Filed 12/ 1/23 P. v. Reynolds CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. CHRISTINE MARIE REYNOLDS, Defendant and Appellant. G062226 (Super. Ct. No. 14WF3283)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Patrick H. Donahue, Judge. Affirmed as modified.

Allen G. Weinberg, under a ppointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Char le s C. Rag land, Assistant Attorney General, Arlene A. Sevidal , Paige
Hazard and Jon S. Tangonan, Deputy Attorneys General, for Plaintiff and Respondent.2 Penal Code section 1385 authorize s trial judges to dismiss a criminal action
in the furtherance of justice. 1 Throughout the long history of the statute, the Legislature has largely refrained from dictating how that authority should be exercised

. However, that changed in 2021, with the passage of Senate Bill No. 81 (SB 81). (Stats. 2021, ch. 721, § 1.) SB 81 amended section 1385 to include a list of mitigating circumstances
which judges must consider in deciding whether to dismiss a sentencing enhancement in
the furtherance of justice

. The s tatute also cites public safety as a potential factor bearing
on that decision.

In this case, the third mitigating circumstance listed in section 1385 is present in that “ application of an enhancement c ould result in a sentence of over 20
years

. ” ( § 1385, subd. (c)(2)(C ) .) We must decide if this circumstance mandates
dismissal of the enhancement unless the trial court finds d ismissal would endanger public safety. That issue has divided the courts of appeal and is currently before the Supreme
Court in People v. Walker (2022) 86 Cal.App.5th 38 6, review granted Mar. 22, 2023, S278309 ( Walker ) and People v. Ortiz (2023) 87 Cal.App.5th 1087, review granted Apr. 12, 2023, S278894 ( Ortiz ).

We agree with Ortiz that considerations other than public safety can justify denying a request to dismiss an enhancement in the furtherance of justice

. Therefore, th e trial court ’ s failure to consider the issue of public safety in this case is not grounds to
disturb its refusal t o dismiss appellant ’ s sentence enhancement. Although the abstract of judgment must be modified to correct a n undisputed clerical error , we thus affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND In 2015, appel lant was convicted of first degree premeditated murder for fatally shooting her 96

- year

- old mother in the forehead during an unprovoked incident at

1 All further statutory references are to the Penal Code.3

their home in Rossmoor

. The trial court sentenced appellant, then age 72, to prison for 50 years to life, representing 25 years to life for the murder, plus a 25

- year

- to

- life
enhancement for causing death with a firearm pursuant to section 1 2022.53 , subdivision (d)

. We affirmed the judgment on appeal. ( People v. Reynolds (June 26, 2017, G052948) [nonpub. opn. ] ( Reynolds I ) .) Following our affirmance , the Legislature modified section 12022.53 to allow trial courts to dismiss a firearm enhancement in the furtherance of justice un der
section 1385

. (§ 12022.53, subd. (h).) Appellant then moved to dismiss her firearm enhancement, but the motion was denied, and we affirmed that decision on appeal

. ( People v. Reynolds (Feb. 25, 2020, G056849) [nonpub. opn.] ( Reynolds II ).) In so
do ing, we also ruled the trial court lacked the authority to reduce the enhancement to a
lesser included one. ( Ibid .)

However, the California Supreme Court granted appellant ’ s petition for
review on the enhancement

- reduction issue and subsequently deci ded in People v. Tirado (2022) 12 Cal.5th 688 ( Tirado ) that trial courts do have the power to reduce a firearm enhancement imposed pursuant to section 12022.53 , subdivision (d). Therefore, the Supreme Court transferred the case back to us with directions to vacate our decision in Reynolds II and reconsider the cause in light of Tirado

.

In our new opinion, Reynolds III , we again found no abuse of discretion in
the trial court ’ s refusal to strike appellant ’ s firearm enhancement. ( People v. Reynolds (June 30, 2022, G056849) [nonpub. opn.].) However, we conditionally reversed the judgment and remanded so the trial court could consider whether a reduc tion of the
enhancement was warranted. ( Ibid .)

By that time, Legislature SB 81 was in ful l force and effect

. On remand,

a ppellant argued that new law required the trial court to dismiss her firearm enhancement because its application would result in a sentence of over 20 years. Alternatively,4

appellant asked the court to reduce her enhanceme nt, per Tirado

. The prosecution opposed both requests. It argued appellant was undeserving of leniency because she executed her elderly mother in cold blood without any provocation or remorse

.

