California Court of Appeal Jan 25, 2024 No. E082351Unpublished
Filed 1/25/24 P. v. Rocha 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082351
v. (Super.Ct.No. RIF1303076)
DANIEL NINO ROCHA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Affirmed.
Daniel Nino Rocha, in pro. per.; Sheila O’Connor, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant Daniel Nino Rocha appeals the sentence imposed after
this court affirmed his convictions but remanded the matter for a resentencing hearing.
Appointed counsel has asked this court to conduct an independent review of the record to
determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25
Cal.3d 436 (Wende).) In addition, defendant has had an opportunity to file a
After defendant appealed, this court appointed counsel to represent him. Upon
examination of the record, counsel has filed a brief under the authority of Wende, supra,
25 Cal.3d 436, setting forth a statement of the case and a summary of the facts, and
requesting this court to conduct an independent review of the record. (See Anders v.
California (1967) 386 U.S. 738 (Anders).) Under Anders, which requires “a brief
referring to anything in the record that might arguably support the appeal” (id. at p. 744),
counsel raises the issue of whether the trial court abused its discretion under section 1385
in failing to strike defendant’s enhancements.
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. Defendant’s two-page letter brief consists of conclusory statements, without
any attempt to provide legal or factual support for any claim of error. Construing
defendant’s response broadly reveals he is challenging the trial court’s refusal to strike
his enhancements under Senate Bill No. 81. Defendant is also asking this court to apply
Assembly Bill No. 256.
We have considered defendant’s contentions in light of the record on appeal. We
find defendant’s arguments do not raise any arguable issues for reversal.
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Before Senate Bill No. 81 was enacted, former section 1385 provided that a trial
court may dismiss sentencing enhancements in the interest of justice. The bill amended
section 1385 by adding new subdivision (c) (1385(c)), which provides in part:
“(1) 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. [¶] (2) 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 the mitigating circumstances in subparagraphs (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.”
(§ 1385(c).)
The nine mitigating circumstances in subparagraphs (A) to (I) of
section 1385(c)(2) provide as follows: “(A) Application of the enhancement would result
in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of
Section 745. [¶] (B) Multiple enhancements are alleged in a single case. In this
instance, all enhancements beyond a single enhancement shall be dismissed. [¶] (C) The
application of an enhancement could result in a sentence of over 20 years. In this
instance, the enhancement shall be dismissed. [¶] (D) The current offense is connected
to mental illness. [¶] (E) The current offense is connected to prior victimization or
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childhood trauma. [¶] (F) The current offense is not a violent felony as defined in
subdivision (c) of Section 667.5. [¶] (G) The defendant was a juvenile when [he]
committed the current offense or any prior offenses, including criminal convictions and
juvenile adjudications, that trigger the enhancement or enhancements applied in the
current case. [¶] (H) The enhancement is based on a prior conviction that is over five
years old. [¶] (I) Though a firearm was used in the current offense, it was inoperable or
unloaded.” (§ 1385(c)(2)(A)-(I).)
Multiple Courts of Appeal have interpreted section 1385(c)(2) and concluded the
“‘shall be dismissed language’” included in section 1385(c)(2)(B) and (C) does not
mandate dismissal of any enhancements. (People v. Walker (2022) 86 Cal.App.5th 386,
396-398, review granted Mar. 22, 2023, S278309 (Walker) [purpose of section 1385(c) is
to give trial court discretion to dismiss enhancements]; People v. Lipscomb (2022) 87
Cal.App.5th 9, 17-21 (Lipscomb) [“‘shall be dismissed’” language in
section 1385(c)(2)(C) does not require dismissal of an enhancement whenever a sentence
over 20 years may result]; People v. Anderson (2023) 88 Cal.App.5th 233, 239
(Anderson), review granted Apr. 19, 2023, S278786 [language in section 1385 that trial
court “‘shall’” dismiss an enhancement is conditioned on finding dismissal is in the
interest of justice]; People v. Mendoza (2023) 88 Cal.App.5th 287, 294-297 [court is not
required to dismiss an enhancement under section 1385(c)(2)(C) if it would endanger
public safety].)
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As explained in Walker, section 1385(c)(2)(B)’s phrase “‘all enhancements
beyond a single enhancement shall be dismissed’” cannot be considered in isolation but
must be considered in the context of the statute as a whole. (Walker, supra, 86
Cal.App.5th at pp. 396-397.) The phrase is “not a standalone mandate of section 1385.”
