Opinion
F085639
08-01-2024
THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO LOPEZ, Defendant and Appellant.
Andrea Keith, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue, and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF191094A. Michael G. Bush, Judge.
Andrea Keith, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue, and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Gustavo Lopez contends on appeal that his sentence must be reversed and the matter remanded for resentencing because the trial court abused its discretion when it denied his motion to dismiss his prior strike and/or prior serious felony enhancement. The People disagree. We affirm.
PROCEDURAL SUMMARY
Underlying Offenses
On November 28, 2022, the Kern County District Attorney filed an amended information, charging defendant with attempted murder (Pen. Code, §§ 664/187, subd. (a); count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2); willfully harming children in his care (§ 273a, subd. (a); count 3); felony vandalism (§ 594, subd. (b)(1); count 4); entering an inhabited house with intent to commit larceny (§§ 460, subd. (a), 462, subd. (a); count 5); misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a); count 6); and misdemeanor driving without a valid driver's license (Veh. Code, § 12500, subd. (a); count 7). It was further alleged as to counts 1 and 2 that defendant used his vehicle as a deadly weapon (§ 12022, subd. (b)(1)). It was further alleged as to counts 1 through 5 that defendant had a prior serious felony conviction (§ 667, subd. (a)) and prior strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)). The information also alleged multiple factors in aggravation pursuant to California Rules of Court, rule 4.421(a)(1), (a)(2), (b)(1), (b)(2), and (b)(5).
All statutory references are to the Penal Code unless otherwise noted.
All rules references are to the California Rules of Court.
On December 7, 2022, the jury found defendant guilty of counts 2, 4, 6, and 7. The jury found defendant not guilty on counts 1 and 5. On count 3, the jury found defendant guilty of the lesser-included misdemeanor offense of endangering a child (§ 237a, subd. (b)). On count 2, the jury found true the enhancement that defendant used a deadly weapon (§ 12022, subd. (b)(1)).
In a separate court trial, the trial court found true the prior serious felony enhancement (§ 667, subd. (a)), the prior strike (§ 667, subds. (c)-(j)) and the aggravating factors pursuant to rule 4.421(a)(2), (a)(9), (b)(1), and (b)(2). The court denied defendant's motion to strike his prior serious felony enhancement and the strike prior.
Rule 4.421 states: "(a) [¶] ... [¶] (2) The defendant was armed with or used a weapon at the time of the commission of the crime; [¶] . . . [¶] (9) The crime involved an attempted or actual taking or damage of great monetary value; [¶] . . . [¶] (b) [¶] (1) The defendant has engaged in violent conduct that indicates a serious danger to society; [¶] [and] (2) The defendant's prior convictions as an adult . . . are numerous or of increasing seriousness." (Rule 4.421(a)(2), (a)(9), (b)(1), & (b)(2).)
On January 24, 2023, the trial court sentenced defendant to a total term of 13 years four months, as follows: on count 2, six years (the midterm, doubled pursuant to the prior strike), plus one year for the section 12022, subdivision (b) enhancement, plus five years for the prior serious felony enhancement; on count 3, one year, consecutive; on count 4, one year four months (one-third the midterm, doubled pursuant to the prior strike), plus five years for the prior serious felony conviction, consecutive; on count 6, one year, concurrent; and on count 7, 180 days, concurrent.
On January 24, 2023, defendant filed a notice of appeal.
FACTUAL SUMMARY
On July 30, 2022, defendant and his girlfriend, A.C., drove in his truck to their friend, E.H.'s, house to drink alcohol with her. E.H.'s two daughters, 18-year-old M.H. and 15-year-old B.H., were asleep in the front bedroom.
Defendant drank heavily and became highly intoxicated. He wanted to drive himself home, but A.C. and E.H. told him he was too drunk to drive, so defendant called his son to come pick him up. However, when his son did not arrive quickly enough, defendant became angry, grabbed his keys, and walked out of the house, slamming the door.
