Filed 1/2/24 P. v. Orozco CA6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTANCIO OROZCO,

Defendant and Appellant.

 H050446

 (Monterey County

 Super. Ct. No. SS032353A) 

In 2004, defendant Antancio Orozco pled guilty to one count of second degree 

robbery (Pen. Code, § 211.)1 He also admitted various prior convictions, including a 

prior strike conviction (§ 1170.12, subd. (c)(1)), three serious prior felony convictions 

(§ 667, subd. (a)), and one prior conviction that resulted in a prison term (§ 667.5, subd. 

(b).) The court sentenced Orozco to a stipulated total term of 22 years in state prison. 

In 2022, following the passage of Senate Bill No. 483 (2021-2022 Reg. Sess.) 

(Senate Bill 483), Orozco requested that he be resentenced because his section 667.5, 

subdivision (b) enhancement was now legally invalid. He also requested that two of the 

section 667 enhancements be stricken pursuant to recent amendments to section 1385. 

The trial court struck the section 667.5, subdivision (b) enhancement and reduced 

Orozco’s sentence by one year, but denied the request to strike the section 667 

enhancements. 

1 Undesignated statutory references are to the Penal Code.
2

On appeal, Orozco claims that the trial court abused its discretion in denying his 

request to strike the section 667 enhancements. 

For the reasons stated below, we find no abuse of discretion and affirm the trial 

court’s order. 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background2

On July 6, 2003, between 2:00 a.m. and 2:30 a.m., John Doe3, a manager at a hotel 

in the Castroville area, heard noises and banging outside of his room. As he walked 

outside, Doe saw Orozco, who occasionally helped him with security at the hotel, and 

another man (later identified as R.G.)4“struggling around.” Orozco had R.G. pushed up 

against a railing, and Doe observed that R.G.’s face and nose were bleeding. When Doe 

asked Orozco what was going on, Orozco claimed that they were fighting because R.G. 

tried to pull a knife on him. Doe also observed that Orozco had his right hand in R.G.’s 

pocket. When Orozco pulled his hand out of R.G.’s pocket, Doe saw that Orozco was 

holding what appeared to be a billfold or wallet. Orozco then went downstairs. Doe 

identified R.G. as a tenant of the hotel and a migrant worker, who would usually have 

been paid on a Saturday (the day of the incident). 

After officers arrived on the scene, they interviewed R.G., who indicated he was 

walking from his room to the bathroom when Orozco confronted him. R.G. stated that 

Orozco punched him in the face, pinned him against the railing, and took his wallet, 

which contained over $3,000. 

2 The following facts are derived from witness testimony at Orozco’s preliminary 

hearing. 

3 This witness’s name was redacted from the court record. 

4 We refer to the victim in the proceedings by his or her initials only to protect 

personal privacy interests pursuant to California Rules of Court, rule 8.90(b)(10) & (11).
3

B. Procedural Background

1. Charges, Plea, and Original Sentence 

On July 16, 2004, the Monterey County District Attorney’s Office filed a first 

amended information charging Orozco with second degree robbery (§ 211; count 1). The 

information also alleged that Orozco had previously been convicted of forcible rape 

(§ 261, subd. (a)(2)), which constituted a prior serious or violent felony pursuant to 

sections 1170.12, subdivision (c)(1) and 667, subdivision (a)(1). The information further 

alleged Orozco had been previous convicted of assault with a deadly weapon (§ 245, 

subd. (a)(1)) and residential burglary (§ 459), which constituted serious felonies pursuant 

to section 667, subdivision (a)(1). It was also alleged that Orozco was previously 

convicted of attempted burglary (§§ 664, 459), for which he served a prison term 

pursuant to section 667.5, subdivision (b). 

On the same date, Orozco pled guilty to second degree robbery (count 1) and 

admitted all of the allegations regarding his prior convictions. 

On December 10, 2004, the trial court sentenced Orozco to the middle term of 

three years for second degree burglary (count 1), which was doubled to six years based 

on his prior conviction for forcible rape. (§ 1170.12, subd. (c)(1).) The court also 

imposed three consecutive five-year terms for Orozco’s prior convictions for forcible 

rape, assault with a deadly weapon, and residential burglary. (§ 667, subd. (a)(1).) 

