1

Filed 5/13/24 P. v. Mendez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEX GARCIA MENDEZ,

Defendant and Appellant.

E080625

(Super. Ct. No. RIF2201894)

OPINION

APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. 

Affirmed.

Shelia O’Connor, 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, Christopher P. Beesley and 

Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
2

I.

INTRODUCTION

A jury convicted defendant and appellant Alex Garcia Mendez of robbery (Pen. 

Code,1§ 211; count 2) while armed with a weapon and assault with a deadly weapon 

(§ 245, subd. (a)(1); count 3). The jury also found true that defendant inflicted great 

bodily injury (§ 12022.7, subd. (a)) in the commission of the assault (count 3).

2

 In a 

bifurcated proceeding, defendant admitted he had suffered a prior conviction that 

qualified as both a prior serious felony (§ 667, subd. (a)) and a prior strike (§§ 667, subd.

(e), (e)(1), 1170.12, subd. (c)(1)). After the trial court denied defendant’s motion to 

dismiss his prior serious felony and strike conviction, defendant was sentenced to a total 

term of 14 years in state prison. On appeal, defendant contends (1) there was insufficient 

evidence to support the robbery conviction, and (2) Senate Bill No. 81 requires that only 

one enhancement be imposed and dismissal of the remaining enhancement. We reject 

these contentions and affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

M.A. is the owner and manager of a smoke shop in Riverside. At around 8:45 

p.m. on April 10, 2022, M.A. was working at the register when he noticed defendant and 

1

 All future statutory references are to the Penal Code unless otherwise indicated.

2

 The jury hung on count 1 for the charge of attempted premeditated murder 

(§§ 664/187, subd. (a)) and that count was ultimately dismissed.
3

a female companion entered his store. M.A. saw defendant grab a vape pen worth about 

$40, hide it behind a cup in his hand, and then tuck it into his pocket. Defendant then 

asked M.A. for another vape pen and headed to the register counter.

Defendant gave M.A. a $100 bill and requested to pay for the vape pen in his 

hand, which cost around $25. M.A. then inquired if defendant was going to pay for the 

vape pen in his pocket. Defendant denied having anything in his pocket or taking the 

other vape pen and indicated he was only paying for one vape pen. M.A. asked 

defendant to empty his pockets. Defendant refused and became angry. An argument 

ensued between defendant and M.A. with both of them yelling and cussing and defendant 

threatening M.A. M.A. explained that defendant acted “like if you don’t give me my

money back or step outside, I’ll F you up,” and “[You are] not gonna charge [me] for the 

other [vape], otherwise things are gonna happen.”

During the argument, M.A. told defendant to leave the store and defendant told 

M.A. to step outside. The two eventually made their way to the front door of the store. 

Meanwhile, M.A.’s female companion, who was still near the register, reached over the

register counter and stole M.A.’s iPhone. As defendant walked towards the exit, he 

removed a box cutter from his pocket and opened the blade. M.A. noticed defendant 

reach for something, so he turned to go behind the counter. Defendant then stabbed M.A. 

in the neck and dragged the blade down M.A.’s back. After the assault, M.A. went 

behind the counter and armed himself with a box cutter that was near the register. 

Defendant remained at the front of the store and continued to threaten M.A. Defendant 
4

and his female companion then left the store with the vape and M.A.’s iPhone. The $100 

bill was still in the store.

A customer entered the store and insisted on taking M.A., who was bleeding 

profusely, to the hospital. M.A. required surgery, and received multiple stitches for his 

injuries, some of which went deep enough to cause injury to the underlying bone, and all 

of which caused lasting scars.

Following a jury trial, defendant was convicted of robbery (§ 211) while armed 

with a weapon and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also 

found true that defendant inflicted great bodily injury (§ 12022.7, subd. (a)) in the 

commission of the assault. The jury further found true the aggravating factors that the 

crimes involved great violence and that defendant was armed during the commission of 

the offenses. Defendant admitted other aggravating factors and that he had suffered a pri 

or serious felony conviction (§ 667, subd. (a)) and a prior strike (§§ 667, subd. (e), (e)(1), 

1170.12, subd. (c)(1)).

