Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

People v. Sylvester CA2/1

California Court of Appeal

• Citations: None known
• Docket Number: B337532

• Precedential Status: Non-Precedential

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.9K)

• PDF

Combined Opinion

Filed 2/26/26 P. v. Sylvester CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B337532

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA131014)
v.

WILLIAM CHARLES SYLVESTER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Keith Fox, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Shezad Thakor and Nancy Lii Ladner, Deputy
Attorneys General, for Plaintiff and Respondent.

---

Defendant William Charles Sylvester appeals from the
judgment following his resentencing under Penal Code1
section 1172.75. He argues under section 1385,
subdivision (c)(2)(B), the trial court on resentencing was required
to strike all but one of the multiple enhancements imposed on his
original sentence. In the alternative, to the extent section 1385
does not mandate striking of multiple enhancements, defendant
argues the resentencing court nonetheless abused its discretion
by not striking additional enhancements.
Consistent with precedent from this and other Courts of
Appeal, we hold section 1385, subdivision (c)(2)(B) does not
require trial courts to strike enhancements when multiple
enhancements are alleged in a single case — whether to strike
enhancements in that circumstance remains at the discretion of
the trial court.
We further hold the trial court did not abuse its discretion.
Although neither the court nor the parties expressly invoked
section 1385 or the applicable mitigating circumstances during
resentencing, under the Rules of Court, we presume the trial
court considered those circumstances because the record does not
affirmatively indicate otherwise. (See Cal. Rules of Court,2
rule 4.409.) Also, given defendant’s pre- and postconviction
conduct, the trial court’s finding that it was not in the interest of
justice to strike additional enhancements was not arbitrary,
capricious, or patently absurd.
Our conclusion that the trial court properly applied
section 1385 disposes of defendant’s claim of ineffective

1 Unspecified statutory citations are to the Penal Code.
2 Unspecified rule citations are to the Rules of Court.

2
assistance of counsel, because defendant has not demonstrated
prejudice.
Accordingly, we affirm.

BACKGROUND

1. Conviction and sentencing
   On July 22, 1997, a jury found defendant guilty of second
   degree murder, and found true that he had personally used a
   firearm in committing the offense. The victim was the mother of
   defendant’s child. According to the opinion in defendant’s appeal
   from his conviction, defendant shot the victim during an
   argument about child custody.
   On August 20, 1997, the trial court sentenced defendant to
   a total of 41 years to life. This consisted of 15 years to life for the
   murder, doubled to 30 years for a prior strike under the “Three
   Strikes” law, plus the midterm of four years for the firearm
   enhancement, a five-year prior conviction enhancement under
   section 667, subdivision (a)(1), and two 1-year enhancements
   under section 667.5, former subdivision (b) for two prior prison
   terms.

2. Resentencing proceedings
   On or about February 16, 2023, the Department of
   Corrections and Rehabilitation referred defendant to the trial
   court under section 1172.75 for review of his sentence. On
   September 19, 2023, the trial court found defendant eligible for
   relief, recalled defendant’s sentence, and set the matter for
   resentencing.
   In advance of the resentencing hearing, held on
   February 21, 2024, neither defense counsel nor the People filed

3
any written briefing. At the hearing, the trial court stated it had
reviewed defendant’s “C-File,” which it marked as exhibit 1. This
file contains, inter alia, records of defendant’s conduct in prison.
The trial court then heard argument from counsel. Defense
counsel requested the trial court strike the two enhancements
under section 667.5, former subdivision (b), and the court did so.
Defense counsel additionally requested the court strike the
five-year enhancement under section 667, subdivision (a)(1), and
reduce the firearm enhancement to the low term of three years.
The court denied these requests.
The court stated, “In the C-File, I notice the defendant has
numerous areas of misconduct: possession of a controlled
substance in prison, participating in a race [riot], refusing to obey
orders during an emergency, refusing direct orders, theft of state
food, possession of marijuana. Again, numerous issues of
refusing official orders. And then it goes on about 10 different
times.” The court acknowledged it had the discretion to strike or
lower the term on the firearm enhancement, and also had the
discretion to strike the section 667, subdivision (a)(1)
enhancement. The court concluded, however, “based upon the
defendant’s record, both before and after conviction, I did not find
it to be in the interest of justice to do so.”
The trial court therefore struck the two section 667.5,
former subdivision (b) enhancements as required under section
1172.75 and resentenced defendant to 39 years to life.
Defendant timely appealed.

