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People v. Benson4/16/1997
ower to strike. This was not the Judge who presided at the trial and who imposed the sentence in the case, but the issue was specifically raised in the case. The sentencing Judge determined, on the record, that the present offense -- a wobbler -- should not be treated as a misdemeanor, a course that would have obviated Three Strikes sentencing. Indeed, as we have seen, since the present offense involved theft of merchandise worth less than $50, it could have been treated as an infraction. Appellant's prior convictions were serious but were committed many years before, and his record reflects the commission of only one minor misdemeanor offense from then to the present offense.
We also are aware that at the time of sentencing in this case, most appellate courts had ruled that section 1385 discretion to strike did not survive enactment of the Three Strikes laws. Given all of the circumstances, we cannot have confidence that the trial court was aware of its power to strike a prior conviction and elected not to exercise it. The just solution in this case is to remand it for resentencing. On remand, the trial court may exercise its power to strike under section 1385, or not. But it will be fully aware that it has the discretionary power to decide. Naturally, we intimate no opinion on how the trial court should exercise its discretion.
Disposition
The judgment of conviction is affirmed, and the matter is remanded for resentencing.
BARON, J.
We concur:
EPSTEIN, Acting P.J.
ARANDA, J.*
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