Ultimately, the court determined the ends of justice would not be furthered by dismissing the enhancement. To the contrary, the court found dismissal would
undermine the very purpose of section 12022.53, which is to deter people from , and punish people fo r , committing serious crimes with a firearm. Therefore, it refused to dismiss the enhancement outright. Nevertheless, because appellant had no criminal record before this case arose, the court reduced her sentence on the enhancement to 20 years to life p ursuant to section 12022.53, subdivision (c)

. Thus, appellant ’ s aggregate prison sentence currently stands at 45 years to life.
DISCUSSION Appellant contends the trial court erred in failing to dismiss her firearm enhancement altogether . In her view, dismissal was compelled because the trial court did not find (nor could it find in light of her age and base prison term of 25 years to life) that dismissal would endanger public safety. We disagree.

With the passage of SB 81, the Legis lature transformed section 1385 from a short, simple statute into a sprawling decree populated with multiple codicils and subparts. As before, subdivisions (a) and (b) authorize the trial court to dismiss an action
or enhancement in furtherance of justice . But now the statute contains a new subdivision

– subdivision (c)

– which provides as follows:

“ (c)(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
enh ancement 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 of5

the mitigating circumstances in subparag raphs (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 safet y ’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

“ (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 yea rs. In this instance, the enhancement shall be dismissed.

“ (D) The current offense is connected to mental illness.

“ (E) The current offense is connected to prior victimization or childhood

trauma.

“ (F) The current offense is not a violent felony as def ined 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 t he 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. ” (Italics added.)

Along with subdivision (c)(2)(B) of the statute, subdivision (c)(2)(C) stands out from the rest of the mitigating circumstances because it states the enhancement

“ shall be dismissed ” if that subdivision applies. Relying on Walker, supra , a ppellant6

argues that means dismissal is required unless the trial court finds the dismissal would endanger public safety.

In Walker , the court rejected the defendant’s contention the “ shall be
dismissed ” language in subdivision (c)(2)(B) of section 1385 required the dismissal of all enhancements beyond a single enhan cement when the mitigating circumstance of multiple enhancement s existed. While recognizing that use of the term “ shall ” in a statute generally signals a mandatory duty, the court determined that, when viewed in the
context of section 1385 as a whole, th e term simply created a rebuttable presumption that
dismissal would further the ends of justice. ( Walker, supra , 86 Cal.A pp.5th at p p . 396

- 398 .) Therefore, the presence of the multiple enhancement circumstance did not , in and of itself, compel a dismissal. ( Ibid

. ; accord , People v. Mendoza (2023) 88 Cal.App.5th 287, 297; People v. Lipscomb (2022) 87 Cal.App.5th 9 , 15

- 21; P eople v. Anderson (2023 ) 88 Cal.App.5th 233, 241, review granted April 19, 2023, S278786.)

That part of the Walker decision does not help appellant ’ s cause. However,
the Walker court went on to conclude that , when the presumption favoring dismissal
ari ses, dismissal is required unless the court finds it would endanger public safety

. ( Walker, supra , 86 Cal.App.5th at pp. 398

- 399 .) In other words, consideration of public safety is necessary to defeat a request to dismiss an enhancement that is otherwise subject
to dismissal u nder section 1385, subdivision (c)(2).

Ortiz , supra , reached a different conclusion on that point

. Based on the legislative history of SB 81, i t found section 1385 , subdivision (c) (2) “ reflects a leg islative recognition that a trial court ’ s exercise of sentencing discretion involves more than a strictly binary weighing of mitigation against public safety. ‘ [G]enerally applicable sentencing principles ’ relevant to a court ’ s determination of whether di smissal is in furtherance of justice ‘ relat[e] to matters such as the defendant ’ s background, character, and prospects. ’ [Citation.] Those principles require consideration of7

circumstances in mitigation (and aggravation) in the broader context of the rec ognized objectives of sentencing, which are not limited to public safety. ” ( Ortiz, supra , 87 Cal.App.5th at p. 1097.) Therefore, when a mitigating circumstance under section 1385, subdivision (c)(2) is present, the trial court may consider countervailing factors other than the danger to public safety in determining whether to dismiss an enhancement in the interest of justice. ( Id . at p. 1098.)

