People v. Walker ( 2022 )

Filed 12/15/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B319961
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA398731)
v.
MAURICE WALKER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David R. Fields, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Law Offices of Jason Szydlik and Jason Szydlik, under
appointment by the Court of Appeal, for Defendant and
Appellant.
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication as to all parts
except Part II of the Discussion.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
******
For all criminal sentencings after January 1, 2022, our
Legislature in Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 721, § 1) has provided direction on how trial courts are
to exercise their discretion in deciding whether to dismiss
sentencing enhancements. Specifically, Penal Code section 1385
now provides that the presence of one of nine enumerated
“mitigating circumstances” “weighs greatly in favor of dismissing
the enhancement[] unless the court finds that dismissal of the
enhancement would endanger public safety.” (Pen. Code, § 1385,
subd. (c)(2).)1
This appeal presents two questions of first impression.
First, does the mitigating circumstance that exists when
there are “[m]ultiple enhancements . . . in a single case” and
specifies that “all enhancements beyond a single enhancement
shall be dismissed” require the court to dismiss all but one of
those enhancements in every case with multiple enhancements?
We conclude that the answer is “no.”
Second, what does it mean to “greatly weigh” a mitigating
circumstance in deciding whether to dismiss an enhancement?
We conclude that section 1385’s mandate to “afford great weight”
to mitigating circumstances erects a rebuttable presumption that
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
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.
In light of these holdings, we affirm the trial court’s denial
of the motion to dismiss the two enhancements at issue in this
case. However, we reverse with directions to correct two other
sentencing errors that the parties concede. We accordingly affirm
in part, reverse in part, and remand with directions.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Defendant’s criminal history
In 1983, while Maurice Walker (defendant) was a juvenile,
he was adjudicated guilty of robbery. In 1992, as an adult, he
was convicted of assault with a deadly weapon after he smashed
a glass in his ex-girlfriend’s face, breaking her nose and causing
lacerations necessitating 100 stitches. In 1995, defendant was
convicted of defrauding an innkeeper. In 2001 and again in 2007,
he was convicted of felony drug possession, but successfully
petitioned in 2015 to have the 2001 conviction reduced to a
misdemeanor. In 2009, defendant was found guilty of a probation
violation for making a criminal threat.
B. Current offense
In June 2012, defendant elbowed a woman in the mouth.
When a 77-year-old man in a wheelchair tried to intervene to
stop defendant’s attack on the woman, defendant pulled out a
knife and repeatedly stabbed the elderly man in the arm.
II. Procedural Background
A. Charges, conviction and initial sentence
In July 2012, the People charged defendant with (1) assault
with a deadly weapon (§ 245, subd. (a)(1)), and (2) elder abuse (§
3
368, subd. (b)(1)).2 As to both counts, the People alleged that
defendant personally inflicted great bodily injury on a person 70
years or older (§ 12022.7, subd. (c)). The People further alleged
that defendant’s 1983 juvenile adjudication for robbery and his
1992 conviction for assault with a deadly weapon constituted
“strikes” within the meaning of our “Three Strikes” law (§§
1170.12, subds. (a)-(d), 667, subds. (b)-(j)), and that the 1992
conviction also qualified as a prior serious felony (§ 667, subd.
(a)). The People lastly alleged that defendant had served prior
prison terms (§ 667.5, subd. (b)) for the 1992 assault with a
deadly weapon conviction and a 2001 felony drug possession
conviction (Health & Saf. Code, § 11350).
A jury convicted defendant of all charges, and found all
allegations true.
The trial court sentenced defendant to state prison for 20
years. Specifically, the court exercised its discretion to dismiss
the 1983 juvenile adjudication as a “strike” because the court did
not want to impose a “life sentence” in this case and because
defendant was not convicted of any violent crimes between the
1992 conviction and the 2012 incident underlying this case. The
court then imposed a 20-year sentence on the assault with a
deadly weapon conviction, and imposed but stayed under section
654 a 13-year sentence for the elder abuse conviction.
We affirmed the conviction and sentence in an unpublished
opinion. (People v. Walker (Feb. 24, 2014, B245405).)
