Under Penal Code section 1385, as amended by Senate Bill No. 81, a trial court is not required to dismiss all but one enhancement, nor an enhancement that could result in a sentence of more than 20 years, but rather retains discretion in deciding whether to do so. In 2009, appellant pleaded guilty to seven felony counts and was sentenced to 35 years to life under the three strikes law. In 2020, CDCR recommended resentencing, and the trial court dismissed one prior strike and resentenced Anderson to 23 years and four months. On appeal, Anderson contended the trial court erred by failing to strike her two 5-year prior serious felony enhancements (§ 667, subd. (a)(1)). Held: Affirmed. Effective January 1, 2022, section 1385, subdivision (c)(2) requires the trial court to afford great weight to certain mitigating circumstances in deciding whether to dismiss an enhancement. The amended statute provides that “all enhancements beyond a single enhancement shall be dismissed,” and when application of an enhancement could result in a sentence of over 20 years, “the enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(B) & (C). The Court of Appeal disagreed with defendant’s argument that the word “shall” required the trial court to dismiss at least one of the two five-year prior felony conviction enhancements. Dismissal of an enhancement is conditioned on a court’s finding dismissal is in the interest of justice. A dismissal shall occur only if, in exercising its discretion and giving great weight to certain factors, the trial court finds dismissal is in the interests of justice and would not endanger public safety. The legislative history of SB 81 further supports the conclusion that dismissal of enhancements is not mandatory. [Editor’s Note: A related issue is pending in the California Supreme Court in People v. Walker (2022) 86 Cal.App.5th 386, review granted 3/22/23 (S278309/B319961), which presents the following issue: “Does the amendment to Penal Code section 1385, subdivision (c) that requires trial courts to ‘afford great weight’ to enumerated mitigating circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of dismissing an enhancement unless the trial court finds dismissal would endanger public safety?”]
Anderson forfeited her claim that the trial court erred in selecting the upper term without citing aggravating factors. Effective January 1, 2022, a trial court may impose the upper term only when there are aggravating circumstances that justify exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial. (§ 1170, subd. (b)(2).) Anderson contended the trial court erred by imposing the upper term for first degree burglary (count three) because the court did not cite any factors in aggravation, appellant did not stipulate to any factors in aggravation, and there were no jury findings regarding any factors in aggravation. However, this argument was forfeited. Not only did Anderson fail to object to the court’s imposition of the upper term at the resentencing, but Anderson’s counsel repeatedly requested the trial court give Anderson a second-strike sentence that included the upper term on count three.
