1 Filed 9/11/24 P. v. Saddozai 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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.
SHIKEB SADDOZAI, Defendant and Appellant. A166 721

(San Mateo County Super. Ct. No. 16

- NF001 414A )

In an earlier appeal, this court remanded Shikeb Saddozai’s case for resentencing under Penal Code section 1385, subdivision (c) 1 , which grants trial courts discretion to dismiss an enhancement in the interest of justice. ( See People v. Saddozai (Mar

. 16, 2021, A154894 ) [nonpub. opn.]

. ) On remand, Saddozai unsuccessfully sought dismissal of a five

- year enhancement for a prior serious felony conviction ( § 667, subd. (a) (1) ). H e contends in this appeal that the trial court erred in declining to dismiss the enhancement. We affirm.

B ACKGROUND

A.

Saddozai ’s convictions relate to an incident in which he stalked, burglarized, and attempted to murder his ex

- girlfriend

,

1 Undesignated statutory references are to the Penal Code.2

Jane Doe, days after he was released from prison in February
2016 for another offense. ( See People v. Saddozai

, supra , A154894

. ) 2
Doe endured years of verbal and physical abuse by
Saddozai

. ( People v. Saddozai

, supra , A154894 .) She was able to leave the relationship after Saddozai fled the United States pending criminal charges in 2015 and was later caught and

sent enced to prison. ( Ibid .) While he was incarcerated, Doe sent Saddozai a letter ending the ir relationship, moved out of their
shared home , and did not give him her new address. ( Ibid

. )

Upon his release in 2016, Saddozai repeatedly called and
texted Doe and persuaded Doe to meet him. ( People v. Saddozai

, supra , A154894 .) Angry that Doe had ended their relationship, Saddozai struck Doe in the face and tried to choke her

. ( Ibid. ) Police interrupted the attack after a bystander called 911, but they let Saddozai leave when Doe told them they were having a loud, verbal argument. ( Ibid .)

U s ing software to disguise his telephone number and voice, Saddozai subsequently persuaded Doe to tell him her address by calling her on the phone and pretending to be a police officer. ( People v. Saddozai

, supra , A154894 .) He broke into her apartment and waited for Doe to come home, at which point he chased her with a knife , called her a “ ‘ cheat

, ’ ” and yelled “ ‘ I’m gonna get you. ’ ” ( Ibid .) Saddozai pursued Doe o ut of her apartment, to the building’s leasing office

, where Doe took refuge. ( Ibid .) When Saddozai was unable to force the door open, he ran to the apartment complex’s pool, where another resident saw him holding a knife and heard him repeatedly say, “ ‘ I want to kill the
bitch. ’ ” ( Ibid .)

2 Because the parties rely on the summary of facts contained in this court’s earlier decision in People v. Saddozai

, supra , A 154894 , we do so as well.3 B.
A jury found Saddozai guilty of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)); first degree burglary ( § 460, subd. (a)); stalking (§ 646.9, subd. (a)); misdemeanor exhibiting a deadly weapon (§ 417, subd. (a)(1)); misdemeanor possession of burglar's tools (§ 466); and misdemeanor battery of a person the defendant formerly dated (§ 243, subd. (e)(1)). ( People v. Saddozai

, supra , A154894 .) The jury
also found true enhancements for use of a deadly weapon (§ 12022, subd. (b)( 1)) and a prior serious felony ( § 667, subd. (a)(1)). ( People v. Saddozai

, supra , A154894 .)

The trial court sentenced him to an aggregate term of 33 years to life in prison

. ( People v. Saddozai

, supra , A154894 ) The sentence included a five

- year enhancement for a prior serious felony conviction (§ 667, subd. (a) (1) ), which was based on a 2002
conviction for arson. The sentence also included a one

- year enhancement for use of a deadly weapon (§ 12022, subd. (b)(1)),
and a one

- year enhancement for a prior sexually violent offense (§ 667.5 , subd. (b) ).

In Saddozai’s earlier appeal, this court affirmed his
convictions but remanded for the trial court to determine whether to strike the five

- year enhancement under amendments to section
1385. ( People v. Saddozai

, supra , A154894 .)

C.

Section 1385, subdivision (c)(1)

, provides that “ the court shall dismiss an enhancement if it is in the furtherance of justice
to do so ,” unless dismissal is prohibited by an initiative statute.
S ection 1385, subdivision (c)(2), in turn, provides that in “exercising its discretion” to dismiss a sentencing enhancement under that subdivision, “ the court shall consider and afford great weight to evidence offered by the defendant to prove that any of
the [enumerated] mitigating circumstances . . . are present. ” ( See4

also People v. Walker (Aug. 15, 2024, S278309)

___ Cal.5th

___ [2024 WL 3819098

, pp. *1, 4 ] ( Walker ) .) Further, “[p] roof 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. ” (§ 138 5 , subd. (c)(2).)