2 The People also charged defendant with misdemeanor
battery (§ 242), and the trial court imposed a six-month
concurrent sentence after the jury convicted him of that
misdemeanor. Because that charge and sentence do not factor
into any issue in this appeal, we will not discuss them further.
4
B. First resentencing
After defendant successfully petitioned to have the 2001
conviction reduced to a misdemeanor in 2015, he petitioned for a
writ of habeas corpus seeking a resentencing where both one-year
prior prison term enhancements would be dismissed. In 2017,
the trial court dismissed the prior prison term enhancement for
the 1992 assault with a deadly weapon conviction (because that
conviction could not be doubly used to impose the five-year
enhancement and the one-year enhancement), but refused to
dismiss the prior prison term enhancement based on the now
redesignated misdemeanor 2001 conviction. Defendant
petitioned this court, and we issued an opinion directing the trial
court to dismiss the prior prison term enhancement arising from
the 2001 conviction and “to consider whether to conduct a full
resentencing.” (People v. Walker (2021) 67 Cal.App.5th 198, 208.)
C. Second resentencing
After entertaining briefing, the trial court conducted a full
resentencing hearing in April 2022. Defendant asked the trial
court (1) to dismiss both the great bodily injury and the prior
serious felony enhancements in light of the changes made to
section 1385 by the recently enacted Senate Bill No. 81, and (2) to
use the middle-term as the base sentence for both counts in light
of the changes made to section 1170 by the recently enacted
Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, §
1.3). The trial court declined to exercise its discretion under
section 1385 to dismiss either enhancement, reasoning that
defendant posed a “public safety danger” because defendant had
twice—in 1992 and again in 2012—engaged in conduct comprised
of “uncivilized violent, absolutely unjustified behavior,” such that
it was not in the “interest of justice” to dismiss either
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enhancement and thereby allow defendant to be released into the
community any sooner, even though “multiple enhancements”
were still being applied to defendant. The court granted
defendant’s request to use the middle-term as the base term,
however.
The court then imposed a 16-year term in state prison.
Specifically, the court imposed a 16-year sentence on the assault
with a deadly weapon conviction comprised of a base term of six
years (a middle-term three years doubled due to the prior strike),
plus five years for the infliction of great bodily injury
enhancement plus five years for the prior serious felony
enhancement. The court imposed but stayed under section 654
an identically calculated 16-year sentence on the elder abuse
conviction. The court calculated 158 days of actual custody credit
and 24 days of conduct credit based on the time in custody
between the date of defendant’s arrest and the date of his
sentencing in 2012.
D. Appeal
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in (1) declining
to strike the prior serious felony enhancement, (2) erred in
imposing the prior serious felony enhancement twice—once for
the assault with a deadly weapon count and again for the elder
abuse count, and (3) erred in calculating custody credits by not
calculating the time in custody between the date of his arrest and
the date of his resentencing on April 8, 2022. The People concede
that defendant’s second and third arguments have merit, and we
agree. (People v. Sasser (2015) 61 Cal.4th 1, 15 [prior serious
felony enhancement does “‘not attach to particular counts but
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instead [is] added just once as the final step in computing the
total sentence’”]; People v. Buckhalter (2001) 26 Cal.4th 20, 29
[when calculating credits at a resentencing, court must calculate
them up to the date of the resentencing].) As a result, we direct
the trial court to impose the prior serious felony enhancement
only once to defendant’s total sentence (such that the court must
not include that enhancement as part of the elder abuse
sentence), and to recalculate the actual custody credits as well as
conduct credits based on the time between the date of defendant’s
arrest and the date of resentencing.
As part of his first argument, the parties agree that
defendant is entitled to be resentenced under the law as it exists
today because his 2012 sentence was vacated. (Accord, People v.
Padilla (2022) 13 Cal.5th 152, 161-162.) Under the current law,
defendant raises two types of challenges: (1) he challenges the
trial court’s interpretation of section 1385, and (2) he challenges
the court’s exercise of discretion under section 1385. We review
the first type of challenge de novo (John v. Superior Court (2016)
63 Cal.4th 91, 95), and review the second type for an abuse of
discretion (e.g., People v. Carmony (2004) 33 Cal.4th 367, 378).