(Id. at p. 397.) Instead, it is listed among nine mitigating circumstances, which, under
section 1385(c)(1) and (c)(2), are to weigh greatly in favor of dismissal as the court is
exercising its discretion to determine whether dismissal is in the furtherance of justice.
(Walker, at p. 397.) “If we were to read the phrase appended to the multiple
enhancements mitigating factor as automatically mandating dismissal of all but one
enhancement whenever multiple enhancements exist, then the existence of multiple
enhancements would not ‘weigh greatly’ in favor of dismissal—it would weigh
dispositively. But that is not what the statute says, and we are not allowed to rewrite the
statute.” (Ibid., italics omitted.)
The court in Lipscomb similarly concluded that a trial court is not required to
strike an enhancement under section 1385(c)(2)(C) where that mitigating circumstance is
present. Like Walker, the Lipscomb court refused to read in isolation the “shall be
dismissed” language in section 1385(c)(2)(C) and instead considered the statute as a
whole. (Lipscomb, supra, 87 Cal.App.5th at p. 18.) The court pointed out the language
in section 1385(c)(2)(C) had to be read in concert with section 1385(c)(2)’s identification
of mitigating circumstances and its provision that the court is to exercise its discretion to
dismiss an enhancement. As the trial court had expressly found dismissing the
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enhancement would endanger public safety, the trial court was not required to consider
and afford great weight to the mitigating circumstance under section 1385(c)(2)(C).
(Lipscomb, at p. 18; accord, Anderson, supra, 88 Cal.App.5th at p. 239 [language, taken
together, means that “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”].) The Anderson
court explained, the shall be dismissed language in section 1385(c)(2)(B) means that
“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.” (Anderson, at p. 240.)
Here, despite two arguable mitigating circumstances (multiple enhancements
alleged and prior more than five years old (§ 1385(c)(2)(B) or (H)), the trial court may
still decline to dismiss an enhancement if it finds doing so would endanger public safety.
(§ 1385(c)(2) [presence of mitigating circumstances “weighs greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the enhancement
would endanger public safety”]; accord, Walker, supra, 86 Cal.App.5th at pp. 398-399.)
Here, the trial court expressly concluded that defendant continued to endanger public
safety and declined to strike his enhancements in the interest of justice, which was
sufficient to rebut any presumption in favor of dismissal under either
section 1385(c)(2)(B) or (H).
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We decline defendant’s request to apply Assembly Bill No. 256 to his case.
Assembly Bill No. 256 (2021-2022 Reg. Sess.) amended the California Racial Justice Act
of 2020 to authorize the prosecution of a writ of habeas corpus or filing of a motion under
section 1473 or section 1473.7 for defendants who can prove they were convicted or
sentenced based on their “race, ethnicity, or national origin” in cases where judgment was
entered prior to January 1, 2021. (Stats. 2022, ch. 739, §§ 2, 3, eff. Jan. 1, 2023.)
Section 745 (California Racial Justice Act of 2020), enacted pursuant to Assembly Bill
No. 2542 (2019-2020 Reg. Sess.) and amended by Assembly Bill No. 256, applies to
nonfinal judgments, to matters in which the defendant was sentenced to death, and to
matters involving “immigration consequences related to the conviction or sentence.”
(See § 745, subd. (j)(2).) However, effective January 1, 2023, under former2
subdivision (b) of section 745, “A defendant may file a motion in the trial court or, if
judgment has been imposed, may file a petition for writ of habeas corpus or a motion
under Section 1473.7 in a court of competent jurisdiction, alleging a violation of
subdivision (a).” Defendant here did not file a writ of habeas corpus or a motion under
section 1473.7.
We have reviewed the record for error as required by Wende and Anders. We
have not discovered any arguable issues for reversal on appeal.
2 As of January 1, 2024, the statute has been amended.
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IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
RAMIREZ P. J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's sentence, holding that the trial court did not abuse its discretion in declining to strike sentencing enhancements under Penal Code section 1385 because it found that doing so would endanger public safety.
Issues
Whether the trial court abused its discretion under Penal Code section 1385 by failing to strike sentencing enhancements.
Whether the trial court was required to apply Assembly Bill No. 256 to the defendant's case.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“the trial court expressly concluded that defendant continued to endanger public safety and declined to strike his enhancements in the interest of justice”
“We have reviewed the record for error as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal.”