In Re Gomez

Upon the application of petitioner (a state prison inmate) for a writ of habeas corpus, we issued an order to show cause to determine whether, at a hearing held ostensibly pursuant to People v. Tenorio (1970) 3 Cal.3d 89 [ 89 Cal.Rptr. 249 , 473 P.2d 993 ], an up-to-date probation report or current report from the Director of Corrections should have been obtained by the sentencing court before it declined to strike a 1956 federal conviction.

The Tenorio Case

In People v. Tenorio, supra, 3 Cal.3d 89 , the court held that the portion of former section 11718 of the Health and Safety Code, which prohibited the trial court in a narcotics case from striking prior narcotics convictions except upon motion of the district attorney, violated article III and article VI, section 1 of the California Constitution which proclaim the separation of powers and vest the judicial power in the judiciary. (See generally, People v. Benn (1972) 7 Cal.3d 530 [ 102 Cal.Rptr. 593 , 498 P.2d 433 ]; In re Cortez (1971) 6 Cal.3d 78 [ 98 Cal.Rptr. 307 , 490 P.2d 819 ].)

The court in Tenorio concluded that its decision there should be fully retroactive; and it spelled out implementing procedures, of…