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Name: People v. McDowell (2024) 99 Cal.App.5th 1147
Case #: G062263
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 02/23/2024

Senate Bill No. 81 does not apply to the alternative punishment for human trafficking of a minor under Penal Code section 236.1(c)(2), as it is an alternative penalty provision and not an enhancement. Defendant was convicted of human trafficking of a minor (§ 236.1(c)) and other offenses, and sentenced to 23 years to life. This included an indeterminate term of 15 years to life under the alternative penalty provision of section 236.1(c)(2), which deals with human trafficking of a minor with aggravating circumstances. On appeal, defendant argued that SB 81 required the trial court to dismiss his elevated sentence of…

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Name: People v. Dain (2024) 99 Cal.App.5th 399
Case #: A168286
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 01/31/2024

Penal Code section 1385(c) does not apply to the decision of whether to dismiss a prior strike conviction under the Three Strikes law. Defendant was convicted of several felonies. After his first appeal, the Court of Appeal remanded the matter for resentencing based on new ameliorative legislation. At resentencing, the trial court granted defendant’s Romero motion. The People appealed, challenging the sentence imposed by the trial court. Held: Reversed. Senate Bill No. 81 added subdivision (c) to section 1385, which now provides that “the court shall dismiss an enhancement if it is in the furtherance of justice to do so,” and…

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Name: People v. Diaz (2023) 97 Cal.App.5th 1172
Case #: B319020
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 12/18/2023

Case remanded for trial court to consider whether People v. Tirado (2022) 12 Cal.5th 688 and Senate Bill No. 81 impact defendant’s sentence because the court was not aware of these legal developments at the time of sentencing. Diaz was convicted of first degree murder based on evidence that he shot and killed a street vendor for selling tacos on a street claimed by another taco street vendor. He raised a number of issues on appeal, including that, at sentencing, no one involved knew about two new and significant developments affecting sentencing: the Supreme Court decision in Tirado and SB…

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Name: People v. Ruiz (2023) 97 Cal.App.5th 1068
Case #: B324477
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 12/13/2023

The resentencing court committed harmless error when it considered inapplicable aggravators to impose upper terms after Senate Bill No. 567 amended Penal Code section 1170. Ruiz was convicted of assault with a firearm with various enhancements, and this is his third appeal. His case had previously been remanded to the trial court for resentencing due to sentencing errors and new laws that applied in his case. At Ruiz’s second resentencing (which occurred after SB 567’s effective date), the trial court imposed a 4-year upper term on the assault with a firearm charge and the 10-year upper term for a firearm-use…

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Name: People v. Olay (2023) 98 Cal.App.5th 60
Case #: A166288
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 12/21/2023

Senate Bill No. 81’s amendments to Penal Code section 1385(c) do not apply to the Three Strikes law. In 2022, defendant pleaded no contest to grand theft and admitted a prior strike allegation. Prior to sentencing, he moved to dismiss the prior strike pursuant to Romero and SB 81. The court denied the motion, finding section 1385(c) does not apply to prior strikes. Defendant appealed. Held: Affirmed. Effective January 1, 2022, SB 81 added section 1385(c)(1) to require that a trial court “dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of…

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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…

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Name: People v. Renteria (2023) 96 Cal.App.5th 1276
Case #: H049980
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 10/18/2023
Subsequent History: Ordered published 11/8/2023

Defendant is entitled to a full resentencing under Penal Code section 1172.75 based on prior prison term enhancements (Pen. Code, § 667.5(b)) that were imposed but stayed. In 2018, defendant was sentenced to 34 years in prison on 18 drug- and gang-related offenses. The Court of Appeal remanded with instructions for the trial court to strike prior prison term enhancements and to exercise discretion as to whether to strike a prior serious felony enhancement. After the case was remanded, several more changes in the sentencing laws took effect. However, the trial court declined to conduct a full resentencing to apply…

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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…

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Name: People v. Burke (2023) 89 Cal.App.5th 237
Case #: C096164
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/13/2023

The amendments to Penal Code section 1385 enacted by Senate Bill No. 81 do not apply to the Three Strikes law under which a prior strike conviction is part of an alternative sentencing scheme and not an enhancement. At sentencing, trial counsel argued the court should consider SB 81’s changes to section 1385 when determining whether to strike or impose appellant’s prior strike conviction. The trial court declined and doubled appellant’s sentence based on his prior strike. He appealed. Held: Affirmed. SB 81 amended section 1385 to add specific mitigating factors the trial court must consider when deciding whether to…

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Name: People v. Bautista-Castanon (2023) 89 Cal.App.5th 922
Case #: A162579
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 03/28/2023

Under Penal Code section 1170, as amended by Senate Bill No. 567, there is no jury-finding requirement for facts used to impose a middle term when the lower term is the presumed sentence. Defendant was convicted of sexual penetration of a child (count 1), and a lewd act on a child (count 2) with a true finding that the defendant had substantial sexual conduct with the victim (Pen. Code, § 1203.066, subd. (a)(8)). The trial court imposed an indeterminate term of 15 years to life on count 1 and stayed an eight-year upper term on count 2 pursuant to Penal…

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