Striking Priors/Romero/Wobblers
Category > Striking Priors/Romero/Wobblers
Updated 3/6/2024The trial court erred in admitting the uncertified, unauthenticated exhibits as proof that defendant suffered a prior conviction.The trial court erred in admitting uncertified, unauthenticated records to prove defendant suffered a prior felony conviction. The court no longer kept physical court files, and instead maintained digital copies on its own electronic system. But the court here did not take judicial notice of the digital copies in the system. Moreover, the contents of the uncertified records cannot support a finding of authenticity.id: 26560
Updated 3/4/2024The trial court erred in denying defendant’s Romero motion where the life term was disproportionate to the homeless defendant’s assault on a group of youths.Defendant was an intoxicated and mentally ill homeless person when engaged in a spontaneous fight with a group of youths. He was convicted of two counts of assault with a deadly weapon. He was sentenced under the Three Strikes Law to a sentence of 25 years-to-life consecutive to 15 years. The trial court abused its discretion in denying his motion to dismiss the strike priors in the interest of justice. His prior offenses, while serious, were not similar to the changed incident, and his history of homelessness, mental health issues and alcoholism made the sentence disproportionate to the severity of the present offense.id: 27240
Updated 3/4/2024The trial court abused its discretion by denying the Romero motion based on a misunderstanding of the potential term if it dismissed the strikes.The trial court abused its discretion by denying defendant’s Romero motion to dismiss the strike prior after incorrectly stating that dismissing the priors could only allow the court to impose a 14 year term. The court could have imposed a higher term and because it was unaware of its discretionary authority the matter was remanded for a new Romero hearing.id: 28145
Updated 2/18/2024The trial court abused its discretion in denying defendant’s Romero motion given that the prior offenses occurred while he was under 21 and were remote.Defendant was convicted of attempted robbery and attempted extortion. He was sentenced to 25 years-to-life plus 14 years under the three strikes law. However, the trial court abused its discretion in denying defendant’s Romero motion to dismiss strike priors. His strike offenses occurred where he was under 21 and were committed more than 25 years earlier. Had he committed the same offenses now he would be entitled to youth parole consideration. He was also later convicted of a statutory rape offense involving a woman he would later marry, and a drug offense involving a substance now classified as a misdemeanor. He was also an addict.id: 27115
The Prop 47 definition of “unreasonable risk of danger to public safety” applies to the Three Strikes Reform Act petitions that had already been adjudicated when it was adopted.The trial court denied defendant’s request for resentencing under the Three Strikes Reform Act after finding he would pose an unreasonable risk of danger to the public if his sentence was reduced. Thereafter (and while his appeal was pending) the voters enacted Prop 47, which provided a new definition of “unreasonable risk of danger to public safety,” as that term was “used throughout the Penal Code.” By its plain terms, the new definition applies to the Three Strikes Reform Act and applies to petitions that had already been adjudicated when it was adopted.id: 24763
The trial court erred in denying defendant’s Romero motion without considering his mental illness, the impropriety of his incarceration and the relatively minor nature of the current offenses.Defendant was convicted of custodial possession of a weapon, resisting two officers, and three counts of battery by gassing while in jail. He was sentenced to 150 years-to-life under the three strikes law. However, the trial court abused its discretion in denying defendant’s Romero motion (to dismiss strike priors) by failing to consider defendant’s mental illness, the impropriety of his incarceration at the time of the offenses, and the relatively minor nature of the commitment offenses. The matter was remanded for a new hearing where the court could properly exercise its discretion.id: 22615
The trial court has discretion under section 1385 to dismiss strike priors to allow one-for-one credits under section 4019. Penal Code section 1385 vests trial courts with the discretion to strike a prior serious felony conviction in order to afford the maximum allowable presentence credits. id: 22099
Prosecution could not appeal the reduction of a wobbler to a misdemeanor following plea where no writ of mandate was filed within 60 days of the grant of probation.Trial court granted defendant's motion to treat the theft offenses to which defendant pled no contest as misdemeanors pursuant to Penal Code section 17, subdivision (b). The prosecution appealed arguing that once defendant pled no contest to a wobbler charged as a felony the court was powerless to reduce the offense under section 17. However, the prosecution had no right to appeal. Since the prosecution sought review of an order underlying the grant of probation it was required to file a petition for a writ of mandate or prohibition within 60 days after the trial court granted probation pursuant to section 1238, subdivision (d). The failure to do so required dismissal of the appeal.id: 9456
No certificate of probable cause was required for a claim that the court abused its discretion in refusing to dismiss a strike prior.Defendant pled guilty to three felony counts and admitted two strike priors on certain conditions including the court's representation that it would consider dismissing a strike prior. After a hearing on the matter the court denied the request and imposed a term of 25 years to life. Defendant argued the trial court abused its discretion in denying the motion to dismiss a strike prior. The claim could be raised on appeal without a certificate of probable cause. However, in light of defendant's lengthy criminal history, the court did err in denying the request.id: 14818
After dismissing the strike allegation on all but one of the current offenses, the court had discretion to impose concurrent or consecutive terms on the remaining offenses.Pursuant to People v. Garcia (1999) 20 Cal.4th 490, the trial court has discretion to dismiss strike allegations in some counts but not others. Dismissal of the strike allegations on certain counts also removes the mandatory consecutive sentencing. Under Garcia, section 667, subdivisions (c)(6) and (c)(7) apply only when the court sentences the defendant under section 667, subd.(e). If the defendant is not sentenced under that provision, the court has discretion to impose concurrent or consecutive terms. In the present case, after dismissing the strike allegations on all but one current conviction, the court could have imposed some concurrent and some consecutive terms in reaching the sentence it believed was appropriate.id: 17194