As we noted at the outset, the Supreme Court is considering, and will have
the final word on , whether Walker or Ortiz is correct on this particular point of law

. However, we believe Ortiz is a better analysis because it is consistent with the legislative history of SB 81 and takes a more holistic approach to the issue. It recognizes that the touchstone of section 1385 is, and has always been, the interests of justice. ( Ortiz, supra , 87 Cal.App.5th at p. 1098 .) Therefor e, if aggravating factors other than the concern for public safety indicate dismissal would not further the ends of justice, the trial court may properly refuse to dismiss an enhancement, despite the presence of mitigating
circumstances under section 1385, subdivision (c)(2). ( Ibid

. )

This is true even if, as here, the applicable mitigating circumstance is couched in mandatory language. Although section 1385, subdivision (c)(2)(C) states an enhancement that increases the defendant’s sentence over 20 years “shall be dismissed,” that does not mean dismissal is required absent a finding dismissal would endanger public safety. As explained recently in People v. Mazur (Nov. 21, 2023, D081331) __ Cal.App.5th __, __ [2023 WL 8044849] ( Mazur ) , “the ‘ endan ger public safety ’ language [in section 1385, subdivision (c)(2)] pertains only to the weight a trial court must give to the mitigating circumstances. Subdivision (c)(2) states that, absent a finding that
dismissal ‘ would endanger public safety, ’ the pres ence of any ‘ one or more ’ of the listed mitigating circumstances ‘ weighs greatly ’ in favor of dismissal. [Citation.] Conversely,
if the court finds that dismissal would endanger public safety, then it need not give great8

weight to the presence of any mitigating circumstance. In either case, however, the court must apply the controlling ‘ furtherance of justice ’ standard. [Citation.]”

Under appellant’s construction of section 1385, “we would have to construe

t he phrase ‘weighs greatly’ to mean ‘weigh[s] dispositively ’ for the two mitigating circumstances listed in subdivisions (c)(2)(B) and (c)(2)(C), but not for the other seven mitigating circumstances. [Citation.] ‘But that is not what the statute says, and we are not allowed to rewrite the statute.’ [Citation.] ” ( Mazur, supra , __ Cal.App.5th at p. __.)

“ The ‘ endanger public safety ’ language applies only as an exception to the requirement that the court must give ‘ great weight ’ to the presence of any miti gating circumstance. [Citation.] But the controlling ‘ furtherance of justice ’ standard is broader and allows the court to consider factors beyond public safety in exercising its discretion whether to dismiss an enhancement, including the nature and circu mstances of the crimes and the
defendant ’s background, character, and prospects. [Citation.]” ( Id . at p. __.)

This interpretation of section 1385 does not render the “shall be dismissed” language of subdivision (c)(2)(C) meaningless. Rather , that “ la nguage clarifies that the court must dismiss the charged enhancement if it exercises its discretion to do so, and it cannot simply strike the punishment or the portion of the punishment that would result in a sentence over 20 years. ” ( Mazur, supra , __ Cal .App.5th at p. __; accord, People v.
Ponder (2023 ) 96 Cal.App.5th 1042 .)

He re, the trial court denied appellant ’ s request to dismiss h er firearm
enhancement because it believed a dismissal would undermine the purpose of the
enhancement and defeat , not further, the ends of justice. Appellant does challenge that finding. Rather, her sole complaint is that the court did not go far enough, and by not expressly considering whether dismiss al would endanger public safety, it misconstrued
section 1385 and abu sed its discretion. For the reasons explained above, we disagree.
Because the trial court reasonably concluded the interests of justice would not be served9

by dismissing appellant ’ s enhancement, the public safety issue is of no moment , and
there is no ba sis to disturb the trial court ’ s ruling.

That said, the parties agree the amended abstract of judgment does not reflect the correct date appellant was resentenced. We will modify the abstract to correct this error. (See People v. Mitchell (2001) 26 Cal. 4th 181, 185 [appellate courts have the authority to correct clerical errors in the abstract of judgment].)
DISPOSITION The abstract of judgment is modified to reflect appellant was re sentenced

on January 13, 2023. The clerk of the trial court shall pr epare an amended abstract of judgment to reflect t his modification and send a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.