissed.” Section 1385 applies to
motions to dismiss an entire action and to allegations of prior
convictions and sentence enhancements. (§ 667, subd. (f)(2); see
People v. Tirado (2022) 12 Cal.5th 688, 696 [“Though section 1385
literally authorizes the dismissal of ‘an action,’ it has been
construed to permit the dismissal of parts of an action [citation],
including a weapon or firearm use enhancement.”].)
8
Directive 20-08. Special Directive 20-08.2 first reiterated that
certain “sentence enhancements and allegations shall not be
pursued in any case and shall be withdrawn in pending matters,”
including “[s]pecial circumstances allegations resulting in” a
sentence of a life without the possibility of parole. The directive
stated that such allegations “shall not be filed, will not be used
for sentencing, and will be dismissed or withdrawn from the
charging document.” Special Directive 20-08.2 then revised
Special Directive 20-08 to allow deputy district attorneys to
allege prior strikes and sentence enhancements in certain cases,
including those alleging hate crimes, elder and dependent abuse,
child physical abuse, child and adult sexual abuse, human sex
trafficking, certain financial crimes, and “extraordinary
circumstances” where the victim suffered extensive physical
injury or where “the type of weapon or manner in which a deadly
or dangerous weapon including firearms [was] used exhibited an
extreme and immediate threat to human life.”
B. ADDA Seeks a Writ of Mandate and a Preliminary
Injunction To Prevent the District Attorney from
Enforcing “Unlawful Portions” of the Special
Directives
On December 30, 2020 ADDA filed a petition for writ of
mandate or prohibition and a complaint for declaratory and
injunctive relief. ADDA alleged the Special Directives violated
California law in four ways:
First, ADDA alleged the district attorney’s Special
Directives breached his duty under the three strikes law to “plead
and prove” all prior qualifying serious and violent felony
convictions. (See §§ 667, subd. (f)(1), 1170.12, subd. (d)(1).)
9
ADDA further alleged that, because courts have held the three
strikes law does not violate the separation of powers doctrine,
“the Special Directives require [deputy district attorneys] to
incorrectly argue that the mandatory obligation to plead and
prove strikes is unconstitutional as violative of the separation of
powers.” ADDA also alleged that, “even if the constitutionality of
the Three Strikes Law were not already settled law,” the district
attorney, as a local executive official, has “no authority to refuse
his ministerial duty to plead and prove strikes based on his
personal perception of their constitutionality.”
Second, ADDA alleged Special Directive 20-08.1 violated
the law by seeking to circumvent the trial court’s role in
determining whether to strike a serious or violent felony
conviction “in furtherance of justice” under section 1385. In
particular, ADDA alleged the instruction in Special
Directive 20-08.1 that required deputy district attorneys, in the
event the court denied a motion to dismiss a prior strike under
section 1385, to request leave to file an amended charging
document under section 1009 “runs afoul of section 1386,” which
prohibits the district attorney from discontinuing or abandoning
a prosecution “except as provided in Section 1385.” ADDA
alleged the district attorney’s policy violated the duty “to proceed
with prosecution once it has been initiated unless the [c]ourt
permits it to be dismissed.”
Third, ADDA alleged the Special Directives breached the
district attorney’s duty under Government Code section 26500 “to
prosecute violations of general laws,”4 which, according to ADDA,
4 Government Code section 26500 states: “The district
attorney is the public prosecutor, except as otherwise provided by
10
includes the duties “to enforce the law” and “to exercise
. . . prosecutorial discretion in particular cases.” ADDA claimed
the district attorney failed to perform both duties “by
indiscriminately prohibiting the prosecution of all violations of
certain offenses” through his adoption of “blanket prosecutorial
policies that do not allow for the exercise of case-by-case
discretion.”
Finally, ADDA alleged the Special Directives violated
California law by requiring deputy district attorneys to bring
motions to dismiss special circumstances allegations that result
in a sentence of life without the possibility of parole. ADDA
claimed section 1385.1 prohibits a court from granting such a
motion.
ADDA alleged these purportedly unlawful aspects of the
Special Directives “placed line prosecutors in an ethical
dilemma—follow the law, their oath, and their ethical
obligations, or follow their superior’s orders.” ADDA cited
transcripts from several cases where courts had declined to grant
motions based on the Special Directives and had admonished
deputy district attorneys to comply with their ethical and legal
obligations. ADDA also alleged the district attorney had “exacted
retribution” against a deputy district attorney by issuing a “letter
of reprimand” for choosing “to uphold the law” rather than follow
the Special Directives. In its prayer for relief, ADDA sought,
among other things, a writ of mandate “commanding [the district
attorney] to rescind the Special Directives” and a preliminary
injunction “barring enforcement of the Special Directives.”
law. [¶] The public prosecutor shall attend the courts, and
within his or her discretion shall initiate and conduct on behalf of
the people all prosecutions for public offenses.”
11
ADDA also filed on December 30, 2020 an ex parte
application (i.e., an application on shortened notice, not one
without notice to the other side) for a temporary restraining order
enjoining the district attorney from “forcing” deputy district
attorneys to comply with “unlawful portions” of the Special
Directives. ADDA argued the Special Directives violated the
district attorney’s mandatory duties to “plead and prove”
allegations of prior serious or violent felony convictions under the
three strikes law; to exercise case-by-case discretion “rather than
to rubber stamp blanket prosecutorial policies barring the
wholesale enforcement of a class of criminal laws”; not to move to
dismiss certain special circumstances allegations; and not to
“dismiss a prosecution” without leave of court. ADDA
subsequently withdrew its ex parte application for a temporary
restraining order, and the court issued an order to show cause
why the court should not issue a preliminary injunction.
The district attorney opposed the application for a
preliminary injunction. He first challenged ADDA’s standing to
pursue its claims because the interests ADDA sought to protect
were not germane to the organization’s purpose. In particular,
the district attorney argued ADDA’s scope of representation did
not include challenging policy decisions such as the Special
Directives. On the merits, the district attorney argued the
separation of powers doctrine precluded the judicial branch from
reviewing his discretion whether to plead or move to dismiss
allegations of prior strikes and sentence enhancements. The
district attorney also argued there was no ministerial duty to
“plead and prove” qualifying prior convictions under the three
strikes law. The district attorney contended “different District
Attorneys in different California counties, as well as different
12
prosecutors, have long had widely varying pleading practices,
defeating any claim that such pleading is ‘ministerial.’”
Similarly, the district attorney argued there was no ministerial
duty not to move to dismiss existing allegations of strikes and
sentence enhancements based on the Special Directives. Because
there were no such ministerial duties, the district attorney
argued, requiring deputy district attorneys to follow policies that
reflected the district attorney’s “assessment of the interests of
justice and the wise use of office resources” did not put the
deputies in an ethical dilemma. As a result, the district attorney
contended, the balance of harms weighed in his favor, and the
injunction sought by ADDA “would interfere with the will of the
more than two million [Los Angeles] County voters who recently
elected the District Attorney.”
C. The Trial Court Grants ADDA’s Application for a
Preliminary Injunction “in Large Part”
The trial court granted ADDA’s motion in most respects.
The court found ADDA had associational and public interest
standing to pursue its claims against the district attorney. The
court concluded that the three strikes law created a “duty to
plead and prove strike priors” and that “this requirement is not
an unconstitutional intrusion into prosecutorial discretion.” The
court also found the “perceptions . . . that some prosecutors do not
follow the law cannot demonstrate the law’s requirements.” The
trial court enjoined the district attorney from preventing deputy
district attorneys from pleading and proving prior serious or
violent felony convictions under the three strikes law. The court
also ruled the three strikes law prohibited the district attorney
from moving to dismiss a prior serious or violent felony conviction
13
based on “mere antipathy towards the Three Strikes law” and
enjoined him from requiring deputy district attorneys to move to
dismiss prior strikes “without having legal grounds” under
section 1385. In connection with the three strikes law, the court
also concluded the district attorney cannot abandon the
prosecution of prior serious or violent felony conviction
allegations under the three strikes law by filing a motion under
section 1009 for leave to amend the charging document to
eliminate those allegations.
The court further enjoined the district attorney from
requiring deputy district attorneys to move to dismiss existing
sentence enhancements under section 1385 based only on the
Special Directives. Finally, the court enjoined the district
attorney from enforcing the Special Directives to the extent they
required deputy district attorneys to move to dismiss or withdraw
special circumstances allegations where the court has no
discretion to grant such motion. The court declined to enjoin the
district attorney from enforcing the Special Directives as a
“blanket policy” to prevent deputy district attorneys from alleging
sentence enhancements in new cases. The district attorney
timely appealed.5
DISCUSSION
The district attorney argues the trial court erred in
multiple respects in granting most of the preliminary relief
5 An order granting or denying a request for a preliminary
injunction is appealable. (Code Civ. Proc., § 904.1, subd. (a)(6);
Kirk v. Ratner (2022) 74 Cal.App.5th 1052, 1062; American
Builder’s Assn. v. Au-Yang (1990) 226 Cal.App.3d 170, 173, fn. 1.)
14
sought by ADDA. The district attorney contends that ADDA
lacks standing to challenge the Special Directives, that ADDA
failed to show the relevant laws create ministerial duties
enforceable by mandamus, and that the balance of hardships
weighs in his favor. Fundamentally, the district attorney argues
his unreviewable prosecutorial discretion includes whether to
allege prior convictions under the three strikes law and whether
to continue prosecuting existing allegations of prior convictions
and sentence enhancements in pending cases.
The district attorney overstates his authority. He is an
elected official who must comply with the law, not a sovereign
with absolute, unreviewable discretion. Nevertheless, although
the trial court did not err in granting some parts of the
preliminary relief requested by ADDA, the court erred in
granting other parts.
A. Applicable Law and Standard of Review for
Preliminary Injunctions Granting Mandamus Relief
“In deciding whether to issue a preliminary injunction, a
trial court must evaluate two interrelated factors: (i) the
likelihood that the party seeking the injunction will ultimately
prevail on the merits of his claim, and (ii) the balance of harm
presented, i.e., the comparative consequences of the issuance and
nonissuance of the injunction.” (Common Cause v. Board of
Supervisors (1989) 49 Cal.3d 432, 441-442, fn. omitted (Common
Cause); see Chase v. Wizmann (2021) 71 Cal.App.5th 244, 252;
Midway Venture LLC v. County of San Diego (2021)
60 Cal.App.5th 58, 76.) “‘The trial court’s determination must be
guided by a “mix” of the potential-merit and interim-harm
factors; the greater the plaintiff’s showing on one, the less must
15
be shown on the other to support an injunction.’” (Midway
Venture, at p. 76; see Butt v. State of California (1992)
4 Cal.4th 668, 678.)
Ordinarily, appellate review of a trial court’s order granting
a preliminary injunction is limited to whether the trial court
abused its discretion in evaluating the likelihood of success on
the merits and the balance of harm. (Chase v. Wizmann, supra,
71 Cal.App.5th at p. 252; Jamison v. Department of
Transportation (2016) 4 Cal.App.5th 356, 362.) “Occasionally,
however, the likelihood of prevailing on the merits depends upon
a question of pure law rather than upon evidence to be
introduced at a subsequent full trial. . . . If such a question of
pure law is presented, it can sometimes be determinative . . ., for
example, when the defendant shows that the plaintiff’s
interpretation [of a statute] is wrong as a matter of law and thus
the plaintiff has no possibility of success on the merits.” (Hunter
v. City of Whittier (1989) 209 Cal.App.3d 588, 595-596; see
Midway Venture LLC v. County of San Diego, supra,
60 Cal.App.5th at p. 76; Field v. Bowen (2011) 199 Cal.App.4th
346, 352-353; Citizens to Save California v. California Fair
Political Practices Com. (2006) 145 Cal.App.4th 736, 745-746.)
Moreover, the “scope of available preliminary relief is
necessarily limited by the scope of the relief likely to be obtained
at trial on the merits.” (Common Cause, supra, 49 Cal.3d at
p. 442.) Where the ultimate relief sought includes an injunction
and a writ of mandate to compel an official to perform a legal
duty, injunctive relief is “identical in purpose and function to a
writ of mandate.” (Ibid.; see Venice Town Council, Inc. v. City of
Los Angeles (1996) 47 Cal.App.4th 1547, 1563, fn. 9 [“In this case
an injunction would be identical in purpose and function as a writ
16
of mandate.”].) Indeed, because “‘[m]andamus, rather than
mandatory injunction, is the traditional remedy for the failure of
a public official to perform a legal duty, . . . the legal principles
governing judicial compulsion of official acts have developed
under the rubric of mandamus rather than injunction.’”
