P. v. Mendoza

• Court: California Court of Appeal
• Decided: February 10, 2023
• Docket: E078534
• Status: Published

Opinion

Filed 2/10/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E078534

v. (Super.Ct.No. RIF128096)

GABRIEL MANUEL MENDOZA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Siri Shetty, 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, Robin Urbanski and Laura

Baggett, Deputy Attorneys General, for Plaintiff and Respondent.

1 Penal Code section 1385 was recently amended to provide that “[n]otwithstanding

any other law,” a sentencing court “shall dismiss” a sentence enhancement “if it is in the

furtherance of justice to do so,” subject to certain exceptions. (Pen. Code, § 1385,

subd. (c)(1) (§ 1385(c)(1)); unlabeled statutory references are to this code.) The amended

statute further provides that “[i]n exercising its discretion under this subdivision,” the

trial court “shall consider and afford great weight” to certain “mitigating circumstances,”

if proven by the defendant. (§ 1385, subd. (c)(2) (§ 1385(c)(2)).) “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.” (Ibid.)

One of the listed mitigating circumstances is that “application of an enhancement

could result in a sentence of over 20 years.” (§ 1385, subd. (c)(2)(C) (§ 1385(c)(2)(C)).)1

The statute provides that if that circumstance is present, “the enhancement shall be

dismissed.” (Ibid.)

In 2021, the Department of Corrections and Rehabilitation (the Department) sent a

letter to the superior court recommending that it resentence Gabriel Manuel Mendoza

because of errors in his original sentence. Mendoza was resentenced in 2022, after the

relevant amendments to section 1385 became effective. The trial court concluded that

section 1385(c)(2)(C) does not always require dismissal of a firearm enhancement under

1 The mitigating circumstances originally were listed under subdivision (c)(3) of section 1385. (Former § 1385, subd. (c)(3)(A)-(I); Stats. 2021, ch. 721.) Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended the statute to list them under section 1385(c)(2). (Stats. 2022, ch. 58, § 15.)

2 section 12022.53, subdivision (c), even when imposition of the 20-year sentence for that

enhancement results in a sentence of over 20 years.

On appeal, Mendoza argues that under section 1385(c)(2)(C) dismissal of the

enhancement was mandatory, not discretionary. We conclude that section 1385(c)(2)(C)

does not mandate dismissal of an enhancement when the court finds that dismissal would

endanger public safety. We also conclude that the trial court did not abuse its discretion

by imposing the enhancement, and we therefore affirm.

BACKGROUND

One night in January 2006, law enforcement officers responded to a house where a

robbery had been reported. There were five victims at the scene. One of the victims

rented a room at the house, and the others were visiting. While the victims were all

inside a bedroom, a person later identified as Mendoza kicked the bedroom door open.

Mendoza pulled a gun out of his pocket and said something like “‘I am going to

teach you guys not to mess with my lady.’” He held the gun barrel against the chest of

one of the victims, Miguel M. Mendoza directed everyone to empty their pockets and

give him their money and wallets. Miguel hesitated because he did not believe that the

gun was real. Mendoza attempted to fire a bullet into the television, but the gun jammed.

Mendoza then successfully fired a single shot into the television, re-aimed the gun at

Miguel, and demanded Miguel’s money. Miguel gave Mendoza his wallet.

Two female victims escaped through a bedroom window when the gun jammed.

An unidentified man entered the room through the open window. Mendoza tossed

Miguel’s wallet to that man. After Miguel gave Mendoza his wallet, Mendoza aimed the

3 gun at everyone else in the room and demanded that they give him their money. After

Mendoza took everyone’s property, he grabbed his girlfriend, “who was also in the

bedroom, and forced her to leave with him.” Mendoza took car keys from one of the

victims and drove away in that car with his girlfriend.

Mendoza later denied everything and claimed that all the victims had lied.

Mendoza was 23 years old when the offenses were committed.

