I respectfully dissent.
The plain language of Penal Code section 1238, subdivision (a)(10) authorizes this appeal: “(a) An appeal may be taken by the people from • • • : fiO • . . [<]D (10) The imposition of an unlawful sentence .... As used in this paragraph, ‘unlawful sentence’ means ... the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.”
Here the trial court reduced the felony charges to misdemeanors over the People’s objection. The effect of the order was to eliminate the serious felony enhancements for sentencing purposes. Instead of 25 years to life, respondent’s maximum sentence was 2 years in the county jail. In a similar *162case, Division Two of the Court of Appeal, Second Appellate District, held that the People had the right to appeal. (People v. Vessell (1995) 36 Cal.App.4th 285, 288-289 [42 Cal.Rptr.2d 241].) I agree with the rule articulated therein. (See also People v. Trausch (1995) 36 Cal.App.4th 1239, 1243 & fn. 5 [42 Cal.Rptr.2d 836] [appeal from sentence after trial court reduced felony to misdemeanor]; People v. Carranza (1996) 51 Cal.App.4th 528, 531-533 [59 Cal.Rptr.2d 134] [same].)
The majority’s reliance on People v. Bailey (1996) 45 Cal.App.4th 926 [53 Cal.Rptr.2d 198], is misplaced. In my opinion, Bailey is erroneously decided. Bailey received a sentence unauthorized by law, i.e., in excess of jurisdiction, which is subject to correction “. . . whenever the error . . . [comes] to the attention of the trial court or a reviewing court. [Citations.]” (People v. Serrato (1973) 9 Cal.3d 753, 763 [109 Cal.Rptr. 65, 512 P.2d 289], italics added; see also In re Harris (1993) 5 Cal.4th 813, 842 [21 Cal.Rptr.2d 373, 855 P.2d 391].) This rule applies even though the new sentence “. . . is more severe than the original unauthorized pronouncement.” (People v. Serrato, supra, 9 Cal.3d at p. 764, fn. omitted.) There is no 60-day time limitation on this venerable sentencing rule which the Bailey court, and now the majority of this court, declare. To the extent that the majority believe that this sentencing rule was superseded by the 1986 enactment of Penal Code section 1238, subdivision (d), it is sufficient to observe that the rule has been applied in many cases thereafter. (See, e.g, In re Harris, supra, 5 Cal.4th 813; People v. Scott (1994) 9 Cal.4th 331, 354 [36 Cal.Rptr.2d 627, 885 P.2d 1040],)
Bailey's reliance on procedure defeats or, at least, frustrates substantive legislative goals. The effect of Bailey frustrates one of the goals of the determinate sentence law, i.e., uniformity of sentencing. (Pen. Code, § 1170, subd. (a)(1).) All robbers who use firearms are supposed to be sentenced to prison. (Pen. Code, § 1203.06, subd. (a)(1)(B); People v. Tanner (1979) 24 Cal.3d 514 [156 Cal.Rptr. 450, 596 P.2d 328].) Application of Bailey here also frustrates the goal of the three strikes law, i.e., that recidivists, such as respondent, should be punished more severely. Where the trial court does exercise discretion, the right of appeal is salutary. There should be an assurance that the exercise of discretion which circumvents the three strikes law, at least comports with decisional law. This should be by a written opinion so that everyone knows why, in the specific instance, that a departure was justified.
Penal Code section 1238 subdivision (d) states: “Nothing contained in this section shall be construed to authorize an appeal from an order granting probation. Instead, the people may seek appellate review of any grant of *163probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition which is filed within 60 days after probation is granted. The review of any grant of probation shall include review of any order underlying the grant of probation.”
The majority hold that Penal Code section 1238, subdivision (d), “trumps” Penal Code section 1238, subdivision (a)(10). If the majority is correct, the People’s right to appeal as set forth in Penal Code section 1238, subdivision (a)(10), is erased by subdivision (d) whenever probation is imposed. A trial court could make an unlawful but appealable order and merge it into a nonappealable sentence by granting the defendant probation. This makes no sense. Why should a dispositional order granting probation eviscerate the People’s right of appeal? In my view this is not what the Legislature intended, especially where the case involves a three strikes offender.
Appellate review by way of petition for writ of mandate or prohibition is not the equivalent of a right of appeal. The possibility and probability of summary denial loom. When compared to a right of appeal with the requirement of a written opinion with reasons stated, the nonequivalency of the theoretical remedy is too plain for further discussion.1
What then is the purpose of Penal Code section 1238, subdivision (d)? In my view, it applies to instances other than where the People legitimately claim an unauthorized sentence has been imposed. For example, where the trial court grants probation without making findings essential thereto (see Pen. Code, § 1203.066, subd. (c)), Penal Code section 1238, subdivision (d) would allow review by writ but not by appeal. (See also People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216,1222 [58 Cal.Rptr.2d 165] [writ review is the only review remedy for an erroneous grant of probation where the defendant is presumptively ineligible].)
The instant case is akin to a Penal Code section 1385 order striking priors to avoid the effect of the three strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531, fn. 13 [53 Cal.Rptr.2d 789, 917 P.2d 628].) The People argue that the trial court accomplished the same result by arbitrarily reducing the felony offenses to misdemeanors. The appeal should be heard on its merits. (People v. Vessell, supra, 36 Cal.App.4th 285,' *164288-289; People v. Trausch, supra, 36 Cal.App.4th 1239, 1243 & fn. 5.) Here, Penal Code section 1238, subdivision (d), is not a jurisdictional bar to the People’s right to appeal.
The author of the Bailey opinion has, perhaps, said it best in his article appearing in The Association of Southern California Defense Counsel magazine, Verdict: “It is no secret that most writ petitions are summarily denied. This is so because most petitioners fail to show they are entitled to the extraordinary relief they ask for. The very designation as extraordinary indicates that, unless unusual and aggravating circumstances are shown to exist, the petition should be denied. In many cases, the facts contained in the petition fail to show the trial judge acted other than in a proper exercise of its discretion. Another reason many petitions are denied is because they fail to provide all the information required to be provided under rule 56 or fail to supply a complete and fair record.” (See Rylaarsdam, Between a Rock and a Hard Place (4th quarter 1996) Verdict, p. 19.)