The opinion
Filed 7/14/25 P. v. White CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent, C097420
v. (Super. Ct. No. 20F6493)
ANTHONY PAUL WHITE,
Defendant and Appellant.
Defendant Anthony Paul White had a series of confrontations with Andrew
Fairchild, beginning at a post office, continuing at or near defendant’s house, and ending
in a store parking lot, where defendant pulled out a handgun, pointed it at Fairchild, and
pulled the trigger. The gun malfunctioned and did not fire. After disarming defendant,
Fairchild struck him several times while a store employee called 911.
At the preliminary hearing and in his initial testimony at trial, Fairchild denied that
he had followed defendant to the area around defendant’s house. But during cross-
examination at trial he ultimately admitted driving up to that area. When defendant made
motions to dismiss the case based on Fairchild’s change in testimony, the trial court
denied the motions.
1
A jury convicted defendant of attempted voluntary manslaughter, assault with a
firearm, unlawful possession of a firearm, unlawful possession of ammunition, and
making a criminal threat. The jury found that defendant personally used a firearm during
commission of the attempted manslaughter, the assault with a firearm, and the criminal
threat (counts 1, 2, and 5). In a bifurcated proceeding, the trial court found that defendant
had a prior strike conviction within the meaning of the three strikes law, which also
subjected him to an additional five-year serious felony enhancement. The trial court
dismissed the prior strike conviction for purposes of three strikes sentencing, but declined
to dismiss the serious felony enhancement and firearm enhancements. The trial court
sentenced defendant to an aggregate determinate term of 12 years six months in state
prison.
Defendant now contends (1) the trial court should have granted his motions to
dismiss given Fairchild’s perjury, (2) insufficient evidence supports the criminal threat
conviction, and (3) the trial court abused its discretion in declining to dismiss all but one
enhancement.
We will affirm the judgment. The trial court properly denied defendant’s
motions to dismiss. The evidence is more than sufficient to support his criminal threat
conviction. And, contrary to defendant’s argument on appeal, Penal Code1 section 1385,
subdivision (c)(2)(B) did not require the trial court to dismiss all but one enhancement.
Instead, the trial court retained discretion to impose or dismiss the enhancements in
furtherance of justice. Defendant has not demonstrated an abuse of that discretion.
BACKGROUND
At about 7:30 p.m. on October 2, 2020, Fairchild left his house in Shingletown to
pick up some food for his family. On his way to the store, he stopped by the post office.
1 Undesignated statutory references are to the Penal Code.
2
As Fairchild walked out of the post office, defendant pulled up in a truck with his high
beam headlights on. Fairchild told him to turn his lights off. The two men exchanged
insults and called each other derogatory names. Fairchild returned to his truck and sat
there until defendant left. Defendant “revved up” his truck’s engine and “acted like he
was going to crash into” Fairchild’s truck. Defendant drove out of the parking lot, turned
right on Emigrant Trail, and turned left onto Highway 44, heading east toward his house.
Fairchild testified that he followed defendant to the highway, did a “burnout” as he
passed defendant’s truck, then turned right onto the highway, heading west toward
Fairchild’s house. Fairchild yelled “dumbass” or “asshole” out of his window as he
passed. According to defendant’s testimony, however, Fairchild “nudged” the back of his
truck while they were at the intersection. Fairchild then pulled up beside defendant’s
truck, threatened to kill him, and “did a complete donut” around defendant’s truck, before
turning right onto the highway.
As defendant drove to his house, located about three and a half miles east of where
the confrontation began, Fairchild drove a short distance in the opposite direction before
deciding to turn around and follow defendant. Fairchild either drove into defendant’s
driveway or turned around at a church that was across the street from defendant’s house.
Fairchild claimed he said, “Fuck you, asshole,” then drove back down the hill toward
town. Defendant claimed Fairchild pointed a gun at him and again threatened to kill him.
Fairchild denied having a gun.
As Fairchild drove back to town, defendant admitted that he retrieved a gun from
his safe and drove back into town looking for Fairchild. Defendant said he did so merely
so that he could write down Fairchild’s license plate number and notify law enforcement.
The confrontation resumed in a Dollar General parking lot. M.P., who worked at
the store, testified that Fairchild came in “really irritated” and bought some items,
including beer. After he left, M.P. heard what sounded like an argument in the parking
lot. She went outside and saw defendant and Fairchild yelling at each other. M.P. told
3
them to stop, but they got louder and angrier. According to M.P. the yelling and
screaming turned into pushing and shoving, during which Fairchild ripped defendant’s
shirt off. As they moved through the parking lot, M.P. followed and noticed that
defendant had a gun in his hand. Defendant pointed the gun at Fairchild’s head and said
something like, “ ‘Do you want to fucking die tonight?’ ” M.P. then heard a “click” and
a “ting.” She had previously heard a gun misfire and said the sounds were similar.
Immediately after hearing the sounds, M.P. saw Fairchild kick defendant in the chest,
knocking him to the ground. Fairchild kicked the gun out of defendant’s hand, got on top
of him, and “proceeded to beat the crap out of him.” M.P. called 911. During the phone
call, Fairchild walked over to the gun, removed the bullets, and hit defendant with the
gun several times. He then threw the gun and defendant’s truck keys over a nearby fence.
