Wallace

In the present case, the trial court struck a prior-conviction allegation that was based upon defendant's negotiated plea of no contest to a charge of willful discharge of a firearm into an inhabited dwelling in violation of Penal Code section 246. [1] Despite defendant's entry of this plea to the earlier charge, his resulting admission of the factual basis for the plea, and his express acknowledgement that the plea would result in a strike for the purpose of the "Three Strikes" law, the trial court in the present case concluded that the prior-conviction allegation should be stricken pursuant to section 1385, primarily because the magistrate after conducting a preliminary hearing had held that there was insufficient evidence to hold defendant to answer on that charge. We conclude that the trial court abused its discretion, because it based its decision to strike the prior-conviction allegation on a factor that is extraneous to the Three Strikes law. As our conclusion is consistent with the determination of the Court of Appeal below, we affirm the judgment of that court.

Defendant was charged by information in four counts. Three of the counts arose from a single…

In the present case, the trial court struck a prior-conviction allegation that was based upon defendant’s negotiated plea of no contest to a charge of willful discharge of a firearm into an inhabited dwelling in violation of Penal Code section 246. 1 Despite defendant’s entry of this plea to the earlier charge, his resulting admission of the factual basis for the plea, and his express acknowledgement that the plea would result in a strike for the purpose of the “Three Strikes” law, the trial court in the present case concluded that the prior-conviction allegation should be stricken pursuant to *742 section 1385, primarily because the magistrate after conducting a preliminary hearing had held that there was insufficient evidence to hold defendant to answer on that charge. We conclude that the trial court abused its discretion, because it based its decision to strike the prior-conviction allegation on a factor that is extraneous to the Three Strikes law. As our conclusion is consistent with the determination of the Court of Appeal below, we affirm the judgment of that court.

I

Defendant was charged by information in four counts. Three of the counts arose from a single…

I concur in the opinion as narrowly written. As the majority states, it does not decide the issue of whether “the trial court, in the exercise of its discretion under [Penal Code] section 1385, properly may consider the evidence adduced at the preliminary hearing in the prior case. The record does not suggest that the trial court considered such evidence in striking one of defendant’s prior convictions in the present case, but rather considered only the fact of the magistrate’s ruling declining to hold defendant to answer. Accordingly, we need not comment upon the propriety of a *755 trial court considering the evidence presented at the preliminary hearing.” (Maj. opn., ante, at p. 753, fn. 2, italics added.)

I agree that the mere facts that the magistrate declined to hold defendant to answer in one of the prior convictions to which defendant eventually pleaded guilty, and that the trial court set aside the charge pursuant to Penal Code section 995, subdivision (a)(2), do not by themselves justify the dismissal of the strike under Penal Code section 1385. But in my view nothing forbids a court from considering the insufficiency of the underlying evidence to determine whether the…