Filed 12/15/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MAURICE WALKER,

Defendant and Appellant.

 B319961

 (Los Angeles County

 Super. Ct. No. BA398731)

APPEAL from an order of the Superior Court of Los 

Angeles County, David R. Fields, Judge. Affirmed in part, 

reversed in part, and remanded with directions.

Law Offices of Jason Szydlik and Jason Szydlik, under 

appointment by the Court of Appeal, for Defendant and 

Appellant.

* Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication as to all parts 

except Part II of the Discussion.
2

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Eric J. Kohm, Deputy 

Attorneys General, for Plaintiff and Respondent.

* * * * * *

For all criminal sentencings after January 1, 2022, our 

Legislature in Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 

2021, ch. 721, § 1) has provided direction on how trial courts are 

to exercise their discretion in deciding whether to dismiss

sentencing enhancements. Specifically, Penal Code section 1385 

now provides that the presence of one of nine enumerated 

“mitigating circumstances” “weighs greatly in favor of dismissing 

the enhancement[] unless the court finds that dismissal of the 

enhancement would endanger public safety.” (Pen. Code, § 1385, 

subd. (c)(2).)1

This appeal presents two questions of first impression.

First, does the mitigating circumstance that exists when 

there are “[m]ultiple enhancements . . . in a single case” and 

specifies that “all enhancements beyond a single enhancement 

shall be dismissed” require the court to dismiss all but one of 

those enhancements in every case with multiple enhancements? 

We conclude that the answer is “no.” 

Second, what does it mean to “greatly weigh” a mitigating 

circumstance in deciding whether to dismiss an enhancement? 

We conclude that section 1385’s mandate to “afford great weight” 

to mitigating circumstances erects a rebuttable presumption that 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

obligates a court to dismiss the enhancement unless the court 

finds that dismissal of that enhancement—with the resultingly 

shorter sentence—would endanger public safety. 

In light of these holdings, we affirm the trial court’s denial 

of the motion to dismiss the two enhancements at issue in this 

case. However, we reverse with directions to correct two other 

sentencing errors that the parties concede. We accordingly affirm 

in part, reverse in part, and remand with directions.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Defendant’s criminal history

In 1983, while Maurice Walker (defendant) was a juvenile, 

he was adjudicated guilty of robbery. In 1992, as an adult, he 

was convicted of assault with a deadly weapon after he smashed 

a glass in his ex-girlfriend’s face, breaking her nose and causing 

lacerations necessitating 100 stitches. In 1995, defendant was 

convicted of defrauding an innkeeper. In 2001 and again in 2007, 

he was convicted of felony drug possession, but successfully 

petitioned in 2015 to have the 2001 conviction reduced to a 

misdemeanor. In 2009, defendant was found guilty of a probation 

violation for making a criminal threat. 

B. Current offense

In June 2012, defendant elbowed a woman in the mouth. 

When a 77-year-old man in a wheelchair tried to intervene to 

stop defendant’s attack on the woman, defendant pulled out a 

knife and repeatedly stabbed the elderly man in the arm. 

II. Procedural Background

A. Charges, conviction and initial sentence

In July 2012, the People charged defendant with (1) assault 

with a deadly weapon (§ 245, subd. (a)(1)), and (2) elder abuse (§ 
4

368, subd. (b)(1)).2 As to both counts, the People alleged that 

defendant personally inflicted great bodily injury on a person 70 

years or older (§ 12022.7, subd. (c)). The People further alleged 

that defendant’s 1983 juvenile adjudication for robbery and his 

1992 conviction for assault with a deadly weapon constituted 

“strikes” within the meaning of our “Three Strikes” law (§§ 

1170.12, subds. (a)-(d), 667, subds. (b)-(j)), and that the 1992 

conviction also qualified as a prior serious felony (§ 667, subd. 

