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Name: People v. Ponder (2023) 96 Cal.App.5th 1042
Case #: A166053
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 10/26/2023

Under Penal Code section 1385(c)(2), the trial court retains discretion to choose not to dismiss a firearm enhancement in the furtherance of justice for reasons other than public safety. Defendant was convicted of murder and other offenses for opening fire and killing one person at a child’s birthday party when he was 18 years old. He was initially sentenced to 40 years to life, but the Court of Appeal reversed the 25-year-to-life gun enhancement and remanded for resentencing in light of the extensive evidence of defendant’s neurodevelopmental disorders, immaturity, and history of trauma. On remand, defendant urged the trial court to strike the firearm enhancement associated with the murder count outright because the offense was connected to prior victimization, childhood trauma, and mental illness, and application of the enhancement would result in a sentence over 20 years. The trial court instead imposed the lesser 10-year gun enhancement, resulting a total sentence of 25 years to life. Defendant appealed. Held: Affirmed. In 2021, the Legislature enacted Senate Bill No. 81, which amended section 1385 to specify mitigating circumstances a trial court must consider when deciding whether to strike an enhancement in the furtherance of justice. Here, defendant argued that once the court found mitigating circumstances related to his neurodevelopmental deficits, youth, and history of childhood trauma, section 1385(c)(2) required dismissal of the firearm enhancement (without imposition of any lesser included enhancement) unless the court found dismissal would endanger public safety. The court disagreed. As explained in People v. Ortiz (2023) 87 Cal.App.5th 1087, the plain language of section 1385(c)(2) contemplates the trial court’s exercise of sentencing discretion, even as it mandates that the court give “great weight” to evidence of enumerated factors, and SB 81’s legislative history supports this interpretation. Had the Legislature intended to establish a rebuttable presumption in favor of dismissal, it could have approved an earlier version of the bill. [Editor’s Notes: (1) There is a split of authority on this issue, which is pending in the California Supreme Court in People v. Walker (2022) 86 Cal.App.5th 386, review granted 3/22/2023 (S278309/B319961). The issue in Walker is: 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? (2) The court did not decide whether the trial court erred in finding that section 1385(c)(2)(C) (which lists the “application of an enhancement [that] could result in a sentence of over 20 years” as a mitigating circumstance) did not apply, because there was no prejudice. (3) The court further found that remand under Assembly Bill No. 518 was not required because the trial court specifically found that even if it had discretion to make another offense (other than the murder conviction) the primary offense under section 654, it would not do so. Thus, remand under AB 518 would serve no purpose.]