Finally, the court imposed a consecutive one-year term for Orozco’s prior conviction of 

attempted burglary, which had resulted in a prison term. (§ 667.5, subd. (b).) Orozco’s 

total sentence amounted to 22 years in state prison. 
4

2. Resentencing Request 

On July 21, 2022, Orozco sent a letter to the trial court asking to be resentenced 

following the passage of Senate Bill 483.5 The trial court subsequently appointed counsel 

for Orozco and set the matter for further hearing. 

On August 29, 2022, Orozco’s counsel filed a formal request for resentencing 

pursuant to section 1172.75. In her request, counsel asked that the trial court dismiss the 

section 667.5, subdivision (b) enhancement, which was now legally invalid, and 

resentence Orozco according to current sentencing law. In addition to the one-year 

prison enhancement, counsel also asked that the trial court strike two of the section 667, 

subdivision (a) enhancements pursuant to the current language in section 1385. Counsel 

argued that under section 1385, subdivision (c)(2)(B), all enhancements beyond a single 

enhancement must be dismissed if one case involved multiple enhancements. Counsel 

similarly noted that under section 1385, subdivision (c)(2)(C), enhancements shall be 

dismissed if their application resulted in a sentence of twenty years or more. As both 

these conditions applied to Orozco’s matter, counsel asserted that dismissal of the 

enhancements was mandatory. 

In opposition, the People argued that the express language of section 1385, as well 

as the legislative history behind its recent amendments, demonstrated that dismissal of 

5 Effective January 1, 2020, the Legislature passed Senate Bill No. 136 (2019-

2020 Reg. Sess.), which amended section 667.5, subdivision (b) to limit prior prison term 

enhancements to sexually violent offenses only. (Stats. 2019, ch. 590, § 1.) The 

Legislature subsequently passed Senate Bill 483, which made this change retroactive by 

adding section 1171.1 (Stats. 2021, ch. 728, § 3), which was later renumbered as section 

1172.75. (Stats. 2022, ch. 58, § 12.) Under section 1172.75, “[a]ny sentence 

enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of 

Section 667.5,” except for enhancements for certain sexually violent offenses, “is legally 

invalid.” (§ 1172.75, subd. (a).) Once the trial court has confirmed that a defendant’s 

current judgment includes a prior prison term enhancement that is now legally invalid, 

the trial court “shall recall the sentence and resentence the defendant.” (§ 1172.75, subd. 

(c).) 
5

any enhancements was discretionary, not mandatory. The People claimed that this 

discretion was evident from the following language: (1) section 1385, subdivision (c)(1), 

which states that the court shall dismiss if it is in the “furtherance of justice” to do so; and 

(2) section 1385, subdivision (c)(2), which begins with the phrase “in exercising its 

discretion under this subdivision.” The People also noted that under section 1385, 

subdivision (c)(2), the trial court should not dismiss an enhancement if doing so would 

endanger public safety. Based on Orozco’s criminal history, as well as his record of 

continued offenses while in prison, the People contended that he posed a great danger to 

the public such that it would not be in the interests of justice to dismiss the 

enhancements. 

3. Resentencing Proceedings and Order

On October 6, 2022, the trial court held a hearing on Orozco’s resentencing 

petition. As there was no dispute that the section 667.5, subdivision (b) enhancement 

was now legally invalid following the enactment of section 1172.75, the trial court 

dismissed this enhancement. 

With respect to the two section 667, subdivision (b), enhancements, the trial court 

agreed with defense counsel that there were two applicable mitigating circumstances 

under section 1385 – namely, subdivisions (c)[(2)](b) and (c)[(2)](c)6, that weighed 

greatly in favor of dismissing the enhancements. The trial court further indicated that 

based on its understanding of section 1385, subdivision (c)(2), it could only choose not to 

dismiss an enhancement if it found a likelihood that such a dismissal would result in 

physical injury or other serious danger to others. The trial court described Orozco’s 

6 The trial court referred to the mitigating factors as falling under section 1385, 

subdivision (c)(3), which was the original version of subdivision (c) as enacted pursuant 

to Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81). Section 1385 was 

amended effective June 30, 2022, and these factors are now listed under subdivision 

(c)(2). (Stats. 2022 ch. 58 § 15.) For consistency, we refer to the factors under the 

current version of the statute. 
6

criminal history in detail, including: (1) his prior strike offense for forcible rape; (2) his 

prior strike offense for assault with a deadly weapon, which resulted in a prison sentence; 

(3) his prior strike offense for burglary, which he committed while on parole and resulted 

in another prison sentence; (4) his subsequent arrest for possession of guns while on 

parole; (5) his prior offense for attempted burglary, which resulted in another prison 

sentence; and (6) his offense in the underlying case for second degree robbery, which 

resulted after several parole violations, and would have resulted in a three-strikes life 

sentence if not for his guilty plea and stipulated sentence. The court also noted that while 

incarcerated, Orozco violated prison rules including possession of a cell phone, fighting, 

and conviction for possession of a deadly weapon. 