(TransparentGov Novato v. City of Novato (2019) 34 Cal.App.5th
140, 148, fn. 5; see Common Cause, at p. 442.) Therefore, as
ADDA concedes is appropriate, we evaluate the trial court’s order
granting the preliminary injunction in light of the legal principles
governing mandamus actions. (See Common Cause, at p. 442
[evaluating the merits of a preliminary injunction within the
context of the plaintiff’s cause of action for a writ of mandate to
compel county officials to fulfill their duties under the Elections
Code].) To the extent we review the trial court’s interpretation of
relevant laws and their application to undisputed facts, our
review is de novo. (Union of Medical Marijuana Patients, Inc. v.
City of San Diego (2019) 7 Cal.5th 1171, 1183; Rutgard v. City of
Los Angeles (2020) 52 Cal.App.5th 815, 825; see Schmid v. City
and County of San Francisco (2021) 60 Cal.App.5th 470, 484-485
[on appeal from a trial court’s ruling on a petition for writ of
mandate, an appellate court reviews the trial court’s factual
findings for substantial evidence and questions of law de novo].)
“Code of Civil Procedure section 1085, providing for writs of
mandate, is available to compel public agencies to perform acts
required by law. [Citation.] To obtain relief, a petitioner must
demonstrate (1) no ‘plain, speedy, and adequate’ alternative
remedy exists [citation]; (2) ‘“a clear, present, . . . ministerial duty
on the part of the respondent”’; and (3) a correlative ‘“clear,
present, and beneficial right in the petitioner to the performance
of that duty.”’” (People v. Picklesimer (2010) 48 Cal.4th 330, 339-
17
340; accord, Rutgard v. City of Los Angeles, supra, 52 Cal.App.5th
at p. 824.)
The district attorney does not argue ADDA failed to meet
the first requirement. Indeed, mandamus “is the traditional
remedy for the failure of a public official to perform a legal duty.”
(Common Cause, supra, 49 Cal.3d at p. 442; see People for Ethical
Operation of Prosecutors and Law Enforcement v. Spitzer (2020)
53 Cal.App.5th 391, 407.) The third requirement, that the
petitioner has a right to performance of the duty, is a “standing
requirement for writs of mandate.” (Brown v. Crandall (2011)
198 Cal.App.4th 1, 8; see SJJC Aviation Services, LLC v. City of
San Jose (2017) 12 Cal.App.5th 1043, 1053.) Because lack of
standing is a jurisdictional defect (People ex rel. Becerra v.
Superior Court (2018) 29 Cal.App.5th 486, 496; see Synergy
Project Management, Inc. v. City and County of San
Francisco (2019) 33 Cal.App.5th 21, 30 [a “‘petitioner must have
standing in order to invoke the power of a court to grant writ
relief’”]), we address the third requirement for mandamus,
whether ADDA has a right to seek mandamus relief, before we
consider the second, whether the district attorney has a
ministerial duty to act under the laws cited by ADDA.
B. ADDA Has Associational Standing To Challenge the
Special Directives
The district attorney challenges the trial court’s findings
ADDA has associational and public interest standing to bring
this action. Because we agree with the trial court that ADDA has
associational standing, we do not consider whether it also has
standing under a public interest theory.
18
1. Applicable Law and Standard of Review
Under Code of Civil Procedure section 1086, a writ of
mandate “‘must be issued upon the verified petition of the party
beneficially interested.’ [Citations.] ‘The requirement that a
petitioner be “beneficially interested” has been generally
interpreted to mean that one may obtain the writ only if the
person has some special interest to be served or some particular
right to be preserved or protected over and above the interest
held in common with the public at large.’” (SJJC Aviation
Services, LLC v. City of San Jose, supra, 12 Cal.App.5th at
p. 1053; see Carsten v. Psychology Examining Com. (1980)
27 Cal.3d 793, 796; Synergy Project Management, Inc. v. City and
County of San Francisco, supra, 33 Cal.App.5th at p. 30.) “‘The
beneficial interest must be direct and substantial.’ [Citation.]
This standard ‘is equivalent to the federal “injury in fact” test,
which requires a party to prove by a preponderance of the
evidence that it has suffered “an invasion of a legally protected
interest that is ‘(a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical.’”’” (SJJC Aviation
Services, at p. 1053; see Associated Builders &
Contractors, Inc. v. San Francisco Airports Com. (1999)
21 Cal.4th 352, 362; Synergy Project Management, at p. 31.)
“A petitioner has no beneficial interest within the meaning of the
statute if he or she ‘will gain no direct benefit from [the writ’s]
issuance and suffer no direct detriment if it is denied.’” (SJJC
Aviation Services, at p. 1053; see Brown v. Crandall, supra,
198 Cal.App.4th at p. 8.)
“Under the doctrine of associational standing, an
association that does not have standing in its own right may
nevertheless have standing to bring a lawsuit on behalf of its
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members. . . . Associational standing exists when: ‘(a) [the
association’s] members would otherwise have standing to sue in
their own right; (b) the interests [the association] seeks to protect
are germane to the organization’s purpose; and (c) neither the
claim asserted nor the relief requested requires the participation
of individual members in the lawsuit.’” (Amalgamated Transit
Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th
993, 1003-1004; see Hunt v. Washington State Apple Advertising
Comn. (1977) 432 U.S. 333, 343 [97 S.Ct. 2434, 53 L.Ed.2d 383];
Collins v. Thurmond (2019) 41 Cal.App.5th 879, 920.) “[T]he
doctrine of associational standing recognizes that the primary
reason people join an organization is often to create an effective
vehicle for vindicating interests that they share with others. ‘The
only practical judicial policy when people pool their capital, their
interests, or their activities under a name and form that will
identify collective interests, often is to permit the association or
corporation in a single case to vindicate the interests of all.’”
(International Union, United Auto. v. Brock (1986) 477 U.S. 274,
290 [106 S.Ct. 2523, 91 L.Ed.2d 228].) We review de novo the
trial court’s ruling ADDA has standing to seek mandamus relief.
(See Schrage v. Schrage (2021) 69 Cal.App.5th 126, 150-151;
People for Ethical Operation of Prosecutors and Law Enforcement
v. Spitzer, supra, 53 Cal.App.5th at pp. 408-409.)
2. The Interests ADDA Seeks To Protect Are
Germane to Its Purpose
The district attorney challenges only the second
requirement of associational standing: whether ADDA seeks to
protect interests that are germane to its purpose. The trial court
found the interests ADDA seeks to protect are germane to its
20
purpose of protecting its members’ “working conditions” because
the Special Directives expose ADDA members to “court sanctions,
contempt of court, and ethical violations.” The trial court cited
evidence that courts have “scolded deputy district attorneys for
following [the] Special Directives instead of their obligations
under the law” and have opined “that it is unethical or improper
to comply with the Special Directives and refuse to prosecute.”
The court found “[d]eputy district attorneys risk contempt of
court or discipline by the State Bar each time they” comply with
the Special Directives. The court also found deputy district
attorneys risked “internal discipline for violating the Special
Directives.” The district attorney concedes that ADDA’s purpose
includes protecting its members’ working conditions and that
those conditions “involve following the [Special Directives].” But
the district attorney argues that the Special Directives are
“managerial policies” and that ADDA is not authorized to
represent its members in disputes over such policies.
The district attorney’s argument rests on (his
interpretation of) the Meyers-Milias-Brown Act (MMBA) (Gov.
Code, § 3500 et seq.), which the Legislature enacted “to promote
full communication between public employers and their
employees by providing a reasonable method of resolving
disputes regarding wages, hours, and other terms and conditions
of employment between public employers and public employee
organizations.” (Gov. Code, § 3500; see generally Claremont
Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623,
630.) Government Code section 3505 “mutually obligates a public
employer and an employee organization to meet and confer in
good faith about a matter within the ‘scope of representation’
concerning, among other things, ‘wages, hours, and other terms
21
and conditions of employment’ [citation]. A fundamental
managerial or policy decision, however, is outside the scope of
representation [citation], and is excepted from [Government
Code] section 3505’s meet-and-confer requirement.” (Claremont
Police Officers Assn., at p. 628.) The district attorney contends
that the Special Directives are “quintessential ‘managerial policy
decisions’” outside the scope of ADDA’s representation under the
MMBA and that therefore ADDA’s representation of its members
in this action is not “germane to the organization’s purpose.”
At least one court has relied on a statute identifying the
organization’s purpose or scope of representation as an indication
of an “organization’s purpose” to establish associational standing.
(See College of Dental Surgeons of Puerto Rico v. Connecticut
General Life Ins. Co. (1st Cir. 2009) 585 F.3d 33, 41 [college’s
enabling legislation established the college existed “mainly to
protect its members’ interests and authorize[d] the College to sue
to that end”]; see also Irvine Valley College Academic Senate v.
South Orange County Community College Dist. (2005)
129 Cal.App.4th 1482, 1488 [organizations representing faculty
members in academic and administrative matters had a
“beneficial interest” in seeking a writ of mandate where the
statutes established the organizations’ authority to adopt faculty
hiring policies].) But nothing in the MMBA (or any authority
cited by the district attorney) suggests the ADDA’s scope of
representation for purposes of resolving disputes under the
procedure established by the MMBA is synonymous with ADDA’s
“purpose” more generally or otherwise limits the scope of ADDA’s
standing to represent its members in litigation. To the contrary,
courts have held organizations generally recognized under the
MMBA have standing to represent their members in
22
litigation. (See Professional Fire Fighters, Inc. v. City of Los
Angeles (1963) 60 Cal.2d 276, 284 [firefighters union had
standing to represent its members in an action for declaratory
and injunctive relief against alleged discrimination]; California
School Employee Assn. v. Willits Unified School Dist. of
Mendocino County (1966) 243 Cal.App.2d 776, 780 [although the
MMBA does not “expressly authorize employee organizations to
sue on behalf of their members,” an organization that qualifies
under the MMBA “does have standing to sue in its own name to
enforce the employment rights of its members”].)
Moreover, it is not clear even under the MMBA that the
ADDA’s statutory scope of representation does not include issues
arising from the district attorney’s implementation of the Special
Directives. Government Code section 3504 “defines ‘scope of
representation’ to include ‘all matters relating to employment
conditions and employer-employee relations, including, but not
limited to, wages, hours, and other terms and conditions of
employment, except, however, that the scope of representation
shall not include consideration of the merits, necessity, or
organization of any service or activity provided by law or
executive order.’” The exception in the language at the end of
Government Code section 3504 “was intended to ‘forestall any
expansion of the language of “wages, hours and working
conditions” to include more general managerial policy decisions.’”
(Claremont Police Officers Assn. v. City of Claremont, supra,
39 Cal.4th at p. 631; see Fire Fighters Union v. City of
Vallejo (1974) 12 Cal.3d 608, 616.) “The definition of ‘scope of
representation’ and its exception,” however, “are ‘arguably vague’
and ‘overlapping.’ [Citations.] ‘“[W]ages, hours and working
conditions,” which, broadly read could encompass practically any
23
conceivable bargaining proposal; and “merits, necessity or
organization of any service” which, expansively interpreted, could
swallow the whole provision for collective negotiation and
relegate determination of all labor issues to the city’s discretion.’”
(Claremont Police Officers Assn., at p. 631; see Building Material
& Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651,
658; Fire Fighters Union, at p. 615.) “The reality is that
‘practically every managerial decision has some impact on wages,
hours, or other conditions of employment.’” (Claremont Police
Officers Assn., at p. 635.)
To resolve this “unavoidable overlap between an employer’s
policymaking discretion and an employer’s action impacting
employees’ . . . working conditions,” the Supreme Court created a
three-part test, which is not well-suited to the inquiry here
regarding whether ADDA has associational standing. (See
Claremont Police Officers Assn. v. City of Claremont, supra,
39 Cal.4th at p. 638.) This test balances “‘the employer’s need for
unencumbered decisionmaking in managing its operations’”
against “‘the benefit to employer-employee relations of bargaining
about the action in question.’” (Ibid.) This case does not concern
ADDA’s collective bargaining rights over the Special Directives
(which further reflects that the MMBA does not limit the scope of
ADDA’s associational standing). And neither side appears to
have asked to meet and confer with the other side over the
Special Directives under the MMBA; even if it had, the MMBA
would not have precluded the district attorney from adopting the
directives without ADDA’s consent. (See Claremont Police
Officers Assn., at p. 630 [“[e]ven if the parties meet and confer,
they are not required to reach an agreement because the
24
employer has ‘the ultimate power to refuse to agree on any
particular issue’”].)
The MMBA does not foreclose the commonsense conclusion
that the Special Directives affect ADDA members’ working
conditions, making the interests ADDA seeks to protect germane
to its purpose. The trial court found, based on evidence
submitted by ADDA, the Special Directives require deputy
district attorneys to violate the law and expose them to possible
sanctions, charges of contempt, and discipline by the State Bar.
