I agree that because the “three strikes” statute does not contain “a clear legislative direction to the contrary” (People v. Thomas (1992) 4 Cal.4th 206, 210 [14 Cal.Rptr.2d 174, 841 P.2d 159]), the trial court retains discretion under Penal Code section 1385 to dismiss prior felony conviction allegations.
I write separately to disassociate myself from the lengthy discussion whether this statute would violate the separation of powers doctrine if, contrary to our interpretation, it did remove discretion from the trial court. Relying on People v. Tenorio (1970) 3 Cal.3d 89 [89 Cal.Rptr. 249, 473 P.2d 993] and its progeny, the majority effectively decides that such a statute would violate the separation of powers. The majority’s statutory interpretation stands on its own and renders the constitutional analysis unnecessary. Moreover, because the statute the majority considers is quite different from that confronted in Tenorio, that analysis is questionable.
The statute the majority suggests would be unconstitutional, if it existed, would apparently provide the following: The prosecution has no charging discretion but must charge all priors for which there is sufficient evidence. Thereafter, if both the prosecution and the court concur, the prior may be dismissed. Neither the court nor the prosecution could unilaterally decide not to charge or to dismiss the prior. In effect, as the Attorney General argues, the statute would act as a “sunshine” statute, requiring that the decision either not to prosecute or to dismiss a prior be made in open court with reasons stated.
As the majority recognizes, a statute giving the prosecution unlimited charging discretion at the outset and giving the court no power to dismiss charged priors for which there was sufficient evidence would pass constitutional muster. (Maj. opn., ante, at pp. 513-514, 516-517; see People v. Thomas, supra, 4 Cal.4th 206; Davis v. Municipal Court (1988) 46 Cal.3d 64, 82 [249 Cal.Rptr. 300, 757 P.2d 11].) It is also clear that a statute giving the prosecution unreviewable discretion at the outset and giving the court authority to dismiss a charged prior but conditioning that authority on prosecutorial approval would not be constitutional. (People v. Tenorio, supra, 3 Cal.3d 89.) The statute the majority considers would be neither of these, but somewhere in between; neither branch could exercise discretion without the other, or, stated slightly differently, a prior conviction for which sufficient evidence existed would have to be prosecuted unless both branches of government agreed otherwise. Rather than only the executive branch’s having a veto over the judicial, as in Tenorio, both branches would have an equal veto over each other. This would be a check and balance arguably similar to other checks and balances in our system of government.
*534This statute would differ from that declared invalid in Tenorio in two respects: (1) it would give the two branches of government equal authority, and (2) it would not give the prosecution unreviewable charging discretion. Tenorio suggests these differences might be critical. It states that the concept of separation of powers “demands that the branches of government be coequal. . . .” (People v. Tenorio, supra, 3 Cal.3d at p. 95.) It also stresses that the statute at issue there gave the prosecution discretion that is “unreviewable, and may therefore be exercised in a totally arbitrary fashion . . . .” (Ibid.) As tihe Court of Appeal in this case (per Huffman, J.) pointed out in rejecting the separation-of-powers argument, “The severely limited prosecutorial discretion in charging and negotiating presented by the overall ‘three strikes’ statutory scheme hardly equates to the ‘unreviewable’ and ‘arbitrary’ discretion vested in the prosecution which was criticized in [People v.] Tenorio, supra, 3 Cal.3d at page 95. Rather, the statutory scheme represents tight legislative control of a prosecutor sharply curtailing the prosecution’s previous discretion in carrying out its traditional charging function.”
The majority states, “there is grave doubt whether the statute before us could be construed as the district attorney would construe it without overruling Tenorio . . . .” (Maj. opn., ante, at p. 517.) On the contrary, because of the differences in the statutory schemes, Tenorio can be, and, if the issue ever arose, perhaps should be, distinguished. It may or may not be appropriate to extend Tenorio to the statute the majority considers, but it would indeed be an extension. The answer to the constitutional question is not easy; it should not be decided in a vacuum. The majority’s statutory analysis suffices to decide this case. We should not also give an advisory opinion on a statute that does not exist and may never be enacted.
I therefore concur in the disposition and all of the majority opinion except the constitutional discussion.
Petitioner’s application for a rehearing was denied August 21, 1996, and the opinion was modified to read as printed above.