DISCUSSION
Although the trial court struck defendant’s enhancements
under section 667.5, former subdivision (b), defendant argues the

4
trial court erred under section 1385 by not dismissing one or
more of the remaining enhancements. We disagree.3

A. Governing Law

1. Section 1172.75 Before January 1, 2020, section 667.5, former subdivision (b) required that trial courts impose a one-year sentence enhancement for each prior prison or county jail term the defendant served if the defendant had not remained free of custody for the preceding five years. (§ 667.5, former subd. (b); People v. Jennings (2019) 42 Cal.App.5th 664, 681.) This is no longer the case. Now, section 1172.75 provides, “Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.” (§ 1172.75, subd. (a).) Section 1172.75 further directs correctional officials to identify inmates serving sentences that include an enhancement under section 667.5, subdivision (b) and bring those inmates to the attention of the original sentencing court. (§ 1172.75, subd. (b).) If the court determines the sentence includes an invalid enhancement, “the court shall recall the sentence and resentence the defendant. . . .” (Id., subd. (c).) “ ‘[S]ection 1172.75 requires a full resentencing, not merely that the trial court strike the newly “invalid” enhancements.’

3 The Attorney General argues defendant forfeited his
arguments under section 1385 by not raising them below. We
decline to reach this argument. Assuming arguendo defendant
has preserved his challenge, it nonetheless fails on the merits, as
we set forth post.

5
[Citations.]” (People v. Garcia (2024) 101 Cal.App.5th 848, 855.)
The resentencing “shall result in a lesser sentence than the one
originally imposed as a result of the elimination of the repealed
enhancement, unless the court finds by clear and convincing
evidence that imposing a lesser sentence would endanger public
safety,” but in no event may resentencing “result in a longer
sentence than the one originally imposed.” (§ 1172.75,
subd. (d)(1).)
In resentencing, courts “shall apply the sentencing rules of
the Judicial Council and apply any other changes in law that
reduce sentences or provide for judicial discretion so as to
eliminate disparity of sentences and to promote uniformity of
sentencing.” (§ 1172.75, subd. (d)(2).) Courts “may consider
postconviction factors, including, but not limited to, the
disciplinary record and record of rehabilitation of the defendant
while incarcerated, evidence that reflects whether age, time
served, and diminished physical condition, if any, have reduced
the defendant’s risk for future violence, and evidence that reflects
that circumstances have changed since the original sentencing so
that continued incarceration is no longer in the interest of
justice.” (Id., subd. (d)(3).)

1. Section 1385 Section 1385 governs a sentencing court’s discretion to, inter alia, strike or dismiss enhancements. Subdivision (c)(1) of the statute provides, “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.” “In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of [nine

6
enumerated] mitigating circumstances . . . 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.”
(Id., subd. (c)(2).)
Two of the enumerated mitigating circumstances are at
issue here. First, “[m]ultiple enhancements are alleged in a
single case. In this instance, all enhancements beyond a single
enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(B).)
Second, “[t]he enhancement is based on a prior conviction that is
over five years old.” (Id., subd. (c)(2)(H).)

1. Standard of review We review sentencing decisions under sections 1172.75 and 1385 for abuse of discretion. (People v. Dozier (2025) 116 Cal.App.5th 700, 709 [section 1172.75], review granted Feb. 11, 2026, S294597; People v. Mendoza (2023) 88 Cal.App.5th 287, 298 (Mendoza) [section 1385].) “ ‘A ruling subject to this standard of review “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ [Citation.]” (People v. Aguirre (2025) 18 Cal.5th 629, 687.) Interpretation of the statutes themselves is an issue of law we review de novo. (See People v. Cota (2023) 97 Cal.App.5th 318, 335.)