Any one of those consequences would have a significant impact
on a deputy district attorney’s working conditions. Therefore,
ADDA has associational standing to seek to compel the district
attorney to comply with enforceable duties under state law.
C. ADDA Showed a Likelihood of Prevailing on the
Merits on One of Its Claims
The trial court issued a preliminary injunction that
compelled the district attorney (1) to plead and prove prior
serious or violent felony convictions under the three strikes law,
(2) to exercise prosecutorial discretion in moving to dismiss prior
strikes and sentence enhancements on a case-by-case basis
rather than pursuant to the Special Directives, and (3) to
continue to prosecute allegations of prior serious or violent felony
convictions a court declines to dismiss. The district attorney
argues that mandamus is not available to require him to do these
things and that the preliminary injunction “unlawfully compels
the exercise of prosecutorial discretion.” Thus, this appeal
depends on the law governing entitlement to mandamus relief
and the interpretation of the three strikes law.
25
1. Applicable Law and Standard of Review
“‘A traditional writ of mandate under Code of Civil
Procedure section 1085 is a way to compel a public entity to
perform a legal, typically ministerial, duty.’” (Roger v. County of
Riverside (2020) 44 Cal.App.5th 510, 529; see Collins v.
Thurmond, supra, 41 Cal.App.5th at p. 914 [“A court may issue a
writ of mandate to compel a public agency or officer to perform a
mandatory duty.”].) A ministerial duty is one that “‘a public
functionary “‘“is required to perform in a prescribed manner in
obedience to the mandate of legal authority,”’” without regard to
his or her own judgment or opinion concerning the propriety of
such act.’” (Collins, at p. 914; accord, Ellena v. Department of
Ins. (2014) 230 Cal.App.4th 198, 205; see Schmid v. City and
County of San Francisco, supra, 60 Cal.App.5th at p. 495
[“‘A ministerial duty is an act that a public officer is obligated to
perform in a prescribed manner required by law when a given
state of facts exists.’”].)
“‘Mandamus does not lie to compel a public agency to
exercise discretionary powers in a particular manner, only to
compel it to exercise its discretion in some manner.’” (California
Public Records Research, Inc. v. County of Yolo (2016)
4 Cal.App.5th 150, 177; accord, AIDS Healthcare Foundation v.
Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th
693, 700-701; see People ex rel. Younger v. County of
El Dorado (1971) 5 Cal.3d 480, 491 [a writ of mandate “will not
lie to control discretion conferred upon a public officer or
agency”]; Lindell Co. v. Board of Permit Appeals of City and
County of San Francisco (1943) 23 Cal.2d 303, 310 [“the remedy
of mandate is not available to control the exercise of official
discretion or judgment, or to alter or review action taken in the
26
proper exercise of such discretion or judgment”]; State Comp. Ins.
Fund v. Workers’ Comp. Appeals Bd. (2016) 248 Cal.App.4th 349,
370 [mandate will lie to compel a public officer to exercise his or
her discretion where the officer refuses to act at all].) To compel
an official or agency to exercise discretionary power the petitioner
must show the official or agency “failed to act, and its failure to
act is arbitrary, beyond the bounds of reason, or in derogation of
the applicable legal standards.” (AIDS Healthcare Foundation v.
Los Angeles County Dept. of Public Health, supra,
197 Cal.App.4th at p. 704; see Anderson v. Phillips (1975)
13 Cal.3d 733, 737 [mandate is “appropriate to compel an officer
both to exercise his discretion and to exercise it under a proper
interpretation of the applicable law”]; Shorts v. Superior
Court (2018) 24 Cal.App.5th 709, 719 [same].) Mandamus may
issue “to compel an official both to exercise his [or her] discretion
(if he [or she] is required by law to do so) and to exercise it under
a proper interpretation of the applicable law.” (Common Cause,
supra, 49 Cal.3d at p. 442.) Mandate is also “employed to
restrain a public official from the unlawful performance of a
duty.” (Planned Parenthood Affiliates v. Van de Kamp (1986)
181 Cal.App.3d 245, 263; see Miller v. Greiner (1964) 60 Cal.2d
827, 830, 833-834.)
Whether a public officer or agency has a ministerial duty to
act is generally subject to de novo review because it is a question
of statutory interpretation. (Collins v. Thurmond, supra,
41 Cal.App.5th at pp. 914-915; Ellena v. Department of Ins.,
supra, 230 Cal.App.4th at p. 208; see Rutgard v. City of Los
Angeles, supra, 52 Cal.App.5th at p. 825 [in reviewing a trial
court’s order issuing a writ of mandate, an appellate court
reviews de novo the trial court’s interpretation of the relevant
27
statutes and its application of that law to undisputed facts]; see
also People v. Lewis (2021) 11 Cal.5th 952, 961 [“The proper
interpretation of a statute is a question of law we review de
novo.”].) “‘In order to construe a statute as imposing a mandatory
duty, the mandatory nature of the duty must be phrased in
explicit and forceful language.’” (Collins, at p. 914.) “‘“Even if
mandatory language appears in the statute creating a duty, the
duty is discretionary if the [entity] must exercise significant
discretion to perform the duty.”’” (Id. at p. 915; accord, AIDS
Healthcare Foundation v. Los Angeles County Dept. of Public
Health, supra, 197 Cal.App.4th at p. 701.)
Our fundamental task in interpreting a statute or initiative
is to determine the Legislature’s or the voters’ intent in order to
effectuate the law’s purpose. (People v. Lewis, supra, 11 Cal.5th
at p. 961; see Union of Medical Marijuana Patients, Inc. v. City of
San Diego, supra, 7 Cal.5th at p. 1183 [“Our overriding purpose
. . . is ‘to adopt the construction that best gives effect to the
Legislature’s intended purpose.’”]; People v. Johnson (2015)
61 Cal.4th 674, 682 [“In construing statutes adopted by the
voters, we apply the same principles of interpretation we apply to
statutes enacted by the Legislature.”].) We begin by examining
the statute’s words, giving them a plain and commonsense
meaning. (Lewis, at p. 961; People v. Gonzalez (2017) 2 Cal.5th
1138, 1141.) We look to the entire substance of the statute to
determine the scope and purpose of the provision we are
interpreting; that is, we construe the words in question in
context, keeping in mind the nature and purpose of the statute.
We must harmonize the various parts of a statutory enactment
by considering the particular clause or section in the context of
the statutory framework as a whole. (Lewis, at p. 961; People v.
28
Arroyo (2016) 62 Cal.4th 589, 595.) Where the language of the
statute is clear and unambiguous, we presume the Legislature
meant what it said, and the plain meaning of the statute governs.
(Union of Medical Marijuana Patients, Inc., at p. 1184; see Kim v.
Reins International California, Inc. (2020) 9 Cal.5th 73, 83 [“‘If
the statutory language is unambiguous, then its plain meaning
controls.’”].)
“When the language of a statute is ambiguous—that is,
when the words of the statute are susceptible to more than one
reasonable meaning, given their usual and ordinary meaning and
considered in the context of the statute as a whole—we consult
other indicia of the Legislature’s intent, including such extrinsic
aids as legislative history and public policy.” (Union of Medical
Marijuana Patients, Inc. v. City of San Diego, supra, 7 Cal.5th at
p. 1184; see Kim v. Reins International California, Inc., supra,
9 Cal.5th at p. 83.) “Under these circumstances, we ‘select the
construction that comports most closely with the apparent intent
of the Legislature [or the voters], with a view to promoting rather
than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences.’”
(Jackpot Harvesting Co., Inc. v. Superior Court (2018)
26 Cal.App.5th 125, 141; see People v. Leiva (2013) 56 Cal.4th
498, 506 [“‘we may reject a literal construction that is contrary to
the legislative intent apparent in the statute or that would lead
to absurd results’ [citation], or ‘would result in absurd
consequences that the Legislature could not have intended’”].)
“[W]e are guided by the familiar principle that we should
address and resolve statutory issues prior to, and if possible,
instead of, constitutional questions [citation], and that ‘we do not
reach constitutional questions unless absolutely required to do so
29
to dispose the matter before us.’” (Facebook, Inc. v.
Superior Court (2018) 4 Cal.5th 1245, 1275, fn. 31; accord, In re
White (2019) 34 Cal.App.5th 933, 959.) When a question of
statutory interpretation unavoidably implicates constitutional
issues, we are further guided by the precept that, “‘“[i]f a statute
is susceptible of two constructions, one of which will render it
constitutional and the other unconstitutional in whole or in part,
or raise serious and doubtful constitutional questions, the court
will adopt the construction which, without doing violence to the
reasonable meaning of the language used, will render it valid in
its entirety, or free from doubt as to its constitutionality, even
though the other construction is equally reasonable.”’” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1373; see Steen v. Appellate
Division of Superior Court (2014) 59 Cal.4th 1045, 1054; People v.
Leiva, supra, 56 Cal.4th at pp. 506-507.) “This rule, called the
canon of constitutional doubt [citation], has been described as a
‘cardinal principle’ of statutory interpretation that ‘has for so long
been applied . . . that it is beyond debate.’” (Gutierrez, at
p. 1373). “The canon reflects ‘a judgment that statutes ought not
to tread on questionable constitutional grounds unless they do so
clearly’ as well as ‘a judgment that courts should minimize the
occasions on which they confront and perhaps contradict the
legislative branch.’ . . . [¶] Applying this canon, we have
repeatedly construed penal laws, including laws enacted by
initiative, in a manner that avoids serious constitutional
questions.” (Ibid.)
Finally, “[a]n overarching principle for our interpretation of
statutes is that courts have a ‘limited role in the process of
interpreting enactments from the political branches of our state
government. In interpreting statutes, we follow the Legislature’s
30
intent, as exhibited by the plain meaning of the actual words of
the law, “‘“whatever may be thought of the wisdom, expediency,
or policy of the act.”’”’” (Jackpot Harvesting Co., Inc. v. Superior
Court, supra, 26 Cal.App.5th at pp. 141-142.) “It cannot be too
often repeated that due respect for the political branches of our
government requires us to interpret the laws in accordance with
the expressed intention of the Legislature.” (California Teachers
Assn. v. Governing Bd. of Rialto Unified School Dist. (1997)
14 Cal.4th 627, 633.)
2. The Legislature and the Voters Intended the
Three Strikes Law To Create Duties To Plead
and Prove Prior Strikes
a. The Three Strikes Law
“The Three Strikes law consists of two, nearly identical
statutory schemes designed to increase the prison terms of repeat
felons. The earlier provision, which the Legislature enacted, was
codified as section 667, subdivisions (b) through (i). The later
provision, which the voters adopted through the initiative
process, was codified as section 1170.12.” (People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, 504, fn. omitted (Romero);
see In re Edwards (2018) 26 Cal.App.5th 1181, 1186.)6 “The
6 The relevant provisions of section 1170.12 are virtually
identical to those of section 667, subdivisions (b) through (i),
except that section 1170.12 does not include a statement of
legislative intent. The preamble of Proposition 184, which
became section 1170.12, however, mirrored the stated legislative
intent of section 667, subdivision (b). (See Prop. 184, as approved
by voters, Gen. Elec. (Nov. 8, 1994).) For convenience we refer
31
Three Strikes law, like the older ‘Habitual Offender Law’
(§ 667.7) . . . , articulates an alternative sentencing scheme for
the current offense rather than an enhancement.”7 (Romero, at
p. 527; accord, People v. Frutoz (2017) 8 Cal.App.5th 171, 174,
fn. 3; see People v. Martin (1995) 32 Cal.App.4th 656, 666-667
[the three strikes law is not a sentence enhancement because it
“does not provide for any kind of ‘added term’”; instead “it
defines the term for the crime itself, supplanting the term that
would apply but for the prior serious or violent felony”],
disapproved on another ground in People v. Deloza (1998)
18 Cal.4th 585, 600, fn. 10.) The three strikes law is “a single
comprehensive and indivisible sentencing scheme that either
does or does not apply.” (People v. Garcia (1999) 20 Cal.4th 490,
502; accord, People v. Laanui (2021) 59 Cal.App.5th 803, 815.)
“The purpose of the Three Strikes law is ‘to ensure longer
prison sentences and greater punishment for those who commit a
felony and have been previously convicted of serious and/or
violent felony offenses.’” (In re Young (2004) 32 Cal.4th 900, 909;
see § 667, subd. (b); In re Edwards, supra, 26 Cal.App.5th at
p. 1186.) The three strikes law “uses a defendant’s status as a
recidivist to separately increase the punishment for each new
felony conviction.” (People v. Williams (2004) 34 Cal.4th 397,
only to section 667, subdivisions (b) through (i), but our decision
applies to both versions of the three strikes law. (See People v.
Estrada (2017) 3 Cal.5th 661, 666, fn. 2.)