In 2007, a jury convicted Mendoza of two counts of first degree robbery (§ 211),

along with other offenses. With respect to both robbery offenses, the jury found true the

allegation that Mendoza intentionally and personally discharged a firearm. (§ 12022.53,

subd. (c).) The trial court sentenced Mendoza to 29 years and eight months in state

prison, consisting of the “mid term of 6” years for the first robbery count, 20 years for the

related firearm enhancement, one-third “the mid term of 6 years for a total of 2 years” on

the second robbery count, a one-year prior prison term enhancement under section 667.5,

and eight months (one-third the midterm) for possession of a controlled substance.

(Capitalization omitted.) Mendoza appealed, but the case was dismissed at Mendoza’s

request before briefing. (People v. Mendoza (E043699).)

In 2021, the Department notified the superior court that Mendoza appeared to have

been improperly sentenced on the robbery counts. The Department indicated that the

appropriate sentencing triad for the robbery convictions appeared to be three, four, or six

years. (See § 213, subd. (a)(1)(B).)

Mendoza then moved for “recall and resentencing” and argued that under Senate

Bill No. 136 (2019-2020 Reg. Sess.) the court should not impose any prior prison term

4 enhancements. (Initial capitalization omitted.) He asked the court to take into

consideration the rehabilitative efforts he has made in prison, which he claimed included

renunciation of his prior gang affiliation and participation in numerous self-help groups.

He did not provide certificates of completion or any other evidence corroborating his

unsworn statements.

In January 2022, the trial court held a hearing concerning resentencing. The

People and appointed counsel for Mendoza filed sentencing briefs before the hearing.

The parties agreed with the Department that Mendoza’s robbery sentences were incorrect

and that Mendoza was entitled to have his sentence recalled and to a full resentencing.2

Mendoza argued that newly added section 1385(c)(2)(C) required the court to dismiss the

firearm enhancement under subdivision (c) of section 12022.53. The People argued that

the court had discretion to dismiss the enhancement and urged the court to decline to

exercise that discretion. The court ordered further briefing on the issue and continued the

hearing.

The court resentenced Mendoza on the continued hearing date. The court

determined that Mendoza’s youth contributed to the commission of the robbery, so the

court applied the newly applicable low-term presumption under section 1170, subdivision

(b)(6), and sentenced Mendoza to the three-year low term for the first robbery count. As

to the related firearm enhancement under subdivision (c) of section 12022.53, the court

2 Mendoza was sentenced pursuant to the sentencing triad that applies when a “defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house” (§ 213, subd. (a)(1)(A)), but he acted in concert with only one person when he committed the offenses.

5 rejected Mendoza’s argument that section 1385(c)(2)(C) mandated dismissal of the

enhancement. In interpreting section 1385(c)(2), the court concluded “that the most

natural and logical interpretation of the provision is that if dismissing the enhancement

would endanger the public, the Court does not even engage in evaluating the mitigating

factors. This [reflects] the strong interest in protecting the public, especially from

firearms, which tends to be a commonly charged enhancement.”

Analyzing whether dismissal of the enhancement in Mendoza’s case would

endanger public safety, the court found that “the facts of this case support the conclusion

that dismissal of the enhancement would endanger public safety,” and the court therefore

declined to dismiss the enhancement. The court explained: Mendoza “committed a

home invasion robbery with a gun. He discharged a firearm inside the residence and the

six factors listed above by the People support [that Mendoza] engaged in . . . incredibly

harmful and dangerous conduct likely having long lasting impact on the victims.” The

factors identified by the People and considered by the court were the following: (1)

Mendoza’s use of a firearm was the primary means by which he effectuated the robbery;

(2) Mendoza repeatedly pointed the gun at a victim’s chest; (3) Mendoza was able to