(a)). The People lastly alleged that defendant had served prior 

prison terms (§ 667.5, subd. (b)) for the 1992 assault with a 

deadly weapon conviction and a 2001 felony drug possession 

conviction (Health & Saf. Code, § 11350). 

A jury convicted defendant of all charges, and found all 

allegations true.

The trial court sentenced defendant to state prison for 20 

years. Specifically, the court exercised its discretion to dismiss 

the 1983 juvenile adjudication as a “strike” because the court did 

not want to impose a “life sentence” in this case and because 

defendant was not convicted of any violent crimes between the 

1992 conviction and the 2012 incident underlying this case. The 

court then imposed a 20-year sentence on the assault with a 

deadly weapon conviction, and imposed but stayed under section 

654 a 13-year sentence for the elder abuse conviction. 

We affirmed the conviction and sentence in an unpublished

opinion. (People v. Walker (Feb. 24, 2014, B245405).)

2 The People also charged defendant with misdemeanor 

battery (§ 242), and the trial court imposed a six-month 

concurrent sentence after the jury convicted him of that 

misdemeanor. Because that charge and sentence do not factor 

into any issue in this appeal, we will not discuss them further.
5

B. First resentencing

After defendant successfully petitioned to have the 2001 

conviction reduced to a misdemeanor in 2015, he petitioned for a 

writ of habeas corpus seeking a resentencing where both one-year 

prior prison term enhancements would be dismissed. In 2017, 

the trial court dismissed the prior prison term enhancement for 

the 1992 assault with a deadly weapon conviction (because that 

conviction could not be doubly used to impose the five-year 

enhancement and the one-year enhancement), but refused to 

dismiss the prior prison term enhancement based on the now

redesignated misdemeanor 2001 conviction. Defendant 

petitioned this court, and we issued an opinion directing the trial 

court to dismiss the prior prison term enhancement arising from

the 2001 conviction and “to consider whether to conduct a full 

resentencing.” (People v. Walker (2021) 67 Cal.App.5th 198, 208.)

C. Second resentencing

After entertaining briefing, the trial court conducted a full 

resentencing hearing in April 2022. Defendant asked the trial 

court (1) to dismiss both the great bodily injury and the prior 

serious felony enhancements in light of the changes made to 

section 1385 by the recently enacted Senate Bill No. 81, and (2) to 

use the middle-term as the base sentence for both counts in light 

of the changes made to section 1170 by the recently enacted 

Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 

1.3). The trial court declined to exercise its discretion under 

section 1385 to dismiss either enhancement, reasoning that 

defendant posed a “public safety danger” because defendant had 

twice—in 1992 and again in 2012—engaged in conduct comprised 

of “uncivilized violent, absolutely unjustified behavior,” such that 

it was not in the “interest of justice” to dismiss either 
6

enhancement and thereby allow defendant to be released into the 

community any sooner, even though “multiple enhancements” 

were still being applied to defendant. The court granted

defendant’s request to use the middle-term as the base term, 

however. 

The court then imposed a 16-year term in state prison. 

Specifically, the court imposed a 16-year sentence on the assault 

with a deadly weapon conviction comprised of a base term of six 

years (a middle-term three years doubled due to the prior strike), 

plus five years for the infliction of great bodily injury 

enhancement plus five years for the prior serious felony 

enhancement. The court imposed but stayed under section 654 

an identically calculated 16-year sentence on the elder abuse 

conviction. The court calculated 158 days of actual custody credit 

and 24 days of conduct credit based on the time in custody 

between the date of defendant’s arrest and the date of his 

sentencing in 2012. 

D. Appeal

Defendant filed this timely appeal. 

