Filed 9/25/24 P. v. Miller CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DUSTIN LEON MILLER,

Defendant and Appellant.

F087122

(Super. Ct. No. CRF43303)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M. 

Seibert, Judge.

John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, 

Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Jamie A. 

Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Detjen, Acting P. J., Peña, J. and Snauffer, J.
2.

Defendant Dustin Leon Miller appeals from a September 7, 2023 judgment of the 

Tuolumne County Superior Court. He contends the dismissal of an on-bail enhancement 

(Pen. Code,

1 § 12022.1) is mandated by section 1385, subdivision (c)(2)(B)–(C), added 

by Senate Bill No. 81 (2021–2022 Reg. Sess.) (Senate Bill No. 81) (Stats. 2021, ch. 721, 

§ 1). We disagree and affirm the judgment.

BACKGROUND2

At a February 23, 2015 sentencing hearing for five cases involving defendant, the 

trial court imposed an aggregate term of 28 years and 8 months:

In case No. CRF43470, defendant received four years doubled to eight years 

pursuant to the Three Strikes law (§ 667, subds. (b)–(i)) for possession of 

methamphetamine in jail (§ 4573.6). 

In case No. CRF43303, defendant received eight months doubled to 16 months 

pursuant to the Three Strikes law (§ 667, subds. (b)–(i)) for possession of 

methamphetamine for sale (Health & Saf. Code, § 11378) plus three years for a prior 

drug conviction (id., § 11370.2, subd. (c)). He also received a concurrent 180 days for 

possession of a device used for smoking a controlled substance (id., former § 11364.1, 

subd. (a)). 

In case No. CRF43353, defendant received a concurrent one year for possession of 

methamphetamine (Health & Saf. Code, § 11377, subd. (a)). 

In case No. CRF44734, via plea agreement, defendant received eight months 

doubled to 16 months pursuant to the Three Strikes law (§ 667, subds. (b)–(i)) for willful 

1 Unless otherwise indicated, subsequent statutory citations refer to the Penal 

Code.

2 “Since this appeal does not raise any issue regarding the facts of the underlying 

offense[s,] we will omit the traditional statement of facts.” (People v. White (1997) 55 

Cal.App.4th 914, 916, fn. 2.)
3.

failure to appear in court (§ 1320.5) plus two years for an on-bail enhancement 

(§ 12022.1). 

In case No. CRF44915, defendant received three years doubled to six years 

pursuant to the Three Strikes law (§ 667, subds. (b)–(i)) for witness intimidation in 

furtherance of a conspiracy (§ 136.1, subd. (c)(2)) plus two years for an on-bail 

enhancement (§ 12022.1) and five years for a prior serious felony conviction (§ 667, 

subd. (a)(1)). 

On appeal, our court struck the section 667, subdivision (a)(1) enhancement in 

case No. CRF44915. (People v. Miller (Mar. 24, 2017, F071115) [nonpub. opn.].) An 

amended abstract of judgment filed July 28, 2017 reflected an aggregate sentence of 23 

years 8 months. 

On April 10, 2023, the trial court issued an ex parte order setting a resentencing 

hearing. On August 28, 2023, defendant filed a petition for resentencing. He argued 

(1) the Health and Safety Code section 11370.2 enhancement in case No. CRF43303 

should be stricken in view of Senate Bill No. 180 (2017–2018 Reg. Sess.) (Stats. 2017, 

ch. 677, § 1) and Senate Bill No. 483 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 728, § 2); 

(2) the on-bail enhancement in either case No. CRF44734 or case No. CRF44915 should 

be dismissed in view of Senate Bill No. 81; and (3) the aggravated eight-year term in case 

No. CRF43470 should be reduced to the middle term in view of Senate Bill No. 567 

(2021–2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3). 

At a September 7, 2023 resentencing hearing, the trial court (1) agreed with the 

parties the Health and Safety Code section 11370.2 enhancement in case No. CRF43303 

should be stricken; (2) believed it “does not have the ability to unwind a negotiated plea” 

and refused to strike the on-bail enhancement in case No. CRF44734; (3) found “no good 

cause to strike” the on-bail enhancement in case No. CRF44915; and (4) found “ample 

support for an aggravated sentence” in case No. CRF43470. Following the hearing, the 

court ordered the dismissal of the Health and Safety Code section 11370.2, subdivision 
4.

(c) enhancement. An amended abstract of judgment filed September 19, 2023, reflected 

an aggregate sentence of 20 years 8 months. 

DISCUSSION

I. Statutory language

“Prior to January 1, 2022, section 1385 provided trial courts with discretion to 

dismiss sentencing enhancements in the interest of justice. The statute did not provide 

direction as to how courts should exercise that discretion. In October 2021 the 

Legislature passed and the Governor signed Senate Bill No. 81 . . . , which, effective 

January 1, 2022, amended section 1385 to provide guidance regarding the exercise of 

discretion in dismissing sentencing enhancements.” (People v. Anderson (2023) 88 

Cal.App.5th 233, 238, review granted Apr. 19, 2023, S278786 (Anderson).)