“overcome several victims” because he used a gun; (4) Mendoza’s use of the gun “was

meant to communicate a threat to kill or put in great harm”; (5) “the mere sound of the

discharge of the firearm is terrifying to victims”; and (6) Mendoza increased the risk of

harm to untargeted victims by discharging the gun in a residential area. The court further

explained its ruling as follows: “Somebody who chooses to commit this type of an

offense is a serious threat to society and a relatively long prison sentence is necessary to

6 protect the public and keep the defendant away from the public and to provide time for

the defendant to become rehabilitated. Both through programs in prison and through time

to reflect on these crimes and mature in himself. If the Court were to dismiss the

enhancement in this case, the aggregate sentence for this terrifying home invasion

robbery would be reduced to a mere five years and eight months. This sentence is

inappropriately short and would not effectuate the goals of sentencing given the facts,

reducing the sentence poses a likelihood that the defendant will commit a crime that

results in physical injury or serious danger to others.”

In addition to declining to dismiss the firearm enhancement under section

12022.53, subdivision (c), the court also declined to exercise its discretion to impose an

uncharged lesser included enhancement under section 12022.53, subdivision (h), and

People v. Tirado (2022) 12 Cal.5th 688, 692. The court thus imposed a 20-year sentence

for the enhancement and sentenced Mendoza to a total term of 26 years and eight months

in state prison.

DISCUSSION

Mendoza argues that the trial court erred by not dismissing the firearm

enhancement, because the plain language of section 1385(c)(2)(C) required the trial court

to dismiss it. He alternatively argues that the trial court abused its discretion by

concluding that dismissal of the enhancement would endanger public safety. We reject

both arguments.

7 A. Dismissal Is Not Required If It Would Endanger Public Safety

We first analyze whether under section 1385(c)(2)(C) a court is required to

dismiss an enhancement whenever application of the enhancement “could result in a

sentence of over 20 years.” We independently review questions of statutory

interpretation. (Walker v. Superior Court (2021) 12 Cal.5th 177, 194.)

In interpreting a statute, our primary goal “‘is to determine the Legislature’s intent

so as to effectuate the law’s purpose.’” (People v. Ruiz (2018) 4 Cal.5th 1100, 1105.)

“‘Because the statutory language is generally the most reliable indicator of that intent, we

look first at the words themselves, giving them their usual and ordinary meaning.’”

(Ibid.) We do not “consider the statutory language ‘in isolation.’” (People v. Murphy

(2001) 25 Cal.4th 136, 142 (Murphy).) “Rather, we look to ‘the entire substance of the

statute . . . in order to determine the scope and purpose of the provision . . . .’” (Ibid.)

“That is, we construe the words in question ‘“in context, keeping in mind the nature and

obvious purpose of the statute . . . .”’” (Ibid.) “We must harmonize ‘the various parts of

a statutory enactment . . . by considering the particular clause or section in the context of

the statutory framework as a whole.’” (Ibid.) “‘If the statutory language is unambiguous,

then its plain meaning controls.’” (Ruiz, supra, at p. 1106.) We “avoid ‘interpretations

that render any language surplusage.’” (Brennon B. v. Superior Court (2022) 13 Cal.5th

662, 691 (Brennon B.).) We also “‘do not presume that the Legislature intends, when it

enacts a statute, to overthrow long-established principles of law unless such intention is

8 clearly expressed or necessarily implied.’” (Lopez v. Sony Electronics, Inc. (2018) 5

Cal.5th 627, 637 (Lopez).)

Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) amended

section 1385 to include subdivision (c). (Stats. 2021, ch. 721.) Section 1385(c)(1)

provides that “[n]otwithstanding 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.” (§ 1385(c)(1); Stats. 2021, ch. 721.) Section

1385(c)(2) provides as follows: “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. ‘Endanger public safety’ means there is a likelihood that the

dismissal of the enhancement would result in physical injury or other serious danger to

others.” One of the mitigating circumstances is: “The application of an enhancement

could result in a sentence of over 20 years. In this instance, the enhancement shall be

dismissed.”3 (§ 1385(c)(2)(C).)