The court ultimately found that Orozco’s criminal history of four strike offenses, 

his “revolving door” of parole violations, and his inability to abide by rules while 

incarcerated, were all “concerning from an aggressive standpoint.” The court also found 

that Orozco’s conviction for possession of a deadly weapon, while in prison, presented a 

public safety issue because of the “aggressive and assaultive” nature of the offense. The 

court therefore concluded that there was sufficient evidence demonstrating that dismissal 

of the section 667 enhancements would result in physical injury or danger or others, and 

therefore declined to dismiss. The court subsequently reduced Orozco’s sentence by one 

year to account for the dismissal of the section 667.5 enhancement and resentenced 

Orozco to a total of 21 years in state prison. 

Orozco timely appealed. 

II. DISCUSSION

Orozco argues that the trial court erred in denying his request to strike the two 

section 667 enhancements. Orozco claims that the express language of section 1385 

mandates that enhancements shall be dismissed when certain mitigating circumstances 
7

are present. Orozco therefore contends that the trial court was required to dismiss at least 

one of the enhancements and erred in declining to do so. 

A. Legal Principles and Standard of Review

In general, we review a 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, 

371 (Carmony); People v. Mendoza (2023) 88 Cal.App.5th 287, 298 (Mendoza).) The 

abuse of discretion standard is highly deferential. (Mendoza, supra, 88 Cal.App.5th at p. 

298.) When, “ ‘ “as here, a discretionary power is statutorily vested in the trial court, its 

exercise of that discretion ‘must not be disturbed on appeal except on a showing that the 

court exercised its discretion in an arbitrary, capricious or patently absurd manner that 

resulted in a manifest miscarriage of justice.’ ” ’ ” (Ibid.) 

In order to determine whether the trial court abused its discretion in the instant 

matter, we must first interpret the legislative intent and meaning of the terms “shall be 

dismissed” as used in section 1385, subdivision (c). We review questions of statutory 

interpretation de novo. (See Mendoza, supra, 88 Cal.App.5th at p. 294.) In interpreting a 

statute, our primary goal “ ‘is to determine the Legislature's intent so as to effectuate the 

law's purpose.’ ” (People v. Ruiz (2018) 4 Cal.5th 1100, 1105.) “ ‘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.’ ” (Ibid.) We do not 

“consider the statutory language ‘in isolation.’ ” (People v. Murphy (2001) 25 Cal.4th 

136, 142.) “Rather, we look to ‘the entire substance of the statute ... in order to 

determine the scope and purpose of the provision ... .’ ” (Ibid.) “That is, we construe the 

words in question ‘ “in context, keeping in mind the nature and obvious purpose of the 

statute ...” ’ ” (Ibid.) 

Senate Bill 81, effective January 1, 2022, added subdivision (c) to section 1385. 

Section 1385, subdivision (c) 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 
8

dismissal of that enhancement is prohibited by any initiative statute. [¶] (2) In exercising 

its discretion under [subdivision (c)], the court shall consider and afford great weight to 

evidence offered by the defendant to prove that any of the mitigating circumstances in 

[the subparagraphs to subdivision (c)(2)] 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.” (§ 1385, 

subd. (c)(1) & (2).) The mitigating circumstances identified in the subparagraphs 

include, among others: “(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[.]” (§ 1385, subd. (c)(2)(B) & (C).) 

There currently exists a split of authority regarding the application of section 

1385, subdivision (c). (See People v. Walker (2022) 86 Cal.App.5th 386, 302, review 

granted Mar. 22, 2023, S278309 (Walker) [holding that the term “great weight” and 

existence of mitigating circumstances creates a rebuttable presumption in favor of 

dismissal unless the court finds dismissal would endanger public safety]; but see also 

People v. Ortiz (2023) 87 Cal.App.5th 1087, review granted Apr. 12, 2023, S278894 

(Ortiz) [holding that the existence of a statutory mitigating circumstances does not 

compel the court to dismiss the enhancement even if it does not explicitly find that a 

dismissal would endanger public safety].) How courts should construe and apply the 

newly added provision is a question currently pending before the California Supreme 

