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Filed 12/19/23 P. v. Weathers CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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 ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVEON TARIQ WEATHERS,

Defendant and Appellant.

C098189

(Super. Ct. No. CR-2014-3141)

A jury found defendant Daveon Tariq Weathers guilty of first degree robbery. 

Defendant appealed, and this court remanded the case for the trial court to consider 

dismissing a 10-year enhancement to his prison sentence imposed for personally using a 

firearm to commit the robbery (Pen. Code, § 12022.53, subd. (b)).1 The trial court 

declined to do so.

1 Undesignated statutory references are to the Penal Code.
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Defendant now contends the trial court improperly weighed evidence of his 

traumatic childhood and was unaware of its discretion to impose a lesser enhancement. 

We conclude the trial court did not afford insufficient weight to evidence of defendant’s 

traumatic childhood, especially because it found dismissing the enhancement would 

endanger public safety. We also conclude the trial court was aware of its discretion to 

impose a lesser enhancement. Accordingly, we will affirm the judgment.

BACKGROUND

“Defendant robbed a cabdriver at gunpoint. A jury found defendant guilty of first 

degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)), and found true a personal use of a 

firearm enhancement (§ 12022.53, subd. (b)). The trial court sentenced defendant to an 

aggregate term of 14 years imprisonment,” including a 10-year term for the firearm 

enhancement. (People v. Weathers (May 10, 2021, C079704) [nonpub. opn.] (fn.

omitted).) Defendant appealed from the judgment and this court remanded the matter 

“for the trial court to consider whether to exercise its discretion to strike or dismiss the 

section 12022.53, subdivision (b), enhancement in the interest of justice under section 

1385, subdivision (a).” (Weathers, C079704.) In all other respects, we affirmed the 

judgment. (Ibid.)

On remand, defendant argued the trial court should strike or dismiss the firearm 

enhancement and resentence him to a shorter prison term because he experienced 

childhood trauma, which new legislation established as a mitigating factor (see §§ 1170, 

subd. (b)(6), 1385, subd. (c)(2)(E)). In a supplemental brief, and again in closing 

argument at the hearing, defendant informed the trial court that, if it struck the firearm 

enhancement, it had discretion to impose an uncharged, lesser-included firearm 

enhancement under section 12022.5, pursuant to this court’s decision in People v. 

Johnson (2022) 83 Cal.App.5th 1074 (Johnson). Nevertheless, defendant “[stood] by his 

original request to have the court strike the [section] 12022.53 enhancement without 

imposing the lesser enhancement.”
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The trial court declined to strike or dismiss the firearm enhancement after 

considering defendant’s childhood experience, finding that defendant’s repeated use of a 

gun and his escalating violent behavior in prison meant defendant “would pose a threat to 

the public safety” if released early. Defendant timely appealed the court’s order.

DISCUSSION

Defendant contends we must remand for the trial court to again consider striking 

or dismissing the firearm enhancement because: (1) the trial court failed to afford

sufficient weight to defendant’s childhood trauma pursuant to section 1385, 

subdivision (c)(2) and (2) the trial court was not aware of its discretion to strike the

section 12022.53 enhancement and impose a section 12022.5 enhancement instead, as 

described in Johnson, supra, 83 Cal.App.5th at pp. 1086-1093. We see no merit in either 

contention.

We review the trial court’s refusal to dismiss an enhancement under section 1385

for abuse of discretion, which in this case depends on the scope of that discretion under 

the statute, a question of statutory interpretation that we review de novo. (Nazir v. 

Superior Court (2022) 79 Cal.App.5th 478, 490.) “A trial court may abuse its discretion

where ‘its decision is so irrational or arbitrary that no reasonable person could agree with 

it,’ ‘where the trial court was not “aware of its discretion” ’ to dismiss a sentencing 

allegation under section 1385, or ‘where the court considered impermissible factors in 

declining to dismiss.’ ” (Ibid.)

I

Affording Great Weight to Childhood Trauma

Defendant contends the trial court erred because, “[a]lthough the court ultimately 

found that dismissal of the enhancement would ‘endanger public safety,’ the court 

reached this conclusion without first presuming that dismissal of the section 

12022.53[, subdivision] (b) enhancement was in the interest of justice.” Defendant cites 
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People v. Walker (2022) 86 Cal.App.5th 386, 398-400 (Walker), but he misunderstands 

the case and section 1385.