B. Section 1385 Does Not Require the Trial Court To
Strike an Additional Enhancement
Defendant argues that because section 1172.75,
subdivision (c)(2)(B) states when “[m]ultiple enhancements [are]

7
alleged,” “all enhancements beyond a single enhancement shall
be dismissed,” the trial court in the instant case was required to
dismiss at least one of the two remaining enhancements on his
sentence.
As defendant concedes, appellate courts have rejected his
interpretation. (See, e.g., People v. Mazur (2023) 97 Cal.App.5th
438, 445; People v. Anderson (2023) 88 Cal.App.5th 233, 241
(Anderson); People v. Walker (2022) 86 Cal.App.5th 386, 396–398
(Walker I), abrogated on other grounds by People v. Walker (2024)
16 Cal.5th 1024 (Walker II).) We agree with these decisions.
We find persuasive the following from Anderson: “[T]he
statement that a court ‘shall’ dismiss certain enhancements
appears as a subpart to the general provision that a ‘court shall
dismiss an enhancement if it is in the furtherance of justice to do
so.’ (§ 1385, subd. (c)(1), italics added.) In other words, the
dismissal of the enhancement is conditioned on a court’s finding
dismissal is in the interest of justice. The nature of this condition
is further explained by the Legislature’s directive that the court,
while ‘exercising its discretion under this subdivision, . . . shall
consider and afford great weight’ to evidence of certain factors,
and proof of one of the factors ‘weighs greatly’ in favor of
dismissal ‘unless’ the court finds dismissal would endanger public
safety. (Id., subd. (c)(2).) This language, taken together,
explicitly and unambiguously establishes: the trial court has
discretion to dismiss sentencing enhancements; certain
circumstances weigh greatly in favor of dismissal; and a finding
of danger to public safety can overcome the circumstances in
favor of dismissal.” (Anderson, supra, 88 Cal.App.5th at p. 239.)
Anderson continues, “[I]f we were to read subdivision
(c)(2)(B) and (C) as mandatory, then the existence of those factors

8
‘would not “weigh greatly” in favor of dismissal — it would weigh
dispositively.’ [Citation.] In addition, ‘[t]hat construction would
also require us to accept that our Legislature . . . opted to embed
that mandate as an addendum to one of nine mitigating factors to
be given great weight in the context of a trial court’s
discretionary decision whether to dismiss. In other words, if our
Legislature was trying to implement a rule of mandatory and
automatic dismissal, it picked a very circuitous way to do so.’
[Citation.]” (Anderson, supra, 88 Cal.App.5th at p. 240, quoting
Walker I, supra, 86 Cal.App.5th at pp. 397–398.)
Defendant argues we should not follow these prior
decisions rejecting his interpretation. He contends the plain
meaning of “shall be dismissed” is that the dismissal is
mandatory, not discretionary. To the extent there is any
ambiguity, he argues canons of statutory interpretation are in his
favor.
Specifically, defendant argues reading section 1385,
subdivision (c)(2)(B) as discretionary renders the term “shall”
surplusage. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131
[courts should avoid interpretations that make some words
surplusage] He maintains the “last antecedent rule,” under
which qualifying words are applied to the words immediately
preceding and not to other, more remote words (People v. Le
(2006) 137 Cal.App.4th 54, 62), suggests the “Legislature chose to
single out [section 1385, subdivision (c)(2)(B)] for special
treatment.” He argues the specific language of subdivision
(c)(2)(B) should control over the more general language in
section 1385 granting trial courts discretion to dismiss
enhancements. (See Estate of Kramme (1978) 20 Cal.3d 567, 576
[“the specific statute controls and takes priority over a general

9
statute encompassing the same subject”].) He contends under the
rule of lenity, any ambiguity in the statute should be interpreted
in defendant’s favor. (See In re M.M. (2012) 54 Cal.4th 530, 545.)
We agree with Anderson and Walker I, however, that
section 1385, subdivision (c)(2)(B) cannot be read as mandatory
when the Legislature included it on a list of factors that the
Legislature made clear were not dispositive, but rather “weigh[ ]
greatly in favor of dismissing the enhancement.” (§ 1385, subd.
(c)(2).) Defendant urges us to read the “shall be dismissed”
language as an “exception” to the otherwise discretionary factors.
A prohibition on imposition of multiple enhancements would be a
significant change in the law, and not one the Legislature would
bury in a list of otherwise discretionary factors, at least not
without additional indicia of intent.
Defendant argues we should follow Mendoza, which
defendant contends “harmonized” section 1385’s language while
“giv[ing] effect to the mandatory dismissal language.” Mendoza
concerned another mitigating circumstance under section 1385,
namely subdivision (c)(2)(C), which provides, “The application of
an enhancement could result in a sentence of over 20 years. In
this instance, the enhancement shall be dismissed.”4 (See
Mendoza, supra, 88 Cal.App.5th at pp. 290–291.) Despite that
provision, the trial court in Mendoza declined to dismiss a
20-year firearm enhancement, finding the dismissal would
endanger public safety. (Id. at pp. 293–294.) The Court of
Appeal affirmed, concluding, based on the language of
section 1385, that “consideration of the mitigating factors in

4Section 1385, subdivisions (c)(2)(B) and (C) are the only
enumerated mitigating circumstances with “shall be dismissed”
language.

