Opinion
A167411
06-25-2024
THE PEOPLE, Plaintiff and Respondent, v. GARRETT LARS ELSHERE, Defendant and Appellant.
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 21CR001947
DESAUTELS, J.
A jury convicted Garrett Lars Elshere of attempted murder, aggravated mayhem, and assault with a deadly weapon based on evidence that he stabbed his friend over 16 times and left him for dead. Elshere asserts insufficient evidence supports the aggravated mayhem conviction. He further claims the trial court abused its discretion by denying his motion for a new trial and declining to strike certain enhancements. We affirm the judgment but remand for the limited purpose of resentencing.
We provide an overview of the facts here; additional facts are included in the discussion of Elshere's claims.
Evidence at Trial
In 2018, Elshere and Leobardo Santos-Lora met while staying in a homeless shelter. Despite a language barrier-Elshere only spoke English and Santos-Lora only spoke Spanish-the two became good friends. Both men described their friendship as close and free from quarrels/discord.
In May 2021, a cousin offered to bring Santos-Lora a pound of methamphetamine from Mexico to sell in California so that he "could get some money since [Santos-Lora] was disabled and could not work." Santos-Lora had not sold drugs before. Santos-Lora denied being Elshere's drug dealer but admitted he once gave Elshere some drugs as a gift.
In June 2021, soon after receiving the drugs, Santos-Lora met with a person named Daniel, whose nickname was "Chango." Chango had agreed to buy the pound of methamphetamine for $2,000. At the exchange, Chango only had $700; Santos-Lora was afraid of keeping the drugs, so he gave Chango the methamphetamine for $700 with the understanding that Chango would pay the difference later. Subsequently, Santos-Lora learned that Elshere also knew Chango.
Between July and August 2021, Santos-Lora texted Chango repeatedly to get the rest of the money. "He gave me a hundred here and there." Another time, Chango gave Santos-Lora $300. In total, Chango paid Santos-Lora $1,300, "and he kept telling me to wait." Santos-Lora's messages became more forceful; he told Chango he would "send someone" if Chango did not pay up. In one message, Santos-Lora told Chango that "they gave me the green light to fuck you up." In another, Santos-Lora texted, "look you son [of] a bitch, I'm giving you two hours to pay. You are not going to keep me around like a dumb ass. You think you are all that. I too have balls and I told you not to get me upset." Santos-Lora explained he only sent the messages to pressure Chango and that no one had actually authorized him to harm Chango. Santos-Lora was not connected to a Mexican cartel and did not have friends who would beat people up.
On the morning of August 27, 2021, Elshere called Santos-Lora asking him to meet in a parking lot next to a school. Santos-Lora had never met Elshere there before. Santos-Lora had just moved out of his girlfriend's house, so he had all of his belongings in his car, including a gun he had bought for protection because "there were people that were following me." Santos-Lora trusted Elshere and considered him "a good friend, so I never thought he would hurt me that day."
When Elshere arrived, he got into the front passenger seat of Santos-Lora's car. Santos-Lora was seated in the driver's seat with the window open. After exchanging pleasantries, Santos-Lora expressed frustration about Chango still owing him money. Elshere said, "fuck, Chango," and "let's go, let's go." Elshere "was all worked up" and "hyper." Confused, Santos-Lora asked in English, "[W]hat happened, do you need a ride?"
Elshere got out of the car, "ran to the other side," grabbed Santos-Lora through the open driver's side window "by the shirt," and started attacking him with a 10-inch knife "out of the blue." Fearing he might get stabbed in the heart, Santos-Lora tried to block the knife with his hands, resulting in lacerations to his hands and fingers. The knife cut a tendon in Santos-Lora's right hand, which permanently impaired his mobility in certain fingers.
To avoid the ongoing stabbing, Santos-Lora then "threw [himself] down." Santos-Lora pulled himself "towards the passenger side of the vehicle," but Elshere kept "poking and cutting me all over my legs." At one point, as he was on his back in the passenger seat kicking his legs towards Elshere, Santos-Lora's "right leg got stuck between the steering wheel and the door," allowing Elshere to stab him in the leg, almost completely severing the femoral artery.
When Elshere was stabbing Santos-Lora's legs, Santos-Lora tried to pick up the gun he had concealed in the waistband of his pants, but he could not because he had no movement in his hand; the gun "fell down." Elshere "took a step back" when he saw the gun but resumed the attack when the gun fell out of Santos-Lora's hand. Santos-Lora did not know why Elshere stabbed him. Elshere stopped stabbing Santos-Lora when a young man arrived and started yelling.
