Opinion
F084718
03-19-2024
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO YEPEZ, Defendant and Appellant.
Nancy Wechsler, 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, Michael A. Canzoneri and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR072038. Ernest J. LiCalsi, Judge.
Nancy Wechsler, 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, Michael A. Canzoneri and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Alejandro Yepez, appellant, was found guilty of assault with a deadly weapon and brandishing a deadly weapon. It was found true appellant suffered a prior strike conviction and a prior serious felony conviction. Appellant was sentenced to 13 years in state prison.
On appeal, appellant argues the trial court's instruction on a former version of CALCRIM No. 315 was prejudicial error. He further argues the court abused its discretion when it refused to dismiss appellant's prior strike and prior serious felony enhancements. We affirm the judgment.
PROCEDURAL HISTORY
On April 27, 2022, the Madera County District Attorney's Office filed an amended information charging appellant with one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), and one count of misdemeanor brandishing a deadly weapon (§ 417, subd. (a)(1); count 2.) As to count 1, it was further alleged that appellant suffered a prior serious or violent felony conviction (§ 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)(1)).
Further undesignated references to code are to the Penal Code.
The information also alleged six aggravating circumstances-that the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness (Cal. Rules of Court, rule 4.421(a)(1)), that appellant was armed with or used a weapon at the time of the commission of the crime (rule 4.421(a)(2)), that the victim was particularly vulnerable (rule 4.421(a)(3)), that the violent conduct indicates a serious danger to society (rule 4.421(b)(1)), that appellant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness (rule 4.421(b)(2)), and that appellant served a prior term in prison or county jail under section 1170, subdivision (h) (rule 4.421(b)(3)).
Further references to rules are to the California Rules of Court.
On May 26, 2022, a jury convicted appellant on both counts, and in a bifurcated proceeding, found true both prior conviction allegations and all aggravating circumstances. On July 22, 2022, appellant was sentenced to 13 years in state prison- the upper term of four years on count 1, doubled due to his prior strike conviction, plus a consecutive five years for his prior serious felony conviction. The trial court additionally imposed 364 days on count 2, deemed time served.
The facts are abridged to those relevant to the legal issue presented.
On October 2, 2021, K.S., the victim, was walking to her shopping cart in a restaurant parking lot when someone hit her over the head with a metal pipe. She was dazed for a moment and when she looked around, she did not see anyone. Then, as she started pushing her cart, appellant began beating her with a metal pipe first on her back, then as she turned around, on her side and ribs, then her forearms. Appellant said," 'If you just would have went down, b[****], it would have been all over'" as he hit the victim. The victim fought back and began to scream until appellant ran off. The victim then asked someone to call the police, who were unable to locate appellant.
Later that evening, the victim was with a friend and saw appellant across the street. When appellant saw the victim, he picked up a large metal pipe and crossed the street toward her. Appellant got face-to-face with the victim and told her," 'You should have just went down the first time and I wouldn't be back over here.'" He raised the pipe in a threatening manner. Meanwhile, appellant's friend had called the police. When the police arrived, appellant ran.
About 20 to 25 minutes later, officers detained appellant nearby. In an in-field show up, the victim identified appellant as the person who threatened her that evening and attacked her that morning. The victim's friend identified appellant as the man who threatened appellant that evening.
DISCUSSION
I. Instructing the Jury on a Former Version of CALCRIM No. 315 Did Not Violate Appellant's Due Process Rights
Appellant argues instructing the jury on a former version of CALCRIM No. 315 violated his state and federal due process rights. Appellant asserts that the Supreme Court in People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke) found the version of CALCRIM No. 315 given to the jury in this case to be misleading, and a modified version with substantially more information was available three months before trial but was not given. We find that the former version of CALCRIM No. 315 was not deficient such that it violated appellant's due process rights, and error, if any, was harmless.
A. Background
Jury Instruction
In relevant part, the trial court instructed the jury with the following version of CALCRIM No. 315.
"You've heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. In evaluating identification testimony, consider the following questions.... How certain was the witness when he or she made the identification? ...
