Concurring and Dissenting. — I agree with my colleague, Justice Newman, that this case and its rehearing present a “melancholy tale.” As he so succinctly points out, “[t]he politicization of this proceeding after the summer of 1978 became phantasmagoric. A shrill, clamorous campaign — inspired and nurtured by experienced, well-financed, ambitious, and posse-like ‘hard on crime’ advocates — has had a still incalculable but dismal impact on the judicial process in California.” (Cone. opn. of Newman, J., ante, at pp. 545-546.)
The original decision in this case was filed on December 22, 1978, and at that time the position advocated by today’s majority did not prevail. (See 151 Cal.Rptr. 299.) Nothing new has come before us other than some additional work on legislative history compiled by Justices Newman and Tobriner. Today’s majority does not make any attempt to deal with this new material.
Moreover, the result reached by this new majority is contrary to the results that three of them so strenuously urged just a few months ago. This is nothing more than an attempt to carve a compromise of expediency. The law has been twisted out of shape to achieve then-unique result. To avoid criticism that they have made the defendant a pawn in this process, the majority exempt him from the very standard that will be applied to all other defendants. And what is most discouraging, the majority give short shrift to the difficult issues of legislative intent and constitutional validity in a headlong rush to find a popular solution for an unpopular case.
Have we forgotten that justice is not a matter of expediency? It is not a cloak in which we can wrap ourselves when we find its protection most convenient. It is, rather, a matter of principle, plain and simple. If we hope to maintain a legal system characterized by justice, we cannot defer its application as to even a single case that comes before us.
The challenging points on legislative history and constitutional validity deserve careful consideration. Yet the majority’s discussion deals with these issues primarily by silence. It would appear that each justice on this court agrees on certain basic principles relating to the separation of powers clause of our Constitution. (Art. Ill, § 3.) As Justice Clark has stated in this case, “[t]here has never been any doubt that the courts are exclusively vested under the separation of powers doctrine to make adjudication of any issue affecting the penalty to be imposed in a criminal proceeding.” (151 Cal.Rptr. at p. 321, italics added [former dis. opn.].) Yet my colleagues honor this principle only in its breach.
*570The exercise of this adjudicatory power in no way invades any legislative power to fix the range of possible punishments for a crime. The imposition of a legislatively prescribed sentence on a defendant does not come about until after all the issues and factors relative to guilt and to punishment have been finally adjudicated. After the adjudication process is completed, the trial court pronounces judgment* within the limits of the options provided by the Legislature and the other provisions of the Constitution (see, e.g., In re Lynch (1972) 8 Cal.3d 410, 414-415 [105 Cal.Rptr. 217, 503 P.2d 921]). Thus, the legal power and duty of the court to impose a sentence or render a judgment within those limits are distinct from its legal power to adjudicate “any issue affecting the penalty to be imposed.”
Only the latter “adjudicatory” power of the court is involved in the present case. Before any sentence or judgment could have been imposed on Mr. Tanner by the trial judge, the allegation that Tanner had used a firearm within the meaning of Penal Code section 1203.06 had to be finally adjudicated. (Post, at pp. 558-559.) The adjudicatory process was not completed at the time the jury rendered its verdict. It was not completed until the trial judge ruled on Tanner’s motion to strike the use of a firearm. (See cases collected, post, atp. 559, fn. 5, and accompanying text.) Since it is clear that the courts are vested under the separation of powers doctrine with the responsibility for the adjudication of any issue affecting a criminal penalty to be imposed, that constitutional principle was violated when the Legislature attempted to arrogate to itself both the adjudicatory as well as the sentencing function.
Since nothing has changed since this court’s initial decision was filed on December 22d, my original concurring and dissenting opinion is set out below.†
This court should not substitute its judgment for that of the Legislature when an issue of statutory interpretation is involved. We “must give full weight” to the intent of the Legislature. (People v. Caudillo (1978) 21 Cal.3d 562, 589 [146 Cal.Rptr. 859, 580 P.2d 274] (cone. opn. of Bird, C. J.).) After consideration of the legislative history of Penal Code section 1203.06, I agree with my colleagues, Justices Manuel, Richardson, and Clark, that the Legislature intended to remove from courts the power to give probation when an individual is convicted of one of the felonies enumerated in that section and a gun is displayed.
