Discretion implies, in some cases, that a legal decision may properly go either way. Appellant was convicted of shoplifting an $18 fanny pack from J.C. Penney’s department store and then identifying himself as his brother. Two prior “strikes” and some prior prison term allegations were found to be true. At the pre-Romero sentencing hearing, the judge imposed the 25-year-to life sentence, while lamenting on the draconian nature of the Three Strikes scheme. While appellant’s appeal was pending, Romero was decided. The Court of Appeal rejected appellant’s claim that the judge did not realize that he had the discretion to dismiss a strike. The Supreme Court denied review without prejudice to the filing of a habeas in the sentencing court. Appellant filed the petition and without giving notice, the superior court granted the petition and dismissed a strike. The prosecution filed a petition for writ of mandate and the Court of Appeal directed the trial court to set aside the order and hold a hearing with notice. The hearing was held and the judge denied the petition but failed to inform anyone. Two years later, appellant wrote the court and asked what happened to the petition and another judge informed him that judge #1 had denied the petition and was now retired. Appellant wrote again and asked the reason for the denial and received a second hearing with the retired judge who this time dismissed a “strike” and appellant, having now served the new sentence, was released on parole. The prosecution appealed and the DCA reversed. A further hearing was held, again with judge #1 and all the same parties, and the judge reversed his previous ruling and remanded appellant to prison for life. Appellant sought review by filing a petition in the Court of Appeal, arguing that the inconsistency in the trial court’s rulings called into question whether the judge was properly exercising his discretion. The Court of Appeal denied the writ and the companion Wende appeal and affirmed the judgment. The Supreme Court granted review on appellant’s complaint that the manner in which the trial court attempted to exercise its discretion presented a due process violation. The Court found that the trial court’s different rulings did not reflect an abuse of discretion.