Opinion
F086106
03-06-2024
THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL MEZA, Defendant and Appellant.
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF328656A. Melinda Myrle Reed, Judge.
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, J.
Emmanuel Meza (defendant) appeals for a second time from a judgment imposed after a jury convicted him of second degree murder and attempted voluntary manslaughter, among other charges. In People v. Meza (Aug. 22, 2022, F080308) (nonpub. opn.) (Meza I), this court reversed a gang participation conviction and gang enhancement findings based on the enactment of Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333). The matter was remanded for further proceedings.
On remand, the trial court imposed an aggregate prison sentence of 38 years to life. The court declined to exercise its discretion under Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to dismiss allegations and findings of a prior strike conviction under the "Three Strikes" law. (All undesignated statutory references are to the Penal Code.) Denial of the Romero motion not only affected the length of defendant's sentence, but also deprived him of eligibility for a youth offender parole hearing under section 3051.
In this appeal, defendant claims the denial of his Romero motion was an abuse of the trial court's discretion. Alternatively, he challenges the constitutionality of section 3051's exclusion of criminals sentenced under the Three Strikes law from eligibility for youth offender parole. We reject both claims.
FACTUAL AND PROCEDURAL BACKGROUND
Original Trial Court Proceedings
Factual History
On December 22, 2015, E.F. (age 18) was with his younger cousins, J.C. and S.C., when he began receiving text messages and phone calls from Ebony Garcia (age 18). E.F. would later testify Garcia was a friend with whom he previously had casual sexual relations. On this date, however, Garcia angrily accused him of spreading a false rumor about her having a venereal disease. Garcia was with her cousin, Ruben Gonzalez (age 20), and defendant (age 20), at the time of the calls.
At some point during E.F.'s conversations with Garcia, "the phone was on speaker" and his cousins began saying "rude and insulting things" to her. Defendant and Gonzalez eventually joined the conversation on Garcia's end of the call. The two groups exchanged insults and proposals to settle things with a fight. During the call, S.C., Gonzalez, and defendant all identified themselves as Norteno gang members. Neither E.F. nor J.C. claimed any gang affiliation over the phone.
Later that afternoon, Garcia, Gonzalez, and defendant confronted E.F. and his cousins in person. Garcia stood by as Gonzalez and defendant initiated a physical altercation that ended with J.C. being stabbed to death. S.C. was also stabbed but survived, and E.F. sustained injuries from being kicked in the head after falling to the ground.
Procedural History
Garcia, Gonzalez, and defendant were charged with murder (§ 187; count 1); attempted murder of S.C. (§§ 187, 664; count 2); and unlawful participation in a criminal street gang (§ 186.22, subd. (a); count 5). A gang conspiracy in violation of section 182.5 was pleaded as count 4 but later dismissed. Gonzalez was additionally charged with committing aggravated assault on E.F. (§ 245, subd. (a)(4); count 3).
Count 1 included a special circumstance allegation of gang murder within the meaning of section 190.2, subdivision (a)(22), plus gang enhancement allegations under section 186.22 and an allegation of personal use of a deadly weapon (§ 12022, subd. (b)(1)). Count 2 alleged personal infliction of great bodily injury (GBI) (§ 12022.7, subd. (a)), plus the same gang and weapon enhancement allegations as count 1. Defendant was further alleged to have suffered a prior strike and serious felony conviction (§§ 667, subds. (a)(1), (b)-(i), 1170.12) and to have served a prior prison term within the meaning of section 667.5, former subdivision (b).
The charges against Ebony Garcia were resolved by plea bargain in 2018. Defendant and Gonzalez were jointly tried before a jury in August 2019. Gonzalez was fully acquitted on the counts of murder and attempted murder. Gonzalez was convicted as charged on counts 3 and 5.
Defendant was acquitted of first degree murder; the jury therefore did not reach the gang special circumstance allegation. Although defendant testified to acting in selfdefense, the jury convicted him of second degree murder and found the related enhancement allegations true. On count 2, the jury acquitted defendant of attempted murder but found him guilty of attempted voluntary manslaughter, with true findings on the enhancements. Defendant was also convicted of unlawful gang participation as charged in count 5. The prior conviction and prior prison term allegations were found true in a bifurcated proceeding.