*571However, this does not end our inquiry, for this case involves more than statutory interpretation. As judges, we have taken an oath of office to uphold the Constitution of this state. Thus, when a legislative enactment contravenes the Constitution, this court cannot defer to the Legislature and remain true to its constitutional mandate. However controversial the question, the court cannot avoid an issue which goes to “the very core of our judicial responsibility.” (People v. Anderson (1972) 6 Cal.3d 628, 640 [100 Cal.Rptr. 152, 493 P.2d 880]; see also, Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 248-249, 256-257 [149 Cal.Rptr. 239, 583 P.2d 1281] (cone, and dis. opn. of Bird, C. J.).) If we were to shrink from the obligations of our oath, the Declaration of Rights would become meaningless. To decide cases based on what is most popular at the moment will ultimately destroy the judiciary as a third branch of government.
This case presents an issue that goes to the heart of our existence as an independent and coequal partner in government. Article III, section 3 of the California Constitution requires that the legislative, executive, and judicial powers be separately exercised by the three branches of government. If we are to remain faithful to that section of the Constitution, we must affirm the judgment of the trial court.
I
This court must perform the difficult task of removing itself from the politics of the moment without isolating itself from the realities of the day. No one condones the use of a firearm to secure an illegal end. As judges, we share with all citizens the sense of outrage at those who would take the life or property of another at gunpoint. Justice and respect for human life demand nothing less from us. Such actions not only injure individuals, they inevitably tear at the fabric of our society. But just as eveiy human life is irreplaceable, every human being is unique and each situation must be judged individually.
The actual issue before us has been obscured by a number of myths. One such myth is that a defendant who is granted felony probation avoids incarceration. In fact, an individual who is placed on probation for a felony may receive up to one year in the county jail for each offense he has committed. That is exactly what happened in the present case.
That is not the only myth surrounding this case. The slogan “Use a gun, go to prison” has been portrayed as an accurate description of Penal Code section 1203.06. As is often the case with slogans, their simplicity is only exceeded by their inaccuracy. If a person uses a gun in the commission of an offense, he is not necessarily denied probation nor *572required to go to state prison. Section 1203.06 does not cover many serious crimes. For example, if an individual commits an assault with a deadly weapon (Pen. Code, § 245, subd. (a)), and he shoots and wounds his victim, he is eligible for probation. Nor does section 1203.06 apply to other dangerous felonies such as assault or battery on a peace officer (Pen. Code, §§ 241, 243), assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (b)), battery resulting in a serious bodily injury (Pen. Code, § 243), arson (Pen. Code, § 447a), child molestation (Pen. Code, § 288), lynching (Pen. Code, § 405a), mayhem (Pen. Code, §" 203), forcible sodomy (Pen. Code, § 286), and forcible oral copulation (Pen. Code, § 288a). Similarly, felonies such as second degree burglary (Pen. Code, §§ 459, 460) with the use of a firearm are excluded from the scope of section 1203.06.
Further, the prosecutor has complete discretion as to whether to invoke section 1203.06 in those cases where it applies. He may decide not to allege a firearm has been used even when it has. Even after the use of a firearm has been alleged, the prosecutor may move to have the allegation stricken. (See Pen. Code, § 1385.) The prosecutor may agree to dismiss the firearm allegation in exchange for a guilty plea to the underlying offense during plea bargaining. If the prosecutor agrees to a “charge-bargain,” he may allow a defendant to plead guilty to an offense which is not covered by section 1203.06.1
The point in all these cases is that even though a firearm may have been used, the offender is not automatically stripped of his eligibility for probation and sentenced to state prison. The so-called mandatory gun law is not mandatory at all In section 1203.06, the Legislature has in effect vested in the representative of the executive branch, the prosecutor, all discretion as to a local disposition (probation with a county jail sentence) and withdrawn such discretion totally from the judicial branch.