3 The listed mitigating circumstances are: “(A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745. [¶] (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. [¶] (D) The current offense is connected to mental illness. [¶] (E) The current offense is connected to prior

9 Mendoza argues that the statute mandates dismissal of every enhancement that

“could result in a sentence of over 20 years,” as the firearm enhancement does in his case,

because section 1385(c)(2)(C) states that such an enhancement “shall be dismissed.”

(Italics added.) (§ 1385(c)(2)(C).) We disagree.

We interpret the “shall be dismissed” directive in section 1385(c)(2)(C) not in

isolation but by harmonizing the various parts of subdivision (c) of section 1385 and by

considering the requirement in section 1385(c)(2)(C) “‘in the context of the statutory

framework as a whole.’” (Murphy, supra, 25 Cal.4th at p. 142.)

Section 1385(c)(2) provides that in determining whether to dismiss an

enhancement “under this subdivision,” the court must consider nine listed mitigating

circumstances if proven by the defendant (§ 1385, subd. (c)(2)(A)-(I)), “unless the court

finds that dismissal of the enhancement would endanger public safety” (id., subd. (c)(2)).

That provision means that if the court finds that dismissal of an enhancement “would

endanger public safety,” then the court need not consider the listed mitigating

circumstances.4 (Ibid.) The “shall be dismissed” language in section 1385(c)(2)(C), like

victimization or childhood trauma. [¶] (F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5. [¶] (G) The defendant was a juvenile when they committed the current offense or any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case. [¶] (H) The enhancement is based on a prior conviction that is over five years old. [¶] (I) Though a firearm was used in the current offense, it was inoperable or unloaded.” (§ 1385, subd. (c)(2)(A)-(I).)

4 Moreover, if the court finds that dismissal of an enhancement “would endanger public safety” (§ 1385(c)(2)), then it is difficult to imagine the circumstances under which dismissal would be “in the furtherance of justice,” which the court must find in

10 the language of all of the listed mitigating circumstances, applies only if the court does

not find that dismissal of the enhancement would endanger public safety. That

interpretation gives meaning to the language in section 1385(c)(2) requiring the court to

consider whether dismissal “would endanger public safety,” and it consequently avoids

rendering that language surplusage.

In contrast, Mendoza’s interpretation gives no effect to the clause “unless the court

finds that dismissal of the enhancement would endanger public safety.” (§ 1385(c)(2).)

That is, Mendoza’s interpretation would require a court to dismiss any enhancement

when application of the enhancement could result in a sentence greater than 20 years

regardless of whether dismissal would endanger public safety. We avoid interpretations

that render statutory language surplusage. (Brennon B., supra, 13 Cal.5th at p. 691.) We

also must avoid interpretations that lead to absurd results. (People v. Bullard (2020) 9

Cal.5th 94, 106.) On Mendoza’s interpretation, dismissal of his firearm enhancement

was statutorily required even though (1) the statute expressly invites consideration of

whether dismissal of the enhancement would endanger public safety, and (2) the court

found that it would. That is, according to Mendoza’s interpretation, the statute required

the sentencing court to endanger public safety. That cannot be what the Legislature

intended.

order to dismiss (id., subd. (c)(1)). In this way, the statute does not appear to give the court discretion, let alone a mandatory duty, to dismiss an enhancement if doing so would endanger public safety.

11 Additionally, Mendoza’s interpretation would result in the implied repeal of

various statutory enhancements. For example, if section 1385(c)(2)(C) required a court

to dismiss any enhancement in which application “could result in a sentence of over 20

years” (ibid.), then courts would be required to dismiss firearm enhancements under

subdivisions (c) and (d) of section 12022.53 because the enhancements respectively

mandate sentences of 20 and 25 years (§ 12022.53, subds. (c), (d)). Similarly, courts

would be required to dismiss gang enhancement allegations found true under subdivision

(b)(4) of section 186.22 because that provision mandates imposition of indeterminate

sentences. (§ 186.22, subd. (b)(4)(A)-(C).) We presume that the Legislature did not

intend to repeal all of those enhancement statutes by implication. (Lopez, supra, 5

Cal.5th at p. 637.)