Responding officers found Santos-Lora in his car, covered in a "massive amount of blood." They located a semiautomatic handgun, "dripping in blood," near Santos-Lora's buttocks. Responding officers also discovered a significant amount of methamphetamine and a digital scale in Santos-Lora's car.
Elshere testified that after he sat in the passenger seat of Santos-Lora's car, he gave Santos-Lora two 20 dollar bills for methamphetamine. Santos-Lora did not give Elshere methamphetamine but kept talking about Chango owing him money. Elshere got out of the car because "he kind of pissed me off a little bit. He took my money, and I was like 'what's up', you know what I mean?"
Elshere testified he did not try to stab Santos-Lora until Santos-Lora pulled a gun on him, "[a]nd I was aiming for his hand." Elshere stabbed twice at Santos-Lora's hand that was holding the gun. "The knife was everywhere.... It wasn't like I was trying to stab him certain places or-the only-the first one was to like the hand area. His right hand, I think." After the gun fell out of Santos-Lara's hand, it fell where the middle console is, but Elshere continued to stab Santos-Lora in the legs because he was moving around. Elshere did not recall stabbing Santos-Lora 16 times but testified, "I know there was like two, three times in his legs. They were like purposeful." Elshere admitted he stabbed Santos-Lora in the legs so that he would be unable to chase after him. At some point, the knife got knocked out of Elshere's hand, and he ran away. Elshere denied stabbing Santos-Lora for $40. Responding officers did not recover the $40 or the sheath Elshere testified he used to carry the knife.
Santos-Lora received over 16 stab wounds, with at least eight to his legs. The medical records represent that Santos-Lora suffered wounds to all four extremities; 16 of which required repair in the form of staples or sutures. When he arrived at the hospital, Santos-Lora needed emergency surgery. He was bleeding heavily from the wound in his right inner thigh, in which the femoral vein-"a large vein that brings blood back to the heart from the extremity"-was almost entirely severed. Had first responders not applied a tourniquet to the thigh above the wound, it is likely Santos-Lora would have died.
Verdict and Sentencing
The jury found Elshere not guilty of attempted murder but guilty of attempted voluntary manslaughter (Pen. Code, §§ 192, 664; count 1), aggravated mayhem (§ 205; count 2), and assault with a deadly weapon (§ 245, subd. (a)(1); count 3). The jury found Elshere personally used a deadly weapon (§ 12022, subd. (b)) in committing counts 1 and 2, and personally inflicted great bodily injury (§ 12022.7, subd. (a)) in committing counts 1 and 3. The court found true various enhancements and aggravating sentencing factors at the subsequent bifurcated court trial.
All further statutory references are to the Penal Code.
After denying Elshere's new trial and Romero motions, the court sentenced him to a total of 22 years to life in prison.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
I. Substantial Evidence Supports the Aggravated Mayhem Conviction
Elshere contends his conviction for aggravated mayhem (§ 205; count 2) is unsupported by substantial evidence. We disagree.
A conviction for aggravated mayhem "requires proof the defendant specifically intended to maim-to cause a permanent disability or disfigurement." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831 (Szadziewicz), disapproved on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214.) Section 205's requirement of "permanent disability or disfigurement" for a finding of aggravated mayhem is the same as for simple mayhem under section 203. (See People v. Newby (2008) 167 Cal.App.4th 1341, 1347-1348, citing People v. Hill (1994) 23 Cal.App.4th 1566, 1575 ["an injury may be considered legally permanent for purposes of mayhem despite the fact that cosmetic repair may be medically feasible"].) The difference between simple and aggravated mayhem, therefore, is determined by the assailant's intent. (See, e.g., People v. Manibusan (2013) 58 Cal.4th 40, 8889 (Manibusan) [holding that the same evidence demonstrating an intent to kill-firing two shots to the face and upper arm of the victim-can support an inference of intent to cause the permanent disability or disfigurement of aggravated mayhem].)
A jury may not find a specific intent to maim based only on evidence that the victim actually suffered a permanent injury;"' instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately.'" (Szadziewicz, supra, 161 Cal.App.4th at p. 831.) The jury may infer a specific intent to maim from factors including" 'the circumstances attending the act, the manner in which it is done, and the means used.'" (Ibid.) For example, evidence of a focused, controlled, or directed attack may provide substantial evidence of the requisite specific intent. (Ibid.)