Updated 3/6/2024The trial court did not err in denying defendant’s Romero motion to dismiss strikes where his current offense was attempted burglary.The trial court did not err in denying defendant’s motion to dismiss two prior convictions under the three strikes law. Defendant’s attempted burglary in the present case was similar to his first residential burglary. His continuous criminal conduct placed him directly within the spirit of the Three Strikes Law.id: 26537
Updated 2/23/2024The trial court abused its discretion in granting a Romero motion for a defendant who committed hideous threats towards an innocent pregnant woman in an effort to get her to “drop” her baby.Defendant was convicted of a criminal threat with the ability to inflict a violent injury under Penal Code section 422.7. It was also determined that he had two strike priors. The trial court erred in dismissing one of the strikes (a 2005 conviction for assault with a deadly weapon) in the interest of justice. In the present case, he threatened a pregnant woman in an effort to get her to “drop” her baby at a bus stop. He was aggressive and hateful. While the strike prior was 13 years old, he had spent over 10 of those years in prison. He had a history of criminal conduct and there was nothing in the record to suggest he fell outside the spirit of the three strikes law.id: 26897
Updated 2/18/2024he trial court did not err in denying the mistrial motion made at the penalty phase after the prosecutor asked a question about evidence the court had ruled was inadmissible. The prosecutor committed misconduct at the penalty phase by eliciting testimony regarding the contents of a letter a gang member had written defendant in the jail, after the court had ruled such evidence was inadmissible. However, the trial court did not err in denying the mistrial motion after admonishing the jurors not to consider the brief reference to the evidence.id: 27114
Updated 2/4/2024Oakland officer’s questions were not interrogation about the Berkeley shooting where the officer did not even know about that shooting. Defendant was in custody for a firearm offense. The Oakland police questioning him had no knowledge of defendant’s possible involvement in the Berkeley shooting. Therefore the officer’s questions could not have been designed to elicit incriminating information about that offense and so Miranda warnings were not required.id: 27334
Updated 2/3/2024Trial court erred in dismissing strike priors without providing any reasons.The trial court erred in dismissing all three of the charged strike priors because it did so without providing any statement of reasons for the dismissal. The judgment was reversed and remanded to allow the defendant an opportunity to withdraw his sanity plea.id: 27529
Updated 1/29/2024The trial court’s order dismissing a strike prior was proper despite the lack of written reasons in the minutes.At sentencing the trial court dismissed one of the strike priors. The court gave reasons orally on the record but they were not recorded in the written minutes. Penal Code section 1385 required written reasons but the Legislature subsequently eliminated that requirement. The newer law applied at the time of sentencing, and this was not, as the state argued, an improper retroactive application of the new law.id: 24611
The trial court abused its discretion in dismissing a strike prior where there were no extraordinary circumstances that justified it. Defendant with two strike priors was convicted of attempted murder, two armed robberies, related crimes and enhancements. His exposure was 90 years-to-life. However, the trial court struck one of the defendant’s strike priors and sentenced him to a term of 28 years. The court abused its discretion in dismissing a strike prior because defendant fell squarely within the spirit of the three strikes law, and there were no circumstances that justified a departure from the law. id: 27727
The trial court did not err in using a prior felony that had been reduced to a misdemeanor to add five years under section 677, subd. (a), and double the sentence under the three strikes law.The trial court did not err by imposing a five year enhancement under section 667, subd.(a) even though the prior serous felony conviction had been reduced to a misdemeanor and dismissed. Neither did the trial court err by refusing to dismiss the prior for purposes of the three strikes law where it had already dismissed the other strike prior to double defendant’s sentence.id: 23114
A three strikes prior conviction need not be automatically dismissed under Romero where it was based on the same act as another three strikes conviction.Defendant had prior convictions for carjacking and robbery in 1999 that were based on the same act. The trial court in the present case did not abuse its discretion by refusing to automatically dismiss one of the these strike priors following defendant’s Romero motion. Moreover, the court did not err by refusing to dismiss a strike when looking at defendant’s history where she was active in the violent carjacking incident, twice violated parole, committed trespass a year later, and committed the present burglary 16 months after that.id: 22730
The trial court did not err in failing to consider defendant’s Romero motion for the purpose of awarding additional conduct credits under the amended version of section 4019.Defendant argued the trial court should have considered his Romero motion, which the court denied, not only for the purpose of his eligibility for probation, but also for his eligibility for additional conduct credits. However, a trial court cannot exercise its discretion under Penal Code section 1385 to dismiss a prior conviction in order to award additional conduct credits otherwise unavailable under the January 25, 2010 amendments to Penal Code section 4019.id: 22296
Closeness of the priors does not require that the trial court strike one but is a factor to consider when conducting a Romero analysis. In 1998, defendant was convicted of robbery and carjacking arising out of the same facts. Both convictions were used as strike priors in the present case. Defendant filed a Romero motion to strike one of the priors. The fact that the two priors arose from the same facts did not require that the court dismiss a strike prior, but was instead, a circumstance to consider in conducting a Romero analysis. id: 21275
Remand under Romero was required despite the court's cryptic reference to its authority to strike a prior because it could not be determined whether the court actually believed it had such discretion.Remand is the appropriate remedy where the record is silent as to the sentencing court's understanding of its discretion to dismiss a strike prior between the date of the enactment of the three strikes law and the filing of the opinion in <U>Romero</U>. The trial court was informed by defense counsel of an opinion giving the court discretion under section 1385. The trial court denied the motion after stating it was familiar with the opinion. Although this is not a silent record due to the brief acknowledgment of the appellate opinion granting section 1385 discretion, it was impossible to determine whether the court believed it had discretion to strike the prior or whether it would have done so if it did believe it had such authority. The case was therefore remanded for a determination on the issue of striking a prior.id: 9459