I. Interpretation of Section 1385, as Modified by Senate
Bill No. 81
As amended by Senate Bill No. 81, section 1385 grants trial
courts “the authority”—and simultaneously imposes upon them a
duty—“to strike or dismiss a[ sentencing] enhancement” (or, if
they choose, the “additional punishment for that enhancement”)
if doing so is “in the furtherance of justice.” (§ 1385, subds. (b)(1),
(a) [granting “authority”]; id., subd. (c)(1) [“the court shall
dismiss an enhancement if it is in the furtherance of justice to do
so” (italics added)].) Section 1385 makes clear that whether
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dismissal of an enhancement is “in the furtherance of justice” is a
“discretion[ary]” call for the trial court to make. (Id., subd. (c)(2)
[“In exercising its discretion . . .” (italics added)]; id., subd., (c)(3)
[“court may exercise its discretion at sentencing” or “exercis[e] its
discretion before, during, or after trial or entry of plea” (italics
added)].) Senate Bill No. 81 amended section 1385 to fine tune
how a court is to exercise that discretion: Specifically, section
1385 now enumerates nine “mitigating circumstances,” and
mandates that the presence of any such circumstance “weighs
greatly in favor of dismissing the enhancement[] unless the court
finds that dismissal of the enhancement would endanger public
safety.” (Id., subd. (c)(2), italics added.) Dismissal endangers
public safety if “there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious
danger to others.” (Ibid.) The two mitigating circumstances at
issue in this appeal exist when:
“(B) Multiple enhancements are alleged in a
single case. In this instance, all enhancements
beyond a single enhancement shall be dismissed.
[¶] . . . [¶]
“(H) The enhancement is based on a prior
conviction that is over five years old.”
(§ 1385, subd. (c)(2)(B) & (H), italics added.)
Defendant’s appeal requires us to confront two questions
about section 1385’s meaning, although he only expressly raises
the second question: (1) Does the sentence “all enhancements
beyond a single enhancement shall be dismissed” in subdivision
(c)(2)(B) of section 1385 obligate trial courts to dismiss all but one
enhancement in every case, or do trial courts still retain
discretion to determine whether dismissal endangers public
8
safety (and thus is in the furtherance of justice), and (2) What
weight must a trial court give a mitigating circumstance in order
to give it “great weight” within the meaning of subdivision (c)(2)
of section 1385?
A. Does section 1385, subdivision (c)(2)(B), obligate
trial courts to dismiss multiple enhancements in every
case?3
Our task in interpreting section 1385 is to “ascertain” and
“give effect to the intended purpose” of our Legislature in
enacting the statute. (People v. Zambia (2011) 51 Cal.4th 965,
976.) “[T]he text of a statute is often the best indicator of its
meaning.” (North American Title Co., Inc. v. Gugasyan (2021) 73
Cal.App.5th 380, 392.) If the text is “unambiguous,” our task
“begins and ends with th[e] text” (Diaz v. Gill Concepts Services,
Inc. (2018) 23 Cal.App.5th 859, 874-875); but if the text is
ambiguous because it “permits more than one interpretation,”
then we “‘may consider other aids, such as the statute’s purpose,
legislative history, and public policy’” as well as the general
canons of statutory construction. (Ardon v. City of Los Angeles
(2016) 62 Cal.4th 1176, 1184; accord, Riverside County Sheriff's
Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630.)
3 Defendant argued to the trial court that he was entitled to
have all but one of the enhancements stricken in light of the
language in subdivision (c)(2)(B) of section 1385 providing that
“all enhancements beyond a single enhancement shall be
dismissed.” (Italics in original.) Although defendant has elected
not to press this argument on appeal—and, indeed, conceded at
oral argument that it is incorrect—we nevertheless address it
because it presents a question of statutory interpretation that
has yet to be addressed in a published appellate decision.
9
In our view, the text and purpose of section 1385 in
general, and Senate Bill No. 81 in particular, as well as the
canons of statutory construction, counsel in favor of concluding
that the phrase “all enhancements beyond a single enhancement
shall be dismissed” in subdivision (c)(2)(B) does not obligate trial
courts to automatically dismiss all but one enhancement
whenever a jury finds multiple enhancements to be true.
