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Name: People v. Burke (2023) 89 Cal.App.5th 237
Case #: C096164
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/13/2023

The amendments to Penal Code section 1385 enacted by Senate Bill No. 81 do not apply to the Three Strikes law under which a prior strike conviction is part of an alternative sentencing scheme and not an enhancement. At sentencing, trial counsel argued the court should consider SB 81’s changes to section 1385 when determining whether to strike or impose appellant’s prior strike conviction. The trial court declined and doubled appellant’s sentence based on his prior strike. He appealed. Held: Affirmed. SB 81 amended section 1385 to add specific mitigating factors the trial court must consider when deciding whether to strike enhancements from a defendant’s sentence in the interest of justice. These amendments expressly apply to the dismissal of an “enhancement.” (§ 1385(c)(1).) A sentence enhancement is an additional term of imprisonment added to the base term. It is well established that the Three Strikes law is not an enhancement; it is an alternative sentencing scheme for the current offense. Because the plain language of the statute is clear, referring to SB 81’s legislative history is not required. [Editor’s Note: In a footnote, the court stated it “recognize[d] much of [SB 81’s] legislative history is inconsistent with this plain language and suggests that the term enhancement includes the Three Strikes law.” “To the extent this history reflects a legislative intent different than that expressed in the plain language of the bill, that is a matter for the Legislature to correct.”]