California, United States of America
The following excerpt is from The People v. Tolbert, B219568, No. KA049848 (Cal. App. 2010):
Appellant argues that the proper remedy in this situation is to remand the case to the trial court so that it can exercise its discretion under section 1385. Respondent commendably agrees, as do we. Where the trial court fails to exercise discretion due to the mistaken belief that it has none, the proper course on appeal is to remand the case so that it may exercise its discretion. (People v. Sanders (1997) 52 Cal.App.4th 175, 178, disapproved on another point in People v. Fuhrman (1997) 16 Cal.4th 930, 947, fn. 11.) Since the record is clear that the trial court believed it could not exercise discretion to strike a prior conviction for purposes of sentencing on any count unless it did so for all counts, we shall reverse the trial court's order from which this appeal is taken so that the court may exercise its discretion as recognized in Garcia.3
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