Filed 2/14/24 P. v. Hernandez 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.

FRANKLIN ANTONIO AMAYA 

HERNANDEZ,

Defendant and Appellant.

 B327241

 (Los Angeles County

 Super. Ct. No. PA096975)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, David Walgren, Judge. Affirmed.

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, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Franklin Antonio Amaya 

Hernandez (defendant) appeals from the judgment entered after 

he was convicted of reckless driving causing injury. Challenging 

only the sentence imposed, defendant contends that Penal Code 

section 1385, subdivision (c)(2)(B) mandated the dismissal of one 

of two enhancements added to his sentence.1 Finding no merit to 

defendant’s arguments, we affirm the judgment.

BACKGROUND

Defendant was charged with reckless driving causing 

injury in violation of Vehicle Code section 23103, subdivision (a) 

(count 1) and driving on the wrong side of a divided highway 

causing injury or death in violation of Vehicle Code section

21651, subdivision (a) (count 4). The information alleged that 

defendant proximately caused Susan D. to fracture a bone, within 

the meaning of Vehicle Code section 23105, subdivision (a), and 

personally inflicted great bodily injury upon K.D. and A.D. within 

the meaning of Penal Code section 12022.7, subdivision (a).2 The 

following aggravating factors, listed in California Rules of Court, 

rule 4.421(a)(1) were alleged: the offenses involved great violence, 

great bodily harm, threat of great bodily harm, or other acts 

disclosing a high degree of cruelty, viciousness, or callousness; 

and, as permitted by rule 4.421(c), that defendant was speeding 

on a public street, endangering the lives of others.

Defendant was found guilty as charged and the 

enhancements were found true as to count 1. In a bifurcated trial 

1 All further unattributed code sections are to the Penal Code 

unless otherwise stated.

2 As K.D. and A.D. are minors, we do not use their surname 

or the shared surname of relatives mentioned here.
3

of the aggravating factors the jury found both true. On 

January 4, 2023, the trial court sentenced defendant on count 1 

to seven years four months in prison, comprised of the low term 

of 16 months plus two 3-year great bodily injury enhancements. 

The sentence in count 4 was stayed pursuant to section 654.

Defendant filed a premature, but deemed timely, notice of 

appeal from the judgment.

Prosecution evidence

On June 21, 2021, between 8:00 p.m. and 9:00 p.m., 

Susan D. drove her white Toyota Highlander home from the 

market with her seven-year-old son K.D., her 10-year-old 

daughter A.D., her husband’s cousin Rolman D. and a friend also 

in the car. Rolman testified that after he heard Susan scream, 

“Look at that car,” he saw a car travelling at a high rate of speed 

recklessly overtaking slower cars by using the middle turn lane. 

As the driver tried to move the car back to the right side of the 

road, it began to zigzag and the driver appeared to lose control.

The car crossed to the wrong side of the street toward the front of

Susan’s car, where they collided, despite Susan’s efforts to avoid 

contact. Rolman heard two collisions, one in the front and 

another on their right side. The impact was very hard and 

sounded like a loud explosion.

Susan testified the speed limit was 35 or 40 miles per hour. 

She estimated defendant’s speed while he was passing other cars 

to be around 60 or 70 miles per hour. It appeared to her that 

defendant was racing other cars. Susan had tried to move to the 

right, but defendant’s car hit her car and caused her car to crash 

into other cars.

Two eyewitnesses testified to having seen two cars racing

before the collision. Danny Dominguez saw them in his rearview 

mirror travelling about 70 miles per hour, when one of the cars 
4

lost control, drove on the wrong side of the road, and collided with 

an oncoming vehicle. The other racing vehicle was not involved 

in the crash and drove off. Sariah Castanon was sitting with her 

children and boyfriend near a food truck when she saw the two

racing cars weaving in and out of traffic trying to pass each other 

at a high rate of speed. She saw one car drive on the wrong side 

of the street and collide with another car close to the food truck.

Following the crash, Susan saw the driver of the car that 

hit her car and identified him both on the scene and in court as 

defendant. Susan and her passengers were taken to the hospital. 

Susan sustained five fractures in the toes of her left foot, a 

fracture to her right ankle bone, an injury to the top part of her 

leg, a concussion, a contusion to the right side of her breast, and a 

fracture to the left side of her face. She was confined to a bed 

with her legs raised for three months. K.D. suffered an injury to 

the vertebrae in his lower back, was confined to his bed for six 

weeks and had to relearn to walk using a walker. He also lost a 

small part of his tongue. A.D. suffered fractures to both of her 

femurs, which required two surgeries as well as physical therapy 

for a year. Rolman suffered two broken teeth and bruises on his 

arm, hip, back and lower back.

