Howard

I

Procedural Background

Defendant Berkeley Howard (defendant) was found guilty on five separate counts of committing a lewd and lascivious act on a child under fourteen (Pen. Code, § 288, subd. (a)). An allegation that defendant had a prior serious felony conviction (Pen. Code, § 667, subd. (a)) was found true.

Defendant’s prior conviction brought him within the “second strike” provisions of the three strikes law. (Pen. Code, § 667, subds. (b)-(i).) The trial court sentenced him as follows:

Thus, defendant’s total sentence was 37 years in prison.

Defendant does not challenge his conviction of the underlying offenses. Instead, he focuses on the true finding on the “strike” prior, the validity of the three strikes law, and the application of the three strikes law in this case.

We reject most of defendant’s contentions. However, we agree that the trial court failed to exercise its discretion to strike or dismiss the “strike” prior under Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ] so that the case must be remanded for resentencing. We also find two other minor sentencing errors, which the…