Defendant then started his truck and drove it straight into E.H.'s house. He then backed it up and rammed it into the house again, driving the truck halfway into the living room. M.H. and B.H. woke up and went into the living room with A.C. and E.H. Defendant backed up and drove into the house a third time, "all the way into the kitchen," causing A.C., M.H., and B.H. to run further into the house and then to the backyard. Meanwhile, E.H. became pinned under a couch in the living room. Defendant drove his truck into the house up to six times, laughing as he did so. Defendant finally reversed his truck out of the living room and drove away.
At trial, witnesses testified defendant drove the truck into the house between three and six times.
The house was condemned by a building inspector, who determined the damage rendered it uninhabitable.
DISCUSSION
Defendant contends the trial court abused its discretion when it denied his motion to dismiss the prior strike and/or prior serious felony enhancement because it failed to apply amended section 1385, subdivision (c). He further argues the issue was not forfeited by defense counsel's failure to object below because the sentence was unauthorized. Alternatively, he contends that, if the issue was forfeited, defense counsel provided ineffective assistance by failing to object. The People disagree, and contend the issue is forfeited because defense counsel failed to raise the issue of section 1385, subdivision (c) or make a proper objection below. We agree with the People that the issue was forfeited, and do not find defense counsel provided ineffective assistance of counsel.
A. Background
Defendant's probation report recommended the sentence on count 2 be doubled due to his strike prior pursuant to section 667, subdivision (e), and that his sentence include five years for the prior serious felony conviction enhancement pursuant to section 667, subdivision (a).
At sentencing, defense counsel argued defendant was remorseful and requested the trial court consider granting a Romero motion to dismiss the prior strike and moved to dismiss the prior serious felony conviction allegation, asking the court to "consider granting a Romero as well as strik[e] the [section] 667[, subdivision] (a) [enhancement]." She stated defendant was not a regular alcohol drinker, and that his criminal record, aside from the 2017 prior strike offense, consisted mostly of Vehicle Code violations. Defense counsel argued he had no prior convictions involving violent conduct and that, although the probation officer's report indicated his performance on misdemeanor probation was unsatisfactory, he had no formal probation violations in many of his misdemeanor cases. She also argued he had significant breaks in time in his criminal history. She continued to note that once defendant was not inebriated, he was remorseful for the current offenses.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The prosecution opposed defense counsel's requests, arguing defendant had an extensive criminal history, including the prior strike conviction five years prior to the current offenses. It also argued the serious and violent nature of the facts of the underlying offense and that defendant's repeated disregard for driving with a valid license meant the trial court should deny defendant's motion and sentence him in accordance with the probation report.
The trial court declined to strike either the prior strike conviction or the prior serious felony enhancement, stating, "All right. I have considered the facts of the case. I heard the trial. I considered [defendant's] criminal history. I note that almost all of it is driving except for, of course, the last case in 2016 where it was a felony [section] 422 and in [19]96. It's 20 some odd years ago. A misdemeanor spousal abuse case. But everything else is driving. I'm not going to find that he-the issues involving his misdemeanor probation because it appears to the Court from the report that it's mainly-he violated because he has failed to pay fines. I don't think that's appropriate in this case to find that he was unsatisfactory in that probation-misdemeanor probation because he didn't pay fines.
"However, and he did complete felony probation. That's a factor in mitigation, of course. He was armed with a deadly weapon, a truck in this case, but because of the [section] 12022[, subdivision (b)(1) enhancement], I will not consider that for selecting the term. The crime did involve damage of great monetary value because these people lost their house. It was obviously a crime of-he engaged in violent conduct where he put the people in the house, the victims, at risk, and he had the [section] 422 [offense] several years ago. So that's also a factor in aggravation I would consider.
