Filed 7/17/24 P. v. McConnell CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

RONNIE McCONNELL,

Defendant and Appellant.

B330776

(Los Angeles County

Super. Ct. No. NA088369)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Tomson T. Ong, Judge. Reversed and 

remanded with directions.

Thomas Owen, under appointment by the Court of Appeal, 

for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Idan Ivri and Yun K. Lee, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________________________
2

Ronnie McConnell appeals the judgment entered following 

a resentencing hearing pursuant to Penal Code1 section 1172.75. 

Appellant challenges the trial court’s refusal under section 1385 

to dismiss a firearm enhancement imposed under section 

12022.53, subdivision (d), and to strike a prior serious felony 

conviction for purposes of imposition of two five-year 

enhancements under section 667, subdivision (a)(1). Specifically, 

appellant contends the trial court erred and abused its discretion 

in failing to consider the mitigating circumstances which weighed 

strongly in favor of dismissal of these enhancements and by 

making no finding that dismissal would endanger public safety. 

We agree. We therefore vacate the sentence and remand to the 

trial court for resentencing under section 1385, subdivision (c)(2).

BACKGROUND2

On January 18, 2011, around 9:00 p.m., Maurice Harrison 

and Darrel Mitchell were walking on South Street in the City of 

Long Beach. As they passed a Ford Taurus parked in front of a 

driveway, the driver emerged from the vehicle holding a shotgun. 

Appellant got out of the front passenger seat of the Taurus and 

looked Mitchell “straight” in the face. Mitchell continued walking 

and heard someone ask, “Where you from?” He turned around to 

see if Harrison was talking to someone and immediately heard a 

shotgun blast. Mitchell ran down the street chased by appellant 

and was shot in the back. He suffered a “through-and-through” 

1 Undesignated statutory references are to the Penal Code.

2 The following facts are drawn from this court’s 

unpublished decision in appellant’s direct appeal from his 

conviction. (People v. McConnell (July 18, 2013, B243017) 

[nonpub. opn.] (McConnell).)
3

gunshot wound consistent with the type of wound produced by a 

handgun. (McConnell, supra, B243017.)

In the meantime, Harrison heard someone say, “Where you 

from, cuz?” which he understood to mean he was being asked 

what gang he was from. When he heard the shotgun blast he 

started running back in the direction from which he had come 

and was struck in the back by shotgun pellets. Harrison hid 

behind a tree and looked back to the Taurus where he saw a 

person near the driver’s side pointing a shotgun at him. Another 

shotgun blast struck Harrison in the arm. He ran toward a fence 

to escape and was hit by a third blast that knocked him through 

the fence. He managed to crawl away and eventually made his 

way to safety. (McConnell, supra, B243017.)

After the shooting appellant returned to the Taurus 

whereupon he and the other shooter drove away. (McConnell, 

supra, B243017.)

Harrison suffered 15 shotgun pellet wounds to his back and 

several more to his left arm. The prosecution firearms expert 

opined that three expended shotgun casings recovered from the 

scene were fired from a shotgun found in appellant’s garage. 

(McConnell, supra, B243017.)

Appellant was convicted by a jury of two counts of 

attempted murder (§§ 664/187, subd. (a)) with true findings on 

the allegations of personal use of a firearm (§ 12022.5, subd. (a)) 

and personal discharge of a firearm causing great bodily injury 

(§ 12022.53, subds. (c) & (d)). Appellant admitted the prior strike 

(§§ 1170.12, subd. (a)–(d), 667, subd. (b)–(i)), prior prison term 

(§ 667.5, subd. (b)), and prior serious felony allegations (§ 667, 

subd. (a)(1)). The trial court sentenced him to an aggregate term 

of 53 years to life plus 22 years, as follows:
4

Count 1 (attempted murder of Harrison)⎯seven years to 

life, doubled for the strike to 14 years to life, plus 10 years for the 

section 12022.5 firearm enhancement, plus five years for the 

prior serious felony enhancement (§ 667, subd. (a)(1)), plus one 

year for the prior prison term enhancement (§ 667.5, subd. (b));