"The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty." Amendment to CALCRIM No. 315
In Lemcke, the Supreme Court directed the Judicial Council of California and its Advisory Committee on Criminal Jury Instructions to evaluate how CALCRIM No. 315's reference to witness certainty could be modified to avoid jurors confusing the correlation between certainty and accuracy. (Lemcke, supra, 11 Cal.5th at p. 647.)
In March 2022, the Judicial Council of California modified the CALCRIM No. 315 instruction, placing the "certainty" portion of the instruction in brackets and providing the following optional language:
The "certainty" portion directs the jury to consider "How certain was the witness when he or she made an identification?" (CALCRIM No. 315.)
"A witness's expression of certainty about an identification, whether the identification was made before or at the trial, may not be a reliable indicator of accuracy. Among the factors you may consider when evaluating the significance of a witness's certainty in the identification are the following .." (CALCRIM No. 315.)
The bench notes also provided guidance that when a witness expressed certainty about an identification, to give the "certainty" portion of the instruction as well as the optional language regarding the difference between certainty and accuracy.
B. Legal Standard
"Generally, a party forfeits any challenge to a jury instruction that was correct in law and responsive to the evidence if the party fails to object in the trial court. [Citations.] The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law [citation], or if the instructional error affected the defendant's substantial rights." (People v. Franco (2009) 180 Cal.App.4th 713, 719 (Franco).)
"We review de novo whether a jury instruction correctly states the law. [Citations.] Our task is to determine whether the trial court' "fully and fairly instructed on the applicable law." [Citation.]'" (Franco, supra, 180 Cal.App.4th at p. 720.) "We look to the instructions as a whole and the entire record of trial, including the arguments of counsel. [Citations.] We assume that the jurors are '" 'intelligent persons and capable of understanding and correlating all jury instructions ... given.'"' [Citation.] If reasonably possible, we will interpret the instructions to support the judgment rather than to defeat it. [Citation.] Instructional error affects a defendant's substantial rights if the error was prejudicial under the applicable standard for determining harmless error." (Ibid.)
"The 'generally applicable California test for harmless error' is set forth in [People v. Watson (1956) 46 Cal.2d 818]. Under the Watson test, we deem an error harmless unless it is 'reasonably probable' the outcome would have been different in the absence of the error. [Citation.] As a general matter, this test applies to '" 'incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error.'" '" (People v. Hendrix (2022) 13 Cal.5th 933, 942.)
C. Analysis
Forfeiture
Primarily, we find appellant's failure to object to the CALCRIM No. 315 instruction forfeited the issue in this court. (People v. Sanchez (2016) 63 Cal.4th 411, 461.) "If [the] defendant had wanted the court to modify the instruction, he should have requested it. The trial court has no sua sponte duty to do so." (Ibid.) As discussed in Lemcke, the version of CALCRIM No. 315 given in this case was not an incorrect statement of law and did not affect appellant's substantial rights. (Lemcke, supra, 11 Cal.5th at p. 661.) Therefore, the exceptions to forfeiture do not apply. (Franco, supra, 180 Cal.App.4th at p. 719.)
The Supreme Court in Lemcke made clear-the version of CALCRIM No. 315 instructed to the jury in this case is not, in and of itself, deficient or violative of a defendant's due process rights. (Lemcke, supra, 11 Cal.5th at p. 661.) The court found that nothing in CALCRIM No. 315's instruction on witness certainty operated to lower the prosecution's burden of proof, and the instruction did not direct the jury that" 'certainty equals accuracy.'" (Id. at p. 657.) Neither did the instruction state that the jury must presume an identification is accurate if the eyewitness has expressed certainty. (Ibid.)
"Instead, the instruction merely lists the witness's level of certainty at the time of identification as one of 15 different factors that the jury should consider when evaluating the credibility and accuracy of eyewitness testimony. The instruction leaves the jury to decide whether the witness expressed a credible claim of certainty and what weight, if any, should be placed on that certainty in relation to the numerous other factors listed in CALCRIM No. 315." (Lemcke, supra, 11 Cal.5th at p. 657.)