DISCUSSION

Defendant argues that the trial court erred in (1) declining 

to strike the prior serious felony enhancement, (2) erred in 

imposing the prior serious felony enhancement twice—once for 

the assault with a deadly weapon count and again for the elder 

abuse count, and (3) erred in calculating custody credits by not 

calculating the time in custody between the date of his arrest and 

the date of his resentencing on April 8, 2022. The People concede 

that defendant’s second and third arguments have merit, and we 

agree. (People v. Sasser (2015) 61 Cal.4th 1, 15 [prior serious 

felony enhancement does “‘not attach to particular counts but 
7

instead [is] added just once as the final step in computing the 

total sentence’”]; People v. Buckhalter (2001) 26 Cal.4th 20, 29 

[when calculating credits at a resentencing, court must calculate 

them up to the date of the resentencing].) As a result, we direct 

the trial court to impose the prior serious felony enhancement 

only once to defendant’s total sentence (such that the court must 

not include that enhancement as part of the elder abuse 

sentence), and to recalculate the actual custody credits as well as 

conduct credits based on the time between the date of defendant’s 

arrest and the date of resentencing. 

As part of his first argument, the parties agree that 

defendant is entitled to be resentenced under the law as it exists 

today because his 2012 sentence was vacated. (Accord, People v. 

Padilla (2022) 13 Cal.5th 152, 161-162.) Under the current law, 

defendant raises two types of challenges: (1) he challenges the 

trial court’s interpretation of section 1385, and (2) he challenges 

the court’s exercise of discretion under section 1385. We review 

the first type of challenge de novo (John v. Superior Court (2016) 

63 Cal.4th 91, 95), and review the second type for an abuse of 

discretion (e.g., People v. Carmony (2004) 33 Cal.4th 367, 378).

I. Interpretation of Section 1385, as Modified by Senate 

Bill No. 81

As amended by Senate Bill No. 81, section 1385 grants trial 

courts “the authority”—and simultaneously imposes upon them a 

duty—“to strike or dismiss a[ sentencing] enhancement” (or, if 

they choose, the “additional punishment for that enhancement”)

if doing so is “in the furtherance of justice.” (§ 1385, subds. (b)(1), 

(a) [granting “authority”]; id., subd. (c)(1) [“the court shall 

dismiss an enhancement if it is in the furtherance of justice to do 

so” (italics added)].) Section 1385 makes clear that whether 
8

dismissal of an enhancement is “in the furtherance of justice” is a 

“discretion[ary]” call for the trial court to make. (Id., subd. (c)(2) 

[“In exercising its discretion . . .” (italics added)]; id., subd., (c)(3) 

[“court may exercise its discretion at sentencing” or “exercis[e] its 

discretion before, during, or after trial or entry of plea” (italics 

added)].) Senate Bill No. 81 amended section 1385 to fine tune 

how a court is to exercise that discretion: Specifically, section 

1385 now enumerates nine “mitigating circumstances,” and 

mandates that the presence of any such circumstance “weighs 

greatly in favor of dismissing the enhancement[] unless the court 

finds that dismissal of the enhancement would endanger public 

safety.” (Id., subd. (c)(2), italics added.) Dismissal endangers 

public safety if “there is a likelihood that the dismissal of the 

enhancement would result in physical injury or other serious 

danger to others.” (Ibid.) The two mitigating circumstances at 

issue in this appeal exist when:

“(B) Multiple enhancements are alleged in a 

single case. In this instance, all enhancements 

beyond a single enhancement shall be dismissed.

[¶] . . . [¶]

“(H) The enhancement is based on a prior 

conviction that is over five years old.”

(§ 1385, subd. (c)(2)(B) & (H), italics added.)

Defendant’s appeal requires us to confront two questions 

about section 1385’s meaning, although he only expressly raises 

the second question: (1) Does the sentence “all enhancements 

beyond a single enhancement shall be dismissed” in subdivision 

(c)(2)(B) of section 1385 obligate trial courts to dismiss all but one 

enhancement in every case, or do trial courts still retain 

discretion to determine whether dismissal endangers public 
9

safety (and thus is in the furtherance of justice), and (2) What 

weight must a trial court give a mitigating circumstance in order 

to give it “great weight” within the meaning of subdivision (c)(2) 

of section 1385?