Prior to the sentencing hearing, defendant filed a sentencing brief, in which he 

requested dismissal of his prior serious felony and strike conviction pursuant to People v. 

Superior Court (Romero) (1996) 13 Ca1.4th 497. At the sentencing hearing, the trial 

court expressed its inclination to deny the Romero motion and heard from the parties on 

the issue. Defendant’s counsel emphasized that his strike was 10 years old, he had family 

support, and his criminal history was not marked by increasing violence until the instant 

offenses. The prosecutor countered that defendant’s conduct in this case was “extremely, 
5

extremely violent” and defendant’s ongoing criminal history shows that he has “little

respect for the law” and is “an absolute threat to society and the public in general . . . .” 

Citing defendant’s “long history of criminal behavior” and the “massively senseless”

nature of his instant offenses, the trial court denied the Romero motion.

The trial court then articulated its tentative sentencing decision, noting that it had 

initially contemplated the maximum of 16 years, but was “inclined to lower it slightly” 

and impose the middle term of three years on the principal count. The court explained 

that “it’s a bit of a push to say that the aggravating factors, which were all found true by 

the jury, are somehow balanced by the mitigating factors,” but it would take “into 

consideration [defendant’s] family support and select the middle term.” Defense counsel 

thereafter pointed out that defendant had admitted some of the aggravating factors, and 

requested that the court stay either the great bodily injury enhancement or the prior

serious felony enhancement. The prosecutor reiterated that the upper term was 

appropriate given the aggravating factors.

The trial court imposed both the three-year great bodily injury enhancement and 

the five-year prior serious felony enhancement, and sentenced defendant to its indicated 

aggregate middle term of 14 years in prison with 326 days credit for time served as 

follows: the middle term of three years doubled to six years due to the prior strike, for 

the assault with a deadly weapon conviction; a consecutive three years for the great 

bodily injury enhancement; a consecutive five years for the prior serious felony 
6

enhancement; and a stayed middle term of six years for the robbery conviction. 

Defendant timely appealed.

III.

DISCUSSION

A. Sufficiency of the Evidence

Defendant contends insufficient evidence supports his robbery conviction because

he paid for the two vape pens when he gave M.A. enough money to cover the cost of both 

vapes and M.A. consented to defendant’s taking of the vapes. He believes his robbery 

conviction must be reversed since his act of handing M.A. a $100 bill negated the intent 

to steal and felonious taking elements of robbery.

To determine whether the evidence was sufficient to sustain a criminal conviction,

“‘“we review the entire record in the light most favorable to the judgment to determine 

whether it contains substantial evidence—that is, evidence that is reasonable, credible, 

and of solid value—from which a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt.”’” (People v. McCurdy (2014) 59 Cal.4th 1063, 1104; see 

People v. Rodriguez (1999) 20 Cal.4th 1, 11 [“The federal standard of review is to the 

same effect.”].) We presume in support of the judgment the existence of every fact the 

trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 

Cal.4th 913, 919.)

“Although we must ensure the evidence is reasonable, credible, and of solid value, 

nonetheless it is the exclusive province of the trial judge or jury to determine the
7

credibility of a witness and the truth or falsity of the facts on which that determination 

depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must 

accord due deference to the trier of fact and not substitute our evaluation of a witness’s 

credibility for that of the fact finder.” (People v. Jones (1990) 51 Cal.3d 294, 314; 

accord, People v. Young (2005) 34 Cal.4th 1149, 1181 [“Resolution of conflicts and 

inconsistencies in the testimony is the exclusive province of the trier of fact.”].) “When 

undertaking such review, our opinion that the evidence could reasonably be reconciled 

with a finding of innocence or a lesser degree of crime does not warrant a reversal of the 

judgment.” (People v. Hill (1998) 17 Cal.4th 800, 849.)