Appellant argues jurisdictions across the country are rejecting witness certainty as an appropriate factor for a jury to consider, and scientific evidence around eyewitness identification shows certainty is not a good indicator of accuracy. Lemcke addressed these arguments. Recognizing that several state courts have rejected the certainty instruction set forth in CALCRIM No. 315, the Lemcke court noted those courts acted pursuant to their supervisory powers, "concluding the instruction should be avoided or supplemented to avoid the possibility that jurors might wrongly assume there is generally a strong correlation between certainty and accuracy." (Lemcke, supra, 11 Cal.5th at p. 661.) The court went on to say, however, that "[w]hile an enhanced or modified version of the certainty instruction might well be advisable ..., that alone does not establish a due process violation." (Ibid.)
Appellant argues the only reason the Lemcke court found no constitutional violation was because there was expert testimony from the defense addressing the issue of certainty and accuracy. In People v. Wright (2021) 12 Cal.5th 419 (Wright), the Supreme Court again addressed the certainty instruction as it appeared in CALJIC No. 2.92. Although the defense in Wright did not present an eyewitness identification expert as the defense had in Lemcke, the Supreme Court found no due process violation. (Wright, at p. 453.) The Supreme Court noted the defense strategy in Wright was to discredit the witnesses by implying they were testifying falsely, rather than challenge the certainty of their identification. (Ibid.) Likewise, the instructions as a whole properly instructed the jury how to evaluate the evidence presented. (Ibid.)
CALJIC No. 2.92 is similarly worded to CALCRIM No. 315, such that there is no material distinction between the two instructions. (Wright, supra, 12 Cal.5th at p. 453.)
Finally, appellant argues in this case, looking at the instructions and the record as a whole, the CALCRIM No. 315 instruction violated his constitutional rights. To determine whether the instruction affected appellant's substantial rights, we look to whether the instruction was prejudicial pursuant to the applicable standard for determining harmless error. (Franco, supra, 180 Cal.App.4th at p. 720.) As discussed below, the applicable standard is described in Watson-whether it is reasonably probable the outcome would have been different but for the instruction. (People v. Hendrix, supra, 13 Cal.5th at p. 942.)
First, much like in Wright, witness certainty does not appear to have been a central issue in this case. (Wright, supra, 12 Cal.5th at p. 453.) Appellant concedes the defense strategy was to focus on inconsistencies in the witnesses' testimony, thus challenging their credibility rather than the certainty of their identification. And as noted by the Attorney General, the prosecution's strategy was to rebut these arguments by focusing on factors that supported the witnesses' credibility, like the closeness of appellant during the attack and subsequent confrontation or the fact that the area was well lit by a nearby restaurant's lights when appellant first attacked the victim. The prosecution's only reference to the witnesses' certainty in closing argument was when the prosecution stated, "Police drove both of them over to where ... [appellant] was found. Officer Kincaid gave them the in-field admonishment. You heard the in-field admonishment. [They] had no obligation to identify anybody, if they weren't certain, but they did." In context, witness certainty was not central to the prosecution's argument.
Both arguments fall within other factors listed in CALCRIM No. 315, notably, "How well could the witness see the perpetrator?" and "What were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, [or] duration of observation?" (CALCRIM No. 315.)
Second, we" 'credit jurors with intelligence and common sense' [citation] and presume they generally understand and follow instructions." (People v. McKinnon (2011) 52 Cal.4th 610, 670.) The jury was instructed on CALCRIM No. 105, to "consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony" when evaluating a witness's believability. The jury was also instructed that appellant was presumed innocent, the prosecution had the burden to prove appellant guilty beyond a reasonable doubt, and the prosecution had the burden of proving beyond a reasonable doubt that it was appellant who committed the crime. As a whole, the instructions in this case "properly instructed the jury how to evaluate the evidence presented." (Wright, supra, 12 Cal.5th at p. 453.)
Appellant argues this was a close case because the jury deliberated for one and one-half hours (compared to a two-hour evidence phase), asked for a readback of testimony, and asked for a copy of the police reports. Appellant concludes there was a reasonable likelihood the certainty instruction made a difference in the outcome.
