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Filed 6/18/24 P. v. Rogers CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

HARVEY LEE ROGERS,

Defendant and Appellant.

 A168539

 (Mendocino County

 Super. Ct. No. 22CR02037)

Harvey Lee Rogers (appellant) appeals from the judgment following his 

plea of no contest to driving a vehicle under the influence of a drug (DUI) and 

causing injury (Veh. Code, § 23153, subd. (f)). We remand for a new 

sentencing hearing.

BACKGROUND

According to the probation report, appellant was driving a car and 

collided with a motorcycle, severely injuring the motorcycle driver and 

passenger. Appellant told the responding officer that he had not used 

methamphetamine that day, but a blood test revealed the presence of 

methamphetamine. 
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Appellant pled no contest to driving under the influence and admitted 

two enhancements: personal infliction of great bodily injury (Pen. Code,

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§ 12022.7, subd. (b)), and causing injury to more than one victim (Veh. Code, 

§ 23558). The trial court sentenced appellant to the low term of 16 months

for the DUI, plus consecutive terms of five years on the great bodily injury 

enhancement and one year on the multiple victim enhancement. 

DISCUSSION

Appellant argues the trial court prejudicially failed to recognize the 

scope of its discretion to strike one of the enhancements pursuant to a recent 

statutory amendment.

“Section 1385, subdivision (a) (§ 1385(a)), authorizes a trial court to 

dismiss an action ‘in furtherance of justice’ on its own motion.” (People v. 

Dain (2024) 99 Cal.App.5th 399, 409, review granted May 29, 2024, 

S283924.) “Prior to 2022, section 1385 ‘did not provide direction as to how 

courts should exercise [their] discretion’ to dismiss or strike enhancements. 

[Citation.] But, effective January 1, 2022, Senate Bill No. 81 (2021–2022 

Reg. Sess.) (Senate Bill 81) amended section 1385 to specify mitigating 

circumstances courts must consider when deciding whether to strike 

enhancements in furtherance of justice. (Stats. 2021, ch. 721, § 1; [citation].)” 

(Dain, at pp. 409–410.) These amendments were in effect at the time of 

appellant’s July 2023 sentencing hearing.

Section 1385, subdivision (c) (§ 1385(c)), added by Senate Bill 81 (Dain, 

supra, 99 Cal.App.5th at p. 410), provides: “(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 

1 All undesignated statutory references are to the Penal Code.
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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.” As relevant here, one of the mitigating circumstances is:

“Multiple enhancements are alleged in a single case. In this instance, all 

enhancements beyond a single enhancement shall be dismissed.” 

(§ 1385(c)(2)(B).)2

Appellant argues the trial court was unaware of this new direction as 

to how to exercise its discretion.

3 “ ‘ “Defendants are entitled to sentencing 

2 Appellant disavows any argument that dismissal is mandatory when 

a mitigating circumstance is found. (See People v. Mazur (2023) 

97 Cal.App.5th 438, 444 [“California courts have consistently rejected this 

mandatory dismissal argument in construing the ‘shall be dismissed’ 

language of subdivision (c)(2)(B) and (C).”], review granted February 14, 

2024, S283229.) Appellant also disclaims any argument that section 1385(c) 

creates a rebuttable presumption in favor of dismissal when mitigating 

circumstances are present, an issue currently pending before the Supreme 

Court. (People v. Walker, review granted Mar. 22, 2023, S278309.)

3 The People do not contend appellant forfeited the claim by failing to 

raise it below. (See People v. Panozo (2021) 59 Cal.App.5th 825, 840 (Panozo)

[where the appellant “does not challenge the manner in which the trial court 

exercised its sentencing discretion but rather its apparent misapprehension of 

statutory sentencing obligations[,] . . . forfeiture . . . is inappropriate”].) We 

therefore need not and do not address appellant’s alternative contention that 

his trial counsel rendered ineffective assistance of counsel by failing to raise 

the challenge below. Appellant has also asserted his ineffective assistance of 
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decisions made in the exercise of the ‘informed discretion’ of the sentencing 

court. [Citations.] A court which is unaware of the scope of its discretionary 

powers can no more exercise that ‘informed discretion’ than one whose 

sentence is or may have been based on misinformation regarding a material 

aspect of a defendant’s record.” ’ ” (People v. Salazar (2023) 15 Cal.5th 416, 

424 (Salazar).) “ ‘If the court’s decision is influenced by an erroneous 

understanding of applicable law or reflects an unawareness of the full scope 

of its discretion, the court has not properly exercised its discretion under the 

law. [Citation.] Therefore, a discretionary order based on an application of 

improper criteria or incorrect legal assumptions is not an exercise of informed 

discretion and is subject to reversal.’ ” (Wade v. Superior Court (2019) 

