Penal Code section 1385, as amended by Senate Bill No. 81, does not require the trial court to dismiss a 20-year firearm use enhancement where dismissal would endanger public safety. Pursuant to a letter from CDCR recommending resentencing due to errors in his original sentence, defendant was resentenced in 2022, after SB 81’s amendments to section 1385 became effective. The trial court resentenced defendant but declined to strike his section 12022.53, subdivision (c) firearm use enhancement, finding dismissal of the 20-year enhancement would result in an “inappropriately short” sentence and endanger public safety. On appeal, defendant argued dismissal of the enhancement was mandatory, not discretionary. Held: Affirmed. Effective January 1, 2022, section 1385, subdivision (c)(2) provides that the presence of one or more mitigating circumstances weighs greatly in favor of dismissal of an enhancement, unless the court finds dismissal of the enhancement would endanger public safety. One mitigating circumstance is where imposition of the enhancement “could result in a sentence of over 20 years;” in this instance, the enhancement “shall be dismissed.” (§ 1385, subd. (c)(2)(C)). However, the court is not required to consider this mitigating circumstance where it finds, as it did here, that dismissal of the enhancement would endanger public safety. A contrary interpretation would require the court to dismiss an enhancement even where it would endanger public safety. It would also result in the implied repeal of various statutory enhancements, which could not be what the Legislature intended. The court further concluded that the trial court did not abuse its discretion in finding that dismissal of the gun use enhancement would endanger public safety by making defendant’s prison sentence less than six years, which was not enough time for defendant to become rehabilitated. [Editor’s Notes: (1) The court did not consider whether dismissal would be required if the trial court found dismissal would not endanger public safety, but observed in a footnote that one possible interpretation of the statute was that in such a situation, the trial court must dismiss any enhancement that makes the sentence over 20 years (§ 1385(c)(2)(C)), or “all enhancements beyond a single enhancement” where multiple enhancements are proven (§ 1385, subd. (c)(2)(B). (2) 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?”]
Case Summaries
