Rivas

Does the “One Strike” law (Pen. Code, § 667.61) preclude the trial court from exercising its discretion at sentencing pursuant to section 1385 to strike sentencing factors that are alleged and proved under a separate sentencing provision but are “additional” to those necessary to find that a defendant is subject to the One Strike law? This is the sole issue raised on this appeal by defendant Javier Antonio Rivas, who was convicted by jury of forcible rape, kidnapping, and assault by means of force likely to produce great bodily injury. In addition, three triggering circumstances under the One Strike law were found true, as well as a prior serious felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e).)

Critical to this appeal, one of the triggering circumstances not utilized under the One Strike law, personal infliction of great bodily injury, was used at sentencing to enhance the sentence by five years pursuant to section 12022.8. The trial court determined it had no discretion to strike this additional punishment. We disagree and remand to allow the trial court to determine whether to exercise its…