Historically, sentencing has been considered an inherently judicial function since it requires a neutral magistrate who will fairly consider both sides of a question. In enacting Penal Code section 1203.06, the Legislature apparently intended to remove from the court the power to grant probation when an individual is found to have displayed a gun while committing one of the felonies enumerated in that section. After *573much thought, I am convinced that such a legislative fiat violates the express provisions of article III, section 3 of the California Constitution. By dictating to judges what they can and cannot do in adjudicating with respect to a penalty enhancement factor, the Legislature has violated basic principles of separation of powers and taken away from judges their historic power to match the judgment to the facts of the individual case.
Consider the facts now before us. An experienced trial judge, who handled this matter, found it to be a “very, very rare case.” The nature of the offense was described as “bizarre.” (151 Cal.Rptr. 299, 301-302 [former maj. opn.].) The investigating detective from the sheriff’s office recommended that Mr. Tanner “be placed on probation with a short county jail sentence.” The detective did “not feel that the defendant is a candidate for State Prison.” He felt that Mr. Tanner’s “good record up to the present offense” was an important factor to consider and that “the defendant ha[d] learned a lesson.”
The trial judge concluded that Mr. Tanner had a “clean background” and that the firearm was unloaded at all relevant times with “no real intent to use [the] weapon as such” being demonstrated. Mr. Tanner had been honorably discharged from the Army after service in Korea. Formerly he had been the manager of a large department store’s branch in the East Bay. Following a divorce, he slipped into a long period of depression. He had no prior criminal record. The trial judge concluded that in this unusual case he would incarcerate Mr. Tanner for one year in the county jail, and require five years of probation with a suspended state prison sentence. The question once again is posited. Does the Legislature have the power to preclude a judge from considering this punishment when a penalty enhancement factor is present? The legal question is ultimately one of the separation of constitutional powers.
II
It is the constitutional duty of this court to ensure that the essential functions of the judicial branch of government are safeguarded from encroachment by the coequal legislative or executive branches. (Cal. Const., art. Ill, § 3.) Three times in this decade this court has unanimously held that sentencing courts alone have the power to determine whether a penalty should be enhanced. (People v. Tenorio (1970) 3 Cal.3d 89 [89 Cal.Rptr. 249, 473 P.2d 993]; In re Cortez (1971) 6 Cal.3d 78 [98 Cal.Rptr. 307, 490 P.2d 819]; Peoples. Ruiz (1975) 14 Cal.3d 163 [120 Cal.Rptr. 872, 534 P.2d 712].) The constitutional principles outlined in these decisions clearly control this case.
*574Article III, section 3 of the California Constitution provides that “[t]he powers of state government are legislative, executive, and judicial.” The judicial power of state government is vested by the Constitution in the courts alone. (Cal. Const., art. VI, § 1; cf. Cal. Const., art. IV, § 1 [“The legislative power of this State is vested in the California Legislature . . . .”]; Cal. Const., art. V, § 1 [“The supreme executive power of this State is vested in the Governor.”].)
The Constitution further provides that “[pjersons charged with the exercise, of.-pn.e power [of state government] may not exercise either of the others except as permitted by this Constitution.” (Cal. Const., art. Ill, § 3.) Thus, because of this requirement of separation of powers, “the exercise of a judicial power may not be conditioned upon the approval of either the executive or legislative branches of government . . . .” (Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 127 [95 Cal.Rptr. 524, 485 P.2d 1140].) “The judicial power must be independent, and a judge should never be required to pay for its exercise.” (People v. Tenorio, supra, 3 Cal.3d at p. 94.)