Count 2 (attempted murder of Mitchell)⎯seven years to 

life, doubled for the strike to 14 years to life, plus 25 years to life 

for the section 12022.53, subdivision (d) firearm enhancement, 

plus five years for the prior serious felony enhancement (§ 667, 

subd. (a)(1)), plus one year for the prior prison term enhancement 

(§ 667.5, subd. (b)), to run consecutive to the sentence on count 1.

At resentencing pursuant to section 1172.75 on May 22, 

2023, the trial court recalled appellant’s sentence, struck the two 

prior prison term enhancements, and modified the firearm 

enhancement under section 12022.5, subdivision (a) to the 

midterm of four years instead of the originally imposed upper 

term of 10 years. Declining to dismiss or impose a lesser firearm 

enhancement under section 12022.53, subdivision (b) or (c), or to 

strike the five-year enhancement under section 667, subdivision 

(a)(1), the trial court sentenced appellant to 53 years to life plus 

14 years.

DISCUSSION

I. Appellant Did Not Forfeit His Challenge to the 

Trial Court’s Ruling

As a preliminary matter, we reject respondent’s contention 

that appellant forfeited his argument that the trial court abused 

its discretion in failing to consider or make explicit findings on 

the applicable mitigating circumstances enumerated in section 

1385, subdivision (c)(2), and by making no specific findings as to
5

whether dismissal of any enhancements would endanger public 

safety.

In his motion for full resentencing, appellant argued that 

as amended by Senate Bill No. 81 (2021–2022 Reg. Sess.) (Stats. 

2021, ch. 721, § 1), section 1385, subdivision (c)(2) requires the 

trial court to “ ‘consider and afford great weight’ ” to enumerated 

mitigating circumstances in determining whether to dismiss an 

enhancement, and that “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.” Applying the 

relevant mitigating factors to the instant case, appellant argued 

that the firearm and prior serious felony enhancements should be 

dismissed under section 1385 in the interests of justice.

We conclude these and other arguments in appellant’s 

motion were sufficient to preserve the issues for appeal that he 

now raises. Moreover, because appellant had specifically argued 

in the motion that the trial court was required to give great 

weight to the mitigating circumstances enumerated in section 

1385, subdivision (c)(2), in the face of the trial court’s unequivocal 

ruling, we find any objection at the hearing would have been 

futile. (See People v. Brown (2003) 31 Cal.4th 518, 547 [trial 

court’s “sufficiently definite and express ruling” on a motion may 

preserve claim for appeal; People v. Anderson (2001) 25 Cal.4th 

543, 587 [“Counsel is not required to proffer futile objections”].)
6

II. The Trial Court Abused Its Discretion by 

Making No Finding that Dismissal of the 

Enhancements Would Endanger Public Safety, 

and Then Failing to Consider Any of the 

Mitigating Circumstances Under Section 1385, 

subdivision (c)(2)

A. Relevant background

After the California Department of Corrections and 

Rehabilitation (CDCR) notified the superior court that 

appellant’s sentence contained a now-invalid prior prison term 

enhancement under Senate Bill No. 483 (2021–2022 Reg. Sess.)

(Stats. 2021, ch. 728, § 3), the court appointed counsel and set the 

matter for a resentencing hearing pursuant to section 1172.75. 

