People v. Willis CA4/3 ( 2023 )

Filed 6/20/23 P. v. Willis CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061403
v. (Super. Ct. No. 97NF2316)
ANDRE WILLIS, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Lance
P. Jensen, Judge. Affirmed in part and remanded with directions.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Paige B. Hazard and
A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
As amended in 2021, Penal Code section 1385 enumerates a variety of
mitigating circumstances trial courts must consider in deciding whether to dismiss a
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sentence enhancement in the interest of justice. The primary question before us is
whether dismissal is not only authorized, but required, when certain mitigating
circumstances are present. Appellant contends the answer is yes, but consistent with
every other appellate panel that has weighed in on the issue, we conclude the concern for
public safety is a legitimate reason for refusing to dismiss an enhancement. Therefore,
the trial court was not required to dismiss appellant’s enhancements in this case.
However, the parties agree the trial court erred in failing to calculate appellant’s
presentence credits, and we will thus remand the matter for that limited purpose. In all
other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1997, appellant and Kevin Boyce entered a hair salon occupied by
Shayne York, his fiancée Jennifer Parish, and Jennifer’s sister. Brandishing a handgun,
appellant ordered the trio to the floor and took their money. Then Boyce fatally shot
York in the back of the head after discovering he was a sheriff’s deputy. Before fleeing
the scene with Boyce, appellant took Jennifer’s jewelry and ATM card.
Two hours later, appellant and Boyce walked into a pizza parlor in Yorba
Linda and demanded everyone’s money. Several patrons turned over their wallets. In
addition, the duo took roughly $500 from the safe before fleeing the scene. However,
they were apprehended by the police a short time later.
Following a jury trial, appellant was convicted of first degree murder,
burglary, three counts of attempted robbery, and five counts of robbery. He was also
found to have used a firearm and suffered two prior strike convictions and a prior serious
felony conviction. The trial court sentenced him to prison for 150 years to life, plus a
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All further statutory references are to the Penal Code, and all undesignated subdivisions and
subparagraphs are to section 1385.
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determinate term of 10 years and 4 months for the firearm and prior serious felony
enhancements.
On appeal, we affirmed the judgment in all material respects. (People v.
Willis (Aug. 29, 2002, G029110) [nonpub. opn.].) But two decades later, appellant
successfully petitioned for resentencing pursuant to former section 1170.95, now section
1172.6. After vacating appellant’s murder conviction, the trial court resentenced him on
May 13, 2022. On the substantive counts, the court imposed a reduced term of 100 years
to life. It then reimposed the 10-year and 4-month determinate term for the
enhancements. In so doing, the trial court ruled it was not in the interest of justice to
strike appellant’s enhancements under section 1385. It also failed to award him any
presentence custody or conduct credits.
DISCUSSION
Section 1385
Appellant does not challenge his century-long indeterminate sentence.
Rather, he contends the trial court violated section 1385 by failing to dismiss the
enhancements that make up his determinate sentence. He argues their dismissal was
compelled under the terms of the statute, but he is wrong.
Pursuant to subdivision (c)(1) of section 1385, trial courts must dismiss an
enhancement if it is in the furtherance of justice to do so. However, subdivision (c)(2) of
the statute makes it clear that the furtherance-of-justice standard is discretionary in
nature. It states, “In exercising its discretion under this subdivision, the court shall
consider and afford great weight to evidence offered by the defendant to prove that any of
the mitigating circumstances in subparagraphs (A) to (I) are present. Proof 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.” (Subd. (c)(2), italics added.)
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Of the nine mitigating circumstances listed in subparagraphs (A) to (I),
seven simply describe the nature of the evidence that must be shown, such as proof that
application of the enhancement would result in discriminatory racial impact, or that the
current offense is connected to mental illness or childhood trauma. (Subd. (c)(2)(A), (D)
& (E).) However, two of the mitigating circumstances are not merely descriptive; they
also speak to the prospect of dismissal if those circumstances are present. They are set
forth in subparagraphs (B) and (C) as follows:
“(B) Multiple enhancements are alleged in a single case. In this instance,
all enhancements beyond a single enhancement shall be dismissed.
“(C) The application of an enhancement could result in a sentence of over
20 years. In this instance, the enhancement shall be dismissed.” (Subd. (c)(2)(B) & (C),
italics added.)
There is no dispute that both of those mitigating circumstances apply in this
case. The only issue is whether they require the dismissal of appellant’s enhancements
for using a firearm and having suffered a prior serious felony conviction.
In arguing they do, appellant relies on the express wording of the subject
subparagraphs, which appears straightforward when viewed in isolation. Indeed, the
phrase “shall be dismissed” is not ambiguous on its face. However, when used in a
statute, the word “shall” does not always impose a mandatory duty. (People v. Anderson
(2023) 88 Cal.App.5th 233 (Anderson).) Although it typically does, “‘there are
unquestionably instances in which other factors will indicate [the term] was not intended
to foreclose [the] exercise of discretion. [Citations.]’ [Citation.]” (Bradley v. Lacy
(1997) 53 Cal.App.4th 883, 889.)