Our holding—that consideration of the mitigating factors in section 1385(c)(2) is

not required if the court finds that dismissal of the enhancement would endanger public

safety—is consistent with People v. Walker (2022) 86 Cal.App.5th 386 (Walker), People

v. Lipscomb (2022) 87 Cal.App.5th 9, and People v. Anderson (Feb. 7, 2023, B320627)

__ Cal.App.5th __ [2023 Cal.App. Lexis 85], the only published opinions involving the

“shall be dismissed” language in the recent amendments to section 1385. (§ 1385,

subd. (c)(2)(B)-(C).) All three cases hold that dismissal is not always required when a

mitigating factor that contains “shall be dismissed” language applies. (Walker, supra, at

p. 391 [addressing § 1385, subd. (c)(2)(B)]; Lipscomb, supra, at p. 15 [addressing

§ 1385(c)(2)(C)]; Anderson, supra, 2023 Cal.App. Lexis 85, at pp. *7-*8 [addressing

12 § 1385, subd. (c)(2)(B) & (C)].) None of the cases holds that dismissal is required even

when it would endanger public safety.5

For all of the foregoing reasons, we reject Mendoza’s interpretation of section

1385(c)(2)(C) as requiring a court to dismiss every enhancement resulting in a sentence

of greater than 20 years regardless of whether dismissal would endanger public safety.

We accordingly conclude that the trial court did not err by determining that section

1385(c)(2)(C) did not require it to dismiss the firearm enhancement under subdivision (c)

of section 12022.53, given the court’s finding that dismissal of the enhancement would

endanger public safety. Because we agree with the trial court’s interpretation of section

1385(c)(2) and because the court found that dismissal of the firearm enhancement would

endanger public safety, we need not and do not analyze how the “shall be dismissed”

language in section 1385(c)(2)(C) operates when a trial court does not find that dismissal

would endanger public safety.6

5 Walker also explained what it means for the court to “afford great weight” (§ 1385(c)(2)) to the mitigating factors listed in the statute. (Walker, supra, 86 Cal.App.5th at pp. 391, 398-400.) That issue is not presented in this case, so we express no opinion on it.

6 Although we leave for another day any questions of statutory interpretation not squarely presented in this case, we note that it is possible to interpret the statute in such a way as to give full effect to all of its provisions, as follows: On the one hand, if the trial court finds that dismissal of an enhancement would endanger public safety, then it is hard to see how dismissal would further the interests of justice, so dismissal would not be authorized, let alone required. (§ 1385(c)(1); see ante, fn. 5.) On the other hand, if the court does not find that dismissal of the enhancement would endanger public safety, then the court must dismiss any enhancement that “could result in a sentence of over 20 years” (§ 1385(c)(2)(C)) or “all enhancements beyond a single enhancement” when multiple enhancements are proven (§ 1385, subd. (c)(2)(B)). And if the court does not find that

13 B. The Trial Court Did Not Abuse Its Discretion

We next address Mendoza’s argument that the trial court abused its discretion by

concluding that dismissal of the firearm enhancement would endanger public safety. The

People agree that we review that determination for abuse of discretion, but they contend

that the court did not abuse its discretion. We agree with the People on both points.

In general, we review for abuse of discretion the trial court’s decision not to strike

a sentence enhancement under section 1385, subdivision (a). (People v. Carmony (2004)

33 Cal.4th 367, 371 (Carmony).) Moreover, the determination of whether dismissal

would endanger public safety being under section 1385(c)(2) is similar (though not

identical) to the determination of whether “resentencing the petitioner would pose an

unreasonable risk of danger to public safety” under subdivision (b) of section 1170.18,

which we review for abuse of discretion. (People v. Jefferson (2016) 1 Cal.App.5th 235,

242 (Jefferson).) For both of these reasons, we conclude that abuse of discretion is the

proper standard of review for the trial court’s determination that dismissal of Mendoza’s

firearm enhancement would endanger public safety.

