Pacheco

Penal Code section 1203.07, subdivision (a)(3) provides that probation “shall not be granted” to a person convicted of selling heroin who has been previously convicted of selling a controlled substance. (See Health & Saf. Code, § 11352.) Citing section 1385, the trial judge struck respondent Benjamin R. Pacheco’s two prior conviction allegations

and granted him probation. The People appeal, contending that the Legislature intended the mandatory language of section 1203.07 to preclude a trial court from exercising section 1385 discretion to strike prior convictions and grant probation. We agree.

I. Facts

Pacheco was charged by information with two counts of sale of heroin. (Health & Saf. Code, § 11352.) The information alleged that the sales occurred in Alameda County during 1983 and that he had been convicted twice before of selling controlled substances. {Ibid.)

Pacheco pled guilty to both counts and admitted the two priors. Over the prosecutor’s objection, the trial judge struck the prior convictions and granted Pacheco probation. The People appeal.

II. The Legislature Intended the Language of Penal Code Section 1203.07 to Be Mandatory

The introductory language of…