The trial court did not err in denying the Romero motion despite the comment that it could not consider defendant’s mental state.Defendant argues the trial court erred in denying his Romero motion to dismiss strike priors by stating it lacked authority to consider defendant’s mental condition as a factor. However, given the court’s thorough consideration of all other relevant factors, the remarks in question seemed an acknowledgment that the court could not give undue weight to defendant’s speculative claim that his mental state “made him” commit the crimes.id: 20356
The trial court was not required to summon evidence of defendant's background, character and prospects before ruling on his Romero motion.Defendant argued the trial court abused it discretion in denying his motion to dismiss strike priors because it predicated its ruling only on the facts of the prior and current offenses and failed to inquire into his background, character, and prospects. However, the court had no independent obligation to summon evidence of this nature before ruling on his Romero motion.id: 20229
Defendant was not entitled to be resentenced under Romero where there was no mention of the court's discretion to dismiss a strike prior at sentencing.The trial court was not affirmatively asked to exercise its discretion to strike the prior felony allegation and the court did not otherwise indicate during sentencing its understanding of its power to strike. Because no Romero error was demonstrated the judgment was affirmed. However, defendant retains the remedy of habeas corpus if he can affirmatively demonstrate error.id: 9453
The void 2001 decision where the trial court granted defendant's Romero motion did not show an abuse of discretion as to the contrary operative ruling made in 1999.In 1999, following various proceedings, the trial court conducted a hearing on defendant's claim (raised in a petition for writ of habeas corpus) to dismiss a strike prior under Romero. The court entered an order denying the petition. The sentencing judge then retired. Two years later there was confusion regarding the status of defendant's claim. A second hearing was held, and this time, the retired judge who was brought back to conduct the hearing, granted the Romero request
based on the same information that had been presented earlier. However, that ruling was void and the 1999 ruling was operative. The inconsistent rulings did not show the trial court abused its discretion in rejecting the claim in 1999.id: 19709
The trial court did not abuse its discretion in denying the Romero motion where the prior conviction involved a nonforcible sex act on a 13 year-old when defendant was 16.Defendant received a double term based on a prior strike conviction for violating Penal Code section 288, subd.(a). The prior conviction occurred in adult court and involved an incident which occurred when he was 16 and the victim was 13. Defendant argued the court erred in denying his Romero motion to strike the prior because the Legislature did not intend to
treat a nonviolent sex act committed by a 16 year-old as a strike. However, defendant committed a serious felony, even though it was not the worst sex crime. There was no abuse of discretion in denying the Romero motion.id: 19692
Defendant's criminal threats convictions could properly be used as strike priors following a new offense even though it had not been determined whether the threats would be treated as felonies or misdemeanors.Defendant was convicted of three counts of criminal threats under Penal Code section 422, which may be punished as felonies or misdemeanors, but the court had not yet imposed sentence. The offenses were prosecuted as felonies and constituted strike convictions subject only to their reduction to misdemeanors. The
court later imposed a prison term leaving the strike status unchanged. The prior convictions could properly be used as strike priors.id: 19174
Trial court did not abuse its discretion in denying Romero motion where present offense was prison assault and defendant had multiple priors even though the two strike priors arose from a single incident resulting in two vehicular manslaughter convictions.Defendant's two prior convictions for vehicular manslaughter arose from a single incident. He had nine other felony convictions as well as eleven misdemeanors. The current offense of assault of an inmate occurred while defendant was in custody, and he continued to deny responsibility. The trial court did not abuse its discretion in denying the Romero motion under the circumstances.id: 18519
Blakely does not require that a jury, rather than the trial court, decide a Romero motion to dismiss strike priors.Defendant argued that under Blakely v. Washington (2004) 124 S. Ct. 2531, it is for the jury, not a judge, to determine whether to dismiss a prior strike conviction on the ground that he falls outside the spirit of the three strikes law. However, assuming the Romeo determination could be considered "fact-finding," is not the type of fact-finding contemplated by Blakely.id: 18225
The trial court abused its discretion by basing its decision to dismiss a strike prior on the fact that the magistrate initially refused to bind over the defendant.The circumstance that a magistrate declined to hold defendant to answer on a charge that subsequently was refiled, and as to which defendant subsequently pled no contest, had no bearing on either the nature of defendant's prior offenses or his character and background as they relate to the three strikes law. Thus, the court abused its discretion when it relied on this consideration as a primary basis for striking the prior conviction allegation.id: 18014
Trial court's denial of a Romero motion to dismiss a strike prior is reviewable for abuse of discretion.The trial court's decision not to dismiss a strike prior pursuant to Penal Code section 1385 should be reviewed under the deferential abuse of discretion standard. The trial court did not abuse its discretion in denying the Romero motion in the present case where the current offense was failure to register as a sex offender, since defendant had a lengthy and violent criminal record which included two priors for failing to register.id: 17968
The trial court abused its discretion by failing to dismiss one of the two strike priors because the priors arose from the same act.Defendant was convicted of robbery and assault, and he admitted having two strike priors, one for attempted carjacking and one for attempted robbery. The strike priors arose from a single criminal act. His other criminal history consisted only of misdemeanors. Under the circumstances, the trial court abused its discretion by failing to dismiss one of the strike priors in furtherance of justice.