Prior to the hearing, appellant filed a motion for full resentencing 

in which he requested that the court resentence him to 10 years 

to life.3 Appellant argued that several ameliorative changes in 

the law gave the court new discretion to significantly reduce his 

sentence:

3 In addition to striking the two one-year prior prison terms 

enhancements originally imposed under section 667.5, 

subdivision (b), appellant asked the court to strike the prior 

serious felony enhancements and the prior strike conviction, and 

resentence him as follows: on count 1, seven years to life for 

attempted premeditated murder, plus three years for the true 

finding on the gun use enhancement under section 12022.5, 

subdivision (a), and a concurrent sentence on count 2 of seven 

years to life plus three years for the gun use enhancement 

pursuant to section 12022.5, subdivision (a) instead of the 25 

years to life firearm enhancement under section 12022.53, 

subdivision (d).
7

⎯ Senate Bill No. 81, amending section 1385, granted the 

court discretion to dismiss an enhancement or its punishment

after giving “great weight” to the mitigating circumstances 

enumerated in subdivision (c), unless the court finds dismissal 

would endanger public safety;

⎯ Senate Bill No. 620 (2017–2018 Reg. Sess.) (Stats. 2017,

ch. 682, §§ 1 & 2), amending sections 12022.5 and 12022.53, gave

the court discretion to strike personal gun use enhancements;

and

⎯ Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Stats. 

2018, ch. 1013, § 2) gave the court discretion to strike the fiveyear prior serious felony conviction enhancement under section 

667, subdivision (a)(1).

Appellant identified several mitigating circumstances, 

which, he argued, weighed greatly in favor of dismissal or 

reduction of the enhancements “ ‘in furtherance of justice’ ” under 

the new sentencing regime. These included the circumstances 

that (1) multiple enhancements were applied in appellant’s case 

(§ 1385, subd. (c)(2)(B)); (2) the application of these 

enhancements resulted in a sentence of over 20 years (§1385, 

subd. (c)(2)(C)); (3) “[t]he current offense [was] connected to prior 

victimization or childhood trauma” (§1385, subd. (c)(2)(E)); and 

(4) “[t]he enhancement [was] based on a prior conviction that 

[was] over five years old” (§1385, subd. (c)(2)(H)). Appellant 

added that although he was not a juvenile at the time he 

committed the robbery which qualified for the prior serious felony 

enhancement, he was only 18 years and 5 months old. Had he 

been just six months younger when he committed that crime, he 

argued, that circumstance would weigh heavily in favor of 
8

dismissing the prior serious felony enhancement under section 

1385, subdivision (c)(2)(G).

In support of resentencing, appellant also submitted a 

statement in mitigation, which included numerous letters of 

support, a job offer from a café in Oregon, a relapse prevention 

plan, and the 2020 application packet for commutation of his 

sentence.

The trial court conducted the resentencing hearing on 

May 22, 2023. The court stated it had read appellant’s statement 

of mitigation and his CDCR file. After the court vacated the 

previous sentence, defense counsel and the prosecutor submitted, 

and appellant made a statement to the court expressing remorse 

for his choices and gratitude for his appearance in court.

The court stated it was troubled by two representations in 

appellant’s mitigation materials. The first was appellant’s 

statement in the commutation packet that his father had been 

absent as a role model, which seemed to conflict with the letters 

from family members that stated appellant and his father had a 

good relationship and described appellant’s father as a loving dad 

who was always proud of his children. Defense counsel 

responded to the apparent conflict by pointing out that “both 

things could be true.” What others observed about appellant’s 

father and his relationship with his children could be “completely 

different” from the way the father had treated appellant in 

private. The court also questioned the relevance of appellant’s 

purported job offer from an employer in Oregon in light of the fact 

that if appellant were paroled, he would have to be supervised in 

California for at least three years. Defense counsel countered 

that the job offer showed appellant could be a contributing 
9

member of society upon his release, a point on which the court 

agreed.

After declaring it had reviewed the case in its entirety, the 

trial court “decline[d] to strike the prior 211 . . . strike and the 

weapon enhancement,” noting that the prior strike was less than 

10 years old at the time of the attempted murders.