7 The habitual offender law was enacted in 1981 and
predates the three strikes law by 13 years. (See People v. Jenkins
(1995) 10 Cal.4th 234, 238.) The three strikes law is similar to,
but “does not supersede,” the habitual offender law. (Id. at p.
238, fn. 2.)
32
404, italics omitted; see Edwards, at p. 1186.) “When a
defendant is convicted of a felony, and it is pleaded and proved
that he or she has committed one or more prior felonies defined
as ‘violent’ or ‘serious,’ sentencing proceeds under the Three
Strikes law.” (Edwards, at p. 1186; see § 667, subd. (d).) “If the
defendant has only one qualifying prior felony conviction, the
prescribed term of imprisonment is ‘twice the term otherwise
provided as punishment for the current felony conviction.’
[Citations.] If the defendant has two or more prior qualifying
felonies, the prescribed term for the current (or ‘triggering’)
felony conviction will be an indeterminate term of life
imprisonment, with the minimum term of the indeterminate
sentence calculated as the greatest of three options.” (Edwards,
at pp. 1186-1187; see § 667, subd. (e)(2)(A).)8
Section 667, subdivision (f)(1), provides: “Notwithstanding
any other law, [the three strikes law] shall be applied in every
case in which a defendant has one or more prior serious or violent
felony convictions as defined in subdivision (d). The prosecuting
attorney shall plead and prove each prior serious or violent felony
conviction except as provided in paragraph (2).” (Italics added.)
The exception in section 667, subdivision (f)(2), states: “The
prosecuting attorney may move to dismiss or strike a prior
8 The three options are not relevant to this appeal, although
the most commonly imposed option is a prison term of 25 years to
life. In addition, sections 667, subdivisions (b) through (i), and
1170.12 were amended in 2012 to provide that, in order to receive
a sentence under the three strikes law, the defendant’s current
conviction must be for a serious or violent felony. (People v.
Conley (2016) 63 Cal.4th 646, 652-653; People v. Gangl (2019)
42 Cal.App.5th 58, 60.)
33
serious or violent felony conviction allegation in the furtherance
of justice pursuant to Section 1385, or if there is insufficient
evidence to prove the prior serious or violent felony conviction. If
upon the satisfaction of the court that there is insufficient
evidence to prove the prior serious or violent felony conviction,
the court may dismiss or strike the allegation. This section shall
not be read to alter a court’s authority under Section 1385.”
ADDA contends the plain language of section 667,
subdivision (f), “obligates the prosecuting attorney to plead and
prove prior strikes.” The trial court agreed. The district attorney
argues the “clear import of the text” refers to “the due process
requirement to plead and prove a prior conviction beyond a
reasonable doubt.” In support of this interpretation, the district
attorney argues that interpreting the “shall plead and prove”
language as creating a mandatory duty would infringe on the
separation of powers doctrine by limiting prosecutorial discretion
“to plead a criminal charge or sentencing enhancement.” We do
not agree with the district attorney’s interpretation of the
statutory language, and we agree only in part with his view of
mandamus.
b. The Duty To Plead and Prove Prior
Strikes
Courts have held the language of section 667,
subdivision (f)(1), stating the “prosecuting attorney shall plead
and prove each prior serious or violent felony conviction,” limits
prosecutorial discretion by requiring a prosecutor to plead and
prove each prior serious felony conviction. (See People v. Laanui,
supra, 59 Cal.App.5th at p. 815; People v. Roman (2001)
92 Cal.App.4th 141, 145; People v. Kilborn (1996) 41 Cal.App.4th
34
1325, 1332; see also People v. Gray (1998) 66 Cal.App.4th 973,
994-995 [in requiring prosecutors to plead and prove qualifying
prior convictions, the three strikes law does not violate the
separation of powers doctrine]; People v. Butler (1996)
43 Cal.App.4th 1224, 1247 [same]; People v. Cartwright (1995)
39 Cal.App.4th 1123, 1133-1134 [the three strikes law did not
change the “primary duties of the office of trial judge and
prosecutor” because “[t]heir discretion in sentencing or
prosecuting defendants has never been absolute”].) Indeed, “[b]y
its own terms, [the three strikes law] applies ‘in every case in
which a defendant has one or more prior serious or violent felony
convictions . . . .’” (Laanui, at p. 815; see § 667, subd. (f)(1).) “The
only discretion remaining in the prosecution is the ability to move
to strike a prior serious felony conviction allegation in the
furtherance of justice” under section 1385. (Roman, at p. 145; see
§ 667, subd. (f)(1), (2).) Without directly deciding the issue, the
Supreme Court suggested as much by observing that, “on its face,
[section 667, subdivision (f)(2),] purports to be an exception to the
prosecutor’s duty to prove all prior felony convictions . . . . In
other words, section 667[, subdivision] (f) first purports to remove
the prosecutor’s charging discretion completely, and then
purports to replace that discretion with permission to file a
motion to strike ‘pursuant to section 1385,’ which the court may
or may not grant.” (Romero, supra, 13 Cal.4th at p. 523.)
This interpretation is supported by other provisions of the
statutory scheme, including section 667, subdivision (g), which
precludes the prosecutor from using prior serious or violent
felony convictions in plea bargaining and reiterates that the
“prosecution shall plead and prove all known prior serious or
violent felony convictions and shall not enter into any agreement
35
to strike or seek the dismissal of any prior serious or violent
felony conviction allegation except as provided in paragraph (2) of
subdivision (f).” In contrast, neither section 667, subdivision (a),
which provides for a five-year enhancement for a prior serious
felony conviction, nor section 667.61, known as the one strike
law, contains a directive to “plead and prove” qualifying prior
convictions or conduct. Although section 667.61 applies if the
defendant has previously been convicted of one of several
specified offenses that also qualify as serious or violent felonies
under the three strikes law and therefore must be pleaded and
proved under that law, section 667.61 may also apply if the
current offense was committed under one or more specified
circumstances. (See People v. Laanui, supra, 59 Cal.App.5th at
p. 819 [section 667.61 does not restrict a prosecutor’s discretion
“whether to plead or not plead allegations justifying imposition of
the sentencing regime”]; see also § 667.61, subds. (a)-(b), (d)-(e).)9
9 In contrast to section 667, subdivision (f), section 969a
appears not to require a prosecutor to plead strikes discovered
after the initial charging document is filed. Section 969a, which
was originally enacted in 1927 and has remained unchanged
since 1957, states: “Whenever it shall be discovered that a
pending indictment or information does not charge all prior
felonies of which the defendant has been convicted either in this
State or elsewhere, said indictment or information may be
forthwith amended to charge such prior conviction or convictions,
and if such amendment is made it shall be made upon order of
the court . . . .” The “in every case” language of section 667,
subdivision (f)(1), however, arguably applies equally to prior
convictions discovered after an information or indictment is filed.
The language of section 667, subdivision (f)(1), providing that the
three strikes law shall be applied in every case
36
Finally, imposing a duty to plead and prove prior serious
and felony convictions is consistent with the Legislature’s stated
intent of “ensuring” longer sentences and greater punishment for
repeat felons. (§ 667, subd. (b).) Without requiring a prosecutor
to plead and prove qualifying prior convictions, a court cannot
apply the alternative sentencing scheme created by the three
strikes law. Not surprisingly, then, nothing in the plain
language of the statute suggests a prosecutor has any discretion
not to plead or prove known strikes. The Legislature could have
allowed for prosecutorial discretion by, for example, including
language permitting a prosecutor to plead and prove prior strikes
“‘when warranted’” or “‘if deemed appropriate’” (Schwartz v.
Poizner (2010) 187 Cal.App.4th 592, 597), by using the permissive
“may” instead of the mandatory “shall” (Common Cause, supra,
49 Cal.3d at p. 443; Ellena v. Department of Ins., supra,
230 Cal.App.4th at pp. 211-212), or by simply not including the
“shall plead and prove” language, as the Legislature, initiative
drafters, and voters chose not to do in the one strike law and
other sentencing laws, including statutes imposing sentence
“[n]otwithstanding any other law” supports this interpretation,
as do cases holding that a later-enacted, more specific statute
takes precedence over earlier-enacted, more general statutes.
(See State Dept. of Public Health v. Superior Court (2015)
60 Cal.4th 940, 960-961 [“‘If conflicting statutes cannot be
reconciled, later enactments supersede earlier ones [citation], and
more specific provisions take precedence over more general
ones.’”].)
37
enhancements.10 That “prosecutors across California have
exercised prosecutorial discretion” not to plead known strikes in
the past, as the district attorney asserts, is not relevant to the
interpretation of the statute. (See People v. Andrews (1998)
65 Cal.App.4th 1098, 1102-1103 [disparate practices of district
attorneys in alleging prior serious or violent felony convictions
under the three strikes law do not affect the legal significance of
the statute’s mandate].)
The district attorney argues the statute’s “shall plead and
prove” language “merely ensures that no defendant can be
sentenced under the Three Strikes Law unless the prosecution’s
allegation that the defendant has committed prior felonies has
been pled and proven beyond a reasonable doubt.” The district
attorney cites no cases interpreting the three strikes law in this
way. But he contends that, because the United States
Constitution excepts prior convictions from the general rule the
government must prove beyond a reasonable doubt any fact that
exposes a defendant to a greater punishment than that
authorized by the guilty verdict or plea (see Alleyne v. United
States (2013) 570 U.S. 99, 111 & fn. 1 [133 S.Ct. 2151,
186 L.Ed.2d 314]; Apprendi v. New Jersey (2000) 530 U.S. 466,
490 [120 S.Ct. 2348, 147 L.Ed.2d 435]; Almendarez-Torres v.
United States (1998) 523 U.S. 224, 230 [188 S.Ct. 1219, 140
L.Ed.2d 350]), the three strikes law “grants the defendant
10 Because statutes providing for certain sentence
enhancements do not include language requiring prosecutors “to
plead and prove” them, and because the three strikes law creates
an alternative sentencing scheme and not a sentence
enhancement, the cases cited by the district attorney and amici
concerning a prosecutor’s discretion to plead and prove sentence
enhancements are inapplicable.
38
statutory rights above and beyond the constitutional minimum
with respect to [his or her] prior convictions.” The Legislature
and the voters, however, enacted the three strikes law in 1994,
before the United States Supreme Court held that any fact other
than a prior conviction that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury and proved beyond a reasonable doubt. (See Apprendi, at
p. 490.) The “plead and prove” language of the three strikes law
could not have been a response to that line of authority. And, at
the time the Legislature enacted the three strikes law, the Penal
Code included “a detailed procedure for the charging, trying, and
finding of previous felony convictions,” which already required
the prosecutor to charge “‘the fact of the prior conviction . . . in
the accusatory pleading’” (People v. Lo Cicero (1969) 71 Cal.2d
1186, 1192; see § 969) and required “the question of whether or
not the defendant has suffered the prior conviction [to] be tried by
the jury” (§ 1025). (See Pollack v. Department of Motor
Vehicles (1985) 38 Cal.3d 367, 372-373 [“It is a well-established
principle in our law that, when a prior conviction is relied upon
as a means of empowering a court to impose increased criminal
penalties, the indictment or complaint must allege the prior
conviction and, unless admitted, it must be proven.”]; Cavassa v.
Off (1929) 206 Cal. 307, 313 [same].) Repeating those
requirements in the three strikes law would have been
superfluous. (See Shorts v. Superior Court, supra,
24 Cal.App.5th at p. 720 [“[w]e ‘give meaning to every word in [a]
statute and . . . avoid constructions that render words, phrases,
or clauses superfluous’”]; People v. Schulz (2021) 66 Cal.App.5th
887, 897 [same].)
39
Moreover, to the extent the statute is ambiguous, its
legislative history dispels any question of its intent and meaning.
At a hearing of the Senate Committee on the Judiciary on the bill
that became section 667, subdivisions (b) through (i), the
committee addressed six “key issues,” one of which was: “Should
the prosecutor be required to plead and prove each prior felony
conviction?” (Sen. Com. on Judiciary, Analysis of Assem. Bill
No. 971 (1993-1994 Reg. Sess.) as amended Jan. 26, 1994,
pp. 1-2.)11 The committee answered that question with a
resounding “yes,” stating in the bill analysis: “[T]his bill requires
the prosecutor to plead and prove all prior convictions. No other
law has such a firm ban on prosecutorial discretion.” (Sen. Com.
on Judiciary, Analysis of Assem. Bill No. 971 (1993-1994 Reg.
Sess.) as amended Jan. 26, 1994, p. 8.) While it is unclear
whether the committee had a complete understanding of all
aspects of the bill’s intended effects,12 it is clear the committee
11 At the time of this hearing on February 17, 1994, Assembly
Bill No. 971 included the version of section 667, subdivision (f),
the Legislature ultimately enacted on March 7, 1994.