id: 17846
The trial court abused its discretion in dismissing a strike prior even though the charge had earlier been dismissed for lack of evidence.In 1998, defendant pled no contest to a charge that he fired a firearm at an occupied building. This plea came after the magistrate refused to hold him to answer on the charge and a subsequent dismissal for insufficiency of the evidence. Defendant later entered the plea pursuant to a deal in which a murder charge was dismissed. Following a conviction in the present case, the trial court dismissed the prior conviction for strike purposes (resulting in a two rather than strike sentence) finding it was a prior in form rather than substance because the evidentiary showing at the preliminary hearing had been insufficient to withstand a motion to dismiss. However, the plea admitted all elements of the prior offense and the sufficiency of the evidence was irrelevant as a factor supporting the exercise of discretion to strike the strike.id: 17151
The trial court did not misunderstand its authority to dismiss strike priors where it noted the controlling case law and relevant factors before concluding it had no choice but to deny the motion.The trial court did not abuse its discretion when it denied defendant's motion to strike his five residential burglary prior convictions. The court noted the controlling case law, and observed the relevant factors including the lack of prior violent crimes and defendant's addiction problem. However, the court stated after analyzing the facts it lacked the authority to dismiss the strikes. Contrary to defendant's claim, the court did not misunderstand its discretion. Instead, the court's remarks showed it could find no reason for concluding that defendant fell outside the spirit of the three strikes law.id: 16611
The trial court abused its discretion in finding a "career criminal" was outside the spirit of the three strikes law and dismissing the strike prior.The defendant had a 22 year criminal record comprised of six felonies within the past eight years and 12 misdemeanors. His sole strike - an unprovoked and violent assault with a knife on a bystander - occurred only three years before his current offense of selling bunk cocaine. The trial court abused its discretion in concluding the defendant was outside the spirit of the three strikes law, and dismissing the strike prior.id: 16496
Where the record is silent on the issue of the trial court's discretion prior to Romero, defendant must seek relief through a petition for writ of habeas corpus.A defendant who was sentenced under the three strikes law prior to the filing of the Romero decision is not entitled, on appeal, to have the matter remanded to the trial court for reconsideration of the sentence where the record is silent as to whether the trial court understood that it retained discretion under Penal Code section 1385 to dismiss a prior felony conviction allegation in furtherance of justice. Instead, the defendant must seek relief through a petition for writ of habeas corpus.id: 15224
A defendant has standing on appeal to argue the trial court abused its discretion in denying his or her request to dismiss a strike prior under section 1385.The prosecution argued that because a defendant has no right to move to strike a prior felony conviction, but may only ask the trial court to exercise its discretion to dismiss a strike prior, that a defendant has no standing to complain of the manner in which the trial court exercises its discretion to deny such relief under Penal Code section 1385. However, a defendant may appeal from the denial of relief under section 1385 on the ground the trial court abused its discretion. The trial court did not abuse its discretion in refusing to dismiss defendant's strike priors where he began a string of robberies less than a month after being released on parole, the offenses were numerous and most involved the personal use of a firearm.id: 15238
Consecutive sentences were not mandatory under the three strikes law where the three robberies were committed on the same occasion.Defendants were convicted of three current robberies as they robbed the occupants of a house under police surveillance. The trial court erred in finding consecutive 25 years to life sentences were mandatory under the three strikes law because the offenses were committed on the same occasion and arose from the same set of operative facts. Since the trial court misunderstood the scope of its sentencing discretion the matter was remanded for resentencing.id: 15239
Court did not err in denying Romero motion where defendant had multiple misdemeanor convictions and refused to address his drug problem.The trial court did not abuse its discretion in refusing to dismiss a strike prior under Penal Code section 1385. While the instant conviction of forging a check was not particularly serious and the two priors occurred in the same case 14 years ago, defendant had since committed 11 misdemeanors, including two recent petty theft offenses which could have invoked the three strikes law if charged as felonies. Moreover, defendant showed no intention of addressing his drug problem.id: 15240
Court's reasons for striking priors under Romero must be in writing.The trial court's order striking the prior serious felony conviction findings pursuant to <i>People v. Superior Court (Romero)</i> (1996) 13 Cal.4th 497, 508-532 was set aside. On remand, the court was directed to set forth in writing its reasons for striking the prior serious felony conviction findings.id: 15241
Defendant was entitled to a new hearing with counsel present where the trial court at the original sentencing believed it lacked discretion to strike a prior.Defendant, convicted under the three strikes law, was sentenced by a trial court which believed it lacked discretion to dismiss a strike prior. This occurred prior to the <i>Romero</i> decision. Defendant then filed a habeas corpus petition requesting a resentencing. The trial court denied the petition in the absence of defendant and counsel. Defendant's petition established a prima facie showing for relief (even though it simply alleged a "silent record"). In the wake of the recent case of <i>People v. Fuhrman</i> (1997) 16 Cal.4th 930, the denial of the petition based on a silent record could be upheld. However, defendant's petition was filed four months prior to <i>Fuhrman</i>. Moreover, in the proceeding initiated in the appellate court, defendant established a prima facie case. The trial court was directed to conduct a hearing in the presence of defendant and counsel.id: 15242