In November 2019, defendant was sentenced on count 1 to a prison term of 15 years to life, which was then doubled because of his prior strike, plus five years for the prior serious felony conviction; one year for the weapon enhancement; and one year for the prior prison term. Count 1 was ordered to run consecutive to a 22-year sentence imposed for count 2 (the middle term, doubled because of the strike, plus five years for the prior serious felony conviction; three years for the GBI enhancement; one year for the weapon enhancement; and one year for the prior prison term). The trial court imposed and stayed punishment for count 5 (see § 654) and struck the gang enhancements for purposes of sentencing.
Meza I
Defendant raised three issues in the Meza I appeal. He argued for reversal of the gang verdicts in light of Assembly Bill 333, which had taken effect on January 1, 2020, while his appeal was pending. He also sought reversal of the prior prison term enhancement in light of Senate Bill No. 136 (2019-2020 Reg. Sess.), which had also taken effect in January 2020. Defendant prevailed on both arguments. The matter was remanded for possible retrial of the gang charges and resentencing.
Defendant's third claim challenged the legality of section 3051's exclusionary provisions on equal protection grounds. This court's discussion of the claim noted the trial court had denied a Romero motion at the time of sentencing. Because defendant would have the opportunity to make another Romero motion on remand, and because the granting of such a motion would moot the equal protection challenge, the claim was rejected as premature.
Proceedings on Remand
The remittitur in Meza I issued on October 24, 2022. The trial court held status conferences in November and December of that year. Resentencing was postponed to allow for preparation of a new Romero motion and a "Franklin investigation" (see People v. Franklin (2016) 63 Cal.4th 261 (Franklin)). The People were permitted to defer their decision on whether to retry the gang charges until after the Romero motion was ruled upon.
On February 8, 2023, defendant filed a combined Romero motion and contingent "Motion to Declare Section 3051(h) Unconstitutional." (Some capitalization omitted.) In the Romero motion, he acknowledged an adult criminal history beginning with a second degree burglary conviction in November 2013 at age 18. He was granted probation for the offense, which he violated by possessing a firearm and ammunition. At age 19, defendant served a prison sentence for the probation violation and firearm/ammunition convictions. Defendant's moving papers suggested he first became involved in gang activity while serving this prison term. However, during the trial in this case, he testified to already being a Norteno gang member when he committed the earlier burglary.
Defendant's moving papers discussed the circumstances of his prior strike, i.e., a June 2015 conviction for unlawful gang participation (§ 186.22, subd. (a)). The offense was committed in February 2015, approximately six weeks prior to his 20th birthday, and it reportedly involved a group effort to intimidate a person who had "snitched" on a "homie." Defendant's moving papers also vaguely acknowledged "two misdemeanors from jail batteries and a 245(a)(1) that he recently admitted." The latter was in reference to an aggravated assault committed in February 2017, five weeks shy of his 22d birthday, while awaiting trial on the current offenses.
Defendant relied on his self-defense testimony at trial, arguing the "facts" in his version of events established mitigating circumstances. He further alleged circumstances of a very difficult childhood and unstable home life as a juvenile. To show his ability to be rehabilitated, he attached documents reflecting participation and achievements in various prison programs. In one such document, dated July 12, 2022 (seven months prior to the Romero motion), a correctional officer had described him as "an exemplary inmate." Lastly, consistent with his trial testimony from August 2019 and other supporting evidence, defendant claimed to be a Norteno dropout. The Romero motion states, "Whether the jury believed he was a dropout at the time of the crime, there is substantial evidence that he is now."
The People's written opposition to the Romero motion included these arguments:
"The defendant has a prior strike conviction that he committed while he was on parole from his felony weapon offense from a year earlier. Prior to committing the homicide, he had three other felony cases within two years. He had spent time in prison for one of those convictions and had only been out of custody for less than six months when he committed the homicide [in this case]. A month before the homicide the defendant was arrested and later convicted of possession of metal knuckles. Additionally, while in custody pending this case he pick[ed] up another felony assault. He has failed to remain crime free throughout his life. The interest of justice would not be served by the granting of such a gratuitous act of leniency by dismissing the prior strikes [sic] in the present case."