12 For example, even though the version of the bill debated at
the February 17, 1994 hearing would have allowed a prosecutor
“to ‘move to dismiss or strike a prior felony conviction allegation
in the furtherance of justice pursuant to Section 1385,’” the bill
analysis stated the bill “appear[ed] to be constitutionally infirm
in that it would require cruel and unusual punishment in some
cases, with no option for a lesser sentence in the interest of
justice.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 971
(1993-1994 Reg. Sess.) as amended Jan. 26, 1994, p. 8.) And in
Romero, supra, 13 Cal.4th 497 the Supreme Court held a trial
court has authority under the three strikes law to dismiss on its
40
understood the new law would curtail a prosecutor’s discretion by
requiring the prosecutor to plead and prove prior strikes.
3. Mandamus Is Available To Compel a
Prosecutor To Plead Prior Strikes
The duty to plead qualifying prior convictions under the
three strikes law is a ministerial duty enforceable by
mandamus.13 The statutory scheme defines “serious or violent
felony offenses” (§§ 667, subd. (d), 1192.7, subd. (c)), identifies
factors that do not affect this determination (§ 667, subd. (d)(1)),
specifies how to determine if a prior offense committed in another
state or a juvenile adjudication qualifies as a serious or violent
felony conviction (§ 667, subd. (d)(2)-(3)), and specifies how to
allege a prior serious or violent felony conviction (§ 969). The
statute leaves no discretion for a prosecutor to act on his or her
own judgment or opinion concerning the propriety of pleading a
own motion a prior serious or violent felony conviction in
furtherance of justice under section 1385, including in
circumstances that would avoid a sentence that would constitute
cruel or unusual punishment. (Romero, at pp. 529-530.)
13 The district attorney argues we should vacate the
preliminary injunction because the trial court never determined
whether the duty to plead prior strikes is a ministerial duty. On
appeal, however, “‘we review the correctness of the trial court’s
ruling, not its reasoning,’ a principle that is ‘particularly
applicable to rulings granting or denying preliminary
injunctions.’” (Law School Admission Council, Inc. v. State of
California (2014) 222 Cal.App.4th 1265, 1281; see People v.
Chism (2014) 58 Cal.4th 1266, 1295, fn. 12 [“‘we review the
ruling, not the court’s reasoning, and, if the ruling was correct on
any ground, we affirm’”].)
41
prior strike. (See Collins v. Thurmond, supra, 41 Cal.App.5th at
p. 914; Ellena v. Department of Ins., supra, 230 Cal.App.4th at
p. 205.) Instead, the statute allows a prosecutor to exercise
discretion only in determining whether to move to dismiss a prior
strike in furtherance of justice or for lack of sufficient evidence.
(§ 667, subd. (f)(2).) Thus, the three strikes law requires a
prosecutor to plead prior strikes “‘in a prescribed manner
required by law when a given state of facts exists.’” (Schmid v.
City and County of San Francisco, supra, 60 Cal.App.5th at
p. 495; see Schwartz v. Poizner, supra, 187 Cal.App.4th at p. 597
[“‘“[w]here a statute or ordinance clearly defines the specific
duties or course of conduct that a governing body must take, that
course of conduct becomes mandatory and eliminates any
element of discretion”’”].)
The district attorney argues that, even if the three strikes
law creates a mandatory duty to plead prior strikes (which it
does), the law does not create a ministerial duty because a
prosecutor must exercise discretion to determine whether a prior
conviction constitutes a strike. But in connection with the duty
to plead prior strikes, ADDA does not seek to compel prosecutors
to exercise their discretion in any particular way. ADDA seeks
only to compel prosecutors to plead prior strikes once the
prosecutor determines, by exercising his or her discretion in any
given case, that a prior conviction qualifies as a strike. This is an
appropriate use of mandamus. (See Ballard v. Anderson (1971)
4 Cal.3d 873, 884 [mandamus is appropriate to compel a county
committee to consider an application, but not to approve or
disapprove the application]; Collins v. Thurmond, supra,
41 Cal.App.5th at pp. 917-918 [mandamus is appropriate to
compel a state agency to comply with its duty to monitor
42
compliance with federal laws, even though “how one engages in
monitoring . . . is discretionary in nature”]; Ellena v. Department
of Ins., supra, 230 Cal.App.4th at p. 211 [mandamus is
appropriate to require the insurance commissioner to review a
policy to determine whether it complies with the Insurance Code,
even though the commissioner had a ministerial duty to reject
certain policies]; California Hospital Assn. v. Maxwell-
Jolly (2010) 188 Cal.App.4th 559, 571 [mandamus is appropriate
to compel an agency to consider “adequately the competing goals
established under” the statute governing the agency’s duty to set
reimbursement rates, even though rate setting was
discretionary]; Morris v. Harper (2001) 94 Cal.App.4th 52, 63
[youth authority had discretion to decide whether to operate
correctional treatment centers or develop an alternative for
inmate healthcare, but once the authority chose to operate its
own treatment centers, “the duty to come into compliance with
the applicable state licensing laws [became] ministerial”]; cf.
People ex rel. Becerra v. Superior Court, supra, 29 Cal.App.5th at
p. 504 [“We may accept that, if a district attorney failed and
refused to prosecute any crimes whatsoever, mandate might lie,”
but “mandate cannot be used to compel a district attorney to
exercise his or her prosecutorial discretion in any particular
way.”].) That a public official may exercise some discretion in the
performance of a ministerial duty does not make the duty any
less ministerial. (See California Hospital Assn., at p. 570 [“The
fact that an agency’s decision is subject to its broad discretion
43
does not mean mandate is unavailable to aggrieved parties as a
matter of law.”].)14
The district attorney also cites a number of cases where
courts have held that a statute using the mandatory “shall” did
not create a ministerial duty for prosecutors. In each of those
cases, however, courts considered whether a statute foreclosed a
prosecutor’s discretion to initiate a prosecution, which is when
prosecutorial discretion is at its apex. (See Wilson v.
Sharp (1954) 42 Cal.2d 675, 678-679 [plaintiff could not sue
county counsel “for failure to institute suit against the recipient
of illegal payments”]; Gananian v. Wagstaffe (2011)
199 Cal.App.4th 1532, 1540-1541 [mandamus is not available to
compel a prosecutor to “pursue the investigation and prosecution”
of certain violations of law]; Ascherman v. Bales (1969)
273 Cal.App.2d 707, 708 [“there is no merit to petitioner’s
contention that the failure of the district attorney to
prosecute . . . was an abuse of discretion which may be remedied
by writ of mandate”].) As we will discuss, the three strikes law
14 Some courts have described the refusal to exercise
discretion as an abuse of discretion that may be remedied
without requiring the petitioner to demonstrate a ministerial
duty. (See Alejo v. Torlakson (2013) 212 Cal.App.4th 768, 779
[“‘Where the duty in question is not ministerial, mandate relief is
unavailable unless the petitioner can demonstrate an abuse of
discretion.’”]; Morris v. Harper, supra, 94 Cal.App.4th at pp. 62-
63 [“between the definitions of ministerial and discretionary acts
lies the following pertinent rule: [a] refusal to exercise discretion
is itself an abuse of discretion”].) We need not take a position on
this issue because, even if the three strikes law does not create a
ministerial duty to plead prior strikes, the district attorney
abused his discretion in failing to plead prior strikes under an
incorrect interpretation of the three strikes law.
44
does not require a prosecutor to initiate a prosecution; it dictates
the punishment repeat felons receive upon conviction of charges
chosen and proven by the prosecutor. For this reason, we also
reject the district attorney’s argument the mandatory duty to
plead prior strikes violates the separation of powers doctrine by
limiting a prosecutor’s discretion to determine “‘whom to charge,
what charges to file and pursue, and what punishments to seek.’”
“The separation of powers doctrine owes its existence in
California to article III, section 3 of the state Constitution, which
provides that ‘[t]he 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.’” (Steen v. Appellate Division of Superior
Court, supra, 59 Cal.4th at p. 1053.) “‘“Although the language of
California Constitution article III, section 3, may suggest a sharp
demarcation between the operations of the three branches of
government, California decisions long have recognized that, in
reality, the separation of powers doctrine ‘“does not mean that
the three departments of our government are not in many
respects mutually dependent”’ [citation], or that the actions of
one branch may not significantly affect those of another branch.”’
[Citations.] Instead, it is violated ‘only when the actions of a
branch of government defeat or materially impair the inherent
functions of another branch.’” (People v. Nash (2020)
52 Cal.App.5th 1041, 1073-1074; accord, Briggs v. Brown (2017)
3 Cal.5th 808, 846; Steen, at p. 1053; In re Rosenkrantz (2002)
29 Cal.4th 616, 662; see People v. Bunn (2002) 27 Cal.4th 1, 14
[“the ‘sensitive balance’ underlying the tripartite system of
government assumes a certain degree of mutual oversight and
influence”].) “While there is some interdependence among the
45
branches, the Constitution ‘does vest each branch with certain
“core” [citation] or “essential” [citation] functions that may not be
usurped by another branch.’” (Nash, at p. 1074; see Bunn, at
p. 14.) “‘The focus in questions of separation of powers is “the
degree to which [the] governmental arrangements comport with,
or threaten to undermine, either the independence and integrity
of one of the branches or levels of government, or the ability of
each to fulfill its mission in checking the others so as to preserve
the interdependence without which independence can become
domination.”’” (Smith v. Superior Court of Sacramento
County (2020) 52 Cal.App.5th 57, 71; see City of Sacramento v.
California State Legislature (1986) 187 Cal.App.3d 393, 398-399.)
There is “no doubt that the initiation of criminal
proceedings is a core, inherent function of the executive branch”
and that the public prosecutor “‘ordinarily has sole discretion to
determine whom to charge, what charges to file and pursue, and
what punishment to seek.’” (Steen v. Appellate Division of
Superior Court, supra, 59 Cal.4th at pp. 1053-1054; see People v.
Birks (1998) 19 Cal.4th 108, 134; Dix v. Superior Court (1991)
53 Cal.3d 442, 451.) But “‘[i]t is the function of the legislative
branch to define crimes and prescribe punishments.’” (People v.
Anderson (2009) 47 Cal.4th 92, 118-119; see Manduley v.
Superior Court (2002) 27 Cal.4th 537, 552 (Manduley) [“‘“subject
to the constitutional prohibition against cruel and unusual
punishment, the power to define crimes and fix penalties is
vested exclusively in the legislative branch”’”]; People v.
Knowles (1950) 35 Cal.2d 175, 181 [“the Legislature may define
and punish offenses as it sees fit,” subject only to the
constitutional prohibition on cruel and unusual punishment];
Board of Harbor Commissioners of Port of Eureka v. Excelsior
46
Redwood Co. (1891) 88 Cal. 491, 493 [“the fixing and imposing of
penalties are matters of which the legislature alone has
cognizance”]; People v. Lamoureux (2019) 42 Cal.App.5th 241, 252
[“Encompassed within the Legislature’s core function of passing
laws is the responsibility of defining crimes and prescribing
punishments.”].) “‘[T]he power of the people through the
statutory initiative is coextensive with the power of the
Legislature.’” (Manduley, at p. 552; see Legislature v.
Deukmejian (1983) 34 Cal.3d 658, 675.)
“Defining offenses and prescribing punishments
(mandatory or alternative choices) are legislative functions
designed to achieve legitimate legislative goals and objectives.”
(People v. Navarro (1972) 7 Cal.3d 248, 258; see In re Rosencrantz
(1928) 205 Cal. 534, 538 [“‘a large discretion is necessarily vested
in the legislature, to determine not only what the interests of the
public require, but what measures are necessary for the
protection of such interests’”].) Thus, while “‘the charging
function of a criminal case is within the sole province of the
executive branch,’” the “‘legislative branch bears the sole
responsibility and power to define criminal charges and to
prescribe punishment.’” (Gananian v. Wagstaffe, supra,
199 Cal.App.4th at p. 1542, italics omitted; see People v.
Mikhail (1993) 13 Cal.App.4th 846, 854.) Under this authority,
the Legislature regularly limits the discretion a prosecutor has in
charging and a court has in sentencing. (See People v. Birks,
supra, 19 Cal.4th at p. 134 [a prosecutor has “discretion to
choose, for each particular case, the actual charges from among
those potentially available”].)
In Manduley, supra, 27 Cal.4th 537 the Supreme Court
acknowledged that the Legislature and the voters through the
47
initiative process have the authority to delimit prosecutorial
discretion in some circumstances. In that case the Supreme
Court considered whether an initiative that amended the Welfare
and Institutions Code to give prosecutors discretion to charge
certain minors in criminal court violated the separation of powers
doctrine by usurping the judiciary’s sentencing authority. In
concluding the initiative merely expanded a prosecutor’s pre-
charge discretion, the Supreme Court acknowledged the
Legislature has the power to eliminate aspects of prosecutorial
discretion entirely and require prosecutors to initiate particular
charges against certain minors in criminal court. (Id. at p. 554.)