In exercising discretion to dismiss a strike prior under section 1385 the court must look within the scheme of the three strikes law and consider matters such as the defendant's present offenses as well as his background, character and prospects.The Supreme Court established boundaries on a trial court's power to dismiss a strike prior in furtherance of justice pursuant to Penal Code section 1385. The Court determined that in seeking justice consistent with <i>People v. Superior Court (Romero)</i> (1996) 13 Cal.4th 497, the trial court must look within the bounds of the three strikes law, informed by generally applicable sentencing principles relating to matters such as the defendant's background, character and prospects. The trial court in the instant case abused its discretion in dismissing a strike where the present offense was felony drunk driving, his lengthy criminal history included convictions for attempted robbery and rape (notwithstanding that both of these crimes were committed in 1982) and in the time between his past and present offenses he was busy committing other crimes including a recent misdemeanor of spousal battery, a violent offense.id: 15243
On Romero remand where court decides not to strike prior it must recalculate credits and issue an amended abstract of judgment.When a sentence imposed under the three strikes law is reversed and the case remanded for sentencing in light of <i>Romero, </i>and the trial court exercises its discretion by not striking the prior convictions, it must recalculate defendant's custody credits, and issue an amended abstract of judgment.id: 15244
Romero remands should be conducted in the presence of the defendant, defense counsel and the prosecutor.In cases where the sentencing courts indicated on the record that they lacked discretion to dismiss a strike prior in furtherance of justice, and whose appeals are not yet final, the cases must be remanded. On remand, the superior court should conduct a hearing in the presence of defendant, his counsel and the prosecutor to determine whether to dismiss one or more prior felony conviction findings pursuant to Penal Code section 1385.id: 15245
Striking priors as to two counts but not another was not an unauthorized sentence.The prosecution argued the trial court imposed an unauthorized sentence by striking one prior conviction with respect to two of the counts, while otherwise finding two prior convictions true and imposing a third strike term of 25 years to life on another count. The sentence was not unauthorized and trial courts need not strike priors for all counts as opposed to striking them for some counts.id: 15246
There was no abuse of discretion in refusing to dismiss strike priors where the record showed the court was aware of its discretion under section 1385.Defendant argued the trial court abused its discretion by refusing to dismiss a strike prior in furtherance of justice. Appellate review is available when a trial court's refusal to exercise its Penal Code section 1385 discretion to dismiss a strike is based on a mistaken belief regarding its authority to do so. However, the appellate courts do not have the power to substitute their discretion for that of the trial court or to direct the trial court to exercise its discretion to dismiss.id: 15247
There was no abuse of discretion where the court focused its comments on a single factor in denying the Romero motion to dismiss strike priors.Defendant argued the trial court abused its discretion in denying his motion to dismiss strike priors under <MI%-2>Romero.<D%0> He suggested the only factor considered by the court was "violence or threat of violence" with the prior and current offenses. However, the court is presumed to have considered all relevant factors absent an affirmative record to the contrary. The fact that the court focused its comments on violence or potential violence does not mean it considered only that factor. There was no showing that the court abused its discretion in denying the motion.id: 15248
Trial court abused its discretion in dismissing two of three strike priors without considering defendant's dismal background, character and prospects.Defendant was convicted of robbery and petty theft with a robbery prior. It was also determined that he had three strike prior convictions based on a 1988 robbery and residential burglaries in 1985 and 1988. The trial court exercised its discretion to dismiss the two prior burglary strikes since defendant in each case had only taken small items from neighbors. However, the trial court abused its discretion in dismissing the strike priors since it took little or no account of the particulars of defendant's background, character and prospects, which were dismal and not outside the spirit of the three strikes law.id: 15249
Trial court abused its discretion in dismissing a robbery defendant's prior under Romero where the decision was based in part on the court's view of the three strikes law.The trial court abused its discretion in dismissing a strike prior under Penal Code section 1385. Defendant's background brought him within every aggravating factor specifically set out in California Rules of Court, rule 421, subdivision (b). Not a single mitigating factor under rule 423, subdivision (b) applied. In stating its reasons the court said: "But essentially I'm doing it for - because I don't think the punishment in this case should warrant a life-top sentence." The statement showed the court's decision was not based on appropriate legal principles, but rather on the court's antipathy for the three strikes law.id: 15250
Trial court abused its discretion in dismissing a strike prior since defendant with 14 felony convictions and multiple separate prison terms was not outside the spirit of the three strikes law.Defendant spent most of his adult life in state prison, county jail, on parole or on probation. During a lifelong period of crime he was convicted of 14 felonies including two serious felonies. He was in prison on multiple separate occasions. He was on parole when he committed the present crime, a violation of Vehicle Code section 10851. His record demonstrates that he knew his criminal conduct was unacceptable - but he failed or refused to learn his lesson. The trial court abused its discretion in dismissing a strike prior because defendant cannot be deemed outside the spirit of the three strikes law even in part.id: 15251