Three mitigating circumstances enumerated in the statute
are relevant here. First, where multiple enhancements are alleged in a single case , “all enhancements beyond a single
enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(B).) Second, if an enhancement could result in a sentence longer than 20 years, “the enhancement shall be dismissed.” ( § 1385, subd. (c)(2)(C).) Third, the fact that an enhancement is based on a prior conviction that is over five years old is also a mitigating factor. (§ 1385 , subd. (c)(2)(H).)

D.

On remand, Saddozai requested dismissal of the five

- year enhancement

, relying on the mitigati ng circumstances in section 1385, subdivisions (c)(2)(B), (c)(2) (C), and (c)(2) (H). 3 He
contended there was little danger to public safety given the length of his overall sentence, and he estimat ed that

, if the enhancement were dismissed, he would likely not be eligible for parole until age 63 (approximately 18 years from the resentencing hearing)

. He also asserted that

, due to his physical disabilities, including his u se of a walker, “ his ability to commit certain types of offenses might be” lessened, limiting the public safety risk.

3 Saddozai conceded in trial court that dismissal of his enhancement under section 1385, subdivision (c)(2), was “not mandatory.”5 After weighing the aggravating and mitigating circumstances, the trial court concluded it would not be in the interest of justice to strike the five

- year enhancement. The court explained that Saddozai’s “ background, character, and prospects
do not support any mitigation of his sentence. ” ( See Cal. Rules of Court, rule 4.421 (circumstances in aggravation).) The court noted that Saddozai had previous convictions for false imprisonment in a crime involving sexual assault from 2005 as well as for sexual penetration of a minor in 2015

. ( See Cal. Rules of Court, rule 4.421 (b)( 1)

- (2).) The court emphasized that “[t] he instant offense was committed during the first few days after he was released from prison and put on parole. ” ( See Cal. Rules of Court, rule 4.421 (b)(4) .) Saddozai “ showed no respect for the rights of the others in the criminal justice system. While he was

out on bail and facing trial on the sexual penetration case, he fled
the country.

. . . [¶] He continually violated restraining orders. He tried to get the victim in this case

. . . to commit perjury. ” ( See Cal. Rules of Court, rule 4.421 (a)(6) , (b)(5) .) Finally, the trial

court reasoned that “ the facts show that he has repeatedly been, and would be if released, a threat to others. ” ( See Cal. Rules of Court, rule 4.421 (b)(1).) The court noted that Saddozai had attempted to kill and terrorized Jane Doe, “had terrorized other victims in other crimes,” and was described as a “ ‘ ticking time
bomb ’ ” by his parole officer. As a result, “ if he was given the opportunity to be released into society, he will continue to
victimize the victim and the community. ”

D ISCUSSION
Saddozai contends, and the People do not dispute, that three mitigating circumstances under section 1385, subdivision (c)(2), are applicable here because multiple enhancements were alleged, the application of an enhancement could result in a sentence longer than 20 years, and the enhancement is based on a prior conviction that is more than five years old. ( See § 1385,6

subds. (c)(2)(B), (c)(2) (C), (c)(2) (H).) Saddozai argues that

, as a result, the trial court erred in denying his request to dismiss his
enhancement. Reviewing his legal arguments de novo ( s ee Walker

, supra ,

___ Cal.5th at p.

___ [2024 WL 3819098, p. *3] )

,

w e disagree

. A.

As an initial matter, Saddozai asserts that because mitigating factors are applicable to his case, the only remaining question under section 1385, subdivision (c)(2), is whether dismissal of the enhancement would pose a risk of physical injury or other serious danger to others. B ecause he cannot be released from prison unless the Board of Parole Hearings determines he is no longer a public safety risk, he says, the trial court erred in declining to dismiss the enhancement. But Saddozai’s premise

— that when a mitigating factor is present, public safety is the only remaining relevant consideration

— is incorrect.

In Walker , our Supreme Court held that public safety is not the only consideration that may justify imposition of an enhancement when a mitigating circumstance applies under section 1385, subdivision (c)(2). ( See Walker

, supra ,

___ Cal.5th

at p p . ___ [ 2024 WL 3819098, pp. *4

- 5] .) Walker explained that when a mitigating circumstance is present , the trial court retains
discretion to determine whether an enhancement should be dismissed, taking into account aggravating and mitigating
circumstances traditional ly deemed relevant in arriving at a sentence in furtherance of justice. ( Id

. , at p. ___ [ 2024 WL 3819098, p. *4] ; see also Cal. Rules of Court, rules 4.421 (circumstances in aggravation)

, 4.423 (circumstances in mitigation) .) Section 1385, subdivision (c)(2)

, directs the trial court to give “great weight” to evidence that any mitigating factor is present. ( See Walker , at p p . ___ [ 2024 WL 3819098, pp. *5

- 6].) As a result, the trial court “ must ” dismiss an enhancement when a mitigating factor enumerated in section 1385, subdivision (c)(2),7

applies , unless there is substantial evidence of countervailing circumstances sufficient to outweigh the mitigating factor. ( Walker

, at p p . ___ [ 2024 WL 3819098, pp. * 1, 5 ] .) Even when a mitigating circumstance is present, t he ultimate question for the
trial court under section 1385, subdivision (c), remains whether
dismi s sal of an enhancement would be “in the furtherance of justice

. ” (§ 1385, subd. (c)(1); see also Walker , at p. ___ [ 2024 WL 3819098, p. * 6] .)