Court. 
9

B. Analysis

1. Section 1385 Does Not Mandate Dismissal Even if Mitigating 

Circumstances Are Present

Orozco argues that usage of the word “shall” in section 1385, subdivision 

(c)(2)(C) demonstrated the Legislature’s intent to mandate dismissal of enhancements 

when application of them would result in a sentence of over 20 years. Orozco claims that 

appellate courts have uniformly settled that “shall” is a word of command and therefore 

implies a mandatory or required duty. Because section 1385 includes both the words 

“shall” and “may,” Orozco asserts the Legislature was aware of the different meanings of 

both words and intended to distinguish between mandatory and discretionary 

requirements. 

California courts, including this one, have ruled that the “shall be dismissed” 

language should not be viewed in isolation, but in conjunction with the statute as a whole, 

and ultimately have concluded that such language does not mandate dismissal of the 

enhancement. (See Ortiz, supra, 87 Cal.App.5th at p. 1093 [holding that the specification 

of mandatory factors does not displace the court’s obligation to exercise its discretion in 

determining whether dismissal is in the furtherance of justice]; Mendoza, supra, 88 

Cal.App.5th at p. 296 [concluding that the “shall be dismissed” language, as well as the 

language of all of the listed mitigating circumstances, only applies if the court does not 

find that dismissal of the enhancement would endanger public safety]; Walker, supra, 86 

Cal.App.5th at p. 396 [holding that the usage of the word “shall” does not wholly deprive 

the trial court of its discretion to dismiss an enhancement].) In viewing the entire 

language of the statute, we find these decisions persuasive and agree that the word “shall” 

does not mandate dismissal. Despite the inclusion of the word “shall,” section 1385 

contains additional language that demonstrates that the trial court retains discretion when 

evaluating a request such that dismissal is not mandatory. Specifically, subdivision (c)(2) 

states that the presence of one or more of the enumerated mitigating circumstances 
10

weighs greatly in favor of dismissal “unless the court finds that dismissal of the 

enhancement would endanger public safety.” (§ 1385, subd. (c)(2).) Such language 

reflects the trial court’s discretion in declining to dismiss an enhancement if doing so 

would endanger public safety. (See Mendoza, supra, 88 Cal.App.5th at p. 296.) 

Therefore, we find that section 1385 does not obligate the trial court to dismiss an 

enhancement simply because the mitigating circumstances containing the language “shall 

be dismissed,” as found in section 1385, subdivisions (c)(3)(B) and (C), are present. 

2. The Trial Court Did Not Abuse Its Discretion in Refusing to Dismiss the 

Enhancements 

Based on our finding that the word “shall” does not mandate dismissal of the 

enhancements even if the mitigating circumstances containing this word are present, we 

now turn to the question of whether the trial court abused its discretion in refusing to 

dismiss the enhancements. 

Despite the previously discussed split in authority, the cases cited above have all 

held that it is within the court’s discretion not to dismiss an enhancement if it makes a 

finding that dismissal would endanger public safety. (See Ortiz, supra, 87 Cal.App.5th at 

p. 1094; Mendoza, supra, 88 Cal.App.5th at p. 297; Walker, supra, 86 Cal.App.5th at p. 

399-400.) In the instant matter, the court spoke at length at the resentencing hearing 

about why it believed dismissal would result in physical injury or danger to others. In 

discussing public safety, the court pointed to Orozco’s substantial criminal history, which 

included a number of violent and serious crimes under section 667, subdivision (a), while 

also noting that Orozco committed many of these offenses while on parole. In addition, 

the court noted that Orozco failed to demonstrate an ability to refrain from aggressive or 

violent conduct while in prison, as evidenced by his repeated rule violations and 

subsequent conviction for possession of a deadly weapon. Based on these relevant 

considerations, it was not an abuse of discretion for the trial court to conclude that 

dismissing the enhancements and decreasing Orozco’s sentence would endanger public 
11

safety by creating a risk of physical injury or danger to others. (See Carmony, supra, 33 

Cal.4th at p. 377.) 

III. DISPOSITION

The trial court’s resentencing order is affirmed. 
___________________________________

Wilson, J.

WE CONCUR:

__________________________________________

 Bamattre-Manoukian, Acting P.J.

__________________________________________

Adams, J.*

People v. Orozco

H050446

*

Judge of the Santa Clara County Superior Court, assigned by the Chief Justice 

pursuant to Article VI, section 6 of the California Constitution.