Finding “no basis to strike the gun enhancement,” the court 

explained, “[Appellant], in cold blood, shot the back of unarmed 

male Blacks after echoing the famous mating call, ‘Where are you 

from?’ Moreover, after shooting both of them, he chased the most 

vulnerable victim, the one that got shot with buckshot in the 

back, to attempt to inflict further injuries. So there is no 

justification to shoot those unprovoked victims.”

The trial court then declared that in the exercise of its 

discretion, it would decline to strike the five-year “nickel” 

enhancement under section 667, subdivision (a)(1). The court 

also found consecutive terms were warranted because the 

attempted murders involved multiple victims. Finally, the court 

struck the section 667.5, subdivision (b) prior prison term 

enhancements in accordance with Senate Bill No. 483. The court 

then imposed a sentence of 53 years to life plus 14 years as 

follows:

⎯On count 1, seven years to life, doubled to 14 years to life 

for the prior strike (§ 1170.12, subd. (a)–(d)), plus a consecutive 

midterm of four years for the section 12022.5, subdivision (a) gun 

enhancement, and another consecutive five-year term for the 

section 667, subdivision (a)(1) enhancement;

⎯On count 2, a consecutive term of seven years to life, 

doubled to 14 years to life for the prior strike (§ 1170.12, subd. 

(a)–(d)), plus a consecutive term of 25 years to life for the section 
10

12022.53, subdivision (d) gun enhancement, and another 

consecutive five-year term for the section 667, subdivision (a)(1) 

enhancement.

Before pronouncing the total sentence, the trial court noted 

appellant’s prison records reflected that on April 19, 2020, after 

his commutation application was denied, “he was found guilty as 

charged of disrespecting or potentially creating violence or 

disruption in the prison system.” Therefore, the court concluded, 

“he is not fully recovered and rehabilitated at this time.”

B. Applicable law

Effective January 1, 2018, Senate Bill No. 620 amended 

sections 12022.5 and 12022.53 to permit a trial court, in the 

interest of justice pursuant to section 1385, to strike or dismiss a 

personal gun use enhancement required to be imposed under 

those sections. (§§ 12022.5, subd. (c), 12022.53, subd. (h); People 

v. Tirado (2022) 12 Cal.5th 688, 696 (Tirado).) Courts have 

recognized this change in the law allows a trial court, after 

striking or dismissing a 25-year to life enhancement under 

section 12022.53, subdivision (d), to impose a lesser included, 

uncharged enhancement authorized under section 12022.53, 

subdivision (b) or (c) or under a law other than section 12022.53,

as long as the facts supporting such an enhancement have been 

alleged and found true. (People v. McDavid (2024) 15 Cal.5th 

1015, 1020–1021, 1030 (McDavid); Tirado, at pp. 696–697, 700.)

A year later, the Legislature amended sections 667, 

subdivision (a) and 1385, subdivision (b) “to permit a trial court 

to exercise discretion to strike or dismiss prior serious felony 

enhancements [imposed under section 667, subdivision (a)(1)] ‘in 

the furtherance of justice.’ ” (People v. Morelos (2022) 13 Cal.5th 
11

722, 769; § 1385, subd. (b)(1), as amended by Stats. 2018, 

ch. 1013, § 2, eff. Jan. 1, 2019.)

Effective January 1, 2022, Senate Bill No. 81 added 

subdivision (c) to section 1385 to provide: “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.” (§ 1385, 

subd. (c)(1).) “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.”

4 (§ 1385, subd. (c)(2); see People v. Sek (2022) 74 

4 Section 1385, subdivision (c)(2) identifies nine mitigating 

circumstances in subparagraphs (A) through (I):

“(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.
12

Cal.App.5th 657, 674 [Sen. Bill No. 81 “amended section 1385 to 

specify factors that the trial court must consider when deciding 

whether to strike enhancements . . . in the interest of justice”].) 

The statute specifically defines “endanger public safety” to mean

“there is a likelihood that the dismissal of the enhancement 

would result in physical injury or other serious danger to others.” 