As previously noted, the People had not yet elected whether to retry or dismiss the gang charges while the Romero motion was pending. Their opposition brief generally characterized the current convictions as gang crimes, doing so by citing preliminary hearing testimony rather than the trial evidence. The People's concluding arguments included this statement: "At the end of the day, the defendant being a good inmate, and completing programs does not take away from the fact that the defendant killed the victim, and seriously injured another due to his involvement in his gang at the time of the offense."
On February 15, 2023, both defense motions were argued and ruled upon. In light of defendant's arguments in this appeal, we quote the trial court's ruling in its entirety:
"It is important to look at the defendant's past and his present circumstances, as well as the current offense, in determining whether his current strike should be stricken.
"In regard to the defendant's past, as both sides know, defendant received three felony convictions within two years. While on parole, he incurred a felony gang offense that allowed for a sentence of felony probation and local time. Within six months, however, he committed the present offense, attempted murder [sic], and murder.
"I do agree with the People, the jury's determination is what is important here, and they did convict the defendant of the attempted manslaughter and the murder count in the second degree.
"The facts of [this] case are such that the defendant and his codefendant traveled to the victim's house over a gang dispute. This was not a spontaneous event. It was something that was thought about and acted upon by the defendant and co-defendant. The intent of the defendant and co-defendant was at a minimum, to at least fight the victim and the victim's cohorts.
"While as to the timing of the assault, the Court is not party to the jury trial so is not able to speak precisely to that issue, we do know that the fight commenced immediately when the defendant and his cohort arrived at the residence, and that the victim died as a result of multiple stabbings, and the attempted murder [sic] victim was also assaulted and stabbed by the defendant-or attempted murder [sic] victim was also stabbed, as well, by the defendant.
This statement referred to the fact the judge on remand neither presided over the trial nor imposed the original sentence.
"This is important in that again, it happened six months after a felony gang conviction and while defendant was on parole for other felonies. The Court is very concerned that the system, including the parole board, is not able to intervene and successfully deter defendant from continuing to commit very serious gang violations.
"Overall, on balance and in the interest of justice, I cannot strike this strike. I do not find that again, justice would be further had by striking this strike. The motion under Romero is denied.
"As to the equal protection argument under [section 3051, subdivision (h)], I follow the reasoning of [People v. Delgado (2022) 78 Cal.App.5th 95], which is that there is no equal protection violation because youthful offenders with a prior strike are not similarly situated as youthful offenders without prior strikes. Specifically, a person with priors has not benefited from intervention of the criminal justice system and presents too great a risk of reoffending to allow early parole. So I deny the request to find the Section 3051 unconstitutional.
"However, as pointed out by Delgado, I do believe defendant is still entitled to a Franklin hearing. If defendant wishes to pursue that, he is entitled to do that."
On March 1, 2023, the People gave notice of their decision not to retry the gang charges. Defendant was resentenced three weeks later. For the conviction of second degree murder, the mandatory prison term of 15 years to life was doubled because of the prior strike and imposed with a consecutive one-year term for the weapon enhancement. The trial court exercised its discretion to strike the five-year prior serious felony conviction enhancement. For the conviction of attempted voluntary manslaughter, the lower term of 18 months was imposed and doubled because of the prior strike, and then enhanced by a three-year term for the GBI finding and another one-year term for use of a deadly weapon.
The sentences were ordered to run consecutively, resulting in a term of 30 years to life plus eight years. The gang charges and prior prison term allegation were formally dismissed. A timely notice of appeal was filed on April 12, 2023.
DISCUSSION
I. Romero Motion
California's Three Strikes law was designed to restrict the discretion of trial courts when punishing recidivist offenders "'to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious and/or violent felony offenses.'" (People v. Sasser (2015) 61 Cal.4th 1, 11, quoting § 667, subd. (b).) However, as recognized in Romero, section 1385 authorizes trial courts to strike prior conviction allegations in cases brought under the Three Strikes law if doing so will further the interests of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) A request for such relief is commonly known as a Romero motion. The granting or denial of a Romero motion is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.)