"Although his prior convictions are numerous, as I indicated already, the vast majority were driving. So the factors in aggravation I'm going to consider are the voluntary-the monetary value of the home being lost, and it was a violent act. I think given the overall circumstances, the mid-term is appropriate. So instead of eight years on that term, I'm going to give him six years, Count 2. Count 4, which is the [section] 594, I'm going to run that consecutive. Those were-those acts were predominantly independent of each other, and it's because of the numerous times he accelerated the vehicle. I mean, if it happened one time, I think that's a different factual situation, but because he accelerated three or four or five times, at least three times, I think, I think that justifies a separate and consecutive sentence.
"So with that, on Count 2, probation is denied. [Defendant] is sentenced to the Department of Corrections for the upper term-excuse me. The mid-term of six years. That sentence is enhanced by one year under the [section] 12022[, subdivision ](b)(1) [enhancement]. I'm not going to strike the Romero-the strike under Romero or the [section] 667[, subdivision ](a) [enhancement]. I don't see any justification for doing so.
"Therefore, in addition to the six years and the one year, that sentence will be enhanced by the five years on the [prior serious felony conviction pursuant to section] 667[, subdivision ](a)."
Defense counsel did not object or raise the issue of section 1385, subdivision (c).
B. Law
Section 1385, subdivision (a) authorizes a trial court to dismiss an action "in furtherance of justice." (§ 1385, subd. (a).) Section 1385, subdivision (b)(1) states: "If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a)."
Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) added subdivision (c) to section 1385. (Stats. 2021, ch. 721, § 1.) This subdivision states: "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 enhancement is prohibited by any initiative statute." (§ 1385, subd. (c)(1).) It further states that in exercising this discretion, "the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances" listed in the statute are present, and that "[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." (§ 1385, subd. (c)(2).) The mitigating circumstances listed in section 1385, subdivision (c)(3) include, in pertinent part, "(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed; [¶] . . . [¶] (F) The current offense is not a violent felony as defined in subdivision (c) of [s]ection 667.5; [¶] ... [¶] (H) The enhancement is based on a prior conviction that is over five years old." (§ 1385, subd. (c)(3).)
A trial court's decision not to strike a sentence enhancement under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371; People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) "The abuse of discretion standard is highly deferential." (Mendoza, 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.) "Absent evidence to the contrary, [appellate courts] presume that the trial court knew the law and followed it." (People v. Ramirez (2021) 10 Cal.5th 983, 1042; see People v. Stowell (2003) 31 Cal.4th 1107, 1114; People v. Martinez (2017) 10 Cal.App.5th 686, 728.) Moreover, appellate courts "presume that a judgment or order of the trial court is correct," and"' "[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." '" (People v. Giordano (2007) 42 Cal.4th 644, 666; see Martinez, at p. 728.) "Thus, where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order." (Stowell, at p. 1114; see In re Julian R. (2009) 47 Cal.4th 487, 499.)
C. Analysis
Here, defendant forfeited his claim that the trial court abused its discretion by denying his motion to strike his prior strike and/or his prior serious felony enhancement pursuant to section 667, subdivision (a), because defense counsel failed to object at sentencing or raise the issue of section 1385, subdivision (c) below. Further, defendant has not shown defense counsel provided ineffective assistance.
Forfeiture
Defendant contends the trial court erred when it denied his motion to dismiss the prior strike and prior serious felony enhancement because the court did not properly apply amended section 1385, subdivision (c), but concedes defense counsel did not object or raise the issue of section 1385, subdivision (c) below. However, defendant contends forfeiture does not apply despite defense counsel's failure to object because the sentence is unauthorized due to the court's failure to apply the mandatory provisions of amended section 1385, subdivision (c).
" 'A party in a criminal case may not, on appeal, raise "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" if the party did not object to the sentence at trial. [Citation.] The rule applies to "cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons ...." '" (People v Scott (2015) 61 Cal.4th 363, 406.)
Because the changes effected by Senate Bill 81 were in effect prior to sentencing, we emphasize the "[s]trong policy reasons support[ing] this rule: 'It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]' [Citation.] '"' "The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." '" '" (People v. Stowell, supra, 31 Cal.4th at p. 1114; accord, People v. Salazar (2016) 63 Cal.4th 214, 239-240; People v French (2008) 43 Cal.4th 36, 46.) However, our Supreme Court has rejected the argument that mandatory statutory sentencing rules cannot be forfeited. (People v. Scott (1994) 9 Cal.4th 331, 348 (Scott).)
