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Name: People v. Ortiz
Case #: H049698
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 01/26/2023

A mitigating factor under Penal Code section 1385, as amended by Senate Bill 81, does not create a presumption in favor of dismissal of an enhancement that can only be rebutted by a showing that dismissal would endanger public safety. After an argument with his mother, Ortiz took a baseball bat to a stranger’s Jeep. He pleaded no contest to felony vandalism and admitted a prior strike conviction. The trial court denied a Romero motion, and sentenced defendant to a lower-term sentence, doubled because of the strike prior. Ortiz appealed, arguing that the failure to dismiss his strike prior was an abuse of discretion under amended section 1385, subdivision (c) in light of the presence of certain mitigating factors. Held: Affirmed. A trial court’s authority under section 1385 includes the authority to dismiss allegations of prior strikes in the furtherance of justice. Senate Bill 81, effective January 1, 2022, amended section 1385 to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant’s sentence in the interests of justice. Assuming that the trial court was correct that section 1385, subdivision (c) applies to strike priors, Ortiz did not show that subdivision (c) was misapplied here. The trial court weighed the established mitigating factor strongly in favor of granting the dismissal, but concluded that other factors outweighed it.  The Court of Appeal disagreed with People v. Walker (2022) 86 Cal.App.5th 386, which held that the mitigating factor warranted a presumption in favor of dismissal that could only be rebutted by a showing that dismissal would endanger public safety. The language of subdivision (c)(2) indicates that a trial court’s discretion involves more than strictly weighing mitigating factors against public safety. While the Legislature has invested the mitigating circumstances with great weight, this does not preclude a trial court from determining that factors other than danger to others may still neutralize the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice. [Editor’s Note: The California Supreme Court granted review in Walker on 3/22/2023 (S278309) on 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?]