Like other sentencing schemes based on recidivism, the basic premise of the Three Strikes law is "'that the defendant's current criminal conduct is more serious because he or she previously was found to have committed criminal conduct and did not thereafter reform.'" (People v. Vargas (2014) 59 Cal.4th 635, 638.) When ruling on a Romero motion, the sentencing court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant alleges the trial court's ruling was based on four mistakes of fact or law. He also alleges cumulative error. We address the contentions in the order they are presented in the opening brief.
A. Alleged Belief Defendant "Was Convicted of Gang Offenses"
As mentioned in footnote 1, ante, the judge who presided over the case on remand was not involved in the original trial and sentencing. Defendant relies on this circumstance to argue "the sentencing court based its denial of the Romero motion primarily on its legally erroneous belief that [defendant]'s offenses were gang offenses." The cited evidence of the judge's "erroneous belief" is her remark about defendant and his codefendant having "traveled to the victim's house over a gang dispute," and her expression of concern about defendant "continuing to commit very serious gang violations."
First, while the offenses were not proven to be gang related within the meaning of section 186.22, there were gang aspects to the crime. The evidence showed defendant and others discussed their gang affiliations during the phone call that led to the fatal altercation. According to defendant's own trial testimony, when he and his codefendant met the victims in person, his codefendant immediately demanded to know which of them had claimed to be a gang member.
Second, the record clearly demonstrates the judge's knowledge and understanding that the gang verdicts had been reversed. During an earlier status conference, the judge discussed the question of retrial with the prosecutor and indicated she had reviewed the opinion in Meza I. At the Romero hearing, immediately after making her ruling, the judge again raised the issue of retrial. Following a brief exchange, the judge told the prosecutor, "[Y]ou need to make the determination whether you are going to retry these gang allegations." The fact defendant's gang history was considered among the "circumstances of his present felonies" and "the particulars of his background, character, and prospects" (People v. Williams, supra, 17 Cal.4th at p. 161) does not show the court held "a legally erroneous belief that [his] offenses were gang offenses."
B. Alleged Failure to Consider Defendant's Dropout Status
Defendant next contends "[t]he sentencing court's erroneous insistence that [he] stood convicted in a gang case demonstrates that it believed that [he] remained an unrepentant gang member." Defendant also complains there is "no evidence that the sentencing court acknowledged that [he] began to disassociate himself from gangs before trial." Based on those assertions, defendant claims "[t]he sentencing court abused its discretion by failing to consider [his] years long process of disassociating himself from gangs."
Express acknowledgement of defendant's dropout status was unnecessary. "While a court must explain its reasons for striking a prior [citations], no similar requirement applies when a court declines to strike a prior [citation]. 'The absence of such a requirement merely reflects the legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law.'" (In re Large (2007) 41 Cal.4th 538, 550.) Furthermore, the motion hearing began with the judge informing the parties, "I have read and considered both of your moving papers." Defendant's contentions and supporting evidence regarding his disassociation from the Nortenos were set forth in the moving papers, so we presume both were given due consideration. (Ibid.; see, e.g., People v. Nunez (2023) 97 Cal.App.5th 362, 372, fn. 3.)
C. Alleged Belief Defendant Was Convicted of Attempted Murder
Defendant accurately notes the judge "twice stated that [he] was convicted of attempted murder." Based on that mistake, defendant argues the judge "erroneously believed [he] was convicted of attempted murder." (Capitalization and boldface omitted.) We are not convinced. Immediately following the first misstatement, the judge correctly referenced the jury's verdict of "attempted manslaughter." Also, during oral argument on the motion, defense counsel noted "that Count 2 ... was charged as an attempted murder[,] [and] [t]he jury found him guilty of attempted manslaughter."
Counsel later reiterated, in the course of arguing the murder verdict was "very, very close to a voluntary manslaughter," that the jury "found it was an attempted manslaughter upon the second victim." By all indications, the judge simply misspoke when she said "attempted murder" instead of "attempted manslaughter."
D. Alleged Misunderstanding of "the Board of Parole Hearing's (BPH) Legal Role in Connection with Youth Offender Parole"
Defendant's fourth argument is based on the following excerpt from the motion ruling: "The Court is very concerned that the system, including the parole board, is not able to intervene and successfully deter defendant from continuing to commit very serious gang violations."