As noted in Scott, the trial court has broad discretion to tailor a sentence to the particular case and these sentencing choices are governed by rules to guide the court. (Scott, supra, 9 Cal.4th at p. 349, citing §§ 1170, subd. (a)(2), 1170.3; Cal. Rules of Court, rules 401, 403.) "The statutes and sentencing rules [of court] generally require the court to state 'reasons' for its discretionary choices on the record at the time of sentencing." (Scott, at p. 349.) "The requirement encourages the careful exercise of discretion and decreases the risk of error. In the event ambiguities, errors, or omissions appear in the court's reasoning, the parties can seek an immediate clarification or change." (Id. at p. 351.) In Scott, the Supreme Court adopted the minority view that a defendant cannot complain for the first time on appeal about the court's failure to state reasons for a sentencing choice. (Id. at p. 353.) A defendant can forfeit claims that the trial court failed to properly make or articulate its discretionary sentencing choices such as that the stated reasons do not apply to the particular case, or that the court "erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Ibid.)
In so doing, the Supreme Court rejected the defendant's argument that his sentencing claim involved" 'unauthorized,'" " 'void,'" or" 'excessive'" sentences, and that can be raised at any time. (Scott, supra, 9 Cal.4th at p. 354.) The trial court rejected the defendant's argument that the court's misapplication of the "explicit sentencing rules [of court]" resulted in an" 'unauthorized sentence,'" and explained, "a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Ibid.) Such an error can be corrected "independent of any factual issues presented by the record at sentencing." (Ibid.)
Defendant's claim here is that the trial court failed to properly consider or cite to the factors in section 1385, subdivision (c), failed to accord weight to certain mitigating factors, and failed to make an explicit finding that striking or dismissing the enhancement would endanger public safety. Such claims do not result in an "unauthorized" sentence pursuant to Scott. Defendant's claim that the court failed to follow the requirements of section 1385, subdivision (c), is an argument that the court imposed punishment on his sentencing enhancements "in a procedurally or factually flawed manner." (Scott, supra, 9 Cal.4th at p. 354; see People v. Welch (1993) 5 Cal.4th 228, 236 [rejecting the defendant's claim that the reasonableness of probation conditions could not be forfeited because it was statutorily mandated].) Defendant does not dispute that, if dismissal of the enhancements would endanger public safety or was not otherwise in the interest of justice, the court was authorized to deny defendant's motion to dismiss and could impose the sentencing enhancements. (Scott, at p. 355 [the defendant's argument that the trial court abused its discretion in aggravating his sentence and imposing consecutive terms is an argument that the factors cited in support of the trial court's choices were inapplicable, duplicative, and improperly weighed].)
Defendant's claim that his sentence was "unauthorized" and, therefore, not subject to forfeiture, because the trial court failed to properly exercise its discretion in accordance with section 1385, subdivision (c), is also similar to the scenario addressed and rejected in People v. Scott, supra, 61 Cal.4th at page 406. Our Supreme Court held that even though the court was required to identify the criteria for imposing consecutive sentencing pursuant to section 667.6, subdivision (c) on the record in accordance with People v. Belmontes (1983) 34 Cal.3d 335, 348, the defendant forfeited his claim that the trial court failed to do so by failing to object. (Scott, at p. 406.)
This is not a situation in which the appellate claim raises a pure question of law and the sentence at issue could not have been imposed under any circumstance. (Scott, supra, 9 Cal.4th at p. 355; see People v. Achane (2023) 92 Cal.App.5th 1037, 1044.) Rather, defendant is challenging the trial court's exercise of its sentencing discretion based on the court's failure to dismiss enhancements in compliance with statutory requirements. (§ 1385, subd. (c)(2).) In Achane, the appellate court recently rejected the same unauthorized sentence claim in the context of section 1170 where the court failed to satisfy requirements for an upper term sentence. In such case, the remedy is remand for resentencing, at which time the court may again reimpose the upper term so long as the sentencing selection comports with the statute. (Achane, at p. 1044.)