The Supreme Court acknowledged that, in such circumstances,
the statutory preference for charging minors within the adult
criminal court sentencing scheme rather than the juvenile court
dispositional scheme did not violate the separation of powers
doctrine. (Id. at pp. 551-552.)
Similarly, in Davis v. Municipal Court (1988) 46 Cal.3d 64
the Supreme Court acknowledged that the Legislature can
circumscribe, and has circumscribed, prosecutorial discretion to
seek pretrial diversion in some cases. (Id. at p. 78.) The statute
at issue in Davis gave the prosecutor discretion to approve or
disapprove local pretrial diversion programs for misdemeanor
offenders, and the defendant challenged the statute as an
unconstitutional delegation of legislative authority to
prosecutors. (Id. at pp. 69-70.) In holding the delegation of
authority was constitutional, the Supreme Court identified
several other statutes and circumstances where the Legislature
established eligibility criteria for pretrial diversion without
leaving “the policy questions” to the district attorney. (Id. at
p. 78.)
48
Under the same authority, the Legislature (and the voters)
enacted the three strikes law to create an alternative sentencing
scheme when the defendant has qualifying prior felony
convictions. (See Romero, supra, 13 Cal.4th at p. 526; People v.
Frutoz, supra, 8 Cal.App.5th at p. 174, fn. 3.) To ensure the
alternative sentencing scheme applies “in every case” (§ 667,
subd. (f)(1)) to which it should apply, the Legislature (and the
voters) required prosecutors to plead the necessary preconditions
to its application. (See People v. Acosta (2002) 29 Cal.4th 105,
127 [“The ‘unambiguous purpose’ of the Three Strikes law ‘is to
provide greater punishment for recidivists.’”].)
That requirement does not violate the separation of powers
doctrine because it does not materially impair a prosecutor’s
discretion to choose whom or what to charge. (See People v.
Birks, supra, 19 Cal.4th at p. 134 [a prosecutor’s charging
discretion is limited to charges made “available” by the
Legislature]; cf. People v. Parmar (2001) 86 Cal.App.4th 781, 807
[“Except where a statute makes prosecution mandatory, a district
attorney’s pre-charge discretion to investigate and decide
whether to file charges is complete and may not be controlled by
the courts.”].) Instead, like the determinate sentencing scheme,
the three strikes law establishes the punishment for persons
convicted of charges a prosecutor chooses to bring.15 The
15 In People v. Kilborn, supra, 41 Cal.App.4th 1325 the court
reached the same conclusion based on different reasoning. In
that case the court observed the three strikes law “is not unlike
other laws requiring [a prosecutor] to act.” (Id. at p. 1333; see
§ 969 [“all known previous convictions, whether in this State or
elsewhere, must be charged”]; Gov. Code, § 26528 [a district
attorney may and, when directed by a board of supervisors, shall
49
prosecutor retains sole discretion over whom to charge, what to
charge, what punishment to seek from among available
alternatives, and how to conduct a trial to prove the charges
brought.16
Section 1009, which governs amendments to add previously
unpleaded allegations of prior serious or violent felony
convictions to a charging document, supports the conclusion that
the three strikes law’s mandatory duty to plead prior strikes does
bring actions to abate public nuisance]; Welf. & Inst. Code,
§ 11481 [a district attorney shall prosecute contributing
delinquency cases under specified circumstances]; § 1192.7, subd.
(a) [plea bargaining is generally prohibited for serious felonies
and other specified offenses].) The existence of these provisions,
however, does not explain why the three strikes law does not
violate the separation of powers doctrine. The courts in People v.
Gray, supra, 66 Cal.App.4th 973 and People v. Butler, supra,
43 Cal.App.4th 1224 followed Kilborn without further analysis.
(See Gray, at pp. 994-995; Butler, at p. 1247.)
16 The cases cited by the district attorney are distinguishable.
In each of those cases a court refused to compel a prosecutor to
initiate a criminal proceeding. (See Boyne v. Ryan (1893)
100 Cal. 265, 267 [mandamus is not available to compel a
prosecutor to initiate proceedings to recover money wrongfully
paid by a board of supervisors]; Gananian v. Wagstaffe, supra,
199 Cal.App.4th at p. 1541 [mandamus is not available to compel
a prosecutor to investigate and prosecute violations of laws
governing disclosure by public officials of their financial
holdings].) ADDA does not seek to compel the district attorney to
commence an action or even to charge a defendant with an
offense. It seeks instead to compel the district attorney to plead
the conditions required to sentence a defendant under the
alternative sentencing scheme created by the three strikes law.
50
not implicate a prosecutor’s charging discretion. Section 1009
allows a trial court to “‘permit an amendment of an information
at any stage of the proceedings.’” (People v. Hamernik (2016)
1 Cal.App.5th 412, 424.) But an “indictment or accusation cannot
be amended so as to change the offense charged, nor an
information so as to charge an offense not shown by the evidence
taken at the preliminary examination.” (§ 1009, italics added;
see Hamernik, at p. 424 [section 1009 “‘authorizes amendment of
an information at any stage of the proceedings provided the
amendment does not change the offense charged in the original
information to one not shown by the evidence taken at the
preliminary examination’”]; see also People v. Mora-Duran (2020)
45 Cal.App.5th 589, 599 [“[a]mendments that do not allege new
charges . . . are permissible”].) Section 1009, however, does not
preclude a court from approving amendments to a charging
document to add allegations of prior convictions, even after a jury
has rendered a verdict. (People v. Valladoli (1996) 13 Cal.4th
590, 594; see People v. Rogers (2016) 245 Cal.App.4th 1353, 1362,
fn. 7 [in contrast to “conduct enhancements” that are related to
the “charged offense,” allegations of prior convictions need not be
supported by evidence at the preliminary hearing]; see also
Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 155
[“neither California law nor federal constitutional principles
require that evidence supporting allegations the defendant has
suffered strike priors be presented at preliminary hearings”].)17
17 For the same reason, an allegation of a prior conviction
under the three strikes law as to one count is sufficient for all
alleged counts, whereas an alleged conduct enhancement applies
only to the count or counts specified in the information. (People
v. Anderson (2020) 9 Cal.5th 946, 950-951.)
51
Thus, allegations of prior convictions under the three strikes law,
in contrast to conduct enhancements, are not part of the “offense
charged” for purposes of applying section 1009. (See People v.
Shaw (1986) 182 Cal.App.3d 682, 685 [unlike sentence
enhancements that “are in nature directly or transactionally
related to the charged offense,” proof of a prior felony conviction
is not required at the preliminary hearing].)
And to the extent the three strikes law precludes a
prosecutor from charging a recidivist as a first-time offender, this
constraint does not “defeat or materially impair a core, inherent
function of the executive branch . . . .” (Steen v. Appellate
Division of Superior Court, supra, 59 Cal.4th at p. 1054; see
People v. Nash, supra, 52 Cal.App.5th at p. 1074.) As the
Supreme Court in Manduley explained, the separation of powers
doctrine “‘has not been interpreted as requiring the rigid
classification of all the incidental activities of government, with
the result that once a technique or method of procedure is
associated with a particular branch of the government, it can
never be used thereafter by another.’ [Citation.] The separation
of powers doctrine . . . ‘permits actions of one branch that may
“significantly affect those of another branch.” [Citation.]’
[Citations.] The doctrine ‘“is not intended to prohibit one branch
from taking action properly within its sphere that has the
incidental effect of duplicating a function or procedure delegated
to another branch.”’” (Manduley, supra, 27 Cal.4th at p. 557; see
Carmel Valley Fire Protection Dist. v. State of California (2001)
25 Cal.4th 287, 298.) Just as the Legislature and the voters have
the authority to mandate that certain juvenile offenders be tried
within the adult sentencing scheme, without reserving any
discretion to the prosecutor to charge them in juvenile court (see
52
Welf. & Inst. Code, § 602, former subd. (b), repealed by Prop. 57,
as approved by voters, Gen Elec. (Nov. 8, 2016)), so too can the
Legislature and the voters mandate that certain repeat offenders
be tried within the alternative sentencing scheme created by the
three strikes law. At most, this constraint has only an incidental
effect on prosecutorial discretion to decide what punishment to
seek, because the Legislature may lawfully circumscribe those
alternatives.18 To lessen the effect further, the three strikes law
gives a prosecutor authority to move to dismiss a prior strike if he
or she does not believe a particular defendant (or any defendant)
deserves to be sentenced under the three strikes law. (See
§§ 667, subd. (f)(2), 1385.) In this way, the three strikes law
delegates and constrains the discretion of both the executive and
the judicial branches over repeat offenders. (See Romero, supra,
13 Cal.4th at p. 516 [“That the Legislature and the electorate
may eliminate the courts’ power to make certain sentencing
choices may be conceded.”].)
Of course, because a prosecutor may and often does
determine whether a prior strike exists before filing a charging
18 A prosecutor’s charging discretion is frequently influenced
by the sentence the prosecutor believes a defendant is likely to
receive upon conviction. No doubt this is a factor in many
charging decisions, for example, when deciding whether to charge
a wobbler offense as a felony or a misdemeanor. (See Manduley,
supra, 27 Cal.4th at p. 555 [prefiling decisions by prosecutors
often limit the dispositions available to a court after charges have
been filed].) But that discretion is not impacted by the
sentencing scheme that applies to the defendant in either
scenario. Similarly, the three strikes law does not limit a
prosecutor’s discretion to initiate an action or to select from
among available charges.
53
document, the act of alleging a prior strike could be viewed as
part of a prosecutor’s unreviewable pre-charging discretion. (See
Manduley, supra, 27 Cal.4th at pp. 545-546 [“Our prior decisions
instruct that the prosecutor’s exercise of [his or her] charging
discretion, before any judicial proceeding is commenced, does not
usurp an exclusively judicial power, even though the prosecutor’s
decision effectively can preclude the court from selecting a
particular sentencing alternative.”]; People v. Birks, supra,
19 Cal.4th at p. 134 [prosecutorial discretion to choose “the actual
charges from among those potentially available arises from ‘“the
complex considerations necessary for the effective and efficient
administration of law enforcement”’”].) But giving a prosecutor
the discretion to decide whether to allege prior serious or violent
felony convictions, in light of the Legislature’s and the voters’
clear intent to eliminate any such discretion, would violate the
separation of powers doctrine, not honor it. (See Manduley, at
p. 557 [“the primary purpose of the separation of powers doctrine
‘is to prevent the combination in the hands of a single person or
group of the basic or fundamental powers of government’”].)
We do not pass judgment on the three strikes law or its
intended or unintended consequences, which amici curiae discuss
at length. It is neither for us nor the district attorney to rewrite
it. (See California Teachers Assn. v. Governing Bd. of Rialto
Unified School Dist., supra, 14 Cal.4th at p. 633 [the power to
write laws belongs primarily to the people and the political
branches of government]; Kopp v. Fair Pol. Practices Com. (1995)
11 Cal.4th 607, 675 [same].) Policy arguments concerning the
propriety of the three strikes law are best directed to the
Legislature and the voters. (See Los Angeles County
Metropolitan Transportation Authority v. Alameda Produce
54
Market, LLC (2011) 52 Cal.4th 1100, 1112 [Policy arguments are
“‘best directed to the Legislature, which can study the various
policy and factual questions and decide what rules are best for
society. Our role here is to interpret the statute[s] [as they are
written], not to establish policy. The latter role is for the
Legislature.’”].)19
The district attorney’s blanket policy not to plead prior
strikes except in limited circumstances “completely frustrate[s]”
the purpose and mandate of the three strikes law. (Esteybar v.
Municipal Court (1971) 5 Cal.3d 119, 126, fn. 3.) ADDA has
shown that the district attorney has failed to act by not requiring
deputy district attorneys to plead (indeed, prohibiting them from
pleading) known strikes and that this failure is “in derogation of
the applicable legal standards.” (AIDS Healthcare Foundation v.
Los Angeles County Dept. of Public Health, supra,
197 Cal.App.4th at p. 704; see Common Cause, supra, 49 Cal.3d
at p. 442 [mandamus is appropriate to compel an official to
exercise his or her discretion “under a proper interpretation of
the applicable law”]; Anderson v. Phillips, supra, 13 Cal.3d at p.
737; Shorts v. Superior Court, supra, 24 Cal.App.5th at p. 719.)
Therefore, mandamus is available to compel the district attorney
to plead qualifying prior felony convictions “in every case” in
which the district attorney has probable cause to believe a
defendant has suffered a prior strike.