A. Does section 1385, subdivision (c)(2)(B), obligate 

trial courts to dismiss multiple enhancements in every 

case?3

Our task in interpreting section 1385 is to “ascertain” and 

“give effect to the intended purpose” of our Legislature in 

enacting the statute. (People v. Zambia (2011) 51 Cal.4th 965, 

976.) “[T]he text of a statute is often the best indicator of its 

meaning.” (North American Title Co., Inc. v. Gugasyan (2021) 73 

Cal.App.5th 380, 392.) If the text is “unambiguous,” our task 

“begins and ends with th[e] text” (Diaz v. Gill Concepts Services, 

Inc. (2018) 23 Cal.App.5th 859, 874-875); but if the text is 

ambiguous because it “permits more than one interpretation,” 

then we “‘may consider other aids, such as the statute’s purpose, 

legislative history, and public policy’” as well as the general 

canons of statutory construction. (Ardon v. City of Los Angeles

(2016) 62 Cal.4th 1176, 1184; accord, Riverside County Sheriff's 

Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630.)

3 Defendant argued to the trial court that he was entitled to 

have all but one of the enhancements stricken in light of the 

language in subdivision (c)(2)(B) of section 1385 providing that 

“all enhancements beyond a single enhancement shall be 

dismissed.” (Italics in original.) Although defendant has elected 

not to press this argument on appeal—and, indeed, conceded at 

oral argument that it is incorrect—we nevertheless address it 

because it presents a question of statutory interpretation that 

has yet to be addressed in a published appellate decision. 
10

In our view, 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 phrase “all enhancements beyond a single enhancement 

shall be dismissed” in subdivision (c)(2)(B) does not obligate trial 

courts to automatically dismiss all but one enhancement 

whenever a jury finds multiple enhancements to be true.

The text of section 1385 favors this result. To be sure, on 

its face and considered in isolation, the phrase “all enhancements 

beyond a single enhancement shall be dismissed” seems to fairly 

unambiguously dictate that, if there is more than one 

enhancement, all but one “shall” be dismissed. But 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.’” (People 

v. Valencia (2017) 3 Cal.5th 347, 358; accord, Jarman v. HCR 

ManorCare, Inc. (2020) 10 Cal.5th 375, 381 (Jarman).) And, in 

this case, the context is critical. The phrase “all enhancements 

beyond a single enhancement shall be dismissed” is not a 

standalone mandate of section 1385. Instead, it appears in the 

statute appended to one of the nine mitigating circumstances—

that is, it is appended to the circumstance that exists when 

“[m]ultiple enhancements are alleged in a single case.” (§ 1385, 

subd. (c)(2)(B).) Section 1385 explicitly instructs that the 

existence of a mitigating circumstance—including the one for 

“multiple enhancements”—“weighs greatly in favor of dismiss[al]”

of an enhancement as the court is exercising its discretion under 

section 1385 to evaluate whether dismissal is in the furtherance 

of justice by weighing enumerated and unenumerated mitigating 

factors against whether dismissal of an enhancement would 
11

“endanger public safety.” (Id., subd. (c)(2) & (4) [indicating that 

statutorily enumerated list of mitigating factors is not exclusive], 

italics added.) If 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. But that is not what the statute says, 

and we are not allowed to rewrite the statute. (Jarman, at p. 

392.) 

So what does the phrase “all enhancements beyond a single 

enhancement” mean when considered in its statutory context? It 

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. This reading of the text of section 1385 is the 

only one to give effect to the phrase’s mandate of dismissing all 

but one enhancement and to give effect to the phrase’s placement 

within section 1385 and the language that mitigating factors be 

given “great” (but not dispositive) “weight.”