In the instant case, defendant argues that the trial court could not have refused to dismiss his enhancement or strike without providing great weight to mitigating factors or an explicit finding that doing so would endanger public safety. Implicit in such argument is the acknowledgement that the court could make the same decision on remand as long as its finding of danger is articulated on the record. The error complained of here did not result in an unauthorized sentence as contemplated by the recognized exception to the forfeiture in the California Rules of Court.
As explained in more detail below, section 1385, subdivision (c) does not apply to prior strikes. (See People v. Burke (2023) 89 Cal.App.5th 237.) Accordingly, even if defendant had not forfeited the issue by failing to raise section 1385, subdivision (c) or objecting below, we would still find subdivision (c) does not apply to his prior strike.
If defendant had objected or raised the issue below, the trial court could have addressed the applicability of section 1385, subdivision (c) to defendant's situation then. For example, the court could have stated whether dismissing the prior strike was in furtherance of justice, and whether dismissal of the prior strike would endanger public safety. Defendant is therefore precluded from now raising the claim on appeal. (See People v. Scott, supra, 61 Cal.4th at p. 406.) Having failed to object or raise the issue in the trial court, defendant forfeited this claim.
Ineffective Assistance of Counsel
Alternatively, defendant asserts that we must address the merits of this issue even if we conclude it is forfeited because defense counsel was ineffective for failing to raise the issue below. Defendant argues there is no tactical reason that could excuse defense counsel's failure to "object to the court's lack of consideration of relevant mitigating circumstances" when imposing the sentence in his case. Defendant concedes his motion mentioned section 1385, subdivision (a), but argues it did not specifically mention subdivision (c) of section 1385, stating it "only mentioned [section] 1385 on the front part of the motion when stating that, 'Defendant respectfully offers the following in support of his request to the Court to dismiss his prior, alleged under [section] 667[, subdivision ](e) and [section] 667[, subdivision ](a), in the interest of justice, pursuant to section 1385.' "
Sentencing is a critical stage of the criminal proceedings at which the defendant is entitled to the effective assistance of counsel. (Gardner v. Florida (1977) 430 U.S. 349, 358.) Competent representation includes both the duty to be familiar with the law "fundamental to his case" (Hinton v. Alabama (2014) 571 U.S. 263, 274) and the duty to research those "additional rules of law which, although not commonly known, may readily be found by standard research techniques." (People v. McCary (1985) 166 Cal.App.3d 1, 8.) "To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288.)
There is a strong presumption counsel acted reasonably, so "[o]n direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Defendant contends defense counsel's apparent ignorance of and failure to invoke section 1385, subdivision (c) was both objectively unreasonable and prejudicial. He claims there could be no tactical reason to fail to request dismissal and, had counsel made the request, the trial court would have been compelled to dismiss the prior strike and/or prior serious felony enhancement.
We conclude, however, that defendant fails to establish his counsel's performance was constitutionally deficient. First, the record is silent as to defense counsel's reasons for not objecting to the trial court's denial of the motion to dismiss the prior strike and/or prior serious felony enhancement, and thus it does not affirmatively disclose an absence of tactical purpose, nor was she asked by the court for a reason and failed to explain. (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
Further, there could be a satisfactory explanation for defense counsel not raising the specific issue of section 1385, subdivision (c), especially in light of defendant's motion already arguing the prior strike and prior serious felony enhancement must be dismissed "pursuant to section 1385 ." Defense counsel may have concluded that the trial court was not required to dismiss the prior serious felony enhancement and the prior strike under the facts of this case.
First, as to the prior strike, defense counsel may have concluded the trial court was not required to dismiss it because the prior strike was not an enhancement, and section 1385, subdivision (c) only discusses "enhancements."