Trial court may dismiss a strike prior as to one count but not another.A trial court in a three strikes case may exercise its discretion under Penal Code section 1385, subdivision (a) so as to dismiss a prior conviction allegation with respect to one count, but not with respect to another.id: 15252
A hearing with defendant and counsel present is required following a Romero remand.Since the trial court incorrectly believed it lacked discretion to strike prior convictions under the three strikes law, the case was remanded for a new sentencing hearing at which the court will exercise its discretion. The hearing will be conducted on defendant's motion with defendant present and represented by counsel.id: 15216
Remand was required under Romero where the record showed the trial court believed it had no discretion and the remand was consistent with the plea agreement.Defendant was entitled to a remand under <i>People v. Superior Court (Romero)</i> (1996) 13 Cal.4th 497, where the record of his pre-Romero motion to strike shows the court felt it had no discretion and where the motion appears to have been consistent with his previously negotiated plea.id: 15220
Remoteness is an improper basis for striking a prior conviction under Romero.On remand following <i>People v. Romero</i> (1996) 13 Cal.4th 497, the trial court dismissed a 1976 prior robbery conviction. The sole reason for striking the prior was the fact that it was over 20 years old. However, while remoteness is a relevant factor, by itself it is an improper basis for striking a prior. This was especially true where the instant defendant has lead a continuous life of crime. The matter was remanded for resentencing.id: 15221
Romero remand was ordered where the trial court stated it lacked the power to dismiss a strike.The trial court determined it lacked discretion to dismiss a strike prior in furtherance of justice. Defendant moved for a remand pursuant to <i>People v. Superior Court (Romero)</i> (1996) 13 Cal.4th 497. The prosecution argued remand was unnecessary in light of defendant's extensive criminal history. However, a remand was ordered to afford the trial court an opportunity to dismiss a strike prior.id: 15222
The trial court had no discretion to conditionally dismiss a strike allegation on condition the defendant complete a commitment to the CRC.A superior court may not circumvent the three strikes law rendering offenders within its sentencing provision ineligible for commitment to the California Rehabilitation Center, as provided in Welfare and institutions Code section 3050 et seq., by constitutionally dismissing strike allegations pursuant to Penal Code section 1385.id: 14819
Defendant obtained the benefit of his plea bargain where two of three strike priors were dismissed and he was not entitled, following Romero, to request the court to dismiss the third strike.Defendant was originally charged with felony drug possession and three strike priors were alleged under the three strikes law. Two of the three strike priors were dismissed as part of a plea bargain. Defendant requested that his plea bargain be set aside so that he could request the court to exercise its discretion to dismiss his remaining strike pursuant to <i>People v. Superior Court (Romero)</i> (1996), 3 Cal.4th 497. However, defendant obtained the benefit of his plea bargain and was estopped from complaining on appeal about his sentence.id: 9452
Guilty plea precluded remand for the trial court to consider exercising its power to dismiss a strike prior pursuant to Romero.Defendant argued remand was required to permit the superior court to consider its discretion to dismiss a strike prior under Penal Code section 1385. However, defendant's express agreement to imposition of a 32-month term precludes a remand for the purpose of obtaining a lesser term by virtue of the trial court's striking of the prior offense.id: 9454
Master calendar court erred in dismissing a strike prior for failure of proof without considering the competing interests.The master calendar court dismissed the strike prior because the prosecution did not have in hand the documentation necessary to prove it. While the case had been called for trial, a courtroom had not yet been assigned and the prosecutor noted that it was expected the necessary proof would arrive later in the day. Moreover, there was no indication the dismissal was made in furtherance of a stated policy objective. The court erred in failing to consider the various competing interests before it dismissed the strike prior for failure of proof. The dismissal was vacated for further proceedings on remand.id: 9455
Remand for sentencing was required where the court stated it had no discretion to dismiss a strike prior.Since the trial court (prior to <i>Romero</i>) affirmatively indicated, and erroneously believed it had no discretion to strike a prior offense the judgment was vacated and the matter remanded for resentencing.id: 9457
Remand under Romero was unnecessary despite the silent record as to the court's belief in its section 1385 authority where striking of the priors would have been a manifest abuse of discretion.Appellant requested that his three strikes sentence be vacated and remanded with instructions that the trial court has power to strike the prior convictions under Penal Code section 1385. The record was silent as to the trial court's belief in its authority to dismiss the priors under section 1385. However, remand was not required where the extensive criminal record established it would have been a manifest abuse of discretion for the trial court to strike appellant's priors in furtherance of justice.id: 9458
Remand under Romero was not required where the trial court was never asked to exercise its discretion to strike a prior.Remand under <i>People v. Superior Court (Romero)</i> (1996) 13 Cal.4th 497, was not required were the trial court was not asked to exercise discretion to strike a prior conviction. Moreover, the trial court's comments at sentencing indicate the trial court would not have exercised its discretion to strike a prior if it had been asked.id: 9460
Remand was not required under Romero where the court stated it would not have exercised its discretion to reduce the sentence.Defendant argued his sentence should be remanded because the trial court had discretion to strike his prior felony conviction in furtherance of justice under the three strikes law. However, the trial court indicated it would not, in any event, have exercised its discretion to lessen the sentence. No purpose would be served in remanding for reconsideration.id: 9461