In People v. Walker (1995) 31 Cal.App.4th 432 (Walker), the appellate court found that six and one-half hours of jury deliberation with a request for readbacks of testimony, following a two and one-half hour evidence phase did not indicate the case was closely balanced as to reasonable doubt. "To [infer a close case] in the absence of more concrete evidence would amount to sheer speculation on our part. Instead, we find that the length of the deliberations could as easily be reconciled with the jury's conscientious performance of its civic duty, rather than its difficulty in reaching a decision." (Id. at pp. 438, 439.) Comparatively, in In re Martin (1987) 44 Cal.3d 1, the Supreme Court found jury deliberations of almost 22 hours over five days compels the conclusion the case was very close. (Id. at p. 51.)
The one and one-half hour jury deliberation in this case is a sprint in comparison to Walker. And much like in Walker, absent more concrete evidence, the request for readbacks of testimony or the request for a copy of the police reports is not indicative of the case being close, or of the jury relying at all on the witness certainty factor in reaching its verdict. Any other conclusion would be sheer speculation.
Because CALCRIM No. 315 as instructed was not an incorrect statement of the law, did not implicate appellant's due process rights or affect his substantial rights, appellant's failure to object to the instruction has forfeited the issue in this court.
Harmless Error
Appellant argues, should we reach the merits of this issue, the CALCRIM No. 315 instruction was prejudicial pursuant to both Chapman v. California (1967) 386 U.S. 18 and Watson.
Violations of the federal Constitution are reviewed pursuant to the" 'stricter'" standard of review in Chapman, requiring reversal unless the error is" 'harmless beyond a reasonable doubt.'" (People v. Schuller (2023) 15 Cal.5th 237, 251.) Chapman review applies to instructional errors that misdescribe an element of the charged offense or are otherwise" 'incomplete and misleading' [citation] with respect to the findings necessary to prove an element of the offense." (Schuller, at p. 251.) "The key inquiry is whether the instruction operated to 'preclude[] the jury from making a finding' [citation] on any fact necessary to establish an element of the offense." (Ibid.)
The Supreme Court in Lemcke and Wright has ruled that the version of CALCRIM No. 315 instructed in this case does not violate a defendant's due process rights. (Lemcke, supra, 11 Cal.5th at p. 661; Wright, supra, 12 Cal.5th at p. 453.) Therefore, error, if any, does not amount to a violation of the federal Constitution, and Chapman is not applicable.
Likewise, in finding that the instruction did not implicate appellant's substantial rights, as discussed above, we necessarily find any error with the instruction harmless pursuant to Watson.
Ineffective Assistance of Counsel
Appellant argues counsel was ineffective for failing to object to the CALCRIM No. 315 instruction and ask for the removal of the certainty factor.
To prevail on an ineffective assistance of counsel claim, appellant "must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] ... To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation .... [Citation.] Finally, prejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (People v. Bolin (1998) 18 Cal.4th 297, 333.)
Having found any error with the CALCRIM No. 315 instruction in this case harmless, appellant's secondary claim of ineffective assistance of counsel also fails. Even if counsel's performance was deficient, there is not a reasonable probability the proceedings would have been different had defense counsel objected to or requested the removal of the certainty factor of the CALCRIM No. 315 instruction.
II. The Trial Court Declining To Dismiss Appellant's Enhancement Pursuant to Section 1385 Was Not An Abuse of Discretion
Appellant argues the trial court abused its discretion when it declined to strike appellant's strike pursuant to the "Three Strikes" law, and his enhancement under section 667, subdivision (a), pursuant section 1385, subdivision (c). We disagree.
A. Background
Appellant was convicted, in relevant part, of assault with a deadly weapon in violation of section 245, subdivision (a)(1), and it was found true appellant suffered a prior serious or violent felony conviction pursuant to section 667, subdivisions (b) through (i), a strike, and a prior serious felony conviction pursuant to section 667, subdivision (a), a five-year sentence enhancement.