Defense evidence

Defendant testified that he was driving his Honda Civic 

when it crashed into the Highlander but claimed his car

experienced mechanical problems, which caused it to go out of 

control and veer to the left into the path of oncoming traffic. He 

claimed to have swerved the Civic toward the sidewalk to avoid a 

collision and found he was unable to steer the car, which did not 

stop when he applied the brakes, but zigzagged and collided with 

the Highlander. Defendant had owned the car for a year but 
5

denied he had prior knowledge of any mechanical problems. He 

also denied ever participating in street races.

DISCUSSION

Defendant contends 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 great bodily injury 

enhancements 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.” Defendant cites the 

general rule of statutory construction the word “shall” is 

mandatory, relying on People v. Heisler (1987) 192 Cal.App.3d 

504, 507. However, defendant does not refer to the observation in 

that case that “the word ‘shall’ has sometimes been judicially 

construed as directory or permissive.” (Id. at p. 506.)

“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.” (People v. Murphy (2001) 25 

Cal.4th 136, 142.) “‘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.’” (People v. Ruiz (2018) 4 Cal.5th 1100, 1105.) 

“Whether a particular statute is intended to impose a mandatory 

duty is a question of interpretation for the courts.” (People v. 

Lara (2010) 48 Cal.4th 216, 225.) “‘[T]here is no simple, 

mechanical test for determining whether a provision should be 

given “directory” or “mandatory” effect.’” (People v. Allen (2007) 

42 Cal.4th 91, 101-102.)
6

In People v. Walker (2022) 86 Cal.App.5th 386, 396-399 

(Walker), review granted March 22, 2023, S278309,

3 our court

observed that “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.” 

(Id. at p. 396, italics added.) 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.’”’” (Ibid., quoting 

People v. Valencia (2017) 3 Cal.5th 347, 358.)

Section 1385 governs the trial court’s authority to strike or 

dismiss enhancements. Subdivision (c)(1) provides that 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. Subdivision (c)(2) allows, “[i]n 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 

3 The California Supreme Court granted review and limited 

the issue to be briefed to the following issue: “Does the 

amendment to Penal Code 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?” (Walker, S278309, Supreme Ct. Mins., Mar. 22, 2023, 

p. 338.)
7

enhancement, unless the court finds that dismissal of the 

enhancement would endanger public safety.”

Of the nine mitigating factors listed in section 1385,

subdivision (c)(2)(A) through (I), defendant relies on (B): 

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

instance, all enhancements beyond a single enhancement shall be 

dismissed.” The language relied on by defendant is only one of 

nine mitigating circumstances the court must consider in

affording great weight to evidence offered by the defendant.

In Walker we concluded that section 1385’s use of the 

phrase “great weight” in addition to the “‘shall/unless’ 

dichotomy . . . erects a [rebuttable] 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.” (Walker, supra, 86 Cal.App.5th at 

pp. 391, 397, 399, review granted.) Furthermore, we held: “As 

the plain text of section 1385 repeatedly emphasizes, its purpose 

is to grant trial court discretion to dismiss enhancements.” (Id.

at p. 397.)

Section 1385 grants discretion in subdivision (c)(1) to 

dismiss enhancements “in furtherance of justice” and in 

subdivision (c)(2) by listing mitigating circumstances for the court 

to consider “[i]n exercising its discretion under this subdivision”

to prove that any of them, “unless the court finds that dismissal 

of the enhancement would endanger public safety.” Following 

the mitigating factors is subdivision (c)(3): “While the court may 

exercise its discretion at sentencing, this subdivision does not 

prevent a court from exercising its discretion before, during, or 

after trial or entry of plea.” Subdivision (c)(4) provides that the 

mitigating circumstances are not exclusive.
8

Taken together these provisions communicate a 

requirement of balancing of factors, in other words, exercising 

discretion. In Walker we reviewed the legislative history of 

Senate Bill No. 81 (2021-2022 Reg. Sess.), which lead to 

subdivision (c) of section 1385. (Stats. 2021, ch. 721 § 1; see 

Walker, supra, 86 Cal.App.5th at pp. 397-398, review granted.)

“[T]he purpose 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. 

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.” (Walker, at pp. 397-398.)

Defendant asserts that Walker was incorrectly decided,

while acknowledging that other courts have also rejected the 

argument that the word “shall” in section 1385, subdivision (c) 

precludes any exercise of discretion. (See, e.g., People v. Mendoza

(2023) 88 Cal.App.5th 287, 295-296 (Mendoza); People v. 

Anderson (2023) 88 Cal.App.5th 233, 238-240, review granted 

April 19, 2023, S278786 (Anderson); People v. Ortiz (2023) 87 

Cal.App.5th 1087, 1096-1098, review granted April 12, 2023,

S278894 (Ortiz);4 People v. Lipscomb (2022) 87 Cal.App.5th 9, 18-

4 The California Supreme Court deferred further action in 

Anderson and Ortiz pending consideration and disposition of the 

appeal in Walker, S278309. Both the Anderson and Ortiz courts 

disagreed with Walker that “shall” created a rebuttable 

presumption. (See Anderson, supra, 88 Cal.App.5th at p. 240, 

review granted; Ortiz, supra, 87 Cal.App.5th at pp. 1096-1098,

review granted.)
9

21; see also People v. Hiller (2023) 91 Cal.App.5th 335, 351.) 