Remand was required under Romero despite defendant's record where defense counsel had no reason to challenge the probation report or offer evidence at sentencing.At sentencing the trial court stated that it had no discretion to dismiss a strike prior. The Attorney General argued remand of this case under <i>Romero</i> was not required because it would have been an abuse of discretion for the trial court to dismiss either prior conviction. However because the trial court stated it lacked discretion to strike a prior, defense counsel had no reason to contest probation report assertions, offer mitigating evidence, have defendant testify or argue for a mitigated sentence. It was therefore inappropriate to review a record which may have been skewed and then attempt to predict abuse of discretion. The matter was remanded.id: 9462
Remand was required under Romero where sentencing court found it lacked the power to dismiss a strike prior.The trial court's finding that it lacked the power to dismiss a strike prior pursuant to Penal Code section 1385 required a remand for resentencing.id: 9463
Remand was required where the record did not show the sentencing court was aware of its discretion to dismiss a strike prior.The issue of judicial discretion to dismiss a strike prior was raised but the judge concluded he lacked the power to dismiss a strike. This was not the judge who presided at the trial and who imposed sentence. While the <i>Romero</i> issue was not raised at sentencing, the judge did determine the wobbler should not be treated as a misdemeanor. Under the circumstances, a remand was required for a determination by the sentencing court on the issue of dismissing a prior pursuant to Penal Code section 1385.id: 9464
Silent record on the issue of the court's discretion to strike a prior required remand under Romero.At defendant's sentencing, neither the defense counsel nor the trial court discussed the court's power to dismiss defendant's strikes. At that time the law was unsettled on the question of the court's power to strike a prior. Failure to object at the sentencing hearing did not preclude defendant from raising the issue on appeal. The case was remanded to allow the trial court to exercise its discretion to strike the prior conviction.id: 9465
Since the sentencing occurred 53 days after the filing of the Romero opinion it is presumed the trial court was aware of its sentencing discretion.Defendant argued that because the sentencing record reflects neither an awareness by the trial court of the right to strike the prior serious felony conviction under Penal Code section 1385 nor a stated unwillingness to do so, he is entitled to resentencing under <i>Romero</i>. However, since the sentencing occurred 53 days after the filing of the <i>Romero</i> opinion, it is presumed the trial court was aware of its sentencing discretion.id: 9466
The court did not participate in an illegal plea bargain where it gave an indicated sentence and defendant entered into an open plea.The trial court reduced a wobbler to a misdemeanor despite the People's argument that such act was prohibited by the three strikes law. The People argued the trial court's indication that it would reduce the crime to a misdemeanor if defendant pled guilty constituted an illegal plea bargain between the court and the defendant. However, where the defendant pleads guilty to all charges there is no requirement that the People consent to the plea. The trial court properly exercised its sentencing discretion and did not participate in an illegal plea bargain.id: 9467
Three strikes law did not abrogate the trial court's authority to declare a wobbler a misdemeanor.The Legislature in enacting the Three Strikes law did not intend to abrogate the trial judge's long-standing power under Penal Code section 17, subdivision (b)(3) to declare a wobbler a misdemeanor and to impose probation at the time of sentencing.id: 9468
Three strikes law does not limit the sentencing court's discretion to reduce a wobbler to a misdemeanor.The three strikes law has no impact on the power of a magistrate or judge to rule that an offense which may be either a felony or a misdemeanor, a so-called wobbler should be tried or sentenced as a misdemeanor. Penal Code section 17, subdivision (b)(1) and (2) expressly confers that power on the court and nothing in the three strikes law limits that power.id: 9469
Three strikes law does not prevent the trial judge from sentencing a wobbler as a misdemeanor.Defendant pled guilty to punching his girlfriend pursuant to Penal Code section 273.5, subdivision (a), which is punishable as a misdemeanor or a felony. Under provisions of section 17, subdivision (b) the court reduced the crime to a misdemeanor, imposed sentence and granted probation. Contrary to the People's argument, section 17 does not conflict with the legislative intent of the three strikes law. Moreover, because the court reduced the crime to a misdemeanor under section 17, subdivision (b)(1), defendant was not convicted of a felony, and section 667 did not apply. Finally, section 667 does not specifically or by implication restrict the trial court's power to impose a misdemeanor sentence under section 17, subdivision (b)(1).id: 9470
Trial court abuses its discretion in sentencing a wobbler offense as a misdemeanor solely to avoid the effects of the three strikes law.The three strikes law did not abrogate the trial court's discretion under Penal code section 17, subdivision (b)(1) to declare wobbler offenses to be misdemeanors. However, a trial court abuses its discretion where it selects a misdemeanor sentence for a wobbler offense solely to avoid the effects of the three strikes law.id: 9471
Trial court erred in striking priors based upon its antipathy for the three strikes law.The trial court abused its discretion when it struck the two strike priors. The court's remarks expressed a clear antipathy for the statute and a sense of frustration based on its belief as to the manner in which the prosecutor, on a county-wide basis, exercised its discretion. The case was remanded to allow the trial court to properly exercise its discretion in accordance with the guidelines set forth in <i>People v. Superior Court (Romero)</i> (1996) 13 Cal.4th 497.id: 9472