We review the entire record in the light most favorable to the judgment below and reverse "only if' "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" '" the judgment. (People v. Sanford (2017) 11 Cal.App.5th 84, 91.) Substantial evidence is evidence that is" 'solid, substantial, and . . . reasonably inspire[s] confidence'" that the accused committed the charged crime. (People v. Lara (2017) 9 Cal.App.5th 296, 320.) We"' "presume in support of the judgment the existence of every fact the [fact finder] could reasonably have deduced from the evidence." '" (Sanford, at p. 91.)
Applying these principles, we reject Elshere's claim. Santos-Lora's testimony shows a controlled and directed attack focused on his right leg while it was pinned between the steering wheel and the door. The stab wounds to his leg, were numerous and severe. Indeed, Santos-Lora required emergency surgery to repair his femoral vein, which was almost entirely severed. As a result of the injuries to his right leg, Santos-Lora-at the time of trial (over a year later)-could not "walk normally" and "limp[ed]" "[b]ecause of the nerve [damage]." Santos-Lora testified his leg still "hurt[] a lot." The duration of these "permanent" injuries combined with the intentional nature of the concentrated attack supports the conclusion that Elshere is guilty of aggravated mayhem. (See, e.g., People v. Santana (2013) 56 Cal.4th 999, 1004; see also People v. Chavez (2021) 69 Cal.App.5th 159, 168 [broken ankle that has not healed in six months may support inference of permanent injury].) Further bolstering our conclusion is Elshere's testimony that he stabbed Santos-Lora in the legs "because I don't want to kill him.... I sliced his legs or stabbed him .... They were purposeful." Elshere admitted stabbing Santos-Lora in the legs because, "I didn't want him to run after me."
Elshere ignores this evidence of demonstrated intent and instead focuses on the injuries to Santos-Lora's hand, which he contends were "incidental and occurred during a struggle over the knife." That Elshere also caused permanent damage and disfigurement to Santos-Lora's hand does not diminish the strong inference he intended to maim Santos-Lora when he repeatedly stabbed him in the leg. (See Szadziewicz, supra, 161 Cal.App.4th at p. 832 [fact that defendant inflicted other injuries did not diminish strong inference of intent to maim].) Any reasonable person would know that repeatedly stabbing a person's body with a large knife would likely cause permanent disfigurement or disabling injuries. (See People v. Assad (2010) 189 Cal.App.4th 187, 195-196.)
Elshere's arguments to the contrary are not persuasive. He relies on cases in which appellate courts found insufficient evidence of intent to maim. The cases are distinguishable. (See, e.g. People v. Sears (1965) 62 Cal.2d 737, 740-741 [insufficient intent where a third party was injured in an attack on the intended victim] overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17; People v. Anderson (1965) 63 Cal.2d 351, 354, 366368 [first degree murder with no testimonial evidence to explain the inflicted wounds and cuts were anything other than an indiscriminate attack]; People v. Lee (1990) 220 Cal.App.3d 320, 323, 326 [sudden attack where defendant hit victim three times in the face with fist and kicked victim at least twice was insufficient to demonstrate intent to permanently disfigure or maim].)
Elshere also suggests a defendant possessing the intent to kill necessarily lacks the specific intent to maim. Citing one sentence from Justice Werdegar's concurring opinion in Manibusan, Elshere contends, the mental state necessary for aggravated mayhem is "the intent to inflict a grievous injury but allow the victim to live." (Manibusan, supra, 58 Cal.4th at p. 104 (conc. &dis. opn. of Werdegar, J.).) However, the majority opinion in Manibusan expressly disagreed with "Justice Werdegar's concurring and dissenting opinion that, except in rare and exceptional cases, an intent to kill and an intent to cause permanent disability are mutually exclusive, such that evidence sufficient to show the former necessarily precludes a finding of the latter." (Manibuson, at p. 89, fn. 10.) Instead, the majority, relying on established precedent, held" 'A defendant may intend both to kill his or her victim and to disable or disfigure that individual if the attempt to kill is unsuccessful,' and evidence that is sufficient to establish a defendant's intent to kill the victim can also be 'sufficient to establish the intent to permanently disable or disfigure that victim.' (People v. Ferrell [(1990)] 218 Cal.App.3d [828,] 833-834; see People v. D'Arcy (2010) 48 Cal.4th 257, 297 ['the evidence showed that defendant had concurrent intents to maim and murder . . .' the victim].)" (Manibusan, at p. 89.) In finding there was sufficient evidence to sustain an aggravated mayhem conviction, the majority explained the fact that the victim was shot in the head could support both an inference of an intent to kill and an inference of an intent to cause permanent disability or disfigurement. (Id. at p. 88.) Moreover,"' "Whether the evidence presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." '" (Id. at p. 92.)