Prior to sentencing, appellant filed a memorandum requesting the trial court dismiss the strike and the five-year sentencing enhancement pursuant to section 1385, subdivision (c)(3). Specifically, appellant argued mitigating circumstances which required dismissal included that he was convicted of multiple enhancements, requiring dismissal of all but one, pursuant to section 1385, subdivision (c)(3)(B), and the enhancement and strike both stemmed from a prior conviction over five years old, pursuant to section 1385, subdivision (c)(3)(H).
The trial court declined to strike the strike and the enhancement, ruling as follows.
"I do find that the striking of the enhancement under .. [section] 667[, subdivision] (a)(1) would be against the public safety.
"[Appellant] has had a long history of crime, including possession of weapons, felony evading of a peace officer, robbery, battery, assault, violations of parole, assault of an airport officer, a number of violent episodes. And I do find that the striking of that special allegation would be-would go against public safety, and, therefore, probation is denied pursuant to .. [s]ection 667[, subdivision] (c)(2).
"Count 1, a felony violation of [s]ection 245[, subdivision] (a)(1) .., Court imposes eight years' state prison, which is the aggravated term pursuant to . [s]ection 667[, subdivision] (e)(1) .. And I find that the aggravating factors found true by the jury were that the crime involved great violence, great bodily harm, or threat to great bodily harm and other acts disclosing a high degree of cruelty, viciousness, and callousness. They couldn't have gotten that more right. It was a wonder the victim wasn't injured more severely.
"He was armed with a weapon at the time. I'm not finding that because I believe that is an element of the [section] 245[, subdivision] (a)(1), but the victim was particularly vulnerable; she was all by herself pushing a cart in the early morning hours. The defendant has engaged in violent conduct that definitely indicates a serious danger to society. His prior convictions as an adult and sustained petitions in juvenile proceedings are numerous, and the defendant has served prior prison terms. The Court finds no mitigating factors.
"As to the five years' state prison enhancement pursuant to [s]ection 667[, subdivision] (a)(1), I just wanted to add I'm not going to strike it, finding that he's a danger to public safety. And I'm really relying on the callousness of this crime. It's just-there was no need for this to happen. And [appellant] just decided that this woman was on his territory, which is a public parking lot, and so I'm not going to strike it. The aggregate term is 13 years' state prison."
B. Legal Standard
We review both a trial court's decision not to strike a sentence enhancement under section 1385, subdivision (a), and a determination of whether dismissal would endanger public safety under section 1385, subdivision (c)(2) for abuse of discretion. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) "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.'" (Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490.)
Section 1385, subdivision (a) grants the trial court discretion to dismiss "an action" in the furtherance of justice. Section 1385, subdivision (c)(1) directs the trial court to dismiss enhancements if it is in the furtherance of justice to do so. Section 1385, subdivision (c)(2) requires a trial court to "consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraph (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 safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others."
Finally, the mitigating circumstances, in relevant part, include section 1385, subdivision (c)(2)(F)-the current offense is not a violent felony as defined in subdivision (c) of section 667.5-and section 1385, subdivision (c)(2)(H)-where the enhancement is based on a prior conviction that is over five years old.
C. Analysis
Three Strikes Law
Appellant urges this court to find a strike prior's effect on sentencing pursuant to the Three Strikes law qualifies as an enhancement for purposes of section 1385. Should we do so, appellant argues that all but one enhancement must be dismissed pursuant to section 1385, subdivision (c)(2)(B).
"Our fundamental task in interpreting a statute is to ascertain the Legislature's intent so as to effectuate its purpose. [Citation.] We begin with the text of the statute and give the words their usual meaning while construing them in light of the statutory framework as a whole. [Citation.] If the statutory language is unambiguous, then its plain meaning controls. [Citation.] If the language '" 'permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.' [Citation.] The wider historical circumstances of a law's enactment may assist in ascertaining legislative intent, supplying context for otherwise ambiguous language." '" (People v. Carter (2023) 97 Cal.App.5th 960, 967.)
