When will a judge strike a prior conviction for a violent felony?

violent felony. Both of the prior strikes, but in particular the 1984 strike, neither one of them is recent and the current crime in addition to not being serious or violent is not a crime against persons. So I do find that the defense's motion as to the older strike from 1984 is well taken. The court does exercise its discretion under 1385 of the Penal Code pursuant to [People v. Superior Court (Romero)] and I do strike that strike for purposes of sentencing."

Penal Code section 1385, subdivision (a) states, "The judge or magistrate may, either of his or her own motion or upon application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. . . ." While the statute allows for a motion to be made only by the prosecutor or on the courts own motion, a defendant may "invite" the court to exercise its discretion to strike a prior felony. The court's ruling on such a motion is reviewable for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-375.) A trial court abuses its discretion only if its ruling is "so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)

The Three Strikes scheme is intended to limit courts' discretion in sentencing repeat offenders. There exists no discretionary sentencing choice, unless the sentencing court determines that an exception should be made because defendant is deemed to fall outside the spirit of the Three Strikes law. This analysis includes considering remoteness and the nonviolent nature of prior offenses. (See People v. Bishop (1997) 56 Cal.App.4th 1245.) When deciding whether to strike a prior, "weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of the his background, character, and prospects. [Citation.]" (People v. Williams (1998) 17 Cal.4th 148, 161.)