Trial court has discretion to reduce a wobbler to a misdemeanor to avoid the three strikes sentencing scheme.The prosecution argued that because the three strikes law applied the trial court was without authority to reduce the burglary conviction to a misdemeanor and avoid the three strikes sentencing scheme. However, in the case of a wobbler, the trial court has discretion to select a misdemeanor sentence over a felony sentence. Where the court has exercised its discretion to impose a punishment other than imprisonment in state prison, which by operation of law renders the conviction a misdemeanor, the three strikes law is not triggered. Moreover, the court did not abuse its discretion in reducing the second degree burglary to a misdemeanor given the nature of defendant's prior offenses and the fact that the instant offense was motivated by necessity.id: 9473
Trial court may strike three strike prior conviction allegations in furtherance of justice.A trial court may, on its own motion, strike prior felony conviction allegations in cases arising under the three strikes law. In cases charged under that law, a court may exercise the power to dismiss granted in Penal Code section 1385, either on its own motion or on that of the prosecuting attorney, subject to strict compliance with the provisions of section 1385 and to review for abuse of discretion.id: 9474
Unless the prior offense is a wobbler, it qualifies under section 667, subdivision (c) when guilt is established by a plea or verdict.Defendant argued that because judgment was not pronounced on his prior burglary offense until after he committed the instant burglary, the court erred in treating the prior offense as a strike. A defendant has a prior felony conviction for purposes of Penal Code section 667, subdivision (c), when guilt is established by plea or verdict. The term prior conviction may not be construed to include the pronouncement of judgment. However, when a prior offense is a wobbler, a plea or verdict does not establish whether it is a felony, rather the sentence does.id: 9475
Where the record was silent as to the court's powers to strike a prior under Romero, defendant's remedy was to petition the trial court for relief by way of habeas corpus.The record was silent as to whether the trial court would have exercised its discretion recognized in <i>People v. Superior Court (Romero)</i> (1996) 13 Cal.4th 497 to strike priors alleged under the three strikes law. Contrary to defendant's claim, the trial court's statement that the three strikes law did not violate the separation of powers doctrine, was not a statement that the court lacked the power to strike a prior under section 1385. In light of the silent record, defendant's remedy was to petition the trial court for relief by writ of habeas corpus.id: 9476
A motion to dismiss a strike prior in trial court is not a prerequisite to obtaining reconsideration of a sentence following Romero.Prior to trial the trial court stated that it had no discretion to dismiss a strike prior but even if it had such discretion it would not do so. However, defendant was sentenced by a different judge who indicated he lacked such discretion but might be inclined to dismiss the strike prior if he had such discretion. Under the circumstances the case was remanded for reconsideration of defendant's sentence. Moreover, the court made clear that where the record reflects the sentencing judge misunderstood the scope of his or her discretion under Penal Code section 1385, a motion to strike the prior in the trial court is not a prerequisite to obtaining reconsideration of a sentence imposed under the three strikes law.id: 9446
A motion to strike prior serious felony conviction allegations is not a prerequisite for seeking habeas relief under Romero.The trial court erred in ruling the filing of a motion to strike prior serious felony conviction allegations was a prerequisite to seeking habeas corpus relief under <i>People v. Superior Court (Romero)</i> (1996) 13 Cal.4th 497. Since the record was silent on the issue of whether the sentencing court misunderstood its authority or discretion to strike the prior conviction, defendant was entitled to have the court consider the petition for writ of habeas corpus on the merits.id: 9447
Although the court had discretion to dismiss a strike prior it abused its discretion by doing so simply because the defendant pled guilty.The trial court agreed to dismiss a strike prior if defendant pled guilty. No other factor or consideration was stated. Notwithstanding the trial court's discretion to strike a prior pursuant to Penal Code section 1385, the trial court abused its discretion in dismissing the strike prior in return for the guilty plea.id: 9448
Any error by the trial judge in concluding she lacked discretion to dismiss the strike prior was harmless in light of her decision to impose the mid term rather than the lower term and her refusal to strike the prison prior.In <i>People v. Casillas</i> (1995) 40 Cal.App discretion to dismiss on their own motion, a prior strike allegation under the three strikes law. Defendant argued remand was necessary to permit the trial court to exercise its discretion to dismiss the prior strike since the record did not indicate whether the trial court believed it had discretion to dismiss the strike prior. However, any error was harmless and did not require remand for resentencing. Since the judge imposed the middle term (doubled under the three strikes law) rather than the lower term, and refused to strike the one-year prison prior, the record shows the judge would not have exercised her power to dismiss the prior even had she been aware she had it.id: 9449
Court erred in striking priors without providing a statement of reasons.The trial court erred in striking two of three alleged serious prior felonies (alleged as strikes) without setting forth the reasons for the dismissal in the minute order. The judgment was reversed and remanded.id: 9450
Court's authority to declare a wobbler a misdemeanor was not abrogated by the three strikes law.The Legislature in enacting the three strikes law did not intend to abrogate the trial court's long-standing powers under Penal Code section 17, subd.(b)(1) and did not intend to supersede the court's authority under subd.(b)(3) of that section to determine whether a wobbler should be reduced to a misdemeanor when such authority is exercised at the initial sentencing.id: 9451
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245