Can a defendant appeal his prior conviction for assault against a judge's decision not to strike one or more of his prior convictions?

California, United States of America


The following excerpt is from People v. Dawson, E060590 (Cal. App. 2014):

After the notice of appeal was filed, this court appointed counsel to represent defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case and identifying one potential arguable issue: whether the trial court erred in denying defendant's petition for resentencing under section 1170.126.

Defendant was offered an opportunity to file a personal supplemental brief, which he has done. In a handwritten supplemental brief, defendant claims that: (1) he had a right to invite the court hearing his resentencing petition to strike a prior strike conviction pursuant to section 1385, subdivision (a); and (2) such court had the discretion to strike one or more of his prior strikes. However, defendant did not raise these issues in his petition for recall of sentence. Thus, he has waived them on appeal. (People v. Burgener (2003) 29 Cal.4th 833, 869.) In any event, the record reflects that defendant previously filed a motion to strike his prior convictions, and the trial court denied it.

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