19 Because the use of mandamus to enforce the duty to plead
prior strikes does not violate the separation of powers doctrine,
interpreting section 667, subdivision (f), to mandate that a
prosecutor plead known strikes does not create a constitutional
question or an unconstitutional interpretation to avoid. (See
People v. Gutierrez, supra, 58 Cal.4th at p. 1373.)
55
4. Mandamus Is Not Available To Compel a
Prosecutor To Prove Prior Strikes
We reach a different conclusion regarding the duty to
“prove” under section 667, subdivision (f)(1). Section 667,
subdivision (f)(2), makes clear the Legislature did not create a
duty to prove alleged prior serious or violent felony convictions in
all circumstances because a prosecutor “may” move to dismiss or
strike an allegation of a prior serious or violent felony conviction,
either under section 1385 or if there is insufficient evidence to
prove the allegation. Thus, the decision whether to “prove” a
prior strike allegation or move to dismiss or strike it is
discretionary. (See Common Cause, supra, 49 Cal.3d at p. 443
[statute providing that the governing board of a county “‘may
authorize and assign any of its officers or employees to become
deputy registrars of voters’” did not “require deputization of
county employees”]; AIDS Healthcare Foundation v. Los Angeles
County Dept. of Public Health, supra, 197 Cal.App.4th at p. 702
[statute providing that a “health officer must take ‘measures as
may be necessary’” gave “the health officer discretion to act in a
particular manner depending upon the circumstances”].) The
reference in section 667, subdivision (f)(1), to proving prior
convictions may have intended to create a duty to prove prior
convictions when a prosecutor does not move to dismiss a strike
under section 667, subdivision (f)(2), or when a court denies such
a motion. But the Legislature cannot require a prosecutor to
prove anything in the abstract or, for that matter, anything at
all. At best, the duty to prove is aspirational.
In Briggs v. Brown, supra, 3 Cal.5th 808 the Supreme
Court held a statute imposing a five-year limit on the completion
56
of the appellate and initial habeas corpus review processes in
capital cases was “largely aspirational.” (Id. at p. 854.) The
statute at issue in that case, section 190.6, subdivision (d), was
enacted by initiative and stated that “the state courts shall
complete” such review processes within five years of the adoption
of certain rules by the Judicial Council or entry of judgment.
Despite the statute’s use of the mandatory “shall,” the Supreme
Court concluded the statute “is properly construed as an
exhortation to the parties and the courts to handle cases as
expeditiously as is consistent with the fair and principled
administration of justice.” (Briggs, at pp. 858-859.) The Supreme
Court stated the statute “provide[d] no workable means of
enforcing the five-year review limit,” especially in light of “serious
separation of powers concerns.” (Id. at pp. 849, 857.) The
Supreme Court observed that “achievement of the five-year goal
depends in large part on a variety of discretionary
determinations by superior courts and Courts of Appeal, most of
which would not be controllable by writ of mandate.” (Id. at
p. 856.)
Similarly, there is no means of enforcing a prosecutor’s
duty to “prove” a prior strike allegation. As discussed, the
question whether a defendant has suffered a prior conviction is
tried to a court or jury (§ 1025, subd. (b)), and the prosecutor
cannot control the verdict. (See Briggs v. Brown, supra, 3 Cal.5th
at p. 863 (conc. opn. of Liu, J.) [legislative mandate was
unenforceable where “no entity—not this court, . . . not the
Legislature—can simply wave a magic wand and make it so”]; cf.
National Shooting Sports Foundation, Inc. v. State (2018)
5 Cal.5th 428, 436 [“Civil Code section 3531’s maxim that ‘[t]he
57
law never requires impossibilities’ is an interpretive aid” that
may “authorize[ ] an exception to a statutory mandate”].)
Moreover, prosecutorial discretion extends to a prosecutor’s
conduct of a criminal trial. (See Dix v. Superior Court, supra,
53 Cal.3d at p. 452 [“[e]xclusive prosecutorial discretion must
also extend to the conduct of a criminal action once commenced,”
italics omitted]; Crump v. Appellate Division of Superior
Court (2019) 37 Cal.App.5th 222, 239 [same].) The prosecutor
may “conduct that prosecution in the manner deemed best ‘“for
the effective and efficient administration of law enforcement.”’”
(People v. Vargas (2001) 91 Cal.App.4th 506, 535.) “The
prosecution’s authority in this regard is founded, among other
things, on the principle of separation of powers, and generally is
not subject to supervision by the judicial branch.” (People v.
Birks, supra, 19 Cal.4th at p. 134; see Gananian v. Wagstaffe,
supra, 199 Cal.App.4th at p. 1543.) Thus, mandate is not
available to compel a prosecutor to “prove” an allegation of a prior
conviction. (See Boyne v. Ryan (1893) 100 Cal. 265, 267 [“a court
will not do a vain or fruitless thing, or undertake by mandamus
what cannot be accomplished”].) The duty to prove prior serious
or violent felony convictions under the three strikes law is
“directive.” (Briggs v. Brown, supra, 3 Cal.5th at p. 858.)
That the duty to prove prior strike allegations cannot be
enforced by mandamus does not mean a prosecutor can simply
abandon efforts to prove those allegations in a pending case. “‘In
conducting a trial a prosecutor is bound . . . by the general rules
of law and professional ethics that bind all counsel.’” (Dix v.
Superior Court, supra, 53 Cal.3d at p. 452; see County of Santa
Clara v. Superior Court (2010) 50 Cal.4th 35, 49 [the law imposes
“‘rigorous ethical duties . . . on a criminal prosecutor’”]; In re
58
Butler (2020) 55 Cal.App.5th 614, 656, fn. 10 [as “surrogates for
the People of the State of California,” prosecutors “have a special
duty to ensure the fairness and reliability of both the justice
process and the outcomes of that process”]; Bradley v. Lacy (1997)
53 Cal.App.4th 883, 895 [“As an officer of the court, the district
attorney must perform his duties in a professional manner.”]; see
also Bus. & Prof. Code, § 6068, subd. (a) [“It is the duty of an
attorney to . . . support the Constitution and laws of the United
States and of this state.”].) The law requires prosecutors to
“properly and conscientiously discharge [their] duties” (County of
Yolo v. Joyce (1909) 156 Cal. 429, 433) and to exercise their
discretionary functions “‘with the highest degree of integrity’”
(People v. Eubanks (1996) 14 Cal.4th 580, 589). Thus, once a
prosecutor alleges a prior strike, the prosecutor must endeavor to
prove it or move to dismiss it under section 1385 or for lack of
sufficient evidence.
5. Mandamus Is Not Available To Compel a
Prosecutor To Move To Dismiss a Prior Strike
or Sentence Enhancement on a Case-by-case
Basis
The district attorney argues the trial court erred in ruling
the Special Directives prevent prosecutors from exercising
discretion to decide, on a case-by-case basis, whether to move to
dismiss allegations of prior strikes and sentence enhancements
and in requiring deputy district attorneys to assert certain
grounds for dismissal that are precluded by the Supreme Court’s
decision in People v. Williams (1998) 17 Cal.4th 148, 158
(Williams). The district attorney contends that there is no
ministerial duty to exercise discretion on a case-by-case basis and
59
that the grounds for dismissal asserted in Special Directives
20-08 and 20-08.1 are permissible. We agree with the district
attorney on this issue.
A prosecutor has discretion to move under section 1385 to
dismiss a strike or sentence enhancement “in furtherance of
justice.” The trial court appears to have preliminarily enjoined
the district attorney from requiring prosecutors to move to
dismiss alleged strikes and sentence enhancements under Special
Directive 20-08.1 based on the court’s conclusions Special
Directive 20-08.1 conflicts with the district attorney’s “duty under
[Government] Code section 26500 to prosecute crimes” and the
Supreme Court’s decision in Williams.20 The court did not
identify any ministerial duty or failure to act pursuant to which
mandamus is available, and there is none.
Government Code section 26500 provides, “The public
prosecutor shall attend the courts, and within his or her
discretion shall initiate and conduct on behalf of the people all
prosecutions for public offenses.” Because a prosecutor’s duty to
initiate and conduct prosecutions under this statute is
discretionary, mandate is not available to compel the district
attorney to exercise prosecutorial discretion in any particular
way. (See People ex rel. Becerra v. Superior Court, supra,
20 ADDA appears to argue in favor of a preliminary injunction
broader than the one issued by the trial court. ADDA contends
the district attorney’s “blanket office policy categorically barring
the enforcement of six sentencing enhancements in all cases, and
requiring their abandonment in all existing cases where they are
alleged,” is unlawful. But the trial court declined to enjoin the
district attorney from refusing to allege such sentence
enhancements in new cases, and ADDA did not appeal that
ruling.
60
29 Cal.App.5th at p. 504; Taliaferro v. Locke (1960)
182 Cal.App.2d 752, 755-757; 4 Witkin, Cal. Criminal Law (4th
ed. 2021) Criminal Procedure, § 19.) Indeed, the “public
prosecutor has no enforceable ‘duty’ to conduct criminal
proceedings in a particular fashion. On the contrary, his or her
obligation is to exercise exclusive professional discretion over the
prosecutorial function.” (Dix v. Superior Court, supra, 53 Cal.3d
at p. 453.) The cases cited by ADDA recognize only that a district
attorney, in general, has a duty to prosecute crimes. (See
Becerra, at p. 504 [“a district attorney’s ‘mandatory’ duty is to
exercise his or her discretion to prosecute crimes”].) They do not
support the conclusion that the general duty to prosecute in any
particular way is enforceable by mandamus.
Nor does the decision in Williams create a ministerial duty
to exercise discretion on a case-by-case basis in moving to dismiss
an alleged strike or sentence enhancement. In Williams the trial
court, on its own motion under section 1385, dismissed one of two
13-year-old prior serious or violent felony convictions under the
three strikes law, observing that, although the defendant had
“‘run afoul [of] the law many times,’” he had not in the interim
committed “‘crimes involving actual violence.’” (Williams, supra,
17 Cal.4th at pp. 156-157.) In considering whether the trial court
abused its discretion, the Supreme Court stated trial courts must
“look for ‘justice’ in the [sentencing] scheme’s interstices,
informed by generally applicable sentencing principles relating to
matters such as the defendant’s background, character, and
prospects,” and the Supreme Court cited the California Rules of
Court as the source of such “sentencing principles.” (Id. at p. 160
& fn. 5.) The Supreme Court held the three strikes law precluded
a trial court from giving weight to “factors extrinsic to the
61
scheme” when balancing a defendant’s constitutional rights
against “society’s legitimate interests” in “the fair prosecution of
properly charged crimes.” (Id. at pp. 160-161.) Thus, a court may
not consider antipathy toward the law or its consequences in a
particular case; instead, in determining whether dismissing on
its own motion a prior conviction for a serious or violent felony
under the three strikes law would be in furtherance of justice, a
trial court may consider only whether a defendant falls “outside
the scheme’s spirit” by reference to “factors intrinsic to the
scheme, such as the nature and circumstances of the defendant’s
present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and
prospects.” (Ibid.) The trial court and ADDA interpret Williams
to mandate that prosecutors can only move to dismiss alleged
strikes and sentence enhancements based on the nonexclusive
list of factors set forth in Williams.
Even if a court could create a ministerial duty through
precedent, a question we need not reach, a prosecutor’s discretion
to decide what arguments to make at trial is not subject to
mandamus.21 In conducting a trial the “prosecutor has the
responsibility to decide in the public interest whether to seek,
oppose, accept, or challenge judicial actions and rulings. These
decisions . . . go beyond safety and redress for an individual
victim; they involve ‘the complex considerations necessary for the
21 Whatever the merits of the out-of-state cases cited by
ADDA, they do not create a ministerial duty on the part of
prosecutors in California to evaluate the bases for a motion to
dismiss a strike or sentence enhancement on a case-by-case basis.
(See State v. City Court of City of Tucson (Ariz. 1986) 722 P.2d
267; State v. Pettitt (Wash. 1980) 609 P.2d 1364.)
62
effective and efficient administration of law enforcement.’” (Dix
v. Superior Court, supra, 53 Cal.3d at p. 452.) Similarly, the
arguments a prosecutor makes or chooses not to make in the
conduct of a trial is a purely discretionary decision. (See People v.
Superior Court (Greer) (1977) 19 Cal.3d 255, 267 [identifying
“choice of argument” as among the discretionary decisions a
prosecutor makes at trial].) Courts cannot compel a prosecutor to
confine his or her arguments in support of a motion to dismiss
under section 1385 to a nonexclusive list of factors set forth in a
judicial decision that expressed no intent to create a ministerial
duty. (See Schwartz v. Poizner, supra, 187 Cal.App.4th at p. 597
[a statute or ordinance must clearly define the specific duties or
course of conduct a governing body must take for that course of
conduct to become mandatory].) Not only would any such a
mandate restrict a prosecutor from making arguments the
prosecutor believed in good faith were in the interest of justice, it
would also violate the separation of powers doctrine by infringing
on the “sole responsibility of the public prosecutor” to prosecute
criminal offenses on behalf of the People. (Dix v. Superior Court,
supra, 53 Cal.3d at p. 451; People v. Dehle (2008) 166 Cal.App.4th
1380, 1387.)
