Carmony

In this case, the majority holds that the trial court’s decision not to dismiss a strike against a defendant pursuant to Penal Code section 1385, subdivision (a) is reviewable under an abuse of discretion standard, and that the trial court in this case did not abuse its discretion in refusing to dismiss any strikes. The majority leaves open the issue of whether the resulting sentence of 26 years to life “violates the constitutional guarantees against cruel and/or unusual punishment or double jeopardy . . . .” (Maj. opn., ante, at fn. 6.) Obviously, it would be an abuse of the trial court’s discretion not to dismiss the strike if refusing to do so leads to a sentence that violates the state or federal prohibition against cruel and unusual punishment. Therefore, the majority holding that the trial court did not abuse its discretion is actually a holding that it did not abuse the statutory discretion given to it by section 1385, subdivision (a) and the “Three Strikes” law. In arriving at that holding, the majority makes clear that there is a class of cases in which an appellate court can determine, without reaching any constitutional issues, that the trial court abused its discretion…

In this case, defendant Keith Ishmeal Carmony pled guilty to one count for failure to register in violation of Penal Code section 290, *371 subdivision (g)(2) 1 and admitted that he had suffered three prior “strikes” under the three strikes law. (§§ 667, subds. (b)-(i), 1170.12.) Carmony moved to dismiss these strikes pursuant to section 1385, but the trial court refused to do so and sentenced him to 26 years to life in accordance with the three strikes law. We now consider what standard of review should be applied to the trial court’s decision not to dismiss or strike a sentencing allegation under section 1385 and whether, under this standard, the court erred in making this decision. We conclude that the court’s decision not to strike a prior conviction allegation should be reviewed under the deferential abuse of discretion standard and that the court did not abuse its discretion in refusing to do so.

I.

Due to a 1983 conviction for oral copulation by force or fear, or with a minor under age 14 (§ 288a, subd. (c)), Carmony had to register as a sex offender pursuant to section 290. In this case, Carmony failed to register with the Redding Police Department within five…