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Court of Appeal:
There’s a Rebuttable Presumption in Favor of Judge Dismissing Charged Enhancements
Sentence-Boosting Allegation Must Be Scrubbed Absent
Finding of Danger to Public, Hoffstadt Says
By a MetNews Staff Writer
Legislation that went into effect on Jan. 1 creates a rebuttable presumption in favor of a judge dismissing enhancements that are alleged absent a finding that public safety would be endangered by a lessening of a prospective sentence, Div. Two of the Court of Appeal for this district held yesterday.
Penal Code §1385, in subd. (c)(1), now provides:
“Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.”
Subd.(c)(2) enumerates nine “mitigating circumstances” and provides that “[p]roof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” It also says that “the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances.”
Hoffstadt’s Question
Justice Brian M. Hoffstadt posed the question:
“[W]hat does it mean to ‘greatly weigh’ a mitigating circumstance in deciding whether to dismiss an enhancement?”
His short answer was:
“We conclude that section 1385’s mandate to ‘afford great weight’ to mitigating circumstances erects a rebuttable presumption that obligates a court to dismiss the enhancement unless the court finds that dismissal of that enhancement—with the resultingly shorter sentence—would endanger public safety.”
Elaborating, he wrote:
“Collectively, these provisions dictate that trial courts are to rebuttably presume that dismissal of an enhancement is in the furtherance of justice (and that its dismissal is required) unless the court makes a finding that the resultingly shorter sentence due to dismissal ‘would endanger public safety.’ Although a statute’s use of the ‘shall/unless’ dichotomy by itself does not necessarily erect a presumption in favor of whatever ‘shall’ be done…, section 1385’s use of the additional phrase ‘great weight’ goes a step further than just the ‘shall /unless’ dichotomy and thereby erects a presumption in favor of the dismissal of the enhancement unless and until the court finds that the dismissal would ‘endanger public safety’ as that term is defined in section 1385.”
Multiple Enhancements
One of the nine mitigating circumstances is where “[m]ultiple enhancements are alleged in a single case.” The statute provides:
“In this instance, all enhancements beyond a single enhancement shall be dismissed.”
Hoffstadt queried whether these words “require the court to dismiss all but one of those enhancements in every case with multiple enhancements,” declaring:
“We conclude that the answer is ‘no.’ ”
He set forth:
“So what does the phrase ‘all enhancements beyond a single enhancement’ mean when considered in its statutory context? It means what it says—namely, that if a trial court determines that the mitigating circumstance of ‘[m]ultiple enhancements...in a single case’ exists and that dismissal of the enhancements will not ‘endanger public safety,’ then the court’s discretion to dismiss is somewhat constrained by the phrase’s mandate that the court must dismiss all but one of those multiple enhancements. This reading of the text of section 1385 is the only one to give effect to the phrase’s mandate of dismissing all but one enhancement and to give effect to the phrase’s placement within section 1385 and the language that mitigating factors be given ‘great’ (but not dispositive) ‘weight.’ ”
Field’s Ruling
The opinion affirms Los Angeles Superior Court Judge David R. Fields’s decision against striking either of two enhancements alleged against Maurice Walker, finding that the defendant poses a “public safety danger.” He noted prior convictions entailed “uncivilized violent, absolutely unjustified behavior” and concluded that dismissal of an enhancement would not be in the “interest of justice.”
There was a remand, however, based on two sentencing errors conceded by the prosecution.
Walker was charged in 2012 with assault with a deadly weapon and elder abuse and was convicted. Fields acted last April at a resentencing hearing.
The case is People v. Walker, B319961.
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