As explained earlier, the record contains substantial evidence from which a reasonable jury guided, as here, by proper instructions on the controlling legal principles could have found beyond a reasonable doubt that Elshere acted with a specific intent to maim. (Manibusan, supra, 58 Cal.4th at p. 92; People v. Park (2003) 112 Cal.App.4th 61, 71-72.)
The jury received instructions on aggravated mayhem (CALCRIM No. 800), simple mayhem (CALCRIM No. 801), and attempted mayhem (CALCRIM No. 460).
II. The Trial Court Did Not Abuse Its Discretion in Denying Elshere's Motion for a New Trial
Elshere contends the trial court abused its discretion in denying his motion for a new trial based on newly discovered evidence under section 1181, subdivision (8). Elshere further contends the court's ruling violated his constitutional due process right to a fair trial under the Fourteenth Amendment of the United States Constitution. We disagree.
A. Additional Background
Prior to trial, on October 21, 2022, a defense investigator interviewed potential witness M.S. about his interactions with Santos-Lora. According to the written report prepared by the investigator, M.S. stated that in June 2021, Santos-Lora, his son, and his cousin attacked M.S. and beat him up "for no reason." During the attack, Santos-Lora pulled out a gun and "put it on [M.S.'s] head." M.S. added that Santos-Lora had attacked him on three prior occasions. M.S. would not comment about whether Santos-Lora was a "sicario" or involved in a Mexican drug cartel, but he confirmed Santos-Lora was a drug dealer. M.S. said Santos-Lora was a "violent man" who hit and fought "people for no reason. He always carries guns and is always brandishing guns ...." M.S. told the defense investigator to stop looking for him. That same day, October 21, 2022, the defense investigator served M.S. with a subpoena to testify at trial.
Trial commenced on October 31, 2022. M.S. did not appear for trial as required by the subpoena. Defense counsel described M.S. as "a critical witness" to Elshere's case and sought a body attachment, which the court issued. By the close of testimony, M.S. had not been located. The defense searched for M.S. over the weekend but never found him. Thereafter, the defense rested.
In early January 2023, after the jury reached its verdicts but before sentencing, the defense learned M.S. had been arrested in another case and was being held pursuant to the previously issued body attachment. Elshere immediately moved for a new trial. Defense counsel conceded M.S.'s proposed testimony was not newly discovered evidence under the statute but claimed the arrest made M.S. himself newly discovered. The motion attached the defense investigator's October 21, 2022 report.
In opposition, the prosecution argued the evidence was not new, the defense had not exercised due diligence in ensuring M.S.'s testimony at trial after he failed to comply with his subpoena, and M.S.'s testimony would not have changed the verdict. The prosecution attached a copy of a police incident report from June 12, 2021, regarding the incident between M.S. and Santos-Lora. In his original report to the police, M.S. did not say Santos-Lora pulled a gun on him. In fact, M.S. said Santos-Lora was not involved in the incident; rather, Santos-Lora's son and cousin were responsible for the attack.
At the hearing on the new trial motion, the court suggested that defense counsel's failure to request a continuance to locate M.S. created a "reasonable diligence" issue. The court also found significant differences in what M.S. told the defense investigator compared to what M.S. told the police on June 12, 2021. Specifically, the court noted M.S. told the investigator Santos-Lora had "put the gun to his head, and had beat him up," but M.S. told the police on June 12, 2021, that Santos-Lora "had not participated in any assault on him, other than trying to push him which he wasn't successful and that there was no gun involved." The court expressed concern about the credibility of M.S.'s potential trial testimony that would "of course" be impeached on cross-examination. The court ultimately denied the motion for new trial because it did not find "with any reasonable probability that [M.S.'s] testimony would have changed the verdicts in this case."
Elshere now contends the court abused its discretion in denying his new trial motion because "its determination rested primarily on a credibility determination that was best left to the jury." (Capitalization omitted.) We disagree.
B. Analysis
Section 1181, subdivision (8) authorizes a new trial based on newly discovered evidence which is "material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." When deciding whether to grant a new trial under this provision, the trial court considers whether (1) the evidence (not just its materiality) is newly discovered; (2) the evidence is not cumulative; (3) the evidence would have rendered a different result probable on retrial; (4) the party could not with reasonable diligence have discovered and produced the evidence at trial; and (5) the new facts are shown by the best admissible evidence. (People v. O'Malley (2016) 62 Cal.4th 944, 1016-1017 (O'Malley).) The" 'court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable.'" (People v. Delgado (1993) 5 Cal.4th 312, 329.)