Moreover, as discussed in our accompanying decision in
Nazir, supra, ___ Cal.App.5th , the criminal justice concerns
expressed in the Special Directives, including whether lengthy
sentences create an effective deterrent, are legitimate bases for
motions to dismiss under section 1385. (Id. at p. ___ [p. 27].) In
Nazir we explained that, with regard to firearm enhancements
under sections 12022.5 and 12022.53, a court may properly
consider the factors listed in the California Rules of Court,
rule 4.410 (general objectives in sentencing), rules 4.421
63
and 4.423 (circumstances in aggravation and mitigation), and
rule 4.428(b) (discretion in striking an enhancement and
punishment for an enhancement under section 1385) in deciding
whether to grant a prosecutor’s motion to dismiss a firearm
enhancement under section 1385. (Nazir, at p. ___ [p. 23]; see
People v. Flores (2021) 63 Cal.App.5th 368, 377 [in determining
whether to dismiss a firearm enhancement under section 12022.5
or 12022.53, a court considers the same factors considered “‘when
handing down a sentence in the first instance’”].) These rules
refer to circumstances specific to the crime and the defendant’s
criminal history, as well as to broader societal objectives, such as
“[d]eterring others from criminal conduct by demonstrating its
consequences” and “[i]ncreasing public safety by reducing
recidivism through community-based corrections programs and
evidence-based practices.” (Cal. Rules of Court, rule 4.410(a)(4)
& (a)(8).) And the rules apply equally to other sentence
enhancements, such as those under section 186.22, section 667,
subdivision (a)(1), and section 667.5. (See People v. Brooks (2020)
53 Cal.App.5th 919, 926 [applying Cal. Rules of Court, rule 4.410
to an enhancement under section 667, subdivision (a)]; People v.
Torres (2008) 163 Cal.App.4th 1420, 1433, fn. 6 [applying Cal.
Rules of Court, rule 4.410 to a gang enhancement under section
186.22]; Cal. Rules of Court, rule 4.410(b) [a sentencing court
“should be guided by statutory statements of policy, the criteria
in [the Rules of Court], and any other facts and circumstances
relevant to the case”].)
Recent amendments to section 1385 support the application
of broader criminal justice policies in sentencing. For example, a
court must now “consider and afford great weight to evidence
offered by the defendant” to prove any of the enumerated
64
mitigating circumstances, including whether “[a]pplication of the
enhancement would result in a discriminatory racial impact,”
whether multiple enhancements are alleged in a single case (in
which case, “all enhancements beyond a single enhancement
shall be dismissed”), and whether the application of an
enhancement could result in a sentence of over 20 years, in which
case the enhancement “shall be dismissed.” (§ 1385,
subd. (c)(3)(A), (B) & (C).) The Legislature enacted these
amendments based on research, like the research cited in the
Special Directives, that mandatory sentence enhancements
“[d]isproportionately increase[d] racial disparities in
imprisonments,” had “no material deterrent effect,” and “[g]reatly
increase[d] the population of incarcerated persons.” (Sen. Com.
on Public Safety, Rep. on Sen. Bill No. 620 (2017-2018 Reg. Sess.)
Apr. 25, 2017, p. 3.)
Although the amendments to section 1385 do not appear to
apply to allegations of prior serious or violent felony convictions
under the three strikes law (see § 1385, subd. (c)(1)
[“[n]otwithstanding any other law, the court shall dismiss an
enhancement if it is in the furtherance of justice to do so,” italics
added]), we explained in Nazir that the directive in Williams to
consider only defendant-specific factors applies to trial courts
dismissing prior strikes on their own motion, not to prosecutors
in their representation of the “interests of society.” (See Nazir,
supra, ___ Cal.App.5th at p. ___ [p. 18].) The Supreme Court in
Williams did not address, and we need not decide, the range of
factors that would support dismissal of a prior serious or violent
felony conviction “in furtherance of justice” on the motion of a
prosecutor. (§ 1385, subd. (a).) Moreover, as discussed, the
Supreme Court in Williams acknowledged that “justice” under
65
section 1385 may be informed by “generally applicable sentencing
principles” recited in California Rules of Court, rule 4.410
(Williams, supra, 17 Cal.4th at p. 160 & fn. 5), which includes
among a court’s sentencing objectives broad societal goals such as
“[p]rotecting society,” “[d]eterring others,” and “[a]chieving
uniformity in sentencing” (Cal. Rules of Court, rule 4.410(a)(1),
(4) & (7)). Thus, Williams does not restrict a prosecutor’s
discretion to move to dismiss a strike under section 1385 on the
basis of Special Directives 20-08 and 20-08.1.
6. Mandamus Is Not Available To Control a
Prosecutor’s Discretion in Moving for Leave To
Amend an Information To Eliminate an Alleged
Strike
Section 1009 allows a prosecutor to “‘amend an information
without leave of court prior to entry of a defendant’s plea’” and a
trial court to “‘permit an amendment of an information at any
stage of the proceedings.’” (People v. Hamernik, supra,
1 Cal.App.5th at p. 424.) The trial court concluded Special
Directive 20-08.1 violated section 1009 by requiring deputy
district attorneys to seek leave of the court to file an amended
charging document under section 1009 if a court refuses to
dismiss a prior strike. The court reasoned the instruction in
Special Directive 20-08.1 “to seek leave to amend to delete
[a] strike prior if the trial court denies its dismissal violates both
the Three Strikes law and sections 1385 and 1386.”22 That may
be, but ADDA has not shown a ministerial duty enforceable by
22 Section 1386 states that “neither the Attorney General nor
the district attorney can discontinue or abandon a prosecution for
a public offense, except as provided in Section 1385.”
66
mandamus or a failure to act that constitutes an abuse of
discretion courts have authority to correct.
ADDA argued in the trial court the district attorney has
“a ministerial duty to proceed with a prosecution, including
[a] Three Strikes [allegation], once it has been initiated unless
the court permits it to be dismissed.” We presume ADDA located
that duty in section 1386, which arguably precludes a trial court
from granting leave to amend a charging document to eliminate
an alleged strike. Even assuming (without deciding) section 1386
creates a duty on the part of the prosecutor to continue
prosecuting a charge or allegation a trial court refuses to dismiss,
nothing in the Special Directives suggests the district attorney
has required or will require deputy district attorneys to abandon
a prosecution. As the trial court and ADDA acknowledged,
Special Directive 20-08.1 “appears to recognize” that leave of
court is required to amend a charging document (despite
language in Special Directives 20-08 and 20-08.2 that existing
allegations of prior strikes “shall be withdrawn”). And at the
hearing on the application for a preliminary injunction, counsel
for the district attorney conceded the Special Directives intended
to refer only to seeking leave to amend a charging document, not
to unilaterally withdrawing existing allegations.
In seeking such leave to amend, prosecutors have discretion
to make whatever arguments they believe, in their professional
judgment and under the laws of the United States and California,
will promote the interests of the People. (See Bradley v. Lacy,
supra, 53 Cal.App.4th at p. 895 [the district attorney, as an
officer of the court, may apply his or her professional judgment in
making a motion to dismiss an accusation].) As discussed in the
context of the duty to prove allegations of prior serious or violent
67
felony convictions, neither the Legislature nor a court can control
the arguments a prosecutor makes in good faith.
D. The Trial Court Did Not Abuse Its Discretion in
Finding the Balance of Hardships Resulting from the
Failure To Plead Prior Strikes Weighs in Favor of
ADDA
Once the moving party establishes a likelihood of success
on the merits, a court must consider “‘“‘the interim harm that the
plaintiff is likely to sustain if the injunction were denied as
compared to the harm that the defendant is likely to suffer if the
preliminary injunction were issued.’ [Citation.] We review a
trial court’s application of these factors for abuse of discretion.”’”
(Chase v. Wizmann, supra, 71 Cal.App.5th at p. 252; see Urgent
Care Medical Services v. City of Pasadena (2018) 21 Cal.App.5th
1086, 1092.) “The party challenging the injunction has the
burden to make a clear showing of an abuse of discretion, and
‘[a] trial court will be found to have abused its discretion only
when it has “‘exceeded the bounds of reason or contravened the
uncontradicted evidence.’”’” (Chase, at pp. 252-253.) As stated,
where the likelihood of success on the merits turns on a question
of pure law and no factual controversy remains, that factor may
be determinative. (Midway Venture LLC v. County of San Diego,
supra, 60 Cal.App.5th at p. 76; Jamison v. Department of
Transportation, supra, 4 Cal.App.5th at p. 362.)
The trial court found, in the context of compliance with the
three strikes law, the balance of hardships weighed in favor of
68
ADDA. Citing rule 8.4 of the Rules of Professional Conduct,23
and Business and Professions Code section 6068, subdivision (a),
the court stated, “The Special Directives require unlawful
conduct and an attorney’s violation of law during litigation is
unethical.” The court ruled: “There is clear harm to a deputy
district attorney from following the Special Directives for strike
priors, including possible sanctions, contempt, and State Bar
discipline.”
The district attorney argues the trial court failed to
properly consider the harm to the district attorney, including his
credibility and ability to determine “which policies to pursue and
how best to pursue them.” The district attorney also argues the
harm the trial court identified to deputy district attorneys is
“speculative” because, as the court acknowledged, a deputy
district attorney who follows his or her superior’s directions is
exposed merely “‘to the possibility of sanctions.’”
Because the likelihood of prevailing on the merits in this
case depends on “‘a question of pure law rather than upon
evidence to be introduced at a subsequent full trial’” (Citizens to
Save California v. California Fair Political Practices Com., supra,
145 Cal.App.4th at pp. 745-746), the showing of harm to deputy
district attorneys if the injunction does not issue need only be
minimal. (See Common Cause, supra, 49 Cal.3d at p. 447 [“if the
party seeking the injunction can make a sufficiently strong
23 That rule provides: “It is professional misconduct for a
lawyer to: [¶] (a) violate these rules or the State Bar Act,
knowingly[ ] assist, solicit, or induce another to do so, or do so
through the acts of another,” or “(e) state or imply an ability to
influence improperly a government agency or official, or to
achieve results by means that violate these rules, the State Bar
Act, or other law . . . .”
69
showing of likelihood of success on the merits, the trial court has
discretion to issue the injunction notwithstanding that party’s
inability to show that the balance of harms tips in his favor”];
NewLife Sciences, LLC v. Weinstock (2011) 197 Cal.App.4th 676,
687-688 [“‘[a] trial court may grant a preliminary injunction upon
a sufficiently strong showing of likelihood of success even when
the party seeking the injunction cannot show that the balance of
harm[ ] “tips” in its favor’”].)24 ADDA argued and the trial court
found that ADDA members who follow the Special Directives’
instruction not to plead prior strikes violated the three strikes
law and thus their oaths of office and ethical responsibilities.
Although the prospect of actual sanctions is somewhat
speculative, the violation of the mandatory duty to plead prior
strikes is not. Deputy district attorneys who continue to follow
the Special Directives and refuse to plead known prior strikes
violate the law. The district attorney has not shown the trial
court abused its discretion in weighing the likelihood of success
on the merits against the relative interim harm to the parties
from issuing or not issuing the injunction.
24 In White v. Davis (2003) 30 Cal.4th 528 the Supreme Court
stated that “the decision in Common Cause[, supra, 49 Cal.3d
432] did not suggest that when a party makes a sufficient
showing of likely success on the merits a trial court need not
consider the relative balance of hardships at all . . . .” (Id. at
p. 561.) In this case the trial court considered the relative
balance of hardships, and we find no abuse of discretion in its
finding the balance of harms weighed in ADDA’s favor.
70
DISPOSITION
The trial court’s order granting a preliminary injunction is
affirmed in part and reversed in part. The portion of the
preliminary injunction enjoining the district attorney’s direction
to deputy district attorneys not to plead prior serious or violent
felony convictions under the three strikes law is affirmed. The
portion of the preliminary injunction enjoining the district
attorney’s direction to deputy district attorneys to move to
dismiss or withdraw special circumstances allegations that, if
proven, would result in a sentence of life without the possibility
of parole, as well as the direction not to use proven special
circumstances for sentencing, is also affirmed. The other portions
of the preliminary injunction are reversed. The trial court is
directed to enter a new order limited to this preliminary relief.
The parties are to bear their costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J. WISE, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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