“[T]he direct evidence of one witness who is entitled to full credit is sufficient for 

proof of any fact.” (Evid. Code, § 411.) The reliability of properly admitted eyewitness 

evidence, “like the credibility of the other parts of the prosecution’s case is a matter for 

the jury.” (Foster v. California (1969) 394 U.S. 440, 442, fn. 2; People v. Whisenhunt

(2008) 44 Cal.4th 174, 200 [“We do not reweigh evidence or reevaluate a witness’s 

credibility.”].) Unless the testimony is physically impossible or inherently improbable, 

testimony of a single witness is sufficient to support a conviction. (People v. Young, 

supra, 34 Cal.4th at p. 1181.)

Robbery is the felonious taking of personal property in the possession of another, 

from his person or immediate presence, and against his will, by means of force or fear, 

with the intent to permanently deprive the victim of the property. (§ 211; People v. 

Anderson (2011) 51 Cal.4th 989, 994 (Anderson).) Taking has two aspects: achieving 
8

possession of the property, known as caption, and carrying the property away, known as 

asportation. (People v. Gomez (2008) 43 Cal.4th 249, 255.) “Although the slightest 

movement may constitute asportation [citation], the theft continues until the perpetrator 

has reached a place of temporary safety with the property.” (Ibid.) The requisite intent 

must arise before or during commission of the act of force or fear, and the defendant must 

apply the force or fear for the purpose of accomplishing the taking. (Anderson, supra, at 

p. 994.) For the force to be sufficient, the defendant must use more force than that 

necessary to achieve the mere taking of the property. (Id. at p. 995.)

A robbery can occur when the defendant does not use force or fear while initially 

taking the property but does so to retain it. (People v. Estes (1983) 147 Cal.App.3d 23, 

27-28 (Estes); Miller v. Superior Court (2004) 115 Cal.App.4th 216, 223.) This is known 

as an “Estes robbery.” (Miller v. Superior Court, supra, at p. 223.) The typical Estes

robbery begins with a shoplifting that turns into a robbery when a loss prevention officer,

manager, or owner confronts the thief, who then uses force or fear to get away. (People 

v. Robins (2020) 44 Cal.App.5th 413, 419.)

There is no single “‘temporal point’” at which all the elements of robbery must 

come together. (People v. Hodges (2013) 213 Cal.App.4th 531, 539-540.) A robbery is a 

continuing offense; as noted above, it does not end until the perpetrator has reached a 

place of relative safety. (Anderson, supra, 51 Cal.4th at pp. 994-996.) “[T]he crime of 

robbery begins with the commission of any of the defined elements and is completed 

when all of the remaining elements have been committed. It is a continuing offense that 
9

concludes not just when all the elements have been satisfied but when the robber reaches 

a place of relative safety.” (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1059.) “A 

perpetrator has reached a place of temporary safety with the property if he or she has 

successfully escaped from the scene, is no longer being pursued, and has unchallenged 

possession of the property.” (CALCRIM No. 1603.)

Here, we find sufficient evidence to support the jury’s finding defendant 

committed a robbery. The evidence adduced at trial showed that defendant took M.A.’s 

property against M.A.’s will when he took the first vape pen, pocketed it, and denied 

doing so. Although defendant attempted to pay for the second vape pen after stealing the 

first one, he denied taking the first one and did not offer to pay for the first vape pen he 

had stolen. Specifically, when M.A. inquired if defendant was going to pay for the vape 

pen in his pocket, defendant denied having anything in his pocket or taking the vape pen 

and indicated he was only paying for one vape pen. And after M.A. asked defendant to 

empty his pockets, defendant refused, became angry, and started yelling, cussing, and 

threatening M.A. The argument between defendant and M.A. stopped any initiated 

transaction for the other vape pen. As the argument escalated between the two 

concerning defendant’s theft of the first vape pen, M.A. told defendant to leave the store 

and defendant told M.A. to step outside. Defendant never agreed to pay for the stolen 

vape pen, and M.A. never consented to defendant taking either of the vape pens without 

paying for them. When defendant and M.A. were near the front door of the store, 

defendant then used force to retain possession of the stolen vape pen when he removed a 
10

box cutter from his pocket and stabbed M.A. before leaving the store. What began as 

theft here, ripened into a so-called Estes robbery when defendant used force against M.A.

to keep the first vape pen he had stolen when confronted by M.A.