Here, the trial court discussed circumstances implicating
several aggravating factors in addition to public safety. Walker permits this. Because Saddozai does not take issue with the factors themselves , we shall not consider them further.

B.

Saddozai’s main contention is that the trial court erred as a matter of law in denying his request to dismiss his five

- year enhancement because he cannot be released unless the Board of Parole Hearings first concludes he will not en danger society if released from prison. He maintains that

, where an individual
cannot be released from prison without a grant of parole, the dismissal of an enhancement has no bearing on whether the
individual would pose a serious danger to others if released. We are unable to discern any such categorical rule from the text of section 1385, subdivision (c)(2).

To be sure

, r eview by the Board of Parole Hearings is a relevant consideration

. As People v. Gonzalez (2024) 103 Cal.App.5th 215 ( Gonzalez ) explain s , in cases involving indeterminate sentences, the trial court should take into account

t he need for a grant of parole before release when determining whether dismissal of an enhancement would pose a public safety
risk. ( See i d ., at pp. 230

- 231

. ) The fact that parole will be denied
if the board determine s that individuals serving indeterminate sentences “ will pose an unreasonable risk of danger to society if
released ” ( Cal. Code Regs. tit. 15

, § 2281 , subd. (a) ; see also Pen.8

Code § 3041, subd. (b)(1)) lessens the risk that a reduced sentence will negatively impact public safety. ( See Gonzalez

, at p. 230

. ) Future review by the board is thus one consideration , among others, relevant to determining whether dismissal of an enhancement would endanger public safety. ( See i d ., at p p . 228

- 229 .) 4

But Saddozai takes it a step further . He argues that

, in a case involving an indeterminate sentence, dismissal of an
enhancement has zero impact on public safety because a future grant of parole would be required before release.

W e find no support in the text of section 1385, subdivision (c)(2), for this contention. As Walker reflects, section 1385, subdivision (c)

, grants to trial courts the ultimate discretion to determine whether dismissal of an enhancement would advance justice. ( Walker

, ___ Cal.5th at p. ___ [ 2024 WL 3819098, p. * 6].)
The statute entrusts the de cision whether dismiss ing an enhancement would endanger public safety to the “ court
, ” making no mention of the Board of Parole Hearings. (§ 1385,
subd

. (c)(2); see also Gonzalez

, supra, 103 Cal.App.5th at p. 228, fn. 10 (emphasizing that “[w] e do not suggest that a trial court is permitted to delegate its judgment regarding a defendant ’ s future threat to public safety to the Board of Parole Hearings ”). And section 1385, subdivision (c)

, makes no reference to a bright line rule providing that dismissal of an enhancement is always consistent with public safety in cases involving indeterminate sentences. ( Cf. Walker

, ___ Cal.5th at p. ___ [ 2024 WL 3819098,

p. * 4] (noting that “ [i] f the Legislature envisioned a rebuttable presumption, it could have said so

. . . expressly”).) Nor is the

4 Here, the trial court was well aware that Saddozai could not be released without a parole grant, as defense counsel argued at the re sentencing hearing that whether the enhancement was dismissed would impact the year that Saddozai was “eligible for parole.”9

fact that the case involves an indeterminate sentence one of the mitigating factors listed in the statute. (§ 1385, subds. (c)(2)(A)

- (I).)

Under section 1385, subdivision (c), the trial court may determine, based on the defendant’s background, record, and
other circumstances , that a reduced sentence will not sufficiently safeguard the public because the defendant requires additional
time to fully rehabilitate. ( See People v. Mendoza (2023) 88 Cal.App.5th 287, 299 .) Where, as here , the sentence is an
indeterminate one

, the defendant’s particular circumstances
could potentially lead the court to conclude that a longer sentence
is n eeded for rehabilitation before a parole hearing would have any chance of a successful outcome.

W e therefore reject Saddozai’s contention that, as a matter of law, the trial court erroneously “assumed that its decision
whether to dismiss the

. . . enhancement would have some bearing on whether [Sadozzai] would pose a danger to public safety at some point in the future.”

D ISPOSITION
The judgment is affirmed.

BURNS, J. WE CONCUR:

JACKSON, P. J. SIMONS , J.

People v. Saddozai (

A166721)