(§ 1385, subd. (c)(2); Stats. 2021, ch. 721.)

C. The trial court abused its discretion by failing to

make any finding that dismissal of the enhancements 

would endanger public safety, and then failing to 

consider the applicable mitigating circumstances

under section 1385, subdivision (c)(2)

Appellant contends that two5 of the mitigating 

circumstances enumerated in section 1385, subdivision (c)(2) 

“(E) The current offense is connected to prior 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.”

5 Appellant also asserts that the mitigating circumstance 

set forth in section 1385, subdivision (c)(2)(A) requires dismissal 

of the enhancements: appellant is Black, and imposition of the 
13

weighed greatly in favor of the dismissal of the section 12022.53, 

subdivision (d) firearm enhancement or imposition of a lesser 

included firearm enhancement in this case: (1) four sentencing 

enhancements were alleged and imposed in this case (§ 1385, 

subd. (c)(2)(B)); and (2) the application of the firearm 

enhancement would result in a “sentence over [20] years” (§ 1385, 

subd. (c)(2)(C)). Appellant further asserts that these mitigating 

circumstances plus the fact that the enhancement under section 

667, subdivision (a)(1) was based on a prior conviction that was 

over five years old at the time of the original sentence weighed 

greatly in favor of dismissal of the two five-year prior serious 

felony enhancements. He contends the trial court failed to even 

consider, much less “ ‘afford great weight’ ” to any of these 

mitigating circumstances, and it made no finding that dismissal 

of any of the enhancements would endanger public safety. We 

conclude that the trial court abused its discretion in failing to 

make a specific finding that dismissal of any enhancements 

would pose a danger to public safety. In the absence of such a 

finding, the trial court erred in failing to consider the applicable 

mitigating circumstances under section 1385, subdivision (c)(2).

enhancement had a discriminatory racial impact as described in 

paragraph (4) of subdivision (a) of section 745. Appellant did not 

raise this claim in the trial court, and his opening brief contains 

no argument beyond a bare assertion. Rather, appellant

attempts to support this claim with argument for the first time

on appeal in his reply brief. His assertion that imposition of any 

of the enhancements had a discriminatory racial impact is thus 

forfeited. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 

335, 408 [arguments made for the first time in a reply brief are 

forfeited].)
14

We independently review questions regarding the statutory

interpretation of section 1385. (John v. Superior Court (2016) 63 

Cal.4th 91, 95 [questions of statutory construction reviewed de 

novo].) In People v. Walker (2022) 86 Cal.App.5th 386, review 

granted March 22, 2023, S278309, we considered the words of the 

Legislature’s mandate in section 1385, subdivision (c)(2), that the 

presence of any of the mitigating circumstances enumerated in 

subparagraphs (A) through (I) “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.” (Walker, at p. 398.) Our examination 

led us to conclude that “[i]n the context of section 1385, . . . 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.” (Walker, at pp. 399–

400.) In other words, a trial court’s finding that one or more 

mitigating circumstances exist does not automatically require 

dismissal of an enhancement. Rather, the “shall be dismissed” 

language in section 1385, subdivision (c)(2), subparagraphs (B) 

and (C), “applies only if the court does not find that dismissal of 

the enhancement would endanger public safety.” (People v. 

Mendoza (2023) 88 Cal.App.5th 287, 296 (Mendoza); Walker, 

supra, 86 Cal.App.5th at p. 397, rev.gr.) Indeed, “if the court 

finds that dismissal of an enhancement ‘would endanger public 

safety,’ then the court need not consider the listed mitigating 

circumstances” under section 1385, subdivision (c)(2), 

subparagraphs (A) through (I). (Mendoza, at p. 296.)
15

We review the trial court’s decision not to strike a sentence 

enhancement under section 1385 for abuse of discretion. (People 

v. Carmony (2004) 33 Cal.4th 367, 373–374.) A defendant is

“entitled to sentencing decisions made through the exercise of 

informed discretion. [Citation.] A court acting while unaware of 

the full scope of its discretion is deemed to have abused it.” 

