Cunningham

The District Attorney of Sacramento filed a criminal complaint charging defendant Samuel Lee Cunningham with violation of Penal Code section 666 (petty theft with a prior), a felony, committed on or about February 28, 1995. The complaint also alleged a prior “strike” under the “three strikes” law (§§ 667, 1170.12), to wit, a residential burglary conviction sustained on April 21, 1988.

Defendant moved the magistrate to strike the prior offense allegation pursuant to section 1385. The magistrate denied the motion to strike, concluding he had no discretion to strike under the three strikes law.

Several weeks later defendant appeared before another magistrate, a judge of the municipal court who was cross-assigned to the superior court. (See Gov. Code, §68112.5.) Before that magistrate, defendant agreed to plead guilty to the petty-theft-with-a-prior charge and to submit the truth or falsity of the prior conviction to a court trial. Defendant waived jury trial on the issue of the prior conviction. It was stipulated that if the prior conviction was found true, defendant would be sentenced to state prison for a term of 32 months (the lower term of 16 months doubled pursuant to…