Sanders

*177 Opinion

In this “Three Strikes” case, the defendant moved the trial court to strike his prior serious felony convictions. The trial court stated that it did not have the discretion to do so under Penal Code 1 section 1385. Here we hold, among other things, the case must be remanded for sentencing pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ], because the trial court misunderstood its discretionary power to dismiss the priors under section 1385.

Michael J. Sanders appeals from the judgment entered following a jury trial in which he was convicted of feloniously selling half an ounce of marijuana. (Health & Saf. Code, § 11360, subd. (a).) The trial court also found true that Sanders previously had been convicted of three serious felonies under California’s Three Strikes law (§§667, 1170.12) and had served two prior prison terms (§ 667.5, subd. (b)).

Sanders was sentenced to 27 years to life in prison. He received 25 years to life under the Three Strikes law because of the instant felony conviction and his prior serious felony convictions. (§§667, subd. (e)(2); 1170.12, subd. (c)(2).) He also received an additional…

I respectfully dissent. The rule of Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ], is well known and need not be repeated. Compliance, however, is not always easy. Here there is a legitimate debate within this division, this district, and in other districts with respect to the proper application of footnote 13 of People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ] as modified.

In Romero, our Supreme Court held that the trial court has discretion, pursuant to Penal Code section 1385, to strike a prior conviction which would otherwise result in a sentence pursuant to the “Three Strikes” law. As modified, footnote 13 reads: “Our holding, which relates only to sentencing, is fully retroactive. (See People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [ 193 Cal.Rptr. 882 , 667 P.2d 686 ]; People v. Tenorio [(1970)] 3 Cal.3d [89,] 95, fn. 2 [ 89 Cal.Rptr. 249 , 473 P.2d 993 ].) A defendant serving a sentence under the Three Strikes Law (§667, subds. (b)-(i); §1170.12) imposed by a court that misunderstood the scope of its discretion to strike prior felony conviction allegations in…

[Opinion certified for partial publication. [*] ]

OPINION

GILBERT, J.

In this "Three Strikes" case, the defendant moved the trial court to strike his prior serious felony convictions. The trial court stated that it did not have the discretion to do so under Penal Code [1] section 1385. Here we hold, among other things, the case must be remanded for sentencing pursuant to People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497 [ 53 Cal. Rptr.2d 789 , 917 P.2d 628 ], because the trial court misunderstood its discretionary power to dismiss the priors under section 1385.

Michael J. Sanders appeals from the judgment entered following a jury trial in which he was convicted of feloniously selling half an ounce of marijuana. (Health & Saf. Code, § 11360, subd. (a).) The trial court also found true that Sanders previously had been convicted of three serious felonies under California's Three Strikes law (§§ 667, 1170.12) and had served two prior prison terms (§ 667.5, subd. (b)).

Sanders was sentenced to 27 years to life in prison. He received 25 years to life under the Three Strikes law because of the instant felony conviction and his prior serious felony convictions. (§§ 667, subd.…