Based on the quoted statement, defendant alleges as follows:
"These comments indicate that the sentencing court did not believe that the BPH protects the public when it conducts [a youth offender parole] hearing. The comments indicate that the sentencing court did not understand the difference between supervising a parolee and deciding whether to grant [youth offender parole]. The comments also indicate that the court was arrogating to itself a decision that the separation of powers assigns to the executive branch."
Defendant's rhetoric is not persuasive. It appears the judge's comment was partially intended as a response to these earlier statements by defense counsel: "Whether it is 15-to-life or 30-to-life, it is still going to be a life sentence. And the public is protected by a parole board whether they consider it after 15 years or after 30 years, whatever the sentence becomes. The public is protected by the parole board who will not release him ever if he's a danger to the public."
Neither the argument by defense counsel nor the allegedly improper comment by the judge specifically concerned the youth offender parole program. As we read the statement in question, it speaks to defendant's historically poor performance on probation and parole. "While the trial court's articulation of these considerations may have been imprecise in some respects, we find no error in its denial of [d]efendant's Romero motion." (People v. Mendoza (2022) 74 Cal.App.5th 843, 857 [upholding denial of Romero motion despite judge's ambiguous remarks]; see People v. Uecker (2009) 172 Cal.App.4th 583, 599 [court may consider defendant's history of parole violations].)
E. Alleged Cumulative Error
We do not find the existence of multiple errors to cumulate.
II. Equal Protection Claim
Section 3051 "provides that an offender who committed a 'controlling offense' under the age of 26 is entitled to a 'youth offender parole hearing' during his or her 15th year of incarceration if he received a determinate sentence; during his or her 20th year of incarceration if he or she received a life term of less than 25 years to life; and during his or her 25th year of incarceration if he or she received a term of 25 years to life. (§ 3051, subd. (b)(1)-(3).)" (In re Jenson (2018) 24 Cal.App.5th 266, 277.) The "controlling offense" is "the offense or enhancement for which any sentencing court imposed the longest term of imprisonment." (§ 3051, subd. (a)(2)(B).) However, the statute does not apply "to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or Section 667.61, or to cases in which an individual is sentenced to life in prison without the possibility of parole for a controlling offense that was committed after the person had attained 18 years of age." (§ 3051, subd. (h).)
Defendant challenges as unconstitutional section 3051's exclusion of criminals sentenced under the Three Strikes law. He notes the statute's exclusion of a different class of criminals-young adults sentenced to life in prison without the possibility of parole (LWOP)-was held to violate equal protection principles in People v. Hardin (2022) 84 Cal.App.5th 273, review granted January 11, 2023, S277487. In his briefing, defendant predicts "that the Supreme Court's resolution of that case will impact this case as well," and therefore presents his claim "to preserve it for further consideration once the Supreme Court issues its decision in Hardin."
The California Supreme Court has now decided Hardin, and the outcome does not assist defendant. The decision notably disapproves of a two-step procedure that courts had previously used to analyze equal protection challenges. (People v. Hardin (Mar. 4, 2024, S277487) slip opn., pp. 16-22.) When such a challenge is made to "laws drawing distinctions between identifiable groups or classes of persons, on the basis that the distinctions drawn are inconsistent with equal protection, courts no longer need to ask at the threshold whether the two groups are similarly situated for purposes of the law in question." (Id., slip opn. at p. 20.) "The only pertinent inquiry is whether the challenged difference in treatment is adequately justified under the applicable standard of review," i.e., strict, intermediate, or rational basis scrutiny. (Id., slip opn. at pp. 20-21; see People v. Wilkinson (2004) 33 Cal.4th 821, 836; People v. Cavallaro (2009) 178 Cal.App.4th 103, 110, fn. 9.)
Here, there is no dispute over the applicability of the rational basis standard. Under rational basis review, "we consider whether the challenged classification ultimately bears a rational relationship to a legitimate state purpose." (People v. Chatman (2018) 4 Cal.5th 277, 289.) The standard requires acceptance of "'any gross generalizations and rough accommodations that the Legislature seems to have made.'" (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 887.) "'A classification is not arbitrary or irrational simply because there is an "imperfect fit between means and ends"' [citation], or 'because it may be "to some extent both underinclusive and overinclusive."'" (Ibid.) "If a plausible basis exists for the disparity, courts may not second-guess its '"wisdom, fairness, or logic."'" (Johnson, at p. 881.)
