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Name: People v. Dain (2024) 99 Cal.App.5th 399
Case #: A168286
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 01/31/2024

Penal Code section 1385(c) does not apply to the decision of whether to dismiss a prior strike conviction under the Three Strikes law. Defendant was convicted of several felonies. After his first appeal, the Court of Appeal remanded the matter for resentencing based on new ameliorative legislation. At resentencing, the trial court granted defendant’s Romero motion. The People appealed, challenging the sentence imposed by the trial court. Held: Reversed. Senate Bill No. 81 added subdivision (c) to section 1385, which now provides that “the court shall dismiss an enhancement if it is in the furtherance of justice to do so,” and instructs the court to “consider and afford great weight to evidence offered by the defendant to prove [specified] mitigating circumstances.” When granting the Romero motion at the 2023 resentencing, the trial court recognized that sentencing laws have changed since defendant was originally sentenced in 2019 and observed that now, “remoteness does count.” The fact that an enhancement is based on a prior conviction that is over five years old is now a mitigating circumstance entitled to great weight in favor of dismissal under section 1385(c)(2)(H). But section 1385(c), by its terms, applies only when a trial court is considering whether to dismiss “an enhancement,” and the Three Strikes law is not an enhancement. Additionally, the language of 1385(c)(2)(H) conflicts with the Three Strikes law which provides, “[t]he length of time between the prior serious or violent felony conviction and the current felony conviction shall not affect the imposition of sentence.”

The trial court’s dismissal of the defendant’s strike prior, pursuant to a Romero motion, was an abuse of discretion. When granting defendant’s Romero motion, the trial court cited “remoteness.” However, remoteness, by itself, cannot be the basis for dismissing a prior strike conviction. (§ 667(c)(3).) Further, the Court of Appeal observed that there was nothing about the nature and circumstances of defendant’s present felonies and the prior strike conviction or the particulars of defendant’s background, character, and prospects that suggests defendant could be deemed outside the spirit of the Three Strikes law. Thus, the Court of Appeal reversed the trial court’s order striking the prior strike conviction and remanded with directions to reinstate the strike finding and to resentence defendant as a person who has suffered a prior strike conviction under the Three Strikes law. [Editor’s Note: The Court of Appeal further held that the trial court did not abuse its discretion regarding other sentencing choices, including the decision to impose the midterm and dismiss a nickel prior.]