Defendant, however, claims that his robbery conviction should be reversed 

because he “pa[id] for the items he was alleged to have taken” and M.A. “consented to 

the taking by keeping the money and escorting [him] out of the store[.]” We reject this 

argument. Defendant’s interpretation of the record is skewed. In addition, defendant’s 

purported attempt to pay for the second vape pen did not negate his ongoing intent to

steal the first vape pen. Defendant repeatedly denied taking the first vape pen and 

refused to pay for it, leading to an argument that escalated to defendant assaulting M.A. 

with a box cutter.

We also reject defendant’s attempt to analogize the instant circumstances to the 

claim of right cases. In People v. Tufunga (1999) 21 Cal.4th 935 (Tufunga), our Supreme 

Court affirmed that, as at common law, the claim of right remains a viable defense to a 

charge of robbery. (Id. at p. 950.) “‘The claim-of-right defense provides that a 

defendant’s good faith belief, even if mistakenly held, that he has a right or claim to 

property he takes from another negates the felonious intent necessary for conviction of 

theft or robbery.’” (People v. Covarrubias (2016) 1 Cal.5th 838, 872, quoting Tufunga, 

supra, at p. 950.) “[B]y use of the . . . term ‘felonious taking’ in section 211, the 

Legislature was . . . incorporating into the . . . statute the affirmative requirement, derived 

from the common law rule applicable to larceny and robbery, that the thief or robber has 
11

to intend to take property belonging to someone other than himself in order to be guilty of 

theft or robbery, that is to say, the common law recognition of the defense of claim of 

right.” (Tufunga, supra, 21 Cal.4th at p. 947, italics added.) Tufunga held, on the basis 

of this reasoning, that a good faith claim of right to the ownership of specific property 

can negate the element of felonious taking that is necessary to establish theft or robbery.

In rejecting the availability of a claim-of-right defense when a robbery is 

accomplished to satisfy a debt, the court in Tufunga invoked the following principal: 

“‘The law does not contemplate the use of criminal process as a means of collecting a 

debt. To invoke such process for the purpose named is, as held by all authorities, 

contrary to public policy. Hence, good faith, or the fact that the end accomplished by 

such means is rightful, cannot avail one as a defense in such prosecution, any more than 

such facts would constitute a defense where one compels payment of a just debt by the 

threat to do an unlawful injury to the person of his debtor.’ [Citation.]” (Tufunga, supra, 

21 Cal.4th at p. 956, italics omitted.)

The instant case differs from Tufunga in that here there was no evidence from 

which the jury reasonably could conclude that defendant sought to recover specific 

property or the right to keep the first vape pen he had stolen. Rather, the evidence shows 

that although defendant gave M.A. $100 to pay for the second vape pen and may have 

believed it to cover the first vape pen, he was trying to do so through “‘the use of 

criminal process . . . .’” (Tufunga, supra, 21 Cal.4th at p. 956, italics omitted.) 

Moreover, there is sufficient evidence in the record to show that defendant did not intend 
12

to pay for the first vape pen he had stolen. We decline defendant’s invitation to extend 

the claim of right defense to the instant circumstances.

Defendant also asserts that once M.A. accepted payment for the vape pens and did 

not give him change for the $100 he had given him, M.A. consented to the taking. The 

record belies this contention. First, defendant denied having the first vape pen and did 

not intend to pay for it. Second, M.A. could not complete the transaction with giving 

defendant change for the $100 because defendant refused to produce and pay for the vape 

in his pocket. Thereafter, an altercation ensued that escalated to defendant assaulting 

M.A. with a box cutter and defendant leaving the store with the vape pen he had stolen. 

Defendant and M.A. did not reach a mutually agreed-upon solution, they simply seemed 

to forget about the money on the counter once they began to argue. Indeed, M.A. and 

defendant engaged in a heated argument because defendant intended to steal the vape and 

because M.A. did not consent to the taking. Simply put, defendant left the store with the 

stolen vape not because M.A. consented, but because defendant used force to take it from 

M.A. Defendant leaving the store with the stolen vape pen and without his $100 bill or 

change for that bill neither negates his intent to steal the vape nor constitutes M.A.’s 

consent to its taking. 