The court sentenced defendant in January 2023, before the opinion in People v. Burke, supra, 89 Cal.App.5th 237, was published in March 2023. However, Burke, holds that section 1385, subdivision (c), only applies to "enhancements," but the Three Strikes law is an alternative sentencing scheme, not an enhancement. (Burke, at p. 243-244.) Accordingly, pursuant to Burke, section 1385, subdivision (c) is inapplicable to prior strikes. (Ibid.)
Second, as to the prior serious felony enhancement, defense counsel may have likewise concluded the trial court was not required to dismiss it either, in light of People v. Walker (2022) 86 Cal.App.5th 386, review granted March 22, 2023, S278309. As the reviewing court held in Walker: "In our view, the text and purpose of section 1385 in general, and [Senate Bill 81] in particular, as well as the canons of statutory construction, counsel in favor of concluding that the phrase 'all enhancements beyond a single enhancement shall be dismissed' in subdivision (c)(2)(B) does not obligate trial courts to automatically dismiss all but one enhancement whenever a jury finds multiple enhancements to be true." (Walker, at p. 396.) The court in Walker continued: "So what does the phrase 'all enhancements beyond a single enhancement' mean when considered in its statutory context? It means what it says-namely, that if a trial court determines that the mitigating circumstance of '[m]ultiple enhancements ... in a single case' exists and that dismissal of the enhancements will not 'endanger public safety,' then the court's discretion to dismiss is somewhat constrained by the phrase's mandate that the court must dismiss all but one of those multiple enhancements.... [¶] .. Nothing in [Senate Bill 81] indicates an intent to deprive trial courts of their discretion altogether-either generally or more specifically in the subset of cases where multiple enhancements are alleged." (Walker, at pp. 397-398; see also People v. Cota (2023) 97 Cal.App.5th 318, 335 ["We agree with those courts that have held section 1385, subdivision (c)(2)(B) does not mandate dismissal of all enhancements beyond a single enhancement."]; People v. Anderson (2023) 88 Cal.App.5th 233, 240, rev. granted Apr. 19, 2023, S278786 [under section 1385, subdivisions (c)(2)(B) and (c)(2)(C), "[t]he dismissal shall occur but only if, in exercising its discretion and giving great weight to certain factors, the court finds dismissal is in the interests of justice or would not endanger public safety"].)
Here, the trial court noted four factors in aggravation in sentencing defendant. The court found one factor in mitigation, the satisfactory completion of felony probation. Defense counsel did not dispute the court's conclusions regarding aggravating and mitigating factors. Defense counsel might have believed that raising the section 1385, subdivision (c) issue would not result in dismissal of any sentencing allegations in the court's exercise of discretion, because it was already mentioned in the motion. Thus, the record does not "affirmatively disclose[] counsel had no rational tactical purpose for the challenged act or omission .." (People v. Mai, supra, 57 Cal.4th at p. 1009.) Accordingly, defendant has not established that he received ineffective assistance of counsel by defense counsel's failure to raise the issue of the applicability of section 1385, subdivision (c) at sentencing.
Defendant therefore has not carried his burden of establishing that defense counsel's representation was objectively unreasonable, at least for purposes of direct appeal.
