P. v. Bush
This case comes before us a second time. In 1996, a jury convicted defendant Joseph Evan Bush on 13 counts of second degree robbery and found he had used a deadly weapon in the commission of all but three of the offenses. In a bifurcated proceeding, the trial court found defendant had suffered a prior serious felony conviction for federal bank robbery. (Pen. Code, §§ 667, subd. (a), 1170.12.)[1] Defendant was sentenced to an aggregate state prison term of 43 years. He appealed, and this court affirmed the judgment (People v. Bush (Apr. 14, 1997, B100672) [nonpub. opn.]). The California Supreme Court denied defendant’s petition for review.
On September 27, 2010, defendant filed a petition for writ of habeas corpus in the trial court, challenging the sufficiency of the evidence to support the strike allegation. The trial court granted the petition on February 8, 2011, vacated defendant’s sentence and ordered a retrial of the strike allegation.
Following the retrial on May 26, 2011, the trial court found defendant’s federal bank robbery conviction qualified as a prior serious felony conviction under California law. In anticipation of resentencing, defendant filed a motion to dismiss the strike allegation in light of his post-conviction behavior while incarcerated in this case (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497). On August 16, 2011, the trial court heard and denied the motion and re-imposed the aggregate state prison term of 43 years. Defendant appeals, contending the trial court abused its discretion in declining to dismiss his prior strike in the interest of justice. We affirm.
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