This court suggested more than 20 years ago that “in respect to constitutionally vested judicial power” the adjudication and determination of penalty enhancement factors are “inherently and essentially the province of the court.” (People v. Burke (1956) 47 Cal.2d 45, 52 [301 P.2d 241].) The court reasoned that a trial judge has inherent constitutional power under the separation of powers clause to “control the proceedings before it insofar as the essentials of the judicial process are concerned . . .” and that among such “essentials of the judicial process” is the power “to strike or dismiss as to any or all of multiple counts or charges of prior conviction.” {Ibid.) As Justice Schauer later explained in his noted dissent in People v. Sidener (1962) 58 Cal.2d 645, 665-666 [25 Cal.Rptr. 697, 375 P.2d 641], “A charge of prior conviction which is found to be true now has serious and far reaching effects on the punishment of the offender . . . .” Thus, he concluded, the power to hear and determine “the important question of dismissing such a charge . . . must... be deemed an essential part of the judicial process [and]... an implied constitutional power of the courts of this state.” (Id., at p. 666, fn. omitted.)
Justice Schauer’s dissent in Sidener was approved by this court, and the principles of Burke were applied, in People v. Tenorio, supra, 3 Cal.3d 89. In Tenorio, the Legislature had promulgated a statute which forbade a sentencing judge from exercising at sentencing the “judicial power to grant a motion to strike priors” without the consent of the prosecutor. (3 Cal.3d at p. 93.) This cou’rt held that “the power to strike priors is an essential part of the judicial power” (ibid.) vested by the Constitution *575exclusively in the courts. Therefore, the exercise of that power could not be overruled or curtailed by a representative of another branch of government. The basic premise of Tenorio was clearly consistent with Burke: “When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature.” (Tenorio, supra, 3 Cal.3d at p. 94.)
Tenorio was followed one year later by In re Cortez, supra, 6 Cal.3d 78, which involved a defendant who had been convicted of selling or offering to sell heroin2 with a prior felony narcotic conviction. At the time the defendant was to be sentenced, former Health and Safety Code section 11715.6 provided that “[i]n no case shall any person convicted of [selling or offering to sell narcotics] be granted probation by the trial court, nor shall the execution of the sentence imposed upon such person be suspended by the court, if such person has been previously convicted of any felony offense described in this division . . . .” (Stats. 1961, ch. 274, § 12, p. 1308.) Although the statute “flatly prohibited] probation” to an individual who had a prior narcotic felony conviction (In re Cortez, supra, 6 Cal.3d at p. 85), this court held that article III and article VI, section 1 of the California Constitution permitted the trial court to strike the prior conviction in order to make the defendant eligible for probation.
In People v. Ruiz, supra, 14 Cal.3d 163, this court reiterated and applied the separation of powers principles in a case legally indistinguishable from the present case. In Ruiz, the defendant had been convicted at trial of possession for sale of heroin with a prior felony conviction for possession of narcotics. On appeal, the possession for sale conviction was reduced to simple possession. The case was remanded for resentencing, even though the defendant was still “technically ineligible for probation.” (Id., at p. 166.) Health and Safety Code section 11370, subdivision (a)3 provided that “[a]ny person convicted of [possession of heroin] shall not, in any case, be granted probation by the trial court or have the execution of the sentence imposed upon him suspended by the court, if he has been previously convicted of [possession of narcotics].” (Italics added.)
The Ruiz court, with my colleague Justice Clark concurring, held that the trial court could strike the prior conviction in order to place the defendant on probation. Despite the language of section 11370, the defendant was held to be “entitled to a new probation hearing wherein *576the court may make a new judgment relative to his fitness for probation in light of the crime of which he now stands convicted.” (People v. Ruiz, supra, 14 Cal.3d at p. 167, italics added.) The constitutional origin of this holding was reemphasized by the court’s reference to the “comprehensive range of the [sentencing court’s] constitutional discretion.” (Ibid., italics added.)
The statute involved in the present appeal is in all relevant respects identical to the statutes discussed in Cortez and Ruiz. (See 151 Cal.Rptr. at p. 305, fn. 7 [former maj. opn.].) All three statutes purport to deny probation to defendants when certain penalty-enhancing factors have been found to be true. Since the trial court could strike the enhancing factors in order to find Mr. Cortez and Mr. Ruiz eligible for probation, the lower court in this case had that same power.