A new trial motion based on newly discovered evidence is disfavored, and denial of such a motion will be affirmed unless the defendant has clearly shown "a manifest and unmistakable abuse of discretion." (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151.)" 'A court abuses its discretion if it acts "in an arbitrary, capricious, or patently absurd manner" '" or" 'when its ruling "falls outside the bounds of reason." '" (People v. Thomas (2023) 14 Cal.5th 327, 399.)
First, M.S.'s newfound availability to testify does not constitute "newly discovered evidence" within the meaning of section 1181. The defense team interviewed M.S. before trial and was aware of his interactions with Santos-Lora, as well as his reluctance to talk about the incidents, yet they failed to demonstrate any effort to ensure his appearance at trial. (People v. Hall (2010) 187 Cal.App.4th 282, 299 [no error to deny motion for new trial where the "new evidence" was "available . . . at the time of trial and [defendant] could have discovered and produced the evidence if he had exercised reasonable diligence"].) Moreover, as the court noted, when M.S. failed to appear under subpoena, Elshere sought a body attachment warrant but did not seek a continuance to secure M.S.'s presence. (See People v. Dunn (2012) 205 Cal.App.4th 1086, 1095-1096 [claim forfeited where defendant failed to seek continuance to locate witness]; People v. Glover (1969) 270 Cal.App.2d 255, 260 [new trial motion properly denied where defendant did not seek continuance to procure desired witness].)
Second, in the context of a new trial motion based on newly discovered evidence, we defer to the trial court's credibility findings. (O'Malley, supra, 62 Cal.4th at pp. 1016-1017.) After considering M.S.'s conflicting accounts of his interactions with Santos-Lora, the court determined M.S. would not have been a credible witness. Not only would M.S. be subject to cross-examination concerning his vastly different descriptions of Santos-Lora's involvement in the June 2021 attack, but, as the court observed, the testimony of M.S. could have been further impeached by testimony from the police officer who authored the June 2021 incident report.
In addition, defense counsel did not present the trial court with a declaration by M.S. under oath or other sworn testimony, leaving the court to rely on defense counsel's representation of M.S.'s anticipated testimony. (See O'Malley, supra, 62 Cal.4th at p. 1017 [defense counsel's description of witness's proposed testimony was not best admissible evidence].) In any event, even if M.S. had testified as proffered, evidence that Santos-Lora was a drug dealer known to carry firearms and engage in violent acts was not new to the jury. Santos-Lora admitted he sold drugs to Chango and then threatened him when he did not pay the remaining balance. Santos-Lora testified he had given Elshere drugs in the past. Responding officers discovered a significant amount of methamphetamine and a digital scale in Santos-Lora's car.
Santos-Lora admitted that he had two guns in his possession at the time of the attack because he thought people were following him. One gun was not working, so Santos-Lora purchased the second as a replacement. Santos-Lora attempted to use that gun when Elshere started attacking him with a knife, but Santos-Lora dropped the gun because the severed tendon in his right hand made it impossible for him to grasp the firearm.
In addition, the defense called as a character witness, the daughter of Santos-Lora's former girlfriend, who testified as to Santos-Lora's propensity for violence. The daughter witness testified that she had heard Santos-Lora verbally threaten her mother, pull her mother's hair, and threaten his son with a rod. Santos-Lara's former girlfriend also testified about the hairpulling incident as well as Santos-Lora's fears that someone was going to kill him.
Despite this admitted evidence, Elshere argues that M.S.'s testimony "could have" (1) undermined the credibility of Santos-Lora's assertions that he was not a drug dealer; (2) "tipped the balance" in favor of a finding of perfect self-defense; and (3) constituted "proof that Santos-Lora acted in conformity with his character for violence and pulled a gun on Elshere without provocation or warning." However, "Analyzed objectively, the proposed evidence can only be described as [potentially] impeaching; its effect on a new trial is speculative at best, not probable." (People v. Clauson (1969) 275 Cal.App.2d 699, 707.) This speculative effect is not persuasive in view of the admitted testimony that likely factored into the jury's decision to render a verdict of guilt as to the lesser offense of attempted voluntary manslaughter rather than the charged attempted murder. Even if M.S.'s proffered testimony could be considered "new" for purposes of section 1181, subdivision (8), Elshere has failed to demonstrate admission of this evidence would likely have led to a different result. Under these circumstances, the trial court acted well within the scope of its broad discretion in finding that the proffered new evidence lacked sufficient materiality to affect the outcome of this case on retrial. (See People v. Delgado, supra, 5 Cal.4th at p. 328.) Because there was no likelihood of a more favorable result if a new trial had been set to enable M.S. to testify-if he in fact appeared-Elshere was not denied a fair trial under both the state standard of People v. Watson (1956) 46 Cal.2d 818, 836, and the more stringent standard of Chapman v. California (1967) 386 U.S. 18, 24.