Defendant next argues he was prejudiced by the failure of defense counsel to object or raise the issue of section 1385, subdivision (c) because it is reasonably probable that had defense counsel objected, the trial court would have been aware of its discretion and sentenced defendant in accordance with section 1385, subdivision (c) by dismissing the prior strike and/or prior serious felony enhancement. We note that the court considered defendant's motion, which argued the prior strike and prior serious felony enhancement must be dismissed "pursuant to section 1385 ." He argues, however, that because the motion and defense counsel failed to specifically mention subdivision (c) of section 1385, the court was unaware of its discretion. "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court." (People v. Belmontes, supra, 34 Cal.3d at p. 348, fn. 8.) A court "unaware of the scope of its discretionary powers," however, cannot exercise informed discretion. (Ibid.) "Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal." (People v. Penoli (1996) 46 Cal.App.4th 298, 306.) However, we presume the trial court was aware of and followed the applicable law, where the record does not show otherwise. (See People v. Lee (2017) 16 Cal.App.5th 861, 867 ["if the record is silent" on the court's awareness of its discretionary authority in sentencing, we must presume the court understood the scope of its discretion and affirm]; In re Julian R., supra, 47 Cal.4th at pp. 498-499 ["' "[A] trial court is presumed to have been aware of and followed the applicable law."' "].) "[I]n light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion." (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.) Accordingly, although defendant argues the motion and defense counsel did not make the court aware of the requirements of section 1385, subdivision (c) because neither specifically mentioned subdivision (c), added more than a year prior to the sentencing hearing, we disagree and conclude the record shows the court was aware of the requirements of section 1385, subdivision (c).
Next, accepting for purposes of this opinion that amended section 1385 affirmatively requires a trial court to at least consider the possibility of dismissing sentencing enhancements, the record does not give rise to any inference the court misapprehended this duty. Section 1385 does not require the court to make an affirmative presentencing determination as to the existence of mitigating circumstances. (§§ 1170.9, subds. (a)-(b); 1170.91, subd. (a).) Rather, section 1385, subdivision (c)(2), requires only that the court "consider and afford great weight to evidence offered by the defendant." (§ 1385, subd. (c)(2), italics added.) Section 1385, subdivision (c) also does not require the court to state its reasons for not dismissing an enhancement. (See People v. Orin (1975) 13 Cal.3d 937, 944.) While "a statement of a reason" is required when "[g]ranting relief under section 1385," the same is not true when denying relief. (Rule 4.406(b)(7), italics added; § 1385, subd. (a).) Here, the record shows the court considered defendant's motion to dismiss the prior strike and prior serious felony enhancement. Accordingly, although the court did not specifically mention subdivision (c) of section 1385, or its mitigating factors, the interests of justice, or endangerment of public safety, it was not obligated to do so.
Accordingly, based on this record, we cannot conclude the trial court misapprehended, and thus failed to exercise, its sentencing discretion and obligations under section 1385. (See People v. Coleman (2024) 98 Cal.App.5th 709, 724.) Rather, it is likely the court concluded, without stating its reasoning on the record, as it was entitled to do, that dismissal of the prior strike and prior serious felony enhancement was not in the furtherance of justice. (§ 1385, subd. (c)(1); rule 4.406(b)(7).)
However, even if we assume the trial court was unaware of its sentencing discretion under section 1385, subdivision (c), defendant has not carried his burden of showing it is reasonably probable he would have received a lower sentence had his counsel expressly requested relief under section 1385, subdivision (c). The court was not, as defendant argues, compelled to dismiss the prior strike or prior serious felony enhancement despite the mitigating factors listed in subdivision (c) of section 1385. Rather, section 1385, subdivision (c) requires the court to dismiss an enhancement only "if it is in the furtherance of justice to do so." (§ 1385, subd. (c)(1).) Further, proof of a relevant mitigating circumstance "weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety," defined as "a likelihood" that dismissal "would result in physical injury or other serious danger to others." (§ 1385, subd. (c)(2), italics added; see also People v. Anderson, supra, 88 Cal.App.5th at pp. 238-241, rev. granted.)
Here, the underlying offenses were violent and threatening. (§ 1385, subd. (c)(2)(F).) The trial court, having presided over the trial, knew this. In addition, the probation report evidenced defendant's extensive criminal history. On this record, the court likely would have found dismissing the prior strike and prior serious felony enhancement would "endanger public safety" and thus would not "further[] ... justice." (§ 1385, subd. (c)(1)-(2).) Accordingly, defendant has not established counsel's "representation fell below an objective standard of reasonableness" or that "but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)
DISPOSITION
The judgment is affirmed.
[*] Before Franson, Acting P. J., Smith, J. and DeSantos, J.