Error and/or relief
The record is ambiguous whether the trial court misunderstood its discretion to dismiss or strike an enhancement pursuant to Penal Code section 1385. Accordingly, we vacate the sentence and remand for resentencing.
First Holding:
Section 1385 governs a trial court’s discretion to dismiss various elements of an action or sentence. Under section 1385(a), the trial court may in furtherance of justice, order an action to be dismissed. This authority includes the power to dismiss or strike a sentencing enhancement.
Section 1385(b)(1) states that, if the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice. In other words, striking an enhancement is different from striking the punishment for the enhancement.
Authority:
PEN 1385
People v. Thomas (1992) 4 Cal.4th 206, 209
People v. Tang (2025) 109 Cal.App.5th 1003, 1010
Second Holding:
Prior to 2022, section 1385 did not provide direction as to how courts should exercise that discretion” to dismiss or strike enhancements. Effective January 1, 2022, SB 81 amended section 1385 to specify mitigating circumstances courts must consider when deciding whether to strike enhancements in furtherance of justice.
SB 81 added subdivision (c) to section 1385, which now provides, in part:
(1) 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.
(2) 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 enumerated mitigating circumstances 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.
As relevant here, the enumerated mitigating circumstances include that the current offense is connected to mental illness and the current offense is connected to prior victimization or childhood trauma.
Authority:
PEN 1385(c)(2)(A) through (I) [a list of nine mitigating circumstances to be given great weight)
People v. Anderson (2023) 88 Cal.App.5th 233, 238
People v. Dain (2025) 115 Cal.App.5th 235, 246
Third Holding:
Under section 1385(c), absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present.
That is, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice. If a trial court dismisses an enhancement pursuant to section 1385(c), then both the enhancement and its punishment must be dismissed.
Authority:
PEN 1385(c)
Cal. Rules of Court, rule 4.428(c)(3)
People v. Walker (2024) 16 Cal.5th 1024, 1029
Fourth Holding:
We review a court’s sentencing choices for abuse of discretion. A defendant is entitled to a sentencing decision made in the exercise of informed discretion. We presume the court knows and applies the applicable law, absent evidence to the contrary. Where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required to permit that court to impose sentence with full awareness of its discretion. Additionally, a record that is, at best, ambiguous about whether the court understood its sentencing discretion warrants remand.
(Gary note: The opinion then discusses how it concludes that the record is ambiguous on whether the court understood the scope of it discretion.)
Authority:
People v. Nielsen (2026) 119 Cal.App.5th 816, 823
People v. Fuhrman (1997) 16 Cal.4th 930, 944
People v. Brown (2007) 147 Cal.App.4th 1213, 1229 [Remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record.]
People v. Ochoa (2020) 53 Cal.App.5th 841, 852–853
Fifth Holding:
The proper remedy is a remand for resentencing. Remand would be unnecessary if the record clearly indicated that the trial court would have reached the same conclusion even if it had been aware of its discretion. But we cannot conclude that the record here so clearly indicates such a result. That is, the record does not demonstrate with unusual clarity that remand would be an idle act.
Authority:
People v. Fuhrman (1997) 16 Cal.4th 930, 944
People v. Gutierrez (2014) 58 Cal.4th 1354, 1391
People v. Flores (2020) 9 Cal.5th 371, 432
Sixth Holding:
The presence of a mitigating circumstance enumerated in section 1385(c)(2) does not dictate that an enhancement should be dismissed. Instead, the ultimate question before the trial court remains whether it is in the furtherance of justice to dismiss an enhancement.
This means that, absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.
Authority:
People v. Walker (2024) 16 Cal.5th 1024, 1033
People v. Bravo (2025) 107 Cal.App.5th 1144, 1157
Seventh Holding:
The defendant further argues that the court erred in limiting his conduct credit to 15% under section 2933.1 We reject the People’s contention that the defendant forfeited his claim of conduct credit error by failing to object below.
To the extent his claim could be forfeited, we would exercise our discretion to consider it because it involves a pure question of law presented by undisputed facts and to forestall a petition for writ of habeas corpus based on ineffective assistance of counsel. However, given our disposition, we do not reach the merits of the defendant’s challenge to his conduct credit award.
Authority:
People v. Hines (1997) 15 Cal.4th 997, 106
In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7
People v. Williams (2000) 78 Cal.App.4th 1118, 1126