Second, the purposes of section 1385 and Senate Bill No. 81

favor reading the phrase “all enhancements beyond a single 

enhancement shall be dismissed” to specify what must be 

dismissed after a trial court has exercised its discretion to decide 

whether dismissal is warranted in the first place. As the plain 

text of section 1385 repeatedly emphasizes, its purpose is to grant 

trial court discretion to dismiss enhancements. And the purpose 
12

of Senate Bill No. 81, as reflected in the Legislative Digest, is to 

encourage exercise of that discretion by making dismissal 

mandatory if it is in the furtherance of justice to do so, and to 

specify the mitigating circumstances that are to be given great 

weight in that exercise of discretionary balancing. (Legis. 

Digest.) Nothing in Senate Bill No. 81 indicates an intent to 

deprive trial courts of their discretion altogether—either 

generally or more specifically in the subset of cases where 

multiple enhancements are alleged. 

Lastly, the canons of statutory construction favor reading 

the phrase “all enhancements beyond a single enhancement shall 

be dismissed” as we have. Two canons in particular strongly 

disfavor adopting a construction of that phrase to mandate a rule 

of automatic dismissal of all but one enhancement whenever 

multiple enhancements are alleged. Such a construction would 

hinge upon reading the phrase in isolation, but the canons 

counsel against that. (Jarman, supra, 10 Cal.5th at p. 381.) 

That construction would also require us to accept that our 

Legislature—rather than having a standalone section that says 

“If there’s more than one enhancement, automatically dismiss all 

but one”—instead 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 was trying to 

implement a rule of mandatory and automatic dismissal, it 

picked a very circuitous way to do so. The canons generally 

presume that our Legislature takes the more direct route to 

achieve its purpose, which counsels against construing statutes 

to have a meaning that requires more complex linguistic 

gymnastics to reach. (Brodie v. Workers’ Comp. Appeals Bd.
13

(2007) 40 Cal.4th 1313, 1328, fn. 10 [“[T]he principle of Occam’s 

razor—that the simplest of competing theories should be 

preferred over more complex and subtle ones—is as valid 

juridically as it its scientifically.’”].)

B. What does section 1385, subdivision (c)(2), mean 

when it requires trial courts to give “great weight” to 

mitigating factors?

Section 1385 specifies that a trial court “shall dismiss an 

enhancement if it is in the furtherance of justice to do so” (§ 1385, 

subd. (c)(1)); it enumerates specific mitigating circumstances; and 

it mandates that the “presence” of those circumstances must be 

“afford[ed] great weight” and “weighs greatly in favor of 

dismissing the enhancement[] unless the court finds that 

dismissal of the enhancement would endanger public safety” (id., 

subd. (c)(2), italics added). Collectively, these provisions dictate 

that trial courts are to rebuttably presume that dismissal of an 

enhancement is in the furtherance of justice (and that its 

dismissal is required) unless the court makes a finding that the 

resultingly shorter sentence due to dismissal “would endanger 

public safety.” Although a statute’s use of the “shall / unless” 

dichotomy by itself does not necessarily erect a presumption in 

favor of whatever “shall” be done (e.g., People v. Gutierrez (2014) 

58 Cal.4th 1354, 1370-1371; People v. Buford (2016) 4 

Cal.App.5th 886, 902-903), section 1385’s use of the additional 

phrase “great weight” goes a step further than just the “shall / 

unless” dichotomy and thereby 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.
14

Defendant urges us to ascribe even greater weight to the 

phrase “great weight”—namely, that the existence of a mitigating

circumstance obligates the trial court to dismiss an enhancement 

“unless there is substantial evidence of countervailing 

considerations” that justify imposition of the enhancement (and 

the resulting longer sentence). Defendant lifts this language 

from People v. Martin (1986) 42 Cal.3d 437, 448 (Martin), and 

argues that it is dispositive of what the phrase “great weight” 

means in section 1385 because Martin was interpreting that 

same phrase (“great weight”) and because the sponsor of Senate 

Bill No. 81 inserted a letter into the Legislature’s official record 

after the bill’s passage indicating her belief that Martin provided 

the appropriate definition of “great weight.” 