The dissent by my colleague, Justice Clark, shows a basic misunderstanding of the constitutional issue presented. That dissent concedes that “the courts are exclusively vested under the separation of powers doctrine to make adjudication of any issue affecting the penalty to be imposed in a criminal proceeding.” (151 Cal.Rptr. at p. 321 [former dis. opn.].) However, it is urged that “that is not the issue here. Our concern is with the penalty to be imposed once the adjudication has been made by the court.” (Ibid.)
With all due respect, the issue the dissent concedes is precisely the issue before this court.4 A judge’s ruling on a motion to strike a penalty *577enhancement factor for purposes of sentencing is itself part of the adjudication process; the imposition of a sentence required or permitted by statute follows this adjudication.
This is apparent from numerous prior decisions of this court, some of which are cited in Justice Clark’s dissent. For example, in People v. Burke, supra, 47 Cal.2d at page 52, this court stated that judicial determination of a motion to strike a penalty enhancement factor at sentencing is “inherently and essentially the province of the court even as the punishment which may or must follow the offense adjudicated, either with or without a punishment augmentation factor, is essentially for the Legislature . . . .” (Italics added.) Subsequently, Justice Schauer, in his dissent in People v. Sidener, supra, 58 Cal.2d at page 653, noted that a motion to strike a prior conviction for sentencing purposes is “a motion made prior to entry of judgment in a felony criminal action, the ruling on which will affect the substantial rights of the defendant under the judgment to follow.” (Italics added.) As the dissent in the present case recognizes (151 Cal.Rptr. at p. 320, fn. 6 [former dis. opn.]), Justice Schauer’s opinion in Sidener was subsequently approved by this court. (People v. Tenorio, supra, 3 Cal.3d at p. 95; see also People v. Navarro (1972) 7 Cal.3d 248, 259 [102 Cal.Rptr. 137, 497 P.2d 481]; People v. Clay (1971) 18 Cal.App.3d 964, 968 [96 Cal.Rptr. 213].)5
*578Since a court’s ruling on a motion to strike is part of the adjudication process, Burke, Cortez, and Ruiz compel the conclusion that the power to strike the penalty enhancement factor in this case is exclusively reserved to the judiciary. Continued adherence to Burke, Cortez and Ruiz is not a judicial usurpation of the Legislature’s prerogative. Rather, it is a constitutional protection of the judicial function from legislative usurpation. These cases simply represent a traditional protection of the judiciary’s constitutionally reserved functions as neutral arbiters in the sentencing process.
In the present case the trial court correctly understood that its responsibility for determining whether to strike the penalty enhancement was of constitutional dimension. Unless this court overrules Burke, Cortez, and Ruiz, and rewrites article III, section 3 of the state Constitution, the decision of the trial court must be upheld.
“[J]udgment is synonymous with the imposition of sentence [citation]. . . .” (People v. Warner (1978) 20 Cal.3d 678, 682, fn. 1 [143 Cal.Rptr. 885, 574 P.2d 1237].)
Some of the. citations in my original opinion, as it is set forth in the pages which follow, refer to the previous opinions filed ihtfiis case. (151 Cal.Rptr. 299.)
Further, under certain circumstances section 1203.06 may preclude probation, but it does not require a commitment to state prison. An offender may be sentenced to the California Youth Authority if under 21 years old; to the California Rehabilitation Center if a narcotics addict or in imminent danger of becoming a narcotics addict; to a state hospital or “an appropriate public or private mental health facility” if the offender is a mentally disordered sex offender who could benefit from such treatment; or to a state hospital if the offender is a mentally retarded person who is a danger to himself or others.
When the defendant in Cortez committed his offenses, selling or offering to sell heroin was proscribed by former Health and Safety Code section 11501 (see now, Health & Saf. Code, § 11352).
Health and Safety Code section 11370 was a recodification of former Health and Safety Code section 11715.6, which had been the statute involved in In re Cortez, supra, 6 Cal.3d 78. (Stats. 1972, ch. 1407, § 2, p. 2987; Stats. 1972, ch. 1407, § 3, p. 3020.)
