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Name: People v. Lipscomb
Case #: A164755
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 12/29/2022

Senate Bill No. 81’s amendments to Penal Code section 1385 do not mandate dismissal of enhancements that could make the sentence over 20 years where trial court finds dismissal would endanger public safety. Defendant was convicted of discharging a firearm from a motor vehicle and other offenses after he shot a pedestrian from his car and fled from police. In 2022, he was resentenced to 35 years to life. The trial court declined to dismiss a 25-year-to-life firearm enhancement (Pen. Code, § 12022.53, subd. (d)) in the interest of justice, finding that doing so would endanger public safety. On appeal, defendant argued that SB 81 required dismissal of the enhancement because it could result in a sentence over 20 years. Held: Affirmed. Section 1385, subdivision (c)(1) now provides that “the court shall dismiss an enhancement if it is in the furtherance of justice to do so.” “In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present,” unless the court finds that dismissal of the enhancement would endanger public safety. One mitigating circumstance is where application of the enhancement could result in a sentence of over 20 years; in this instance, “the enhancement shall be dismissed.” (Pen. Code, § 1385, subd. (c)(2)(C).) Applying principles of statutory interpretation, the court concluded this provision does not require dismissal where, as here, the court makes a finding that striking the enhancement would endanger public safety. To the extent the statute is ambiguous, this interpretation is supported by the legislative history of SB 81. Further, a contrary interpretation would lead to absurd consequences because it would mean that a 25-year-to-life enhancement could never be imposed under any circumstances. [Editor’s Notes: (1) The Court of Appeal observed that when the trial court does not make a finding that dismissal of enhancement would endanger public safety, the language of section 1385, subdivision (c)(2)(C) (providing that “the enhancement shall be dismissed”) could require the trial court to dismiss the enhancement where it finds doing so would be in furtherance of justice under subdivision (c)(1). However, the court expressed no opinion on this issue, concluding it was not presented by this case. (2) The court agreed with defendant’s argument that the aggregate $17,000 restitution fine must be reduced to the statutory maximum of $10,000 (Pen. Code, § 1202.4, subd. (b)).]