In Re Varnell

This petition for habeas corpus relief presents an issue of first impression: May a trial court use Penal Code section 1385 [1] to dismiss a prior conviction to enable an otherwise ineligible defendant to qualify for probation and drug treatment under newly enacted Proposition 36?

For more than a century, section 1385 has empowered trial courts to dismiss an action, sentencing allegation, or enhancement in furtherance of justice. Recognizing the fundamental role section 1385 plays in California criminal jurisprudence, our Supreme Court has instructed repeatedly that penal statutes, whether adopted by legislative act or voter initiative, coexist with section 1385 and will not be interpreted to abrogate that power in the absence of clear legislative or voter direction. Because the language and the ballot history of Proposition 36 lack the requisite clear directive to eliminate a trial court's traditional authority under section 1385, we hold the trial court may use section 1385 to dismiss a disqualifying prior strike allegation and thereby make a defendant eligible for Proposition 36 sentencing. Because the trial court misunderstood the scope of its discretion in this…