Defendant contends that these cases were wrongly decided as 

well.

Defendant argues that a rule of statutory construction 

requires every word in a statute be given a meaning, and 

construing the word “shall” as discretionary would cause it to be 

“written out” of the statute in violation of that rule. Defendant 

has neglected to cite authority for his argument, and we disagree 

that the cited cases were wrongly decided. Other rules of 

statutory construction require, “in reviewing the text of a statute, 

we must follow the fundamental rule of statutory construction 

that requires every part of a statute be presumed to have some 

effect and not be treated as meaningless unless absolutely 

necessary. ‘Significance should be given, if possible, to every 

word of an act. [Citation.] Conversely, a construction that 

renders a word surplusage should be avoided.’” (People v. Arias

(2008) 45 Cal.4th 169, 180.) This rule does not support 

defendant’s argument, as our interpretation in the context of the 

provisions of subdivision (c) of section 1385 does not “write out” 

the word “shall” or render it surplusage. Rather, it is qualified by 

the term, “unless the court finds that dismissal of the 

enhancement would endanger public safety.” (See Walker, supra, 

86 Cal.App.5th at pp. 391, 397, review granted.) Disregarding 

that qualification would render it surplusage, as it “would require 

a court to dismiss any enhancement when application of the 

enhancement could result in a sentence greater than 20 years 

regardless of whether dismissal would endanger public safety.” 

(Mendoza, supra, 88 Cal.App.5th at p. 296.)

Moreover, “[w]e also must avoid interpretations that lead to 

absurd results.” (Mendoza, supra, 88 Cal.App.5th at p. 296, 

citing People v. Bullard (2020) 9 Cal.5th 94, 106.) Without the 
10

public safety qualification, the sentencing court could be required

to risk public safety, an absurd result that cannot be what the 

Legislature intended. (Mendoza, supra, at p. 296.)

Here the trial court expressly found that dismissal of an 

enhancement would endanger public safety, as defined by section 

1385, subdivision (c)(2) as a “likelihood that the dismissal of the 

enhancement would result in physical injury or other serious 

danger to others.” The court based its decision on defendant’s

failure to show any concern for anybody’s safety both before, 

during, or after his racing; that defendant showed no remorse;

and that he lied during his testimony. By convicting him the jury 

demonstrated their disbelief of defendant’s testimony, and the 

jury found beyond a reasonable doubt the aggravating factor that 

his acts disclosed a high degree of cruelty, viciousness, or 

callousness. Defendant has not claimed the court abused its 

discretion, nor has he pointed to any evidence in the record that 

might contradict the court’s assessment of defendant’s 

dangerousness or the jury’s findings. We conclude the trial court 

did not err.

DISPOSITION

The judgment is affirmed.

________________________

CHAVEZ, J.

I concur:

________________________

LUI, P. J.
People v. Hernandez, B327241

ASHMANN-GERST, J., Concurring in the judgment.

I agree with the majority that the trial court did not err in 

refusing to strike one of the enhancements added to defendant’s 

sentence. (Pen. Code, § 1385.)5 I write separately to clarify the 

basis for my opinion.

Defendant argues that “[t]he sentence for one of the great 

bodily injury enhancements should be dismissed because section 

1385, subdivision (c)(2)(B) forbids imposition of more than one 

enhancement in a case.” Like my colleagues, I am not convinced.

“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 

(2021–2022 Reg. Sess.) . . . , which, effective January 1, 2022, 

amended section 1385 to provide guidance regarding the exercise 

of discretion in dismissing sentencing enhancements.

“Section 1385, subdivision (c), now provides 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 

5 All further statutory references are to the Penal Code.
2

the court finds that dismissal of the enhancement would 

endanger public safety.’” (People v. Anderson (2023) 

88 Cal.App.5th 233, 238–239, review granted Apr. 19, 2023, 

S278786.) The mitigating circumstance relevant here provides, 

“(B) Multiple enhancements are alleged in a single case. In this 

instance, all enhancements beyond a single enhancement shall be 

dismissed.” (§ 1385, subd. (c)(2)(B).)

Defendant argues that the use of the word “shall” in the 

statute required the trial court to dismiss all but one of the 

sentencing enhancements. Consistent with our decision in People 

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

2023, S278309 (Walker), I disagree. As we noted in Walker, “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.” (Walker, supra, at p. 396; see also 

People v. Anderson, supra, 88 Cal.App.5th at p. 239; see also 

People v. Mendoza (2023) 88 Cal.App.5th 287, 295–298.)

Defendant argues that Walker and its progeny were

wrongly decided. Unless and until the Supreme Court tells us 

otherwise, I adhere to our opinion in Walker. (Cal. Rules of 

Court, rule 8.1115(e).)

__________________________, J.

ASHMANN-GERST