33 Cal.App.5th 694, 709 (Wade).)

While “sentencing courts are generally presumed to have acted in 

accordance with legitimate sentencing objectives,” “where the record is not 

silent, but rather is ‘at the very least ambiguous as to whether the court 

understood its [statutory] obligation,” the presumption cannot be relied on. 

(Panozo, supra, 59 Cal.App.5th at p. 839.) Thus, where the defense counsel,

prosecutor, and probation report all failed to reference the court’s statutory 

obligation to consider the defendant’s military service-related post-traumatic 

stress disorder in considering his suitability for probation and as a mitigating 

factor in selecting a term of imprisonment; and where the court’s 

identification of the factors it considered in making these determinations did 

not include the defendant’s military service-related post-traumatic stress 

disorder, the record was ambiguous and remand was required. (Id. at 

pp. 837–839; see also Wade, supra, 33 Cal.App.5th at p. 716, fn. 9

counsel claim in a separate petition for writ of habeas corpus, case No. 

A169172. We have denied that petition by separate order filed this date.
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[presumption of correctness does not apply to exercise of discretion where 

“the court stated its considerations on the record, and none pertained to” the 

appropriate legal principle]; People v. Ochoa (2020) 53 Cal.App.5th 841, 852–

854.)

Neither the probation report, the prosecutor, nor defense counsel made 

any reference to section 1385(c). In its pronouncement of the sentence, the 

trial court did not discuss the enhancements other than to impose sentence. 

Most significantly, the court subsequently stated its reasons for denying 

defense counsel’s request to run the sentence on either enhancement 

concurrently instead of consecutively: “I think as a matter of law the only 

thing the court could do is strike the punishment under the enhancement, I 

can’t [run] them concurrently. And based on the fact that there were two 

victims in this case that suffered horrific injuries that are life lasting, the 

court is not inclined to strike the punishment for either enhancement. [¶] The 

court would note he ple[]d to one 12022.7(b) allegation, though there were 

two victims in this case.” In discussing its discretion to strike an 

enhancement, the court did not mention the mitigating circumstance of two 

enhancements or whether dismissal of one enhancement would endanger 

public safety. Instead, the court’s sole focus was on the impact of the crime.

While the physical harm caused by the crime may impact whether dismissal 

would endanger public safety, it is not the only consideration in this 

intrinsically forward-looking determination. Accordingly, the record is 

ambiguous as to whether the trial court was aware of the scope of its 

discretion pursuant to the amended statute. 

Where a court was unaware of the scope of its discretion, “ ‘the 

appropriate remedy is to remand for resentencing unless the record “clearly 

indicate[s]” that the trial court would have reached the same conclusion “even 
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if it had been aware that it had such discretion.” ’ ” (Salazar, supra,

15 Cal.5th at p. 424.) The record does not so indicate. The trial court found 

the mitigating circumstances outweighed the aggravating circumstances in 

sentencing appellant to the low term on the DUI, indicating the court was 

open to some leniency in sentencing. Moreover, the record indicates 

appellant is in his 70s with multiple health issues, and the trial court noted, 

based on the letters submitted on appellant’s behalf, “[i]t sounds like you had 

people that have supported you in the most recent timeframe after this 

incident.” These factors could support a finding that dismissal of an 

enhancement would not endanger public safety.

4 The court’s decision not to 

strike one of the enhancements, apparently based on its understanding of the 

prior version of section 1385, does not constitute a clear indication of how the 

court would exercise its discretion under the amended statute. 

Accordingly, we will remand for the trial court to exercise its discretion 

under section 1385(c).

DISPOSITION

The matter is remanded for a new sentencing hearing at which the trial 

court shall exercise its discretion under section 1385(c). In all other respects, 

the judgment is affirmed.

4 We express no opinion as to whether the trial court should so find or 

how the trial court should exercise its discretion under section 1385(c) on 

remand.
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SIMONS, J.

We concur. 

JACKSON, P. J.

CHOU, J. 

(A168539)