III. Remand for Resentencing is Required
Elshere argues the court abused its discretion when it failed to dismiss certain enhancements pursuant to section 1385, subdivision (c)(2). Respondent acknowledges the trial court erred in failing to impose and stay two enhancements found true by the jury but not imposed and stayed by the court but asks this court to order their imposition without remand. We agree with Elshere's argument as to the necessary findings and disagree with respondent's imposition proposal. As is discussed below, we remand for the limited purpose of resentencing on the enhancements found true as to each count.
A. Additional Background
The jury found Elshere guilty of attempted voluntary manslaughter (§§ 192, 664; count 1), aggravated mayhem (§ 205; count 2), and assault with a deadly weapon (§ 245, subd. (a)(1); count 3). The jury found Elshere personally used a deadly weapon (§ 12022, subd. (b)) in committing counts 1 and 2, and personally inflicted great bodily injury (§ 12022.7, subd. (a)) in committing counts 1 and 3.
At a bifurcated court trial concerning the special allegations, the trial court found true the prior strike (§§ 422, 667, subds. (b)-(i), 1170.12) and prior serious felony conviction allegation (§ 667, subd. (a)(1)), the allegations that Elshere committed the offenses while on parole (§ 1203.085) and on bail (§ 12022.1), and found true numerous aggravated sentencing factors (Cal. Rules of Court, rule 4.421(b)(1)-(5)).
Defense counsel filed a combined Romero motion and sentencing memorandum urging the court to strike Elshere's prior strike conviction and the sentencing enhancements.
Elshere does not challenge the denial of his Romero motion on appeal.
Defense counsel contended various factors placed Elshere outside the spirit of the "Three Strikes" law, including that his prior strike offense was remote and related to his substance abuse, mental illness, and psychological disorders. In requesting dismissal of the sentencing enhancements, defense counsel relied on the following mitigating factors: multiple enhancements were alleged; enhancements could result in a sentence of over 20 years; the current offense is connected to mental illness, prior victimization, or childhood trauma; the prior strike conviction was more than five years old; and Elshere did not use a firearm. (§1385, subd. (c)(2)(B)-(E), (H)-(I).)
In opposition, the prosecution argued striking the prior strike conviction "would not be in the 'furtherance of justice,'" and that dismissing the prior serious felony conviction enhancement, the on-bail enhancement, or the deadly weapon enhancement would endanger public safety. As the prosecution explained, Elshere was "in and out of prison essentially his entire adult life," and "[e]very single one of his felony convictions involve[d] violence to another person. He was on parole for his violent strike for attacking his mother, for threatening to kill his mother, [and] for threatening to kill the mother of his child," when he engaged in "domestic violence against" another victim. While out on bail for that incident, Elshere committed the instant offenses. The prosecutor stated, "the only way" the court could "ensure the safety of this community" was to impose a sentence that kept Elshere "behind bars for as long as possible."
In sentencing Elshere, the trial court began by explaining that it did not consider the prior strike conviction as an enhancement. After highlighting Elshere's criminal history, the court concluded that striking "the strike . . . would be an extreme abuse of discretion." The court acknowledged the prior strike was more than five years old, but Elshere had not "been out of custody for that period of time" and was on parole when the current offenses occurred. The court added there were "concerns about the safety of the community. And part of the reasons that we do have doubling of sentences is for the purpose of protecting the community." Finally, the court noted Elshere told both the defense and prosecution's mental health experts that, at the time of the assault against Santos-Lora, he was not "under any mental health influences or any voices telling [him] to do things; that [he] knew what [he was] doing." The court stated its concern-"what are we to do in this situation to keep the community safe?"
