People v. Banks

Opinion

WOODS, J.

A jury convicted appellant of attempted first degree residential burglary (Pen. Code, §§ 664/459, count I; statutory references, unless otherwise indicated, are to the Penal Code) and first degree residential burglary (§ 459, count II). In a bifurcated proceeding the trial court found true allegations appellant had five felony convictions that were “strikes” (§ 667, subds. (b)-(i)) and serious felonies (§ 667, subd. (a)(1)), and three felony convictions that were state prison priors (§ 667.5, subd. (b)). Appellant was sentenced to prison for 75 years to life.

Appellant contends the trial court committed instructional and sentencing errors and erroneously believed it lacked discretion to dismiss a strike. Appellant also contends he was denied effective assistance of counsel.

We find all but appellant’s

“Romero

remand”

(People

v.

Superior Court {Romero)

(1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628]) contention without merit. We affirm the judgment but remand the matter to the trial court pursuant to

Romero.

Factual Background

*

Discussion

1.-6.

*

[23]

7.

Appellant contends a

Romero

remand is required.

Before trial, appellant requested the trial court to exercise its discretion (§ 1385) and dismiss some or all of his strikes. The court (Superior Court Judge Bernard J. Kamins) stated it lacked the power to do so. At sentencing, which occurred prior to