(McDavid, supra, 15 Cal.5th at p. 1023; Tirado, supra, 12 Cal.5th 

at p. 694.) An abuse of discretion may occur where the trial court 

is not aware of its discretion, considers impermissible factors, 

fails to consider relevant factors, or where the decision is so 

irrational or arbitrary that no reasonable person could agree with 

it. (Carmony, at pp. 377–378.)

The trial court in this case made no finding that dismissal 

of any enhancement⎯with a resultingly shorter sentence⎯would 

endanger public safety. And in declining to dismiss any of the 

enhancements, the court also gave no indication that it had 

considered the mitigating circumstances identified in appellant’s 

motion for full sentencing. Rather, finding “no basis to strike the 

gun enhancement,” the court misstated appellant’s role in the 

crime: “[Appellant], in cold blood, shot the back of [the] unarmed 

[victims] after echoing the famous mating call, ‘Where are you 

from?’ Moreover, after shooting both of them, he chased the most 

vulnerable victim, the one that got shot with buckshot in the 

back, to attempt to inflict further injuries. So there is no 

justification to shoot those unprovoked victims.” The court gave 

no reason at all for declining to dismiss the five-year 

enhancements under section 667, subdivision (a)(1).
16

Not only did the trial court get the underlying facts 

completely wrong as they concerned appellant’s actions,

6 but by 

focusing on the facts of the crime, the court applied an erroneous 

legal standard to the question of whether dismissal of the 

enhancement would endanger public safety.

“Determining whether resentencing a defendant poses an 

unreasonable risk of danger to society is necessarily a forwardlooking inquiry. When determining whether resentencing poses 

an unreasonable risk of danger, the trial court must look to when 

a defendant would be released if the petition is granted and the 

defendant is resentenced. A defendant who would obtain 

immediate release if the petition is granted poses a different 

6 The probation report in this case reflects the same 

underlying facts of the crime as our unpublished decision in 

appellant’s direct appeal from his conviction:

“On 1-18-2011, the two victims . . . were walking past the 

front of a large apartment complex. A vehicle stopped in front of 

the complex and the passenger McConnell [appellant] and the 

unknown driver stepped out of the vehicle and asked the victims 

where they were from, meaning gang/neighborhood. The two 

victims turned to run and [appellant] chased one of the victims 

[whom] he managed to shoot through the lower back area. The 

driver, armed with a shotgun chased the other victim. The driver 

saw his victim hiding behind a tree and fired at him. The victim 

was partially struck, but was able to run a short distance before 

getting caught in a fence. While he was struggling to get through 

the fence, the driver fired the shotgun riddling him with pellet 

holes. The force of the shotgun pellets pushed the victim through 

the fence. The shotgun used in the shooting was found at 

[appellant’s] residence along with .22 caliber bullets. The .22 

caliber handgun used by [appellant] was never found. (The above 

information was obtained verbally from the DA in this case.)”
17

potential danger to society than a defendant who could be 

released only in his or her 70’s.” (People v. Williams (2018) 19 

Cal.App.5th 1057, 1063.) Williams concluded that a “trial court’s 

failure to consider when, if ever, [a] defendant would be release if 

the [resentencing] petition was granted” constituted an abuse of 

discretion under section 1170.126, subdivision (g). (Id. at 

p. 1064.)