This concession contradicts the dissent’s contention elsewhere that the judicial power to strike a penalty enhancement factor is not “constitutionally vested” but rather “is dependent upon legislative enactments” authorizing such action. (15 Cal.Rptr. at p. 320 [former dis. opn.].)
In "any event, this contention is without merit. “[T]he power to strike priors is an essential part of the judicial power” (People v. Tenorio, supra, 3 Cal.3d at p. 93) and therefore is vested in the judiciary alone by the separation of powers clause of our Constitution. Statutes such as Penal Code section 1385 or former Health and Safety Code section 11718, which refer to the court’s power to strike, are merely “evidential of” that power. (People v. Valenti (1957) 49 Cal.2d 199, 206 [316 P.2d 633].)
“Certain of [the court’s] implied powers have received legislative definition; but in each instance the enactment neither created nor circumscribed the powers thus defined. Thus, . . . Penal Code section 1385 ... is not a grant of jurisdiction to dispose in a particular way of the actions pending before it. The court, by virtue of the constitutional provisions above mentioned, already has the complete power to fully adjudicate and, subject only to judicial review, finally dispose of, all causes encompassed in the constitutional grant.” (People v. Sidener, supra, 58 Cal.2d at pp. 656-657 (dis. opn. of Schauer, J., fn. omitted, italics in original); see also People v. Valenti, supra, 49 Cal.2d at p. 206; People v. Burke, supra, 47 Cal.2d at p. 52; Bates v. Superior Court (1951) 107 Cal.App.2d 656, 658 [237 P.2d 544].)
The dissent seriously asserts that this court in Cortez found that Penal Code section 1203 provided legislative authorization for the trial court’s power to strike the prior *577conviction in that case. (151 Cal.Rptr. at p. 320 [former dis. opn.].) That assertion is mistaken. At no time has Penal Code section 1203 dealt with — or even mentioned — a court’s power to strike a penalty enhancement factor.
The court in Cortez did not refer to section 1203 for the reason ascribed to it by the dissent. Rather, it mentioned that section during its examination of “the purposes underlying a motion to strike prior convictions.” (Ibid.) The court relied on section 1203 solely to show that if the prior conviction were stricken, then the statute which otherwise prohibited probation in Cortez' case (i.e.. Health & Saf. Code, § 11715.6) no longer would apply to him and he would be eligible for probation within the terms of section 1203. This court did not even remotely suggest that section 1203 itself authorized the striking of the enhancement.
I do not understand the dissent by Justice Clark to contend that the adjudication process as to a penalty enhancement factor is complete simply when a defendant has admitted the enhancement or a judge or a jury has found it to be true. Such a contention would, of course, be meritless. (See generally, People v. Burke, supra, 47 Cal.2d at pp. 50, 51 [discussing the court’s power to strike or dismiss a prior conviction “regardless of whether [the prior conviction] has or has not been admitted or established by evidence”]; People v. Sidener, supra, 58 Cal.2d at pp. 665-666 (dis. opn. by Schauer, J.) [the power to hear and determine the question of dismissing “a charge of prior conviction which is found to be true” is an implied constitutional power of the courts of this state].)
An unbroken line of decisions by the appellate courts of this state — including an opinion by Justice Clark — authorizes a trial court judge to strike a penalty enhancement factor even after it has been admitted by the defendant (see, e.g., People v. Mesa (1975) 14 Cal.3d 466, 470-472 [121 Cal.Rptr. 473, 535 P.2d 337] (opn. by Clark, J.); People v. Ruiz, supra, 14 Cal.3d at pp. 166-168; People v. Navarro, supra, 7 Cal.3d at p. 257; People v. Tenorio, supra, 3 Cal.3d 89; People v. Hartsell (1973) 34 Cal.App.3d 8, 12-15 [109 *578Cal.Rptr. 627]) or has been found true by a judge or jury (see, e.g., People v. Prater (1977) 71 Cal.App.3d 695, 700-703 [139 Cal.Rptr. 566]; People v. Dorsey (1972) 28 Cal.App.3d 15 [104 Cal.Rptr. 326]).