In Walker, the defendant asked the trial court to strike a five-year prior serious 

felony enhancement because the court had imposed more than one enhancement, a 

mitigating circumstance listed in section 1385, subdivision (c)(2)(B). (Walker, supra, 

86 Cal.App.5th at pp. 393-394.) The appellate court interpreted section 1385, 

subdivision (c), which “instructs that the existence of a mitigating 

circumstance . . . ‘weighs greatly in favor of dismiss[al]’ of an enhancement as the court 

is exercising its discretion under section 1385 to evaluate whether dismissal is in the 

furtherance of justice by weighing enumerated and unenumerated mitigating factors 

against whether dismissal of an enhancement would ‘endanger public safety.’ ” (Walker,

at p. 397.) The court concluded that, “[c]ollectively, these provisions dictate that trial 

courts are to rebuttably presume that dismissal of an enhancement is in the furtherance of 

justice (and that its dismissal is required) unless the court makes a finding that the 

resultingly shorter sentence due to dismissal ‘would endanger public safety.’ ” (Id. at 

p. 398.) Despite applying this presumption, the court affirmed the trial court’s refusal to 

dismiss the enhancement, because the trial court had found “that defendant posed a 

‘public safety danger,’ ” “engaged in conduct comprised of ‘uncivilized violent, 

absolutely unjustified behavior,’ ” and “it was not in the ‘interest of justice’ to dismiss 

either enhancement and thereby allow defendant to be released into the community any 

sooner.” (Id. at pp. 393-394, 401.)

Other courts have disagreed with the Walker court’s interpretation of section 1385, 

subdivision (c) that evidence of mitigating circumstances creates a rebuttable 

presumption that the court should dismiss an enhancement. (See, e.g., People v. 

Lipscomb (2022) 87 Cal.App.5th 9, 17-21.) We need not decide this issue here, as 

defendant’s argument fails even using the heightened standard from Walker. Walker held 

that trial courts need not make any presumption based on mitigating circumstances if “the 
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court makes a finding that the resultingly shorter sentence due to dismissal ‘would 

endanger public safety.’ ” (Walker, supra, 86 Cal.App.5th at p. 398.)

Here, like in Walker, the trial court made such a finding. Specifically, the court 

found that defendant’s repeated use of a gun and his escalating violent behavior in prison 

meant defendant “would pose a threat to the public safety” if released early. Defendant 

does not challenge that finding. When “the court finds that dismissal of the enhancement

would endanger public safety,” then proof of the listed mitigating circumstances does not 

“weigh[] greatly in favor of dismissing the enhancement.” (§ 1385, subd. (c)(2).) 

Therefore, even if the trial court did not afford great weight to evidence of defendant’s 

childhood trauma, it still complied with the statute.

But, in any event, the trial court did appear to afford significant weight to 

defendant’s evidence. For example, the trial court was impressed by the testimony of 

defendant’s witnesses and was unmoved by the prosecution’s argument that defendant 

failed to show any connection between the current offense and the childhood trauma, as 

required by section 1385, subdivision (c)(2)(E). Nevertheless, the court found 

defendant’s “atrocious” behavior outweighed his unpleasant childhood. Accordingly, we 

conclude the trial court did not abuse its discretion by affording insufficient weight to 

evidence of defendant’s traumatic childhood.

II

Discretion to Impose a Lesser Enhancement

Defendant also contends we should remand because the trial court was unaware of 

its discretion to strike the section 12022.53, subdivision (b) enhancement and impose a 

lesser section 12022.5 enhancement instead, as described in Johnson,

supra, 83 Cal.App.5th at pp. 1086-1093. We disagree.

Johnson held that “the trial court has discretion to substitute an uncharged lesser 

enhancement for a stricken section 12022.53[, subdivision] (b) enhancement.” (Johnson,

supra, 83 Cal.App.5th at p. 1093.) The trial court in this case was aware of that 
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discretion because defendant repeatedly brought the Johnson opinion to the court’s 

attention. The court mentioned the Johnson decision at the hearing while explaining its 

decision. Nevertheless, defendant contends “the record does not reflect whether the court 

considered replacing the section 12022.53[, subdivision] (b) enhancement with a lesser 

term under section 12022.5, subdivision (a),” implying the court was therefore unaware 

of its discretion.

Defendant’s argument fails for three reasons. First, a lack of consideration on the 

record is not enough to establish a lack of awareness: “In the absence of evidence to the 

contrary, we presume that the court ‘knows and applies the correct statutory and case

law.’ ” (People v. Thomas (2011) 52 Cal.4th 336, 361; see Evid. Code, § 664.) Second, 

defendant never asked the trial court to exercise its discretion to impose a lesser 

enhancement, instead explicitly disavowing such a request. We cannot fault the trial 

court for not explicitly considering relief that defendant did not seek. Finally, by

declining to strike the section 12022.53, subdivision (b) enhancement, the trial court 

eliminated any possibility of imposing a lesser enhancement instead. Rather than

demonstrating a lack of awareness, this demonstrates further discussion of a lesser 

enhancement was superfluous. Accordingly, we conclude the trial court was aware of its 

discretion under Johnson.
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DISPOSITION

The judgment is affirmed.

 \s\ ,

Krause, J.

We concur:

 \s\ ,

Robie, Acting P. J.

 \s\ ,

Boulware Eurie, J.