I concur in the conclusions reached in part two of the majority opinion. The trial court, having once found that Ruby suffered from a Vietnam-related stress syndrome, ought to have considered whether Ruby should be committed to federal custody under the provisions of Penal Code1 section 1170.9. In view of Ruby’s history of three felony convictions within a span of two years, and occasional possession of firearms, it is not a bit clear that he was a suitable candidate for such commitment. But the sentencing court cannot reject the possibility out of hand. Discretion must be exercised.
I respectfully dissent from part one of the majority opinion. In my view, the trial court correctly ruled it had no power to strike the prior conviction or to grant probation.
The holding of the Supreme Court in People v. Tanner (1979) 24 Cal.3d 514 [156 Cal.Rptr. 450, 596 P.2d 328] is determinative. In that case it was decided that the unequivocal language of section 1203.06 conclusively barred the trial court from exercising discretion to dismiss or strike under the provisions of section 1385. The language of Health and Safety Code section 11370, subdivision (a), is indistinguishable from that of section 1203.06: “shall not, in any case, be granted probation by the trial court . . . .” Footnote 3 at page 519 of the Tanner decision is apposite: “We reject any contention that courts are inherently or constitutionally vested with ultimate authority in fixing sentences or imposing penalty enhancing factors . . . .”
The decision in People v. Williams (1981) 30 Cal.3d 470, 484 [179 Cal.Rptr. 443, 637 P.2d 1029] expressly endorses the Tanner holding; the result was different only because the court was there dealing with code sections (§ 190 et seq.) that do not purport to bar dismissal under section 1385. The cases of In re Cortez (1971) 6 Cal.3d 78 [98 Cal.Rptr. 307, 490 P.2d 819] and People v. Ruiz (1975) 14 Cal.3d 163 [120 Cal.Rptr. 872, 534 *470P.2d 712], no longer afford any authority on this issue, of course, since they were impliedly overruled by the subsequent Tanner decision.
Apart from the Tanner rationale, I would venture to suggest that normally the plea bargain itself, in a case such as this, would impliedly bar any exercise of the power to strike enhancing allegations, once they were unconditionally admitted by the defendant. The legislative design of section 1192.5 establishes a contractual matrix. It “contemplates an agreement negotiated by the People and the defendant and approved by the court.” (People v. Orin (1975) 13 Cal.3d 937, 942 [120 Cal.Rptr. 65, 533 P.2d 193].) And the Supreme Court said in People v. Kaanehe (1977) 19 Cal.3d 1, 13 [136 Cal.Rptr. 409, 559 P.2d 1028]: “When the breach is a refusal by the court to sentence in accord with the agreed upon recommendation, specific enforcement would entail an order directing the judge to resentence the defendant in accord with the agreement. The People as well as a defendant may seek such specific enforcements.”
Here, however, Ruby at the time of changing his plea expressly reserved his right to move, at the time of sentencing, to have the section 11370, subdivision (a) allegation stricken. Accordingly, it is only the Tanner holding that barred the court from exercising discretion under section 1385.
Accordingly, I would hold that, upon resentencing, the court shall sentence Ruby to state prison for a term not exceeding two years, unless he be found eligible for commitment under section 1170.9.
Appellants’ petition for review by the Supreme Court was denied December 8, 1988.
Assigned by the Chairperson of the Judicial Council.
All statutory references are to the Penal Code unless otherwise specified.