The abuse of discretion standard is highly deferential. When, “‘as here, a

discretionary power is statutorily vested in the trial court, its exercise of that discretion

“must not be disturbed on appeal except on a showing that the court exercised its

dismissal of the enhancement would endanger public safety and the defendant proves any of the remaining seven mitigating circumstances (§ 1385, subd. (c)(2)(A), (D)-(I)), then the proven circumstances weigh “greatly in favor of dismissing the enhancement” (§ 1385(c)(2)), but the court is not required to dismiss the enhancement if the court otherwise concludes that dismissal is not “in the furtherance of justice” (§ 1385(c)(1)).

14 discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest

miscarriage of justice.”’” (Jefferson, supra, 1 Cal.App.5th at pp. 242-243; Carmony,

supra, 33 Cal.4th at pp. 376-377.)

Mendoza argues that “the court abused its discretion by declining to dismiss the

enhancement, because no evidence reasonably suggested that dismissal of the

enhancement in the circumstances of this case would endanger public safety, i.e., that it

‘would result in physical injury or other serious danger to others.’ (§ 1385(c)(2)).” We

disagree.

The trial court determined that dismissal of the enhancement would result in a

sentence of less than six years in prison, which would require Mendoza’s immediate

release. The court reasoned that such a reduction would “pose[] a likelihood that the

defendant will commit a crime that results in physical injury or serious danger to others.”

In reaching its conclusion, the court considered that Mendoza discharged a gun with

victims present in a residence during a home invasion robbery, and the court found that

the circumstances involved “incredibly harmful and dangerous conduct.” The court

explained that a person who “commit[s] this type of an offense is a serious threat to

society and a relatively long prison sentence is necessary to protect the public and keep

the defendant away from the public and to provide time for the defendant to become

rehabilitated.” Given the court’s consideration of the circumstances of the crime and the

court’s determination that a long sentence was necessary for Mendoza to become

rehabilitated after committing such a crime, we cannot say that the court’s determination

15 that dismissal of the enhancement “would endanger public safety” (§ 1385(c)(2)) was “so

irrational or arbitrary that no reasonable person could agree with it” (Carmony, supra, 33

Cal.4th at p. 377).

We reject Mendoza’s argument that we must remand for resentencing because the

trial court did not consider certain mitigating factors—such as Mendoza’s age when the

offense was committed, his 16 years of incarceration for this crime, and his

“demonstrated commitment to rehabilitation”—in determining whether dismissal would

endanger public safety. First, section 1385(c)(2) does not require the trial court to

consider any particular factors in determining whether “there is a likelihood that the

dismissal of the enhancement would result in physical injury or other serious danger to

others.” Mendoza’s reliance on People v. Ochoa (2020) 53 Cal.App.5th 841 is therefore

inapposite because there the trial court was statutorily required to consider youth-related

mitigating circumstances under section 190.5, subdivision (b), before sentencing the

defendant to life without the possibility of parole. (Ochoa, supra, at pp. 850-852.)

Second, in resentencing Mendoza, the court did consider Mendoza’s age and reduced his

sentence for the robbery convictions accordingly. Third, the court was free to reject

Mendoza’s unsubstantiated account of his rehabilitative efforts and renunciation of his

gang, and the court was therefore free to conclude that Mendoza needed to serve a longer

sentence in order to be fully rehabilitated so as not to endanger public safety.

16 For all of these reasons, we conclude that the trial court did not abuse its discretion

by concluding that dismissing the firearm enhancement under section 12022.53,

subdivision (c), would endanger public safety.

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PUBLICATION MENETREZ J.

We concur:

MILLER Acting P. J. FIELDS J.