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Name: People v. Mazur (2023) 97 Cal.App.5th 438
Case #: D081331
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 11/21/2023

Dismissal of an enhancement under Penal Code section 1385, subdivision (c)(2)(B) or (c)(2)(C) is not mandatory when the court fails to make a finding that dismissal would endanger public safety. In 2017, defendant was sentenced to several felonies and a five-year white-collar enhancement under section 186.11(a)(2). At a second resentencing hearing, after Senate Bill No. 81 went into effect, the court reimposed the five-year enhancement, for a total sentence of 23 years. On appeal, defendant argued that dismissal was mandatory because section 1385(c)(2)(C) applies and the trial court did not find that dismissal would endanger public safety. Held: Affirmed. Section 1385 states the court shall dismiss an enhancement if it is in the furtherance of justice to do so and shall afford great weight to nine listed mitigating circumstances, any one of which weighs in favor of dismissing the enhancement unless dismissal would endanger public safety. The mitigating circumstances in subdivisions (c)(2)(B) and (c)(2)(C) include language that, if they apply, all enhancements beyond a single enhancement “shall be dismissed.” The “shall be dismissed” language in subdivisions (c)(2)(B) and (c)(2)(C)—read in the context of the statute as a whole—only requires the court to dismiss the enhancement if it first finds that dismissal is “in the furtherance of justice.” (§ 1385(c)(1).) By its terms, the “endanger public safety” language pertains only to the weight a trial court must give to the mitigating circumstances. Subdivision (c)(2) states that, absent a finding that dismissal “would endanger public safety,” the presence of any “one or more” of the listed mitigating circumstances “weighs greatly” in favor of dismissal. (§ 1385(c)(2).) Conversely, if the court finds that dismissal would endanger public safety, then it need not give great weight to the presence of any mitigating circumstance. In either case, however, the court must apply the controlling “furtherance of justice” standard. (§ 1385(c)(1).)