Here, the trial court’s reference to the underlying facts of 

the crime to support its refusal to dismiss or reduce the 

enhancements in this case suggests not a forward-looking 

inquiry, but one that relies on the immutable facts of the past to 

determine present dangerousness. And while present 

dangerousness is an appropriate factor to consider, “a crucial part 

of the inquiry is how the dismissal of the enhancement will 

impact the length of the defendant’s sentence. A currently 

dangerous defendant who will be released from prison within a 

short time frame might be found by the trial court to pose a 

greater danger to the public than a defendant who is currently 

dangerous but who has no prospect of release from prison until he 

is elderly.” (People v. Gonzalez (June 27, 2024, No. D082058) __ 

Cal.App.5th __ [2024 Cal.App. Lexis 409, at *16–*17] (Gonzalez); 

see Mendoza, supra, 88 Cal.App.5th at p. 299 [affirming trial 

court’s finding of danger to the public under § 1385, subd. (c)(2) 

where “ ‘dismissal of the enhancement would result in a sentence 

of less than six years in prison, which would require [the 

defendant’s] immediate release’ ”].)

The record here contains no indication that future 

dangerousness entered the trial court’s consideration at all. Even 

if the court had dismissed the firearm enhancement under 

section 12022.53, subdivision (d) as well as the five-year prior 
18

serious felony enhancements, appellant would not be subject to 

release any time soon⎯he would still be serving a term of 40 

years to life, with no prospect for release from prison until he is 

67 years old. Even then, appellant’s release would be “contingent 

on review by the Board of Parole Hearings . . . who will have the 

opportunity to assess [appellant’s] dangerousness at that time.” 

(Gonzalez, supra, __ Cal.App.5th __ [2024 Cal.App. Lexis 409, at 

*17].)

The Attorney General argues the general rule that “where 

a statement of reasons is not required and the record is silent, a 

reviewing court will presume the trial court had a proper basis 

for a particular finding or order.” (People v. Stowell (2003) 31 

Cal.4th 1107, 1114; People v. Myers (1999) 69 Cal.App.4th 305, 

310 [in the absence of an affirmative record to the contrary, a 

court is presumed to have considered all of the relevant factors in 

the exercise of its discretion].) But the record here is not silent. 

The trial court’s findings affirmatively show that the court was 

focused on whether appellant has been rehabilitated and 

currently poses a danger to public safety rather than considering 

whether appellant’s eventual release⎯if the enhancements were

dismissed⎯would endanger the public.

We therefore conclude that the trial court abused its 

discretion by applying an erroneous legal standard, failing to 

consider relevant mitigating factors as mandated by the 

Legislature, and relying on a materially incorrect account of 

appellant’s role and actions during the offense to find his release 

would pose a danger to public safety. Because even a full 

dismissal of the section 12022.53, subdivision (d) gun 
19

enhancement7 and the two five-year prior serious felony 

enhancements would result in a potential release from prison 

well into the future when appellant is nearly 70 years old, and 

appellant’s eventual release will be subject to review by the 

Board of Parole Hearings, it is conceivable the trial court would 

exercise its discretion under section 1385, subdivision (c)(2) 

differently if it did not limit its consideration to appellant’s 

current dangerousness.

Accordingly, we find the trial court’s error to be prejudicial, 

requiring remand for resentencing to afford the trial court the 

opportunity to consider whether dismissal of any enhancement 

would endanger public safety at the time of appellant’s eventual 

release based on the resultingly shorter sentence. Should the 

court find dismissal of the enhancements would pose no danger to

the public, it must then consider the applicability of the 

mitigating circumstances enumerated in section 1385, 

subdivision (c)(2), subparagraphs (A) through (I). We express no 

view on how the trial court should exercise its discretion on 

remand.

DISPOSITION

The sentence is vacated, and the matter remanded to the 

trial court with directions to reconsider the sentence under Penal 

7 Dismissal of the section 12022.53, subdivision (d) 

enhancement is not the trial court’s only option. After striking 

the enhancement, the court retains discretion to impose a lesser

included enhancement under subdivision (b) or (c) of section 

12022.53, or a lesser included, uncharged enhancement under a 

different law. (McDavid, supra, 15 Cal.5th at p. 1030.)
20

Code section 1385, as amended by Senate Bill No. 81. In all other 

respects the judgment is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.