agree that the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) has no impact on the power of a magistrate or judge to rule that an offense which may be either a felony or a misdemeanor, a so-called “wobbler,” should be tried or sentenced as a misdemeanor. Penal Code section 17, subdivision (b)(1) and (3) (section 17(b)), expressly confers that power on the court and nothing in the three strikes law limits that power.
I dissent from the judgment directing that the petition for writ of mandate be denied, however. I would affirm the judgment of the Court of Appeal directing that a writ of mandate issue, but would direct the trial court to reconsider the sentencing decision in light of Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628]).
Since 1986, Penal Code section 1238, subdivision (a)(1), has authorized an appeal by the People from the imposition of an unlawful sentence, and subdivision (d) of that section has permitted a petition for writ of mandate by the People to review a grant of probation, including review of any order underlying the grant of probation. The Legislature has to that extent removed former restrictions (see People v. Superior Court (Stanley) (1979) 24 Cal.3d 622 [156 Cal.Rptr. 626, 596 P.2d 691]; People v. Gallardo (1953) 41 Cal.2d 57 [257 P.2d 29]) on the jurisdiction of the appellate courts to review sentences at the instance of the People. When, as here, such review is undertaken, the reviewing court must recognize that the People as well as the defendant now have the right to informed sentencing.1 Therefore, when the People seek mandate claiming that a sentencing court abused its discretion in granting probation and the record demonstrates that the court was not aware of a sentencing alternative, the matter should be remanded for reconsideration of the sentence before the appellate court attempts to assess the abuse of discretion claim.
*983It is clear from the record in this pre-Romero case that doubt over her power to strike one or more of the charged prior convictions influenced the judge’s decision that the offense did not warrant felony sentencing notwithstanding the defendant’s past record. This court cannot appropriately rule on the question of whether there has been an abuse of discretion in sentencing defendant as a misdemeanant until the sentencing decision is made by a judge who is aware of the full range of sentencing options. The majority apparently assume that the trial court’s statement that the offense was a misdemeanor “for sure” demonstrates that the judge had no uncertainty as to the appropriate sentence and that her uncertainty as to her power to dismiss one or more priors had no effect on her sentencing decision. I disagree.
At the close of the People’s case the judge denied a motion for acquittal. (Pen. Code, § 1118.1.) She then declined to rule on defendant’s motion to reduce the offense to a misdemeanor, taking the motion under submission and postponing her decision until the jury could reach a verdict. She ruled that the matter would go to the jury as a felony.
The defense presented no evidence that might have moved the court toward leniency. The contrary appears true. Defendant testified that at the time he was stopped by police he swallowed a marijuana cigarette he had been holding, and that he was aware that an arrest warrant had been issued for him on a charge of marijuana possession. He testified that the subsequent consensual search revealed, in addition to the methamphetamine underlying the current charge, a syringe and a glass pipe. He denied using other drugs, however, and testified that he did not know where the baggie of methamphetamine in his backpack came from. He admitted that he was under the influence of marijuana when arrested.
The judge’s comments at the probation and sentencing hearing demonstrate to my satisfaction that the potential three strikes sentence, not just the circumstances of the current offense, influenced her decision to treat the offense as a misdemeanor. She stated for the record:
“[T]his is a very small case, it’s not very much methamphetamine. Certainly he came up to the two cops, cooperative, whatever it was. He wasn’t traipsing around the neighborhood doing burglaries because he—but he was going over to his friend’s house.
“Mr. Alvarez has a mighty lengthy background, some of it is in his juvenile years as well he was in California Youth Authority, [has] numerous first degree burglaries, they are all thefts, nobody ever was harmed in anything he did, which is not to condone what Mr. Alvarez does because I *984don’t think a person’s home in Long Beach or Lakewood or L.A. area is safe with Mr. Alvarez around, at least my trinkets aren’t safe.
“Back in ’87 was his last burglary. I don’t know what this misdemeanor back in ’91 [was]. He’s a drug addict that commits burglaries. He’s 34 years old. This case does not rise to the level of sending a person like Mr. Alvarez 25 years to life and that’s my dilemma.” (Italics added.)
The prosecutor then asserted that the court had no discretion to sentence the defendant to less than the 25-year-to-life term specified in Penal Code sections 667 and 1170.12 since the priors had been proved and the voters had taken away the judge’s discretion. It was then that the judge stated; “Well, there is still an unpublished case that’s before the supreme court stating that doesn’t state anything. Don’t know whether judges have discretion in this case or not.
“I know that I have discretion in making this a misdemeanor and that’s for sure it was.” [Sic.]
The ensuing colloquy between court and counsel was limited to the question of whether the three strikes law precluded the exercise of discretion under section 17(b) when the defendant had prior convictions.
It is clear to me from the judge’s remarks that uncertainty as to her power to strike one or more of the defendant’s priors for sentencing purposes, led her to utilize the power she believed the court did retain to sentence under section 17(b) rather than impose a term of twenty-five years to life, the only other alternative she was certain was available to her.
Because the court erroneously elected to impose a misdemeanor sentence without considering whether a felony sentence without three strikes enhancement would be appropriate, I would affirm the judgment of the Court of Appeal as modified to direct that the petition for writ of mandate be granted with directions to set aside the judgment and reconsider the sentence.
Kennard, J., concurred.
Petitioner’s application for a rehearing was denied March 12, 1997. Kennard, J., and Baxter, J., were of the opinion that the application should be granted.
‘In a criminal case, the people of the State of California have the right to due process of law . . . .” (Cal. Const., art. I, § 29.)