We reject defendant’s argument for two reasons. 

First, Martin’s construction of the term “great weight” 

arose in a very different context. Martin dealt with a statute that 

obligated the Board of Prison Terms to review every sentence to 

determine if it was ‘“disparate in comparison with the sentences 

imposed in similar cases,”’ and, if the Board made a finding of 

disparity, obligated a trial court to give “great weight” to the 

Board’s finding when determining whether to recall and 

resentence that defendant. (Martin, supra, 42 Cal.3d at pp. 441-

445.) Because the Board’s finding of disparity reflected the 

“expert judgment” of an independent tribunal and because recall 

and resentencing involves one trial judge effectively overruling 

the determination of another, Martin construed the phrase “great 

weight” to obligate trial courts to “accept the board’s finding of 

disparity unless based upon substantial evidence it finds that the 

board erred in selecting the appropriate comparison group . . . .” 

(Id. at p. 447.) Martin’s definition is inapt here because neither
15

of the considerations that informed Martin’s construction of the 

phrase “great weight”—the need to defer to a concordant body in 

another branch of government and the desire to avoid having one 

judge overrule another absent a finding of disparity by an 

independent body—is at play with section 1385, and hence 

Martin’s justification for construing “great weight” to place an 

especially onerous burden is wholly absent. Instead, section 1385 

accords “great weight” to the existence of a mitigating

circumstance found—not by an independent tribunal—but rather 

by the very same trial judge who will be weighing that 

circumstance against the danger to the public. In the context of 

section 1385, as noted above, the term “great weight” places a 

thumb on the scale that balances the mitigating circumstances 

favoring dismissal against whether dismissal would endanger 

public safety, and tips that balance in favor of dismissal unless 

rebutted by the court’s finding that dismissal would endanger 

public safety. 

Second, it is well settled that the insertion of a 

postenactment letter regarding the meaning of language in 

section 1385 is entitled to little if any weight, at least where (as 

here) the letter reflects the view of a single legislator rather than 

the legislative body that enacted the statute. (Quintano v. 

Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1063 [“We have 

frequently stated, moreover, that the statements of an individual 

legislator, including the author of a bill, are generally not 

considered in construing a statute, as the court's task is to 

ascertain the intent of the Legislature as a whole in adopting a 

piece of legislation.”]; People v. Tarkington (2020) 49 Cal.App.5th 

892, 905 [“Therefore, unless there is a showing that particular 

materials were part of the debate on the legislation and were 
16

communicated to the Legislature as a whole before passage of the 

bill, they are not cognizable legislative history.”], abrogated on 

other grounds by People v. Lewis (2021) 11 Cal.5th 952; Simgel 

Co., Inc. v. Jaguar Land Rover North America, LLC (2020) 55 

Cal.App.5th 305, 321, fn. 1 [“Defendant asks us to take judicial 

notice of the legislative history of Civil Code section 1791.1. . . . 

We deny the request. The document defendant cites is a letter 

from the staff of the bill's sponsor, responding to a letter from an 

attorney for a dealers’ association. There is no indication the 

letter was communicated to the Legislature as a whole. For that 

reason, it does not constitute cognizable legislative history.”].) 

Defendant urges that the letter is entitled to more weight for two 

reasons. To begin, he argues that the letter was published in the 

Senate’s register by unanimous consent. Yet an agreement to 

publish a letter written by one legislator does not constitute an 

endorsement by the Legislature of the views espoused in that 

letter. Further, defendant argues that neither the Assembly nor 

the Governor expressed any disagreement with the sponsor’s 

letter. Yet the Assembly and Governor had no reason to disagree 

with a letter that was not part of the bill they enacted or signed. 

