California Court of Appeal Aug 23, 2024 No. E082123Unpublished
Filed 8/23/24 P. v. Congiardo CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082123
v. (Super.Ct.No. RIF121365)
DOMINIC MICHAEL CONGIARDO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Monique Myers,
Deputy Attorney Generals, for Plaintiff and Respondent.
1
Defendant and appellant Dominic Michael Congiardo appeals from the trial
court’s order that declined to strike a five-year enhancement under Penal Code section
667, subdivision (a)1. For the reasons set forth post, we affirm.
PROCEDURAL HISTORY2
Defendant was convicted of attempted first degree murder (§§ 664, 187, subd. (a);
Here, the court found that dismissal of the enhancement would endanger public
safety. Defendant’s claim that the court did not afford “great weight” is therefore moot,
and somewhat perplexing, particularly in light of defendant’s own citation to People v.
Mazur (2023) 97 Cal.App.5th 438, 445, which states, “if the court finds that dismissal
would endanger public safety, then it need not give great weight to the presence of any
mitigating circumstance.” The trial court here stated, “The Court is aware of the Court’s
discretion pursuant to 1385 in a multitude of different ways. The Court is aware that it is
not supposed to impose more than one enhancement. The Court is aware that it is
4
supposed to consider the great weight of all the enhancements and whether they would
result in a prison term of greater than 20 years. But all of the discretion granted to the
Court pursuant to 1385 is tempered by the Court finding that release of the defendant
would not be a danger to the public. [¶] I find that release even at this date, even given
the rehabilitative efforts the defendant has taken, would be a danger to society. And for
that reason, while the Court is aware of it’s [sic] discretion to strike one or more of the
enhancements, the Court finds that to do so would be to endanger the public.”
B. SECTION 1385, SUBDIVISION (c)(2)(C)
Defendant also argues that section 1385, subdivision (c)(2)(C), mandates the
dismissal of the five-year enhancement because failure to remove the enhancement
results in a sentence of more than 20 years. Defendant is mistaken.
The question of section 1385’s operation was recently addressed in People v.
Renteria (2023) 96 Cal.App.5th 1276, 1284. There, as here, “[Defendant] does not
challenge the trial court’s determination that dismissal of the enhancement would
endanger public safety. Instead, he argues that section 1385, as recently amended,
requires dismissal of multiple enhancements and enhancements that may result in
sentences exceeding 20 years without regard to public safety. Although some language in
section 1385 appears to support this interpretation, other language contradicts it, and to
date every Court of Appeal decision to consider this issue has disagreed with
[defendant]’s proposed resolution of this conflict. Reviewing this question of statutory
interpretation de novo [citation], we reach the same conclusion as the other appellate
courts deciding this issue.” (Ibid, fn. omitted.) Similarly in Mendoza, supra, 88
5
Cal.App.5th at p. 297, this court “reject[ed] [the defendant]’s interpretation of section
1385(c)(2)(C) as requiring a court to dismiss every enhancement resulting in a sentence
of greater than 20 years regardless of whether dismissal would endanger public safety.”
Though this appeal contemplates a different enhancement, we see no reason to
deviate from our conclusion in Mendoza: “We accordingly conclude that the trial court
did not err by determining that section 1385(c)(2)(C) did not require it to dismiss the . . .
enhancement . . . given the court’s finding that dismissal of the enhancement would
endanger public safety.” (Mendoza, supra, 88 Cal.App.5th 287 at p. 297, fn. omitted.)
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
FIELDS J.
MENETREZ J.
6
AI Brief
AI-generated · verify before citing
Holding. The court held that a trial court is not required to dismiss a sentencing enhancement under Penal Code section 1385, subdivision (c)(2)(C) when the court has made a finding that such dismissal would endanger public safety.
Issues
Whether the trial court erred by failing to give 'great weight' to mitigating circumstances under section 1385(c)(2) after finding that dismissal would endanger public safety.
Whether section 1385(c)(2)(C) mandates the dismissal of an enhancement if the resulting sentence exceeds 20 years, regardless of public safety concerns.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“if the court finds that dismissal of an enhancement ‘would endanger public safety,’ then the court need not consider the listed mitigating circumstances.”