Benevides

In the published portion of this “Three Strikes” case we address whether an appellate court has the authority to review a trial court’s decision to not exercise its Penal Code section 1385 discretion to dismiss or strike a prior conviction on its own motion in the interests of justice. As will be discussed, a defendant has no right to make a motion under section 1385, and a trial court is under no obligation to rule on such a “motion” or state reasons for its refusal to consider such a request or “motion.” In many cases, like this one, the trial court refuses to exercise its discretion and provides no reasons for its inaction. Under these circumstances, we conclude there is only a limited right to appellate review for alleged abuse of discretion. If the record shows the court was aware of its discretion, summary denial of the allegation is generally the appropriate disposition. We hold this is an appropriate case for summary denial of defendant’s contention.

Procedural History

By information, defendant was charged with second degree burglary (count 1; § 459), petty theft with a prior (count 2; § 666), and receiving stolen property (count 3; § 496). It was further…