10
section 1385, subdivision (2) is not required if the court finds
that dismissal of the enhancement would endanger public safety.”
(Mendoza, at p. 297.)
Mendoza expressly cabined its holding, stating, “[B]ecause
the [trial] court found that dismissal of the firearm enhancement
would endanger public safety, we need not and do not analyze
how the ‘shall be dismissed” language in section 1385,
subdivision (2)(C) operates when a trial court does not find
that dismissal would endanger public safety.” (Supra,
88 Cal.App.5th at p. 297.) In a footnote, however, the Court of
Appeal “note[d] that it is possible to interpret the statute in such
a way as to give full effect to all of its provisions.” (Id. at pp. 297–
298, fn. 6.) The court suggested the statute could be read, inter
alia, such that “if the court does not find that dismissal of the
enhancement would endanger public safety, then the court must
dismiss any enhancement that ‘could result in a sentence of over
20 years’ (§ 1385, subdivision (2)(C)) or ‘all enhancements
beyond a single enhancement’ when multiple enhancements are
proven (§ 1385, subd. (c)(2)(B).)” (Mendoza, at pp. 297–298, fn. 6.)
In other words, Mendoza suggested a reading of section 1385 in
which dismissal of all but one multiple enhancement is
mandatory unless there is a finding the dismissal would
endanger public safety.
Mendoza’s footnote is dicta, as acknowledged by the
Mendoza court itself, which stated expressly it was declining to
address how to apply the “shall be dismissed” language when
there has been no finding of danger to public safety. (Supra,
88 Cal.App.5th at p. 297.) Regardless, although Mendoza offers
an alternative interpretation of section 1385 arguably favorable
to defendant’s position here, Anderson’s interpretation is more

11
persuasive. Again, we cannot conclude the Legislature intended
to prohibit imposition of multiple enhancements when the
language purportedly doing so is on a list of factors that are not
mandatory, but merely “weigh[ ] greatly in favor of dismissing
the enhancement.” (§ 1385, subd. (c)(2). The Legislature would
not effect as significant a change in the law as a prohibition on
multiple enhancements in such a “ ‘circuitous’ ” manner.
(Anderson, supra, 88 Cal.App.5th at p. 240.)
In sum, we decline to adopt defendant’s interpretation of
section 1385, subdivision (c)(2)(B) as mandating dismissal of all
but one of his enhancements.

C. The Trial Court Did Not Abuse its Discretion In
Declining To Dismiss the Remaining Enhancements
Alternatively, defendant argues the trial court abused its
discretion in declining to dismiss the remaining enhancements.
He argues there were two mitigating circumstances in
defendant’s favor: the multiple-enhancements factor discussed
ante, and the fact his section 667, subdivision (a)(1) enhancement
“is based on a prior conviction that is over five years old.”
(§ 1385, subd. (c)(2)(H).) Defendant contends his “record after
conviction did not ‘neutralize’ the great weight” the court should
have accorded those mitigating circumstances.
At the time of the resentencing in the instant case, the
Courts of Appeal were divided as to how trial courts were to
apply the Legislature’s mandate to “afford great weight” to
evidence of the mitigating circumstances under section 1385,
subdivision (c)(2). Walker I held the presence of one of the
enumerated mitigating circumstances “erects a rebuttable
presumption that obligates a court to dismiss the enhancement
unless the court finds that dismissal of that enhancement . . .

