People v. Wax

[304]

Opinion

ALLPORT, J.

On April 3, 1968, defendant was sentenced to state prison for a violation of Health and Safety Code section 11501 (selling narcotics). On October 7, 1970, pursuant to the mandate of

People

v.

Tenorio,

3 Cal.3d 89 [89 Cal.Rptr. 249, 473 P.2d 993], defendant, while an inmate at Represa, filed a petition for writ of habeas corpus in the superior court seeking to have the allegation of a prior conviction, found to be true at the time of trial, stricken from the record. While three priors were alleged there was no disposition made of the other two. A hearing was held before the same judge that tried the case. Defendant was represented by a deputy public defender. At the latter’s request the court read and considered the cumulative case summary and the probation report which had been previously filed on March 21, 1968. After indicating that there was nothing sufficiently unusual about defendant’s case to justify the striking of the prior felony narcotic conviction (Health & Saf. Code, § 11500), the writ (motion to strike the priors) was denied. Defendant has appealed from the judgment (order) of denial. This being an appeal from an order made after judgment and affecting the substantial rights of defendant, the appeal lies. (Pen. Code, § 1237, subd. 2.)

In briefs filed by defendant in pro. per. and by court-appointed counsel it is contended that, in denying the request to strike the prior, the trial court was under the erroneous impression that, as a result of legislative action, it had no discretion in the matter and the court’s failure to exercise discretion was error, citing

People

v.

Lo Cicero,

71 Cal.2d 1186, 1194-1195 [80 Cal.Rptr. 913, 459 P.2d 241], and

In re Hernandez,

64 Cal.2d 850 [51 Cal.Rptr. 915, 415 P.2d 803], in support of reversal. We agree that the matter at issue involves the exercise of an act of discretion by the trial court, unrestricted by exisiting legislative enactment.