Next, the trial court summarily declined to strike the on-bail and deadly weapon enhancements. With respect to the prior serious felony conviction enhancement, the court indicated it had struggled because Elshere did not show any remorse for nearly stabbing his friend to death, and it was sheer fortuity that his friend did not die. The court added that it knew the victim believed Chango had hired Elshere to kill him; although, the jury verdict showed otherwise, the court indicated that it appeared Elshere had been so hired.
B. Applicable Law
Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) amended section 1385 by adding subdivision (c), which provides a 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." (§ 1385, subd. (c)(1); People v. Mendoza (2023) 88 Cal.App.5th 287, 295 (Mendoza); People v. Ortiz (2023) 87 Cal.App.5th 1087, 1093-1094 (Ortiz), review granted Apr. 12, 2023, S278894.) In exercising its discretion under subdivision (c)(1), a trial court "shall consider and afford great weight to evidence offered by the defendant" to prove one of nine enumerated mitigating circumstances. (§ 1385, subd. (c)(2); Mendoza, at pp. 295-296; Ortiz, at pp. 1093-1094.) As relevant here, these enumerated mitigating circumstances include when multiple enhancements are alleged in a single case, and when the offense is connected to mental illness, prior victimization, or childhood trauma. (§ 1385, subd. (c)(2).)
"Proof of the presence of one or more of these [mitigating] circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (§ 1385, subd. (c)(2); Mendoza, supra, 88 Cal.App.5th at p. 299; Ortiz, supra, 87 Cal.App.5th at pp. 1093-1094, review granted Apr. 12, 2023, S278894.) The term "endanger public safety" is statutorily defined as "a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others." (§ 1385, subd. (c)(2); Mendoza, at pp. 295-296; Ortiz, at pp. 1093-1094.) There is no requirement for the trial court to consider particular factors in determining whether dismissal would endanger public safety. (Mendoza, at p. 299.) Together, section 1385, subdivisions (c)(1) and (c)(2) establish the following: (1) the court has discretion to dismiss sentencing enhancements in the interests of justice; (2) certain mitigating circumstances weigh greatly in favor of dismissal; and (3) a finding of danger to public safety will overcome the mitigating circumstances. (See Mendoza, at pp. 295-297; People v. Lipscomb (2022) 87 Cal.App.5th 9, 18.)
A trial court's decision whether to dismiss an enhancement pursuant to section 1385, subdivision (c), is reviewed for an abuse of discretion. (Mendoza, supra, 88 Cal.App.5th at p. 298.) A court abuses its discretion if it acts so irrationally or arbitrarily that no reasonable person could agree with its refusal to dismiss the enhancement. (Id. at p. 299.)
C. Analysis
Elshere contends the court erred in declining to dismiss the prior serious felony enhancement because it relied on facts that were not supported by the record and were contrary to the verdicts. He further claims the court "failed to consider appropriate factors favoring striking each of the enhancements."
The Attorney General (respondent) contends that Elshere forfeited any challenge to the court's factual findings by not objecting and, in any event, the court's factual findings are supported by substantial evidence. Respondent argues the court was not required to separately consider the mitigating factors because it concluded dismissal of the enhancements posed a danger to public safety. The parties agree the court imposed an unauthorized sentence as to counts 1 and 3 by failing to impose or strike the enhancements found true by the jury, but respondent insists the error can be remedied on appeal; respondent further notes the abstract of judgment erroneously shows Elshere's time in prison as "0" years.
Elshere maintains the trial court erred in failing to strike the five-year prior serious felony enhancement because it relied on "speculation, facts not presented to the jury, and factual suppositions in opposition to the jury verdict" in concluding that Chango had hired him to kill Santos-Lora.
Contrary to respondent's contention, we conclude Elshere preserved this issue for review. Elshere sought dismissal of the five-year enhancement, arguing, among other things, that the jury had found no premeditation or deliberation. In declining to strike the five-year prior serious felony enhancement, the court implicitly rejected this interpretation of the evidence.
A trial court deciding a motion to strike a five-year prior serious felony enhancement must consider both the nature of the offense and the nature of the offender. (People v. Shaw (2020) 56 Cal.App.5th 582, 587.) "No error occurs if the trial court evaluates all the relevant circumstances to ensure that the punishment fits the offense and the offender." (Ibid.)
