Motion to Strike Prior Convictions under Penal Code Section 1385

Zachary McCready July 31, 2019

Your loved one is accused of committing a felony. Ordinarily, this felony carries a maximum sentence of 3 years in prison. But because of a 20-year-old, unrelated strike conviction, he is now facing a maximum penalty of 6 years instead of 3. Is there any way to get his maximum sentence down to the 3 years? You betcha!

A person with a past criminal record may have a prior conviction stricken from the record in the interests of justice under Penal Code Section 1385.

The petition asks the judge to exercise his/her authority to strike prior convictions on an individual’s record which makes it impossible for anyone to see the prior arrest record.

For many people, the advantage is that the prior conviction does not show up in background checks. Most background checks search for convictions. Once stricken from the record even a very thorough background check will not include prior stricken convictions.

The Section of the Penal Code that makes it possible to get a prior conviction stricken from the record is Section 1385 of the Penal Code. This law is relatively complex to apply to individual’s particular background so it helps to hire an attorney who is familiar with how the courts apply this law.

The application guidelines of this statute are as follows. “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney and in furtherance of justice, order an action to be dismissed.” (Penal Code section 1385(a).) Specifically, the California Supreme Court in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, held that trial courts may dismiss “strike” priors in furtherance of justice under Penal Code § 1385. Dismissal in the furtherance of justice is a matter within the court’s exclusive and broad discretion. (People v. Johnson (1966) 247 Cal.App.2d 331, 333; People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 502-503.) Therefore, the court may order dismissal over the prosecutor’s objection. (People v. Superior Court (Romero), supra, 13 Cal.4th 497; People v. Superior Court (Howard), supra, 69 Cal.2d at p. 501.) The reasons for the dismissal must be set forth in an order entered upon the minutes. (Penal Code section 1385(a).)

In People v. Williams (1998) 17 Ca.4th 148, the California Supreme Court held that in properly exercising its discretion under Penal Code section 1385, “[T]he court in question must consider whether, in light of the nature of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes law’s] spirit . . . .” (Id. at p. 161. Emphasis Added.)

It is important to hire an attorney who is familiar with the court and the judges where the petition will be filed. At McCready Law Group, our attorneys are familiar with the courts in Long Beach, Bellflower, Downey, Inglewood, Compton, Norwalk, Los Angeles (Airport Courthouse, Metropolitan Courthouse, the Clara Shortridge Foltz Criminal Justice Center, and others), Van Nuys, Torrance, Whittier, Beverly Hills, Santa Monica, East Los Angeles, San Fernando, Santa Clarita, West Covina, Pomona, Lancaster, Westminster, Fullerton, Newport Beach, Orange, Santa Ana, Riverside, Rancho Cucamonga, San Bernardino, Vista, Ventura, Victorville, San Diego, Murrieta, and others.

Please call us today at (562) 364-7350 for assistance in getting an arrest record sealed. Our attorneys are ready to give you a detailed consultation. We have been assisting Southern California residents with arrests and criminal cases for over 12 years. Mr. McCready is a criminal law specialist, certified by the California Board of Legal Specialization. This is a very rare designation and it has helped Mr. McCready to get cases dismissed as well as get petitions to seal and destroy arrest records granted.

Consultations are normally free and can be done in person or over the phone. Attorney fees can sometimes be made in payments depending on your legal needs and your credit worthiness. Call today! We are waiting for you to call!

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