II. Abuse of Discretion

It is undisputed that two mitigating circumstances 

enumerated in section 1385 are present in this case—namely, 

that (1) multiple enhancements (namely, the enhancements for 

great bodily injury and for a prior serious felony) have been 

imposed (§ 1385, subd. (c)(2)(B)), and (2) the prior serious felony 

enhancement is based on a conviction that is over five years old 

(because the 1992 conviction is now 30 years old) (id., subd. 

(c)(2)(H)). Consequently, whether the trial court abused its 

discretion in declining to dismiss the prior serious felony 
17

enhancement turns on whether the trial court abused its 

discretion in “find[ing] that dismissal of [that] enhancement 

would endanger public safety” because “there is a likelihood that 

[its] dismissal . . . would result in physical injury or other serious 

danger to others.” (§ 1385, subd. (c)(2).) 

We conclude there was no abuse of discretion. In finding 

that defendant’s earlier release from prison “would result in 

physical injury or other serious danger to others,” the trial court 

here cited defendant’s two unprovoked and vicious attacks in 

1992 and 2012—the first involving carving up his female victim’s 

face with cut glass and the second involving repeatedly stabbing 

his elderly and immobile victim’s arm with a knife merely for 

trying to stop defendant from battering another woman. These 

incidents evince defendant’s propensity to physically injure

others and thus to pose a serious danger to them. Although, as 

defendant notes, he confined his criminal behavior between the 

1992 and 2012 attacks to mostly nonviolent conduct, he 

nevertheless reverted back to extreme violence in 2012. The trial 

court had a basis for believing that same risk exists today and 

that releasing him any earlier would endanger public safety.

Defendant asserts that the trial court abused its discretion 

for three further reasons. First, defendant argues that the trial 

court made no express finding that dismissal of the 

enhancements would “endanger public safety” and instead found 

only that dismissal would not be in the furtherance of justice. 

However, because whether dismissal of an enhancement is “in 

the furtherance of justice” is an ultimate finding that necessarily 

rests on a subsidiary finding that dismissal would endanger 

public safety, we may imply a finding of the latter from its 

express finding of the former. (E.g., People v. Calhoun (1983) 141 
18

Cal.App.3d 117, 126; People v. Eberhardt (1986) 186 Cal.App.3d 

1112, 1123.) Second, defendant seems to suggest that the trial 

court was not allowed to look to the conduct underlying the 1992 

conviction in determining whether defendant’s earlier release 

would endanger public safety because that conviction was more 

than five years old and hence qualified as a mitigating 

circumstance. This suggestion would require us to assume that 

an enhancement has been dismissed when trying to decide 

whether it should be dismissed. To us, this makes no sense 

because it puts the cart before the horse. Lastly, defendant 

argues that the trial court was also not allowed to look to the 

conduct underlying the convictions in this case because the 

underlying facts were already used to impose the great bodily 

injury enhancement, and section 1385’s presumptive prohibition 

against multiple enhancements means that the facts used to 

justify the great bodily injury enhancement cannot be used to 

rebut that presumption. We reject this argument as well. It 

seems to rest on an analogy to the prohibition against using the 

same facts for a “dual use” in sentencing. But there was no 

impermissible dual use: Although the great bodily injury to the 

victim in this case was part of the gestalt of facts underlying this 

crime, what the trial court relied upon to overcome the 

presumption favoring dismissal was the entirety of the attack 

and its unprovoked and extreme nature—not the amount of 

injury inflicted. 
19

DISPOSITION

The judgment is reversed in part to the extent it failed to 

reflect the proper custody credits earned by defendant, and the 

trial court is directed to calculate the appropriate credits 

consistent with the views expressed in this opinion. The trial 

court is also directed to impose an 11-year sentence on the elder 

abuse count. The trial court is to issue an amended abstract of 

judgment and forward it to the Department of Corrections and 

Rehabilitation. We affirm the judgment in all other respects. 

CERTIFIED FOR PARTIAL PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