The text of section 1385 favors this result. To be sure, on
its face and considered in isolation, the phrase “all enhancements
beyond a single enhancement shall be dismissed” seems to fairly
unambiguously dictate that, if there is more than one
enhancement, all but one “shall” be dismissed. But we are not
permitted to pluck this phrase out of its placement in the statute
and consider it in isolation; instead, we are required to consider
where it fits into the “‘context of the statute as a whole.’” (People
v. Valencia (2017) 3 Cal.5th 347, 358; accord, Jarman v. HCR
ManorCare, Inc. (2020) 10 Cal.5th 375, 381 (Jarman).) And, in
this case, the context is critical. The phrase “all enhancements
beyond a single enhancement shall be dismissed” is not a
standalone mandate of section 1385. Instead, it appears in the
statute appended to one of the nine mitigating circumstances—
that is, it is appended to the circumstance that exists when
“[m]ultiple enhancements are alleged in a single case.” (§ 1385,
subd. (c)(2)(B).) Section 1385 explicitly instructs that the
existence of a mitigating circumstance—including the one for
“multiple enhancements”—“weighs greatly in favor of dismiss[al]”
of an enhancement as the court is exercising its discretion under
section 1385 to evaluate whether dismissal is in the furtherance
of justice by weighing enumerated and unenumerated mitigating
factors against whether dismissal of an enhancement would
10
“endanger public safety.” (Id., subd. (c)(2) & (4) [indicating that
statutorily enumerated list of mitigating factors is not exclusive],
italics added.) If we were to read the phrase appended to the
multiple enhancements mitigating factor as automatically
mandating dismissal of all but one enhancement whenever
multiple enhancements exist, then the existence of multiple
enhancements would not “weigh greatly” in favor of dismissal—it
would weigh dispositively. But that is not what the statute says,
and we are not allowed to rewrite the statute. (Jarman, at p.
392.)
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.”
Second, the purposes of section 1385 and Senate Bill No. 81
favor reading the phrase “all enhancements beyond a single
enhancement shall be dismissed” to specify what must be
dismissed after a trial court has exercised its discretion to decide
whether dismissal is warranted in the first place. As the plain
text of section 1385 repeatedly emphasizes, its purpose is to grant
trial court discretion to dismiss enhancements. And the purpose
11
of Senate Bill No. 81, as reflected in the Legislative Digest, is to
encourage exercise of that discretion by making dismissal
mandatory if it is in the furtherance of justice to do so, and to
specify the mitigating circumstances that are to be given great
weight in that exercise of discretionary balancing. (Legis.
Digest.) Nothing in Senate Bill No. 81 indicates an intent to
deprive trial courts of their discretion altogether—either
generally or more specifically in the subset of cases where
multiple enhancements are alleged.
Lastly, the canons of statutory construction favor reading
the phrase “all enhancements beyond a single enhancement shall
be dismissed” as we have. Two canons in particular strongly
disfavor adopting a construction of that phrase to mandate a rule
of automatic dismissal of all but one enhancement whenever
multiple enhancements are alleged. Such a construction would
hinge upon reading the phrase in isolation, but the canons
counsel against that. (Jarman, supra, 10 Cal.5th at p. 381.)
That construction would also require us to accept that our
Legislature—rather than having a standalone section that says
“If there’s more than one enhancement, automatically dismiss all
but one”—instead opted to embed that mandate as an addendum
to one of nine mitigating factors to be given great weight in the
context of a trial court’s discretionary decision whether to
dismiss. In other words, if our Legislature was trying to
implement a rule of mandatory and automatic dismissal, it
picked a very circuitous way to do so. The canons generally
presume that our Legislature takes the more direct route to
achieve its purpose, which counsels against construing statutes
to have a meaning that requires more complex linguistic
gymnastics to reach. (Brodie v. Workers’ Comp. Appeals Bd.
12
(2007) 40 Cal.4th 1313, 1328, fn. 10 [“[T]he principle of Occam’s
razor—that the simplest of competing theories should be
preferred over more complex and subtle ones—is as valid
juridically as it its scientifically.’”].)
B. What does section 1385, subdivision (c)(2), mean
when it requires trial courts to give “great weight” to
mitigating factors?
