Can a judge strike a prior conviction pursuant to section 667.5, subdivision (b) of the Penal Code?

California, United States of America


The following excerpt is from People v. Irvin, 230 Cal.App.3d 180, 281 Cal.Rptr. 195 (Cal. App. 1991):

9 The trial judge stated: "The court finds the prior allegations to be true, except that the court finds that the robbery conviction and the rape conviction in A195512 were tried and served at the same time. I find that allegation to be true. That those felony convictions were suffered, but that they were served at the same time." Defendant refers to the clerk's minutes which state that the court struck "the prior conviction of 261(2)(3) Penal Code in case A195512." However, the trial court never orally stated that the motion was granted or that the prior prison term allegation pursuant to section 667.5, subdivision (b) was ordered stricken. Insofar as the clerk's written minutes are inconsistent with the transcript of the oral proceedings, the reporter's transcript defines the record of what occurred. (People v. Mesa (1975) 14 Cal.3d 466, 471, 121 Cal.Rptr. 473, 535 P.2d 337.) The court's pronouncement of the finding that the allegation was true contains some ambiguity since the court noted the problem it had with the concurrent prison terms. But no contrary finding was stated (and could not lawfully be stated) and the court did not state it was granting the motion to strike.

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