In Re Iveys

Opinion

GODOY PEREZ, J.

After a jury trial, petitioner was convicted of possession of cocaine. Petitioner waived his right to a jury trial on the allegation that he had a prior robbery conviction within the meaning of Penal Code section 667, subdivisions (b) through (i), the “Three Strikes” law.

1

The superior court found that allegation to be true. Petitioner did not move to strike the prior enhancement allegation, and the trial court did not express any views as to whether it believed it had, or would have exercised, its discretion to strike the prior absent a motion by the prosecuting attorney. On October 4, 1994, the court sentenced petitioner to the middle term of two years in state prison, doubled pursuant to section 667, subdivision (e)(1), for a total state prison sentence of four years. We affirmed petitioner’s conviction on October 20,1995.

(People

v.

Iveys

(Oct. 20,1995) B088245 [nonpub. opn.].)

On June 20, 1996, the Supreme Court issued its opinion in

People

v.

Superior Court

(Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628], in which it held that section 667, subdivisions (b) through (i), did not preclude a court from striking allegations of prior convictions pursuant to section 1385, even in the absence of a motion by the prosecuting attorney. The court made its holding fully retroactive, and stated that “[a] defendant serving a sentence under the Three Strikes law (§ 667, subds. (b)-(i), § 1170.12) imposed by a court that misunderstood the scope of its discretion to strike prior felony conviction allegations in furtherance of justice pursuant to section 1385(a), may raise the issue on appeal, or, if relief on appeal is no longer available, may file a petition for habeas corpus to secure reconsideration of the sentence.” (Romero,

supra,

13 Cal.4th at p. 530, fn. 13.)

On January 16, 1997, petitioner filed a petition for writ of habeas corpus in the superior court seeking reconsideration of his sentence under