People v. Gordon CA4/2

DISCUSSION

A. THE TRIAL COURT IMPROPERLY STRUCK DEFENDANT’S PRIOR

SERIOUS FELONY CONVICTION

The People contend that the trial court improperly struck defendant’s prior serious

felony conviction. Defendant concedes.

A judge “may, either of his or her own motion or upon the application of the

prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”

(§ 1385, subd. (a).) This section, however, “does not authorize a judge to strike any prior

conviction of a serious felony for purposes of enhancement of a sentence under Section

667.” (§ 1385, subd. (b).)

A robbery constitutes a serious felony under section 1192.7, subdivision (c)(19).

“In compliance with subdivision (b) of Section 1385, any person convicted of a serious

felony who previously has been convicted of a serious felony . . . shall receive, in

addition to the sentence imposed by the court for the present offense, a five-year

enhancement for each such prior conviction on charges brought and tried separately. The

3 terms of the present offense and each enhancement shall run consecutively.” (§ 667,

subd. (a)(1).)

Although section 667, subdivision (a)(2), provides that this…