In Hardin, the California Supreme Court held section 3051's exclusion of persons sentenced to LWOP withstands rational basis scrutiny and therefore does not facially violate constitutional guarantees of equal protection. (People v. Hardin, supra, S277487, slip opn., pp. 2-3.) The high court expressly declined to "pass judgment on the validity of any other exclusion" in section 3051, and thus did not address the issue presented in this case. (Hardin, slip opn. at p. 32.) However, the opinion notes "that nothing in the other exclusions undermines the conclusion that the Legislature that crafted the youth offender parole statute was attempting to balance multiple penological considerations in addition to rehabilitation." (Ibid.)
For now, we will follow the consensus view of published case law regarding section 3051's exclusion of criminals sentenced under the Three Strikes law. "'[T]he Legislature could rationally determine that . . . "a recidivist who has engaged in significant antisocial behavior and who has not benefited from the intervention of the criminal justice system" [citation]-presents too great a risk of recidivism to allow the possibility of early parole.'" (People v. Delgado (2022) 78 Cal.App.5th 95, 102, quoting People v. Wilkes (2020) 46 Cal.App.5th 1159, 1166.) "Therefore, 'the differential treatment of youth offenders sentenced pursuant to the Three Strikes law for purposes of youth offender parole hearings does not violate equal protection.'" (Delgado, at p. 102, quoting Wilkes, at p. 1167 and citing People v. Moore, supra, 68 Cal.App.5th 856.)
In an effort to distinguish his claim from those rejected in the relevant case law, defendant compares himself not to youthful offenders without prior strikes, but to youthful offenders who have prior strikes but are not sentenced under the Three Strikes law for committing a new strike offense. He makes the following argument: "Charging a defendant with a strike prior is not mandatory. It is left to the discretion of the individual prosecutor. It is unconstitutional to exclude [defendant] from section 3051 based solely on the whim of an exercise of prosecutorial discretion."
Defendant cites no authority for the proposition that alleging prior strike convictions in a charging document is discretionary. Section 667, subdivision (f)(1), provides: "The prosecuting attorney shall plead and prove each prior serious or violent felony conviction except as provided in paragraph (2)." The exception is the prosecutor's ability to "move to dismiss or strike a prior serious or violent felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior serious or violent felony conviction." (§ 667, subd. (f)(2).) Thus, as explained in Romero, section 667 "first purports to remove the prosecutor's charging discretion completely, and then purports to replace that discretion with permission to file a motion to strike 'pursuant to section 1385,' which the [trial] court may or may not grant." (Romero, supra, 13 Cal.4th at p. 523.)
The appellate courts have consistently held section 667 "limits prosecutorial discretion by requiring a prosecutor to plead and prove each prior serious felony conviction." (The Assn. of Deputy Dist. Attorneys, etc. v. Gascon (2022) 79 Cal.App.5th 503, 533, italics added, review granted Aug. 31, 2022, S275478.) Review of the Gascon decision is current pending before the California Supreme Court, and the issues to be decided are "(1) Does the Three Strikes law [citations] violate the separation of powers doctrine by requiring prosecutors to plead and prove prior qualifying felony convictions? (2) If there is a duty to plead prior qualifying convictions, is mandamus the proper remedy to compel a prosecutor to act?" (Pending Issues Summary, Cal. Supreme Ct. (Mar. 1, 2024) <https://supreme.courts.ca.gov/sites/default/files/supremecourt/default/2024-03/pendingissues-crim%20-%20030124_0.pdf> [as of Mar. 6, 2024].) Thus, defendant's position regarding the existence of prosecutorial discretion to not plead the fact of a defendant's prior strike conviction presently has no legal merit.
If a second or third strike offender is found guilty of a new serious or violent felony but is not sentenced pursuant to the Three Strikes law, it is because he or she has been determined to somehow fall outside the spirit of the law. (See § 1385, subd. (a); People v. Williams, supra, 17 Cal.4th at p. 161.) Criminals such as defendant, in contrast, have been determined to fall within the spirit of the Three Strikes law. This distinction provides a rational basis for treating the two groups of offenders differently under section 3051, subdivision (h). We therefore reject defendant's equal protection claim.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P. J., FRANSON, J.