Dorsey

After a fatal family altercation, the defendant was convicted of second degree murder and assault with a deadly weapon. The jury also found to be true the allegation of the use of a firearm. (Pen. Code, § 12022.5.) At sentencing, the trial court expressed itself as being disposed to dismiss the use of a firearm allegation because of defendant’s good background but held that it lacked the authority to do- so.

On appeal, defendant makes no attack on the judgment of conviction which therefore must stand. The sole issue presented is whether or not the court had the power to dismiss the use of a firearm allegation under Penal Code, section 1385,* for the purpose of sentencing.

While this is an issue of first impression, we are not sailing into entirely uncharted waters. Four cases give us guidance.

In People v. Burke, 47 Cal.2d 45 [ 301 P.2d 241 ], the court approved the striking of an admitted prior under Penal Code, section 1385, for the purpose of sentencing. The court further held, “The authority to dismiss the whole includes, of course, the power to dismiss or ‘strike out’ a part.” (People V. Burke, supra, at p. 51 .)

In People v. Superior Court (Howard), 69 Cal.2d…