People v. Quillar

Opinion

WIENER, J. Gerry Lee Quillar entered a guilty plea to robbery (Pen. Code, §211)1 and admitted a prior serious felony conviction (§ 667(a)). The court sentenced him to prison for eight years: the middle term of three years for robbery enhanced by five years for the prior conviction. Quillar appeals. We conclude the court did not err in refusing to refer Quillar to a narcotic rehabilitation program under Welfare and Institutions Code section 3051.2 We therefore affirm the judgment.

Quillar argues the court abused its discretion in refusing to refer him to the California Rehabilitation Center (CRC). In making this argument Quillar recognizes he has a difficult task to convince us.

[1460]The first obstacle he must overcome is the absolute bar of Welfare and Institutions Code section 3052(a)(2)3 which expressly precludes commitments to CRC of persons whose convictions result in a term of imprisonment in excess of six years. Quillar attempts to leap this barrier by saying the court could have reduced his sentence to less than six years by merely striking the enhancement pursuant to its power under section 1385(a).4 Quillar again recognizes, however, the seeming imperviousness of section 1385(b) which states: “This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.” Section 1385(b) was enacted effective May 6, 1986, in prompt response to the California Supreme Court’s decision in People v. Fritz (1985) 40 Cal.3d 227 [219 Cal.Rptr. 460, 707 P.2d 833] upholding a court’s power under section 1385 to strike a prior felony conviction. The Legislature wanted to make sure that judicial power under section 1385 did not extend to eliminate the sentencing effect of prior convictions of serious felonies. Quillar assures us that the clear legislative intent of section 1385(b) is not frustrated here in light of certain language in the relevant statutes. His argument is as follows.

Section 1385(b) provides: “This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.” (Italics added.) In turn, section 667(a) provides in relevant part: “In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.” Subdivision (b) of section 667 provides in relevant part: “This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.” (Italics added.)