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Name: People v. Ortega
Case #: A087932
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 10/31/2000
Subsequent History: Petition for review den. 2/14/01

Appellant was convicted of attempted voluntary manslaughter and assault with a firearm for the same shooting. The trial court found that both convictions arose from a single act and stayed sentence on the assault with a firearm conviction pursuant to Penal Code section 654, but refused to strike the conviction, leaving appellant with two prior “strikes” on his record. Although the Court of Appeal found appellant might be entitled to have the assault stricken at a future dated pursuant to section 1385, it also held that appellant failed to show that the trial court abused its discretion in denying his motion to strike. The trial court understood that it had the discretion to set aside the conviction under section 1385, and chose not to do so. Because the execution of the sentence on the assault count was stayed, there was no specter of double punishment. In People v. Benson (1998) 18 Cal. 4th 24, the California Supreme Court held that a conviction stayed pursuant to section 654 may nevertheless constitute a “strike.” In a footnote the majority observed that there might be some circumstances in which two prior felony convictions might be so closely connected that a trial court would abuse its discretion if it failed to strike one of the priors. However, the Benson footnote indicated that there might be circumstances in which a later sentencing court looking at two prior convictions might abuse its discretion by failing to strike one of the priors. It did not hold that the initial court abuses its discretion by failing to do so. The implications of striking a current conviction are different from those present in striking a prior conviction.