People v. Rogers CA1/5

Filed 6/18/24 P. v. Rogers CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, A168539 Plaintiff and Respondent, v. (Mendocino County Super. Ct. No. 22CR02037) HARVEY LEE ROGERS, Defendant and Appellant.

Harvey Lee Rogers (appellant) appeals from the judgment following his plea of no contest to driving a vehicle under the influence of a drug (DUI) and causing injury (Veh. Code, § 23153, subd. (f)). We remand for a new sentencing hearing. BACKGROUND According to the probation report, appellant was driving a car and collided with a motorcycle, severely injuring the motorcycle driver and passenger. Appellant told the responding officer that he had not used methamphetamine that day, but a blood test revealed the presence of methamphetamine.

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Appellant pled no contest to driving under the influence and admitted two enhancements: personal infliction of great bodily injury (Pen. Code,1 § 12022.7, subd. (b)), and causing injury to more than one victim (Veh. Code, § 23558). The trial court sentenced appellant to the low term of 16 months for the DUI, plus consecutive terms of five years on the great bodily injury enhancement and one year on the multiple victim enhancement. DISCUSSION Appellant argues the trial court prejudicially failed to recognize the scope of its discretion to strike one of the enhancements pursuant to a recent statutory amendment. “Section 1385, subdivision (a) (§ 1385(a)), authorizes a trial court to dismiss an action ‘in furtherance of justice’ on its own motion.” (People v. Dain (2024) 99 Cal.App.5th 399, 409, review granted May 29, 2024, S283924.) “Prior to 2022, section 1385 ‘did not provide direction as to how courts should exercise [their] discretion’ to dismiss or strike enhancements. [Citation.] But, effective January 1, 2022, Senate Bill No. 81 (2021–2022 Reg. Sess.) (Senate Bill 81) amended section 1385 to specify mitigating circumstances courts must consider when deciding whether to strike enhancements in furtherance of justice. (Stats. 2021, ch. 721, § 1; [citation].)” (Dain, at pp. 409–410.) These amendments were in effect at the time of appellant’s July 2023 sentencing hearing. Section 1385, subdivision (c) (§ 1385(c)), added by Senate Bill 81 (Dain, supra, 99 Cal.App.5th at p. 410), provides: “(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