Evidence supporting a conviction is not rendered insufficient by other evidence 

that may support an acquittal. Defendant had an opportunity to cross-examine witnesses 

and to argue to the jury that the defense evidence made a finding of intent inappropriate. 

It was then the jury’s responsibility to weigh the evidence and determine whether it 
13

sufficed. Viewing the record as a whole, considering the totality of the circumstances, 

and presuming the existence of every fact the trier of fact could reasonably deduce from 

the evidence (People v. Kraft (2000) 23 Cal.4th 978, 1053), we conclude that the 

evidence supporting defendant’s conviction for robbery was reasonable, credible, and of 

solid value.

B. Sentencing 

Defendant argues that section 1385, subdivision (c)(2)(B) prohibits the imposition 

of more than one enhancement in a single case. He concludes that one of the

enhancements, either the great bodily injury enhancement or the prior serious felony 

enhancement, should therefore be dismissed, based upon the Legislature’s use of the 

word “shall” in subdivision (c)(2)(B) of section 1385, which reads in part that “all 

enhancements beyond a single enhancement shall be dismissed.” The People respond 

defendant forfeited this issue by failing to object during sentencing. Alternatively, the 

People argue defendant’s contention lacks merit.

Defendant acknowledges his failure to object below to the imposition of both 

enhancement sentences, but insists the forfeiture doctrine does not apply because the 

sentence is legally unauthorized. As our high court confirmed in People v. Scott (1994) 9 

Cal.4th 331, a party may forfeit or waive “claims involving the trial court’s failure to 

properly make or articulate its discretionary sentencing choices” by failing to object 

below. (Id. at p. 353.) However, this rule does not apply when the sentence is legally 

unauthorized. (People v. Gonzalez (2003) 31 Cal.4th 745, 751.) In the present matter, 
14

because defendant argues that section 1385, subdivision (c)(2)(B) removes the trial 

court’s authority to exercise its discretion at all in deciding whether to strike additional 

enhancements, we cannot definitively state that this rule of forfeiture applies without 

addressing the merits of his claim. Accordingly, we decline to decide the issue on 

forfeiture grounds despite defendant’s failure to object below.

Because defendant’s argument hinges on the proper construction of section 1385, 

we review his claim de novo. (John v. Superior Court (2016) 63 Cal.4th 91, 95.) 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.) “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.)

Section 1385 has long permitted trial courts to dismiss sentence enhancements, or 

the additional punishment associated with such enhancements, if doing so is in 

furtherance of justice. (See former § 1385, amended by Stats. 1986, ch. 85, § 2, eff. May 

6, 1986.) In October 2021, the Governor signed Senate Bill No. 81 that added a new 
15

subdivision (c) to section 1385. (Stats. 2021, ch. 721; People v. Mendoza (2023) 88 

Cal.App.5th 287, 295 (Mendoza).)

Section 1385, subdivision (c), states 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 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.” The 

mitigating circumstance identified in the subparagraphs include that “[m]ultiple 

enhancements are alleged in a single case.” (§ 1385, subd. (c)(2)(B).)

Thus, effective January 1, 2022, California law provides that a trial 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, subd. (c)(1); Mendoza, 

supra, 88 Cal.App.5th at p. 295; People v. Ortiz (2023) 87 Cal.App.5th 1087, 1093-1094, 

review granted Apr. 12, 2023, S278894 (Ortiz).) In exercising its discretion under 

subdivision (c)(1), a trial court “shall consider and afford great weight to evidence 

offered by the defendant” to prove one of nine enumerated mitigating circumstances. 
16

(§ 1385, subd. (c)(2); Mendoza, supra, at pp. 295-296; Ortiz, supra, at pp. 1093-1094.) 

“Proof of the presence of one or more of these [mitigating] circumstances weighs greatly 

in favor of dismissing the enhancement, unless the court finds that dismissal of the 

enhancement would endanger public safety.” (§ 1385, subd. (c)(2); Mendoza, supra, at p. 