It is well established that the Three Strikes law is an alternative sentencing scheme for the current offense, rather than an enhancement. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527.) Section 1385, subdivision (c) expressly applies to the dismissal of an" 'enhancement.'" (People v. Burke (2023) 89 Cal.App.5th 237, 243.) We agree with the court in Burke, and conclude that the plain language of section 1385, subdivision (c) is unambiguous, and applies only to enhancements. Because the
Three Strikes law is not an enhancement, section 1385, subdivision (c)'s provisions regarding enhancements do not apply to the Three Strike's law. (Burke, at p. 244.)
Likewise, a brief look at the legislative history of Senate Bill No. 81 (2021-2022 Reg. Sess.) confirms legislative intent to distinguish enhancements from alternative penalty schemes. The Assembly Committee on Public Safety commented:
"An enhancement differs from an alternative penalty scheme. An alternative penalty scheme does not add an additional term of imprisonment to the base term; instead, it provides for an alternate sentence for the underlying felony itself when it is proven that certain conditions specified in the statute are true. [Citations.] These include the Three Strikes Law [citation]; . . . section 186.22, subdivision (b)(4) in the criminal street gang statute [citation]; and the One Strike Law [citation] among others. The presumption created by this bill applies to enhancements, but does not encompass alternative penalty schemes." (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Apr. 27, 2021, pp. 5-6.)
Because appellant's strike was not an enhancement under section 1385, and appellant was sentenced to only one enhancement pursuant to section 667, subdivision (a), the multiple enhancements mitigating circumstance under section 1385, subdivision (c)(2)(B) does not apply in this case.
Endangering Public Safety Finding
Appellant then argues the trial court abused its discretion in finding that dismissing appellant's prior serious felony enhancement under section 667, subdivision (a) would endanger public safety. Appellant asserts the court did not consider and identify countervailing factors when making its ruling and failed to give "great weight" to the mitigating factors pursuant to the language in section 1385, subdivision (c)(2).
"[S]ection 1385[, subdivision] (c)(2) does not require the trial court to consider any particular factors in determining whether 'there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.' "
(People v. Mendoza, supra, 88 Cal.App.5th at p. 299.) Nor does section 1385, subdivision (c) require that the trial court articulate countervailing factors on the record. In this case, the court considered appellant's long history of crime including "possession of weapons, felony evading of a peace officer, robbery, battery, assault, violations of parole, assault of an airport officer, [and] a number of violent episodes." The court considered that the jury found true all six alleged aggravating circumstances, including that appellant's conduct indicates a serious danger to society. In the underlying crime, the court considered that appellant callously attacked the victim, a vulnerable person, with a deadly weapon. We cannot say, based on this record, that the court's determination was" 'so irrational or arbitrary that no reasonable person could agree with it.'" (Nazir v. Superior Court, supra, 79 Cal.App.5th at p. 490.)
Appellant argues the presence of any mitigating circumstance must be overcome by substantial evidence of dangerousness and section 1385 creates a rebuttable presumption in favor of dismissal, relying on People v. Walker (2022) 86 Cal.App.5th 386, review granted March 22, 2023, S278309. The court in People v. Ortiz (2023) 87 Cal.App.5th 1087, review granted April 12, 2023, S278894, disagreed, and both cases are presently pending review before the Supreme Court.
The Attorney General argues that even if section 1385 is read to create a rebuttable presumption in favor of dismissal, the trial court made an affirmative finding that dismissal of the enhancement would endanger public safety, overcoming that presumption. We agree. Even the court in People v. Walker, supra, 86 Cal.App.5th at pp. 398-399, stated that section 1385 "erects a presumption in favor of the dismissal of the enhancement unless and until the court finds that the dismissal would 'endanger public safety' ._" (Emphasis added.) We therefore need not reach the issue of whether such a presumption exists because the trial court in this case found dismissing appellant's section 667, subdivision (a) enhancement would endanger public safety, necessarily overcoming the presumption, if any.
Because the trial court did not abuse its discretion in finding that dismissing appellant's enhancement would endanger public safety, it likewise did not abuse its discretion in declining to strike the enhancement.
DISPOSITION
The judgment is affirmed.
[*] Before Poochigian, Acting P. J., Meehan, J. and DeSantos, J.