12
would endanger public safety.” (Walker I, supra, 86 Cal.App.5th
at pp. 386, 391.)
People v. Ortiz (2023) 87 Cal.App.5th 1087 disagreed with
Walker I, holding “the ultimate question before the trial court
remains whether it is in the furtherance of justice to dismiss an
enhancement.” (Id. at p. 1098.) Ortiz concluded the legislative
mandate to afford the enumerated mitigating circumstances
great weight “does not preclude a trial court from determining
that countervailing factors — other than the likelihood of
physical or other serious danger to others — may nonetheless
neutralize even the great weight of the mitigating circumstance,
such that dismissal of the enhancement is not in furtherance of
justice.” (Ibid.) The trial court must still “engage[ ] in a holistic
balancing with special emphasis on the enumerated mitigating
factors.” (Id. at p. 1096.)
Subsequent to the resentencing in the instant case, our
Supreme Court resolved the split of authority by agreeing with,
and expanding upon, Ortiz. (Walker II, supra, 16 Cal.5th at
p. 1029 [“We conclude that the plain language of section 1385,
subdivision (c)(2) contemplates that a trial court will exercise its
sentencing discretion in a manner consistent with the Ortiz
court’s understanding.”].) The high court elaborated: “[A]bsent a
finding that dismissal would endanger public safety, a court
retains the discretion to impose or dismiss enhancements
provided that it assigns significant value to the enumerated
mitigating circumstances when they are present. [Citation.] In
other words, if the court does not find that dismissal would
endanger public safety, the presence of an enumerated mitigating
circumstance will generally result in the dismissal of an
enhancement unless the sentencing court finds substantial,

13
credible evidence of countervailing factors that ‘may nonetheless
neutralize even the great weight of the mitigating circumstance,
such that dismissal of the enhancement is not in furtherance of
justice.’ [Citation.]” (Ibid.)
Defendant argues the trial court made no findings
regarding public safety, and therefore, under Walker II, “the
presence of even one enumerating circumstance should have
‘generally result[ed] in the dismissal of an enhancement unless
the sentencing court [found] substantial credible evidence of
countervailing factors’ that may neutralize the great weight of
that circumstance.” Defendant further contends the trial court
“did not weigh aggravating and mitigating factors or state that it
accorded great weight to any mitigating factor,” instead declining
to dismiss the enhancements because of defendant’s misconduct
in prison. According to defendant, this was an abuse of
discretion, because the misconduct identified by the court last
occurred in 2013, and the court “failed to account for
[defendant’s] significant rehabilitative efforts in prison,”
including earning his Graduate Equivalency Diploma, completing
a “13-month healing and accountability program,” and receiving
“praise from staff.”
The mere fact the trial court did not expressly identify any
mitigating evidence or circumstance, or state it was affording
great weight to that evidence or circumstance, does not establish
an abuse of discretion. Indeed, under rule 4.409, “[r]elevant
factors enumerated in [the criminal rules] . . . will be deemed to
have been considered unless the record affirmatively reflects
otherwise.” This includes the enumerated factors under
section 1385, subdivision (c), which the Rules of Court
incorporate by reference. (See rule 4.428(c)(2).)

14
We cannot conclude the trial court abused its discretion in
ruling that dismissal of additional enhancements would not be in
the interest of justice. There is nothing arbitrary, capricious, or
patently absurd about the trial court’s finding that defendant’s
misconduct in prison, including drug offenses, failure to follow
orders, and participation in a race riot, as well as the murder
that led to his incarceration in the first place, outweighed the
enumerated circumstances under section 1385, subdivision (c) or
the evidence of defendant’s positive conduct in prison. Although
defendant argues the cited misconduct last occurred in 2013, and
his more recent conduct indicates he is largely “ ‘disciplinary
free,’ ” it is for the trial court to weigh the evidence, not us.
Defendant argues the record is ambiguous as to whether
the trial court understood how to apply its discretion under
section 1385, and therefore we should not presume from the
record’s silence the trial court properly considered the relevant
factors. Defendant cites People v. Ochoa (2020) 53 Cal.App.5th
841 (Ochoa) and People v. Panozo (2021) 59 Cal.App.5th 825
(Panozo) in support, but those cases are distinguishable.
The question in Ochoa was whether the trial court at the
time of sentencing was aware that it was statutorily required to
consider youth-related mitigating factors before imposing a
sentence of life without possibility of parole. (Supra,
53 Cal.App.5th at p. 850.) The Court of Appeal held the record
was at best ambiguous on this question, because, although the
trial court had accepted evidence of youth-related mitigating
factors, it had done so after sentencing the defendant. (Id. at
p. 853.) Further, in accepting the evidence the trial court
referred solely to that evidence’s use by a future parole board, not
as a mitigating factor during sentencing itself. (Ibid.) The Court

