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Exercise of 1385 Precludes Increase of Sentence

California v. Flores Court: California Courts of Appeal, Docket: E072843 (Fourth Appellate District), Opinion Date: April 22, 2021. Carl Flores was convicted by jury of attempted premeditated murder with a 25-year-to-life gun enhancement. After trial, Flores admitted a prior serious felony, a prior prison term, and two prior strike offenses, which made him a third strike offender and exposed him to a life sentence under the “Three Strikes” law. At sentencing, the judge struck the prison prior and prior serious felony enhancements but nevertheless added them to the minimum term of Flores’s life sentence, to reach a total indeterminate term of 69 years. On appeal, Flores challenged the sentence, and raised a new question about the role of enhancements in third strike sentencing. If a trial court exercises its discretion to strike an enhancement under Penal Code section 1385 “in furtherance of justice,” may the enhancement still be used to increase the minimum term of the defendant’s life sentence under what is commonly called “Option 3” of third strike sentencing? To this the Court of Appeal concluded no: once a court exercises its discretion to strike an enhancement under section 1385 for sentencing purposes, the enhancement may no longer be used to increase punishment, whether as a separate determinate term to be served before the life sentence or as a means of lengthening the minimum term of the life sentence. The Court also found the trial judge in this case made the additional error of adding the enhancements twice to the minimum term of Flores’s life sentence. The other arguments Flores raised on appeal lacked merit. Judgment was affirmed but the matter remanded for resentencing.

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