Senate Bill No. 81 added subdivision (c) to section 1385 (Stats. 2021, ch. 721, 

§ 1), which reads in pertinent 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. [¶] . . . [¶]

“(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.” (Accord, 

Anderson, supra, 88 Cal.App.5th at pp. 238–239, rev. granted.)
5.

II. Analysis

On appeal, defendant contends the on-bail enhancement in case No. CRF44915 

must be vacated pursuant to section 1385, subdivision (c)(2)(B) and (C). He specifically 

claims use of the word “shall” in this subdivision mandates dismissal. Defendant 

recognizes this argument has been rejected several times by the Courts of Appeal, 

including our own. (See People v. Mazur (2023) 97 Cal.App.5th 438, rev. granted 

Feb. 14, 2024, S283229; People v. Cota (2023) 97 Cal.App.5th 318 (Cota); People v. 

Mendoza (2023) 88 Cal.App.5th 287; Anderson, supra, 88 Cal.App.5th 233, rev. granted; 

People v. Lipscomb (2022) 87 Cal.App.5th 9; People v. Walker (2022) 86 Cal.App.5th 

386, affd. (2024) 16 Cal.5th 1024.) He further “acknowledges this Court is likely to 

follow its only recently published opinion” in Cota. Indeed, we adhere to Cota.

“The meaning of the phrase ‘shall be dismissed’ in section 1385, subdivision 

(c)(2)(B) [and (C)] is a question of statutory interpretation. ‘The proper interpretation of 

a statute is a question of law we review de novo. [Citations.] “ ‘ “ ‘As in any case 

involving statutory interpretation, our fundamental task here is to determine the 

Legislature’s intent so as to effectuate the law’s purpose. [Citation.] We begin by 

examining the statute’s words, giving them a plain and commonsense meaning.’ ” ’ ” 

[Citation.] “ ‘[W]e look to “the entire substance of the statute . . . in order to determine 

the scope and purpose of the provision . . . . [Citation.]” [Citation.] That is, we construe 

the words in question “ ‘in context, keeping in mind the nature and obvious purpose of 

the statute . . . .’ [Citation.]” [Citation.] 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.” ’ ” ’ [Citation.] ‘If there is no ambiguity in the 

language, we presume the Legislature meant what it said and the plain meaning of the 

statute governs.’ [Citation.]” (Cota, supra, 97 Cal.App.5th at p. 335.)

“As the court in Anderson aptly explained: [¶] ‘If we were to read section 1385, 

subdivision (c)(2)(B) and (C), in isolation, then [the defendant’s] argument would appear 
6.

correct—use of the term “shall” in a statute is generally mandatory, not permissive. 

However, “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.’ ” ’ ” [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 furtherance of justice to do so.” [Citation.] 

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.” (Cota, supra, 97 Cal.App.5th at pp. 335–336, fn. omitted.)

“ ‘It is within these boundaries that section 1385 states the court “shall” dismiss all 

but one enhancement and/or enhancements resulting in a sentence of more than 20 years. 

The 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. . . . [I]f we were to read subdivision (c)(2)(B) and (C) as 

mandatory, then the existence of those factors “would not ‘weigh greatly’ in favor of 

dismissal—it would weigh dispositively.” [Citation.] In addition, “[t]hat construction 

would also require us to accept that our Legislature . . . 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 
7.

was trying to implement a rule of mandatory and automatic dismissal, it picked a very 

circuitous way to do so.” ’ [Citations.]” (Cota, supra, 97 Cal.App.5th at pp. 336–337.)

“Moreover, interpreting section 1385, subdivision (c)(2)(B) [and (C)] as 

mandatory would give ‘no effect to the clause “unless the court finds that dismissal of the 

enhancement would endanger public safety.” ’ [Citation.] Additionally, [the] defendant’s 

interpretation of the statute would require a court to dismiss an enhancement beyond a 

single enhancement, even when doing so would endanger public safety. [Citation.] 

Canons of statutory interpretation require us to reject this interpretation, inasmuch as it 

would render portions of the statute surplusage and would lead to an absurd result. 

[Citation.]” (Cota, supra, 97 Cal.App.5th at p. 337.)

Based on the foregoing, we conclude the plain language of the statute as a whole 

presents no ambiguity. The phrase “shall be dismissed” as used in section 1385, 

subdivision (c)(2)(B) and (C) does not require dismissal of an enhancement when doing 

so would not be in the interest of justice or would endanger public safety. (Accord, Cota, 

supra, 97 Cal.App.5th at p. 337; see People v. Johnson (2002) 28 Cal.4th 240, 244 [“If 

the plain language of the statute is clear and unambiguous, our inquiry ends, and we need 

not embark on judicial construction.”].)

DISPOSITION

The judgment is affirmed.