15
of Appeal concluded this record suggested the trial court found,
incorrectly, that youth-related mitigating factors were relevant
solely to youth offender parole hearings, not to sentencing. (Ibid.)
“Accordingly, when, as here, the record is at the very least
ambiguous as to whether the court understood its obligation to
consider youth-related mitigating factors at sentencing before
making the discretionary sentencing decision [whether to impose
a life-without-parole sentence], remand is appropriate.” (Ibid.)
The ambiguities present in Ochoa are not present here.
Whereas the trial court in Ochoa did not receive the mitigating
evidence until after sentencing, here the mitigating
circumstances were clear on the face of the record of conviction at
the time of resentencing, namely that the prosecution had alleged
multiple enhancements, and one of those enhancements was
based on a prior conviction more than five years old. The trial
court made no statements suggesting a misunderstanding of the
significance of those mitigating circumstances; rather, it
evaluated whether dismissal of additional enhancements was in
the interest of justice, the proper standard under section 1385.
In Panozo, the question was whether the trial court
understood its statutory obligation to consider the defendant’s
military-service-related posttraumatic stress disorder (PTSD) as
a mitigating factor under sections 1170.9 and 1170.91. (Panozo,
supra, 59 Cal.App.5th at p. 828.) Citing “the Legislature’s
resolve to mandate special consideration for affected veterans at
sentencing,” the Court of Appeal concluded “that a court’s
compliance with the mandates of sections 1170.9 and 1170.91
cannot be inferred from an ambiguous record.” (Panozo, at
pp. 836–837.) In Panozo, although the trial court was aware the
defendant had served in the military and suffered from PTSD, it

16
did not mention those circumstances when listing mitigating and
aggravating factors on the record. (Id. at pp. 838–839.) Further,
neither the trial court nor the parties cited sections 1170.9 or
1170.91, and the parties did not identify the defendant’s PTSD as
a mitigating factor, much less one that the trial court was
required to consider. (Panozo, at pp. 838–839.) The Court of
Appeal concluded, “There is no evidence the trial court was aware
of its statutory obligation to consider service-related mitigating
factors at sentencing — rather, all indications are to the
contrary.” (Id. at p. 839.) The Court of Appeal remanded for a
new sentencing hearing. (Id. at p. 841.)
Unlike in Panozo, in which the trial court appeared to be
unaware of sections 1170.9 and 1170.91, there is nothing in the
record indicating the trial court was unaware of section 1385.
Although neither the court nor the parties expressly mentioned
section 1385, that is the very statute granting courts discretion to
dismiss enhancements in the interest of justice. Therefore the
trial court necessarily was acting under section 1385 when it
noted its discretion to dismiss the enhancements, but determined
it was not in the interest of justice to do so. Further, unlike in
Panozo where the applicable mitigating circumstance was listed
in separate statutes of which a trial court conceivably might be
unaware, here the applicable mitigating circumstances are listed
in section 1385 itself. The record thus demonstrates the trial
court applied section 1385, and there is no affirmative indication
the court did not consider and afford great weight to the
mitigating factors under section 1385, subdivision (c)(2).
It is true the trial court did not have the benefit of
Walker II at the time of resentencing, but we cannot conclude
Walker II would lead the trial court to a different outcome. Even

17
without Walker II, the express language of 1385 itself, along with
Walker I and Ortiz, made clear that at the time of defendant’s
resentencing, the trial court was to afford significant (and in the
case of Walker I, presumptive) weight to the enumerated
circumstances. Again, there is no affirmative indication the trial
court did not abide by section 1385’s directives, and therefore no
basis to conclude the court misapplied or misunderstood its
discretion.
Because the record does not indicate the trial court failed
properly to apply section 1385, defendant cannot prevail on his
claim his resentencing counsel was constitutionally ineffective for
not citing section 1385 and arguing the trial court should afford
great weight to the applicable mitigating circumstances. (See
In re Tellez (2024) 17 Cal.5th 77, 88 [to establish ineffective
assistance of counsel, a defendant must show, inter alia,
prejudice from counsel’s purportedly deficient performance].)

DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J. WEINGART, J.

18