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Name: People v. Scott
Case #: C059703
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/24/2009

Although a trial court is not required to strike one of two prior “strike” convictions arising out of the same facts, it must consider the closeness of the two strikes as a relevant circumstance in determining whether to grant a request pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Appellant was convicted of possession by a prisoner of a sharp instrument and assault. Additionally, the jury found robbery and carjacking strikes true. The prior offenses stemmed from the same incident in which appellant pointed a rifle at the victim and took his vehicle. The trial court denied appellant’s Romero request to dismiss one of the prior strike convictions, and appellant appealed. The appellate court noted that although robbery and carjacking may overlap, robbery is not a lesser included offense of carjacking, as the latter may have an intent to temporarily deprive the victim of his property whereas robbery requires a permanent intent. In that Penal Code section 1170.12, which defines strike priors, does not limit convictions from the same facts, statutorily, the trial court is not required to dismiss such a conviction for sentencing purposes. The appellate court’s interpretation of People v. Burgos (2004) 117 Cal.App.4th 1209, was that the trial court is not compelled to dismiss one of the two strike convictions stemming from the same act; but rather, is to consider the closeness of the two convictions as one of many factors in the determination as to whether a defendant falls outside the spirit of the “Three Strikes” law, such that the court should exercise its discretion under Penal Code section 1385 to dismiss one of the convictions. Here, the record revealed that the trial court considered whether appellant fell within the spirit of the strikes law and concluded he did. Accordingly, the judgment was affirmed.