What is the test for a motion to strike a criminal conviction for a prior criminal conviction?

California, United States of America


The following excerpt is from People v. Peterson, 40 Cal.App.4th 1479, 48 Cal.Rptr.2d 318 (Cal. App. 1995):

Penal Code section 667, subdivision (c) reads: "Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), ... [p[49 Cal.App.4th 1820] ] ... (2) [p]robation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense." The wording of Penal Code section 1170.12, subdivision (a) is virtually identical. It states that "[n]otwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions, as defined in subdivision (b), ... [p] ... (2) [p]robation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense." Since the only authorized procedure for not imposing sentence on a prior conviction is to strike the prior (People v. Jones (1992) 8 Cal.App.4th 756, 758, 10 Cal.Rptr.2d 502; People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122-1123, 231 Cal.Rptr. 387), a literal reading of the language of the initiative makes it clear the voters intended to curtail the power of the judiciary to reduce sentences by striking prior felony conviction allegations pursuant to Penal Code section 1385, subdivision (a)--at least on the court's own motion.

Other Questions


In a motion to strike a serious prior felony conviction in the interest of justice, how have the courts treated prior criminal convictions in the context of the application? (California, United States of America)
On a motion to strike from the criminal record of a defendant who was convicted of sexual assault, can the motion be struck from a criminal record? (California, United States of America)
Can a judge strike a criminal conviction for a prior felony conviction under section 1385(a) of the California Criminal Code? (California, United States of America)
When sentencing a criminal defendant for a prior felony conviction is not based on his prior criminal conviction but on his constitutional rights? (California, United States of America)
Does the identity of a defendant's prior criminal convictions preclude the use of those prior convictions as evidence at trial of the same criminal charges? (California, United States of America)
What is the abuse of discretion standard for a review of a decision to strike or not to strike a prior conviction under section 1385 of the Criminal Code? (California, United States of America)
What is the test for an increase in the maximum sentence for a criminal conviction where the crime was committed prior to the criminal conviction? (California, United States of America)
Does section 667 of the California Criminal Code prohibit the District Attorney from invoking section 654 of the Criminal Code to strike a prior conviction enhancement under Section 667? (California, United States of America)
Does a prior juvenile conviction constitute a prior felony conviction for "Three Strikes" purposes? (California, United States of America)
In a motion to dismiss one or both of appellant's prior strike convictions, can appellant appeal against the finding that the trial court abused its discretion in denying the motion? (California, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.