299; Ortiz, supra, at pp. 1093-1094.) The term “‘[e]ndanger public safety’” is statutorily 

defined as “a likelihood that the dismissal of the enhancement would result in physical 

injury or other serious danger to others.” (§ 1385, subd. (c)(2); Mendoza, supra, at pp. 

295-296; Ortiz, supra, at pp. 1093-1094.) There is no requirement for the trial court to 

consider particular factors in determining whether dismissal would endanger public 

safety. (Mendoza, supra, at p. 299.) Together, section 1385, subdivisions (c)(1) and 

(c)(2) establish the following: (1) the trial court has discretion to dismiss sentencing 

enhancements in the interests of justice; (2) certain mitigating circumstances weigh 

greatly in favor of dismissal; and (3) a finding of danger to public safety will overcome 

the mitigating circumstances. (See Mendoza, supra, at pp. 295-297; Anderson, supra, 88 

Cal.App.5th at p. 239; People v. Lipscomb (2022) 87 Cal.App.5th 9, 18 (Lipscomb).) 

“Section 1385 makes clear that whether dismissal of an enhancement is ‘in the 

furtherance of justice’ is a ‘discretion[ary]’ call for the trial court to make.” (People v. 

Walker (2022) 86 Cal.App.5th 386, 395, review granted Mar. 22, 2023, S278309 

(Walker); see § 1385, subd. (c)(2) [“In exercising its discretion . . .”].)3

3

 We observe that a split of authority has emerged among the Courts of Appeal 

regarding the application of section 1385, subdivision (c)(2). (Compare Walker, supra, 

86 Cal.App.5th 386, review granted with Ortiz, supra, 87 Cal.App.5th 1087.) How 

[footnote continued on next page]
17

Because Senate Bill No. 81 by its express terms “appl[ies] to all sentencings 

occurring after January 1, 2022” (§ 1385, subd. (c)(7)), it was in effect when defendant 

was sentenced on January 27, 2023.

Defendant contends the trial court’s sentence in this case violates current section 

1385, subdivision (c)(2)(B) because the use of the word “shall” mandates the dismissal of 

all but one enhancement. In asserting this contention, he acknowledges that recent cases 

have uniformly rejected similar arguments after considering the totality of the statutory

language. (See Mendoza, supra, 88 Cal.App.5th at pp. 290-293; Anderson, supra, 88 

Cal.App.5th at pp. 238-240; Lipscomb, supra, 87 Cal.App.5th at pp. 15-21; Walker, 

supra, 86 Cal.App.5th at pp. 395-398, review granted.)

In Walker, supra, 86 Cal.App.5th 386, the Court of Appeal considered whether 

section 1385, subdivision (c)(2)(B) mandates the dismissal of all but one sentencing 

enhancement in all cases. (Walker, supra, at p. 396, review granted.) The appellate court 

determined that it did not and explained, “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 [relevant statutory language] does not obligate 

trial courts to automatically dismiss all but one enhancement.” (Walker, supra, at p. 

courts should construe and apply the newly added provision is a question currently 

pending before the California Supreme Court. In granting review of the Walker decision, 

our high court defined the issue as follows: “Does the amendment to . . . section 1385, 

subdivision (c) that requires trial courts to ‘afford great weight’ to enumerated mitigating 

circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of 

dismissing an enhancement unless the trial court finds dismissal would endanger public 

safety?” (People v. Walker, S278309, Supreme Ct. Mins., March 22, 2023.)
18

396.) “The phrase ‘all enhancements beyond a single enhancement shall be dismissed’ is 

not a standalone mandate of section 1385,” but rather one of nine mitigating 

circumstances. (Walker, supra, at p. 397.) Further, the court noted that “[s]ection 1385 

explicitly instructs that the existence of a mitigating circumstance—including the one for 

‘[m]ultiple enhancements’—‘weighs greatly in favor of dismiss[al]’” but, under the 

remaining statutory language, the trial court retains its discretion “to evaluate whether 

dismissal is in the furtherance of justice by weighing enumerated and unenumerated 

mitigating factors against whether dismissal of an enhancement would ‘endanger public 

safety.’” (Ibid., italics omitted.)