As the Anderson court recently explained, section 1385 provides a prime
example of this. Examining the “shall be dismissed” language in subparagraphs (B) and
(C) of subdivision (c)(2), Anderson stated, “‘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
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consider where it fits into the “‘“context of the statute as a whole.”’” [Citation.] Here,
the statement that a court ‘shall’ dismiss certain enhancements appears as a subpart to the
general provision that a ‘court shall dismiss an enhancement if it is in the furtherance of
justice to do so.’ (§ 1385, subd. (c)(1), italics added.)” (Anderson, supra, 88 Cal.App.5th
at p. 239.)
“In other words, the dismissal of the enhancement is conditioned on a
court’s finding dismissal is in the interest of justice. The nature of this condition is
further explained by the Legislature’s directive that the court, while ‘exercising its
discretion under this subdivision, . . . shall consider and afford great weight’ to evidence
of certain factors, and proof of one of the factors ‘weighs greatly’ in favor of dismissal
‘unless’ the court finds dismissal would endanger public safety. [Citation.] This
language, taken together, explicitly and unambiguously establishes: the trial court has
discretion to dismiss sentencing enhancements; certain circumstances weigh greatly in
favor of dismissal; and a finding of danger to public safety can overcome the
circumstances in favor of dismissal.” (Anderson, supra, 88 Cal.App.5th at p. 239.)
Anderson therefore concluded that if the circumstances in subparagraphs
(B) or (C) are found to exist, “dismissal shall occur but only if, in exercising its discretion
and giving great weight to certain factors, the court finds dismissal is in the interests of
justice or would not endanger public safety.” (Anderson, supra, 88 Cal.App.5th
at p. 240.) Other courts are in accord. In fact, recognizing the need to consider section
1385 as a whole and harmonize its various provisions, every published opinion that has
considered this issue has reached the same conclusion: Despite the “shall be dismissed”
language in subparagraphs (B) and (C), dismissal is not required if it would endanger
public safety within the meaning of subdivision (c)(2). (Id. at p. 241; People v. Mendoza
(2023) 88 Cal.App.5th 287, 294-297; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15-
21; People v. Walker (2022) 86 Cal.App.5th 386, 396-398, review granted Mar. 22, 2023,
S2783091.)
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As these opinions have pointed out, this reading of section 1385 comports
with the purpose and legislative history of the statute. (Anderson, supra, 88 Cal.App.5th
at pp. 240-241; People v. Lipscomb, supra, 87 Cal.App.5th at pp. 18-20; People v.
Walker, supra, 86 Cal.App.5th at pp. 397-398.) It also avoids the implied repeal of
various enhancements provisions, an “absurd” consequence that would follow from
appellant’s interpretation of the statute. (People v. Mendoza, supra, 88 Cal.App.5th at
pp. 296-297; People v. Lipscomb, supra, 87 Cal.App.5th at pp. 20-21.)
For all these reasons, we conclude that, notwithstanding the applicability of
subparagraphs (B) and (C) of subdivision (c)(2) to appellant’s sentence, the trial court
was not required to dismiss his firearm and prior serious felony enhancements. Instead,
the decision to dismiss was a discretionary one to be informed by whether dismissal
would be in the interests of justice and public safety. Because appellant does not
challenge the trial court’s exercise of discretion in that regard, there is no basis to disturb
its ruling under section 1385.
Credits
At the resentencing hearing, the trial court did not award appellant any
presentence credits. We agree with the parties that this oversight requires correction.
“[I]t is the duty of the trial court to award the correct amount of credits.”
(People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 9.) When an imprisoned
defendant is resentenced following a change to his judgment, “the sentencing court must
recalculate and credit against the modified sentence all actual time the defendant has
already served, whether in jail or prison, and whether before or since he was originally
committed and delivered to prison custody.” (People v. Buckhalter (2001) 26 Cal.4th 20,
29.) In addition, the court has the responsibility to “add applicable good behavior credits
earned pursuant to section 4019, and reflect the total in the abstract of judgment.
[Citations.]” (Id. at p. 30.)
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Appellant claims he is entitled to 9,039 days of actual custody credit, plus
204 days’ worth of conduct credit. Rather than trying to assess the merits of his claim
based on the limited appellate record, we will remand the matter to permit the trial court
to calculate appellant’s credits in the first instance. (See People v. Montalvo (1982) 128
Cal.App.3d 57, 62 [“it is the business of the trial court, and not the appellate court, to
determine the credit to which the defendant is entitled by reason of presentence
confinement.”].)
DISPOSITION
The matter is remanded for the trial court to calculate appellant’s
presentence credits. In all other respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
MOTOIKE, J.
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