Here, the court explained it "struggle[d]" with the five-year enhancement. The court opined it was by sheer fortuity that the victim did not die. The court noted Elshere's absence of remorse after stabbing his friend 16 times. Unquestionably, these factors were relevant to the nature of the offense and offender. However, the court erred to the extent it declined to dismiss the enhancement based on its belief that Chango had hired Elshere to kill the victim. "I know [Santos-Lora] believes, according to the probation report, that you were hired by Daniel or Chango or whatever his name was to kill him. Whether that's true or not, it certainly seems that that was it. I understand that the jury found that it was attempted manslaughter, but a sheath to this knife was never located, the $40 that was allegedly paid was never located and you're going over there with your shorts and just this knife and it was not a little knife and he's stabbed 16 times. I don't know. And based upon that, I'm going to go ahead and add the five years." (Italics added.) Although respondent cites People v. Towne (2008) 44 Cal.4th 63, 8687 for the proposition that a sentencing judge may consider conduct underlying a charge for which a defendant was acquitted, Elshere was not prosecuted on an attempted murder for hire theory, nor did Santos-Lora testify that he thought Chango had hired Elshere to kill him.
The court's apparent consideration of theories inconsistent with the evidence presented and the jury verdicts in order to impose the five-year enhancement was an abuse of discretion. (See People v. Knoller (2007) 41 Cal.4th 139, 156; see also People v. Nakano (2023) 89 Cal.App.5th 623, 635.)
In addition, it is unclear whether the court considered section 1385, subdivision (c) when it declined to dismiss the five-year prior serious felony conviction, out-on-bail, and deadly weapon enhancements. Elshere claims the trial court failed to adequately address the mitigating circumstances as to each of the enhancements.
Elshere concedes the court noted the mental illness factor but did so only in the limited context of determining whether to strike his prior strike conviction. Elshere contends the court failed to make the necessary findings regarding the section 1385, subdivision (c)(2) factors in addressing the five-year prior serious felony, out-on-bail, and deadly weapon enhancements.
After reviewing the record, we agree the court failed to demonstrate its exercise of discretion under section 1385, subdivision (c)(2). Although the court made clear its opinion that the prior strike conviction was not an enhancement-an issue not challenged on appeal (see People v. Olay (2023) 98 Cal.App.5th 60, 67 [§ 1385, subd. (c) does not apply to Three Strikes law])- the court proceeded with the sentencing hearing without mentioning section 1385 as it applied to the enhancements.
In the face of a silent record, it is presumed the court correctly followed the applicable law. (People v. Carmony (2004) 33 Cal.4th 367, 378.) And remand is not required if the record clearly indicates the trial court would have made the same decision under section 1385, subdivision (c). (People v. Flores (2020) 9 Cal.5th 371, 432; People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) However, here the record is neither silent nor clear; it affirmatively shows the court considered inappropriate factors in declining to strike the five-year prior serious felony enhancement and then summarily refused to strike the on-bail and deadly weapon enhancements. We therefore conclude remand is required for the court to demonstrate its exercise of discretion. (People v. Nakano, supra, 89 Cal.App.5th at p. 635.)
By this holding, we do not suggest a sentencing court is required to use exact phrases in order to make valid section 1385, subdivision (c) determinations. Moreover, the mere fact that mitigating factors may apply to Elshere's case does not mandate per se dismissal of the enhancements. Nothing in this opinion should be read as constraining the court's discretion in determining whether to impose, strike, or stay the enhancements. Rather, we remand for limited purpose of requiring the court to demonstrate an exercise of discretion as to each enhancement found true in the first instance.
In light of this holding, we need not address the additional claims of error regarding the court's failure to impose terms for or otherwise address the jury's findings that Elshere inflicted great bodily injury and personally used a deadly weapon in his commission of attempted voluntary manslaughter (count 1) and inflicted great bodily injury in his commission of assault with a deadly weapon (count 3). Instead, we direct the court to correct the sentence on remand.
DISPOSITION
The matter is remanded for resentencing. On remand, the court is directed to consider section 1385, subdivision (c) in determining whether to impose, stay, or strike the enhancements associated with the following:
As to count 1 (§§ 192, 664), the deadly weapon (§ 12022, subd. (b)) and great bodily injury (§ 12022.7, subd. (a)) enhancements; as to count 2 (§ 205), the five-year prior serious felony (§ 667, subd. (a)(1)), deadly weapon (§ 12022, subd. (b)), and on bail (§ 12022.1) enhancements; and as to count 3 (§ 245, subd. (a)(1)), the great bodily injury (§ 12022.7, subd. (a)) enhancement.
The judgment is otherwise affirmed. Upon resentencing, the trial court is directed to prepare an amended abstract of judgment and forward it to the California Department of Corrections and Rehabilitation.
We concur: RICHMAN, ACTINGP.J., MILLER, J.