Section 1385 specifies that a trial court “shall dismiss an
enhancement if it is in the furtherance of justice to do so” (§ 1385,
subd. (c)(1)); it enumerates specific mitigating circumstances; and
it mandates that the “presence” of those circumstances must be
“afford[ed] great weight” and “weighs greatly in favor of
dismissing the enhancement[] unless the court finds that
dismissal of the enhancement would endanger public safety” (id.,
subd. (c)(2), italics added). 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 (e.g., People v. Gutierrez (2014)
58 Cal.4th 1354, 1370-1371; People v. Buford (2016) 4
Cal.App.5th 886, 902-903), 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.
13
Defendant urges us to ascribe even greater weight to the
phrase “great weight”—namely, that the existence of a mitigating
circumstance obligates the trial court to dismiss an enhancement
“unless there is substantial evidence of countervailing
considerations” that justify imposition of the enhancement (and
the resulting longer sentence). Defendant lifts this language
from People v. Martin (1986) 42 Cal.3d 437, 448 (Martin), and
argues that it is dispositive of what the phrase “great weight”
means in section 1385 because Martin was interpreting that
same phrase (“great weight”) and because the sponsor of Senate
Bill No. 81 inserted a letter into the Legislature’s official record
after the bill’s passage indicating her belief that Martin provided
the appropriate definition of “great weight.”
We reject defendant’s argument for two reasons.
First, Martin’s construction of the term “great weight”
arose in a very different context. Martin dealt with a statute that
obligated the Board of Prison Terms to review every sentence to
determine if it was ‘“disparate in comparison with the sentences
imposed in similar cases,”’ and, if the Board made a finding of
disparity, obligated a trial court to give “great weight” to the
Board’s finding when determining whether to recall and
resentence that defendant. (Martin, supra, 42 Cal.3d at pp. 441-
445.) Because the Board’s finding of disparity reflected the
“expert judgment” of an independent tribunal and because recall
and resentencing involves one trial judge effectively overruling
the determination of another, Martin construed the phrase “great
weight” to obligate trial courts to “accept the board’s finding of
disparity unless based upon substantial evidence it finds that the
board erred in selecting the appropriate comparison group . . . .”
(Id. at p. 447.) Martin’s definition is inapt here because neither
14
of the considerations that informed Martin’s construction of the
phrase “great weight”—the need to defer to a concordant body in
another branch of government and the desire to avoid having one
judge overrule another absent a finding of disparity by an
independent body—is at play with section 1385, and hence
Martin’s justification for construing “great weight” to place an
especially onerous burden is wholly absent. Instead, section 1385
accords “great weight” to the existence of a mitigating
circumstance found—not by an independent tribunal—but rather
by the very same trial judge who will be weighing that
circumstance against the danger to the public. In the context of
section 1385, as noted above, the term “great weight” places a
thumb on the scale that balances the mitigating circumstances
favoring dismissal against whether dismissal would endanger
public safety, and tips that balance in favor of dismissal unless
rebutted by the court’s finding that dismissal would endanger
public safety.
Second, it is well settled that the insertion of a
postenactment letter regarding the meaning of language in
section 1385 is entitled to little if any weight, at least where (as
here) the letter reflects the view of a single legislator rather than
the legislative body that enacted the statute. (Quintano v.
Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1063 [“We have
frequently stated, moreover, that the statements of an individual
legislator, including the author of a bill, are generally not
considered in construing a statute, as the court's task is to
ascertain the intent of the Legislature as a whole in adopting a
piece of legislation.”]; People v. Tarkington (2020) 49 Cal.App.5th
892, 905 [“Therefore, unless there is a showing that particular
materials were part of the debate on the legislation and were
15
communicated to the Legislature as a whole before passage of the
bill, they are not cognizable legislative history.”], abrogated on
other grounds by People v. Lewis (2021) 11 Cal.5th 952; Simgel
Co., Inc. v. Jaguar Land Rover North America, LLC (2020) 55
Cal.App.5th 305, 321, fn. 1 [“Defendant asks us to take judicial
notice of the legislative history of Civil Code section 1791.1. . . .
We deny the request. The document defendant cites is a letter
from the staff of the bill's sponsor, responding to a letter from an
attorney for a dealers’ association. There is no indication the
letter was communicated to the Legislature as a whole. For that
reason, it does not constitute cognizable legislative history.”].)