The Walker court, therefore, concluded that section 1385, subdivision (c)(2)(B) 

“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.” (Walker, supra, 86 Cal.App.5th at p. 397, 

review granted.) Additionally, the court determined that “section 1385’s use of the 

additional phrase ‘great weight’” “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.” (Id. at pp. 398-399.)

The court in Lipscomb addressed essentially the same issue in the context of 

section 1385, subdivision (c)(2)(C). There, the trial court had declined to dismiss a 
19

section 12022.53, subdivision (d) enhancement—which resulted in imposition of an 

additional term of 25 years to life—based on a finding that dismissal “‘would result in 

physical injury or serious danger to others.’” (Lipscomb, supra, 87 Cal.App.5th at p. 13.) 

The defendant asserted the dismissal was mandatory based on the “‘shall be dismissed’” 

language in section 1385, subdivision (c)(2)(C), but, as in Walker, the appellate court 

concluded subdivision (c)(2)(C) did not compel dismissal in all cases. (Lipscomb, supra, 

at p. 20.) Rather, the court explained that the full language of the statute, read in context,

“expressly empower[s] the [trial] court to impose the enhancement upon a finding that

dismissing it would endanger public safety.” (Id. at p. 19.)

In Ortiz, supra, 87 Cal.App.5th 1087, the appellate court declined to follow 

Walker to the extent it would “require the trial court to dismiss an enhancement absent a 

finding that dismissal would endanger public safety” because to do so “would divest the 

trial court of its ultimate discretion under the statute to determine what is in furtherance 

of justice, considering all relevant factors.” (Id. at p. 1098.) Such factors under 

“‘generally applicable sentencing principles’ relevant to a court’s determination of 

whether dismissal is in furtherance of justice ‘relat[e] to matters such as the defendant’s 

background, character, and prospects.’” (Id. at p. 1097, quoting People v. Williams

(1998) 17 Cal.4th 148, 160.) “Those principles require consideration of circumstances in 

mitigation (and aggravation) in the broader context of the recognized objectives of 

sentencing, which are not limited to public safety.” (Ortiz, supra, at p. 1097 citing Cal. 

Rules of Court, rule 4.410).)
20

In the most recent decision related to this issue, this court in Mendoza determined 

that, if the trial court found that dismissal of the enhancement would endanger public 

safety, it need not go on to consider the mitigating factors. (Mendoza, supra, 88

Cal.App.5th at p. 297.) And, because the trial court in that case expressly found such 

endangerment present, we concluded it did not need to analyze how the “‘shall be 

dismissed’” language of section 1385, subdivision (c)(2)(C) operates when a trial court 

finds that dismissal of a firearm enhancement would not endanger public safety.

(Mendoza, supra, at p. 297.)

We again conclude that section 1385, subdivision (c)(2)(B) requires dismissal of a 

sentencing enhancement only where the trial court concludes dismissal would not be in 

the furtherance of justice and/or would endanger public safety.4 (§ 1385, subd. (c)(2).) 

As other courts have observed, reading the “shall be dismissed” language as mandatory 

requires us to consider it in isolation. (See, e.g., Walker, supra, 86 Cal.App.5th at p. 397, 

review granted [commenting that “[i]f 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’”].) Further, such a construction violates the direction to “‘harmonize the 

4

 Because defendant does not argue in the alternative that the trial court abused its 

discretion in refusing to dismiss one of the two enhancements, we need not decide which 

court’s construction of the statute to adopt, nor must we evaluate the trial court’s 

justification for the sentence in this case.
21

various parts of the enactments.’” (Skidgel v. California Unemployment Ins. Appeals Bd.

(2021) 12 Cal.5th 1, 14.) If a trial court was required to dismiss all enhancements beyond 

a single enhancement in all cases, the language regarding the court’s “discretion,” proof 

of the multiple enhancements “weigh[ing] greatly,” and the court’s authority to consider 

whether “dismissal of the enhancement would endanger public safety” would all be 

rendered meaningless. Precedent has long made clear that “‘[a] construction making 

some words surplusage is to be avoided.’” (People v. Valencia (2017) 3 Cal.5th 347, 

357.)

IV.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.