Milton

*367 Opinion

A jury convicted defendant of escaping from prison by force (Pen. Code, § 4530, subd. (a)) and found he incurred five serious felony convictions (Pen. Code, § 667). 1 He was sentenced to 25 years to life in prison.

On appeal, he contends: (1) the record contains insufficient evidence of force to support his conviction; (2) this case must be remanded to allow the trial court to exercise its discretion to strike his serious felony convictions; and (3) his sentence is cruel and unusual punishment. We shall affirm the conviction, but vacate the sentence and remand this case to the trial court to allow the court to exercise its discretion whether to strike defendant’s “strikes.”

Facts

As the facts are not in dispute, only a brief summary is necessary. Defendant and his codefendant, Raymond Delgado, inmates assigned to a minimum security area of Folsom prison and who worked in the recycling center, escaped by cutting two aluminum retaining pins, or tie down rings, which held the bottom of a chain link fence to a horizontal bar running along the top of a cinder block wall, and stretching the fence so that a grown man could crawl under it. To cut the pins, the men used a…

I concur in the majority’s opinion except for part II, as to which I dissent.

The California Supreme Court declared that a trial court has discretion to strike prior conviction allegations. (People v. Superior Court (Romero) *374 (1996) 13 Cal.4th 497 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ].) It then made that declaration retroactive and announced the proper procedure for dealing with cases in which the trial court proceedings were completed before Romero was final. That procedure is detailed in footnote 13: “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 furtherance of justice pursuant to section 1385(a), may raise the issue on appeal, or, if relief on appeal is no longer available, may file a petition for habeas corpus to secure reconsideration of the sentence. Such a…

[Opinion certified for partial publication. [*] ]

OPINION

RAYE, J.

A jury convicted defendant of escaping from prison by force (Pen. Code, § 4530, subd. (a)) and found he incurred five serious felony convictions (Pen. Code, § 667). [1] He was sentenced to 25 years to life in prison.

On appeal, he contends: (1) the record contains insufficient evidence of force to support his conviction; (2) this case must be remanded to allow the trial court to exercise its discretion to strike his serious felony convictions; and (3) his sentence is cruel and unusual punishment. We shall affirm the conviction, but vacate the sentence and remand this case to the trial court to allow the court to exercise its discretion whether to strike defendant's "strikes."

As the facts are not in dispute, only a brief summary is necessary. Defendant and his codefendant, Raymond Delgado, inmates assigned to a minimum security area of Folsom prison and who worked in the recycling center, escaped by cutting two aluminum retaining pins, or tie down rings, which held the bottom of a chain link fence to a horizontal bar running along the top of a cinder block wall, and stretching the fence so that a grown man…