Defendant urges that the letter is entitled to more weight for two
reasons. To begin, he argues that the letter was published in the
Senate’s register by unanimous consent. Yet an agreement to
publish a letter written by one legislator does not constitute an
endorsement by the Legislature of the views espoused in that
letter. Further, defendant argues that neither the Assembly nor
the Governor expressed any disagreement with the sponsor’s
letter. Yet the Assembly and Governor had no reason to disagree
with a letter that was not part of the bill they enacted or signed.
II. Abuse of Discretion
It is undisputed that two mitigating circumstances
enumerated in section 1385 are present in this case—namely,
that (1) multiple enhancements (namely, the enhancements for
great bodily injury and for a prior serious felony) have been
imposed (§ 1385, subd. (c)(2)(B)), and (2) the prior serious felony
enhancement is based on a conviction that is over five years old
(because the 1992 conviction is now 30 years old) (id., subd.
(c)(2)(H)). Consequently, whether the trial court abused its
discretion in declining to dismiss the prior serious felony
16
enhancement turns on whether the trial court abused its
discretion in “find[ing] that dismissal of [that] enhancement
would endanger public safety” because “there is a likelihood that
[its] dismissal . . . would result in physical injury or other serious
danger to others.” (§ 1385, subd. (c)(2).)
We conclude there was no abuse of discretion. In finding
that defendant’s earlier release from prison “would result in
physical injury or other serious danger to others,” the trial court
here cited defendant’s two unprovoked and vicious attacks in
1992 and 2012—the first involving carving up his female victim’s
face with cut glass and the second involving repeatedly stabbing
his elderly and immobile victim’s arm with a knife merely for
trying to stop defendant from battering another woman. These
incidents evince defendant’s propensity to physically injure
others and thus to pose a serious danger to them. Although, as
defendant notes, he confined his criminal behavior between the
1992 and 2012 attacks to mostly nonviolent conduct, he
nevertheless reverted back to extreme violence in 2012. The trial
court had a basis for believing that same risk exists today and
that releasing him any earlier would endanger public safety.
Defendant asserts that the trial court abused its discretion
for three further reasons. First, defendant argues that the trial
court made no express finding that dismissal of the
enhancements would “endanger public safety” and instead found
only that dismissal would not be in the furtherance of justice.
However, because whether dismissal of an enhancement is “in
the furtherance of justice” is an ultimate finding that necessarily
rests on a subsidiary finding that dismissal would endanger
public safety, we may imply a finding of the latter from its
express finding of the former. (E.g., People v. Calhoun (1983) 141
17
Cal.App.3d 117, 126; People v. Eberhardt (1986) 186 Cal.App.3d
1112, 1123.) Second, defendant seems to suggest that the trial
court was not allowed to look to the conduct underlying the 1992
conviction in determining whether defendant’s earlier release
would endanger public safety because that conviction was more
than five years old and hence qualified as a mitigating
circumstance. This suggestion would require us to assume that
an enhancement has been dismissed when trying to decide
whether it should be dismissed. To us, this makes no sense
because it puts the cart before the horse. Lastly, defendant
argues that the trial court was also not allowed to look to the
conduct underlying the convictions in this case because the
underlying facts were already used to impose the great bodily
injury enhancement, and section 1385’s presumptive prohibition
against multiple enhancements means that the facts used to
justify the great bodily injury enhancement cannot be used to
rebut that presumption. We reject this argument as well. It
seems to rest on an analogy to the prohibition against using the
same facts for a “dual use” in sentencing. But there was no
impermissible dual use: Although the great bodily injury to the
victim in this case was part of the gestalt of facts underlying this
crime, what the trial court relied upon to overcome the
presumption favoring dismissal was the entirety of the attack
and its unprovoked and extreme nature—not the amount of
injury inflicted.
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DISPOSITION
The judgment is reversed in part to the extent it failed to
reflect the proper custody credits earned by defendant, and the
trial court is directed to calculate the appropriate credits
consistent with the views expressed in this opinion. The trial
court is also directed to impose an 11-year sentence on the elder
abuse count. The trial court is to issue an amended abstract of
judgment and forward it to the Department of Corrections and
Rehabilitation. We affirm the judgment in all other respects.
CERTIFIED FOR PARTIAL PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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