At M.P.’s insistence, Fairchild left the parking lot and drove to his house.
Sheriff’s deputies responded to the parking lot. Defendant left before they arrived.
In the parking lot, deputies found defendant’s ripped shirt and five unfired .38-caliber
rounds. One of the unfired rounds had an indentation on the primer consistent with
“a primer strike,” meaning that the firing pin struck the primer but did not cause the
bullet to fire. Deputies found the gun, a .38-caliber revolver, on the other side of the
fence where Fairchild threw it. A subsequent analysis of the revolver revealed that it was
not operational. After collecting evidence at the scene and conducting interviews,
deputies drove to defendant’s house and arrested him. Defendant admitted driving into
town looking for Fairchild and also admitted hitting him in the head with the gun. He
repeated four or five times: “ ‘It was a stupid fucking decision.’ ” But at trial, defendant
denied pointing the gun at Fairchild or pulling the trigger.
Additional background is set forth in the discussion as relevant to the contentions
on appeal.
4
DISCUSSION
I
Defendant contends the trial court should have dismissed the convictions for
attempted manslaughter, assault with a firearm, and making a criminal threat based on
Fairchild’s perjury at the preliminary hearing.
A
Fairchild testified at the preliminary hearing pursuant to a grant of immunity under
section 1324. His subsequent testimony at trial was largely consistent with his
preliminary hearing testimony, with one exception: at the preliminary hearing, Fairchild
denied following defendant up the hill toward his house. At trial, during his direct
examination, Fairchild again denied following defendant to the area of his house, and
repeated that denial during cross-examination. But then, toward the end of the cross-
examination, after reminding Fairchild about his immunity agreement, defense counsel
asked: “Did you go to [defendant’s] house that evening?” Fairchild answered: “I drove
up the hill. Yes.” Fairchild described turning around at the church that was across the
street from defendant’s house. During redirect, Fairchild admitted yelling “Fuck you,
asshole” at defendant as he was turning around and claimed that it was “a coincidence
honestly” because he did not know where defendant lived.
The trial court stopped the proceeding when the prosecutor started questioning
Fairchild about the possibility of being prosecuted for perjury. Outside the presence of
the jury, the prosecutor stated he would be willing to offer Fairchild “another immunity
agreement” covering his “perjury at the preliminary hearing.” Counsel was appointed to
confer with Fairchild during the break in the proceeding. After the break, the trial court
stated that it had received a new petition for immunity covering Fairchild’s perjury during
the preliminary hearing and at trial. The prosecutor explained: “I was hoping that
[Fairchild] would say that [he followed defendant to his house] because I think it fit more
with the evidence, and it did not matter in the People’s case whether or not that had
5
occurred. [¶] Given [Fairchild’s] testimony today, I still would like to proceed. It would
not be my intention to prosecute him for perjury in any event given the circumstances of
this case. However, in an abundance of caution, I prepared a [section] 1324 order and
request.” The trial court granted the request for immunity.
Defense counsel moved to dismiss the case, arguing, “what happened this
morning . . . is outrageous, and I think it has infringed on [defendant’s] due process
rights, not just to a fair trial, but also to a fair preliminary hearing.” After hearing
argument from the prosecutor, the trial court clarified with defense counsel that he
was asking the court to dismiss the case in furtherance of justice under section 1385, and
also because Fairchild’s perjury at the preliminary hearing was such that “the preliminary
hearing really didn’t happen, in essence.” Defense counsel answered: “Correct.” The
prosecutor then added that the latter argument could be raised in “a [section] 995
motion.” The trial court asked the parties to brief the issues and noted that Fairchild’s
admission that he followed defendant to his house was helpful to the defense, so the trial
court would have to consider whether there was any prejudice. The trial court said it was
clear the prosecutor did not know or anticipate that Fairchild would change his testimony
during trial.
The parties briefed the issues as requested. Defendant filed a section 995 motion
to dismiss counts 1, 2, and 5 (attempted murder, assault with a firearm, and making a
criminal threat), and also filed a nonstatutory motion to dismiss those counts, arguing that
Fairchild’s perjury deprived defendant of his substantial rights to present a defense and
cross-examine witnesses. Defendant also argued that because of the perjury, he was not
legally committed within the meaning of section 995, requiring dismissal without a
showing of prejudice. In the alternative, defendant asked the trial court to review the
preliminary hearing transcript without considering any of Fairchild’s testimony and
determine if there was probable cause to hold defendant to answer. In response, the
6
People argued defendant was not denied a substantial right warranting dismissal, and
defendant had not shown prejudice.
After holding a hearing, the trial court denied defendant’s section 995 and
nonstatutory motions to dismiss. Because we review the trial court’s rulings and not
its reasoning, we need not recite that reasoning here. (See People v. Armstrong (1991)
232 Cal.App.3d 228, 241-242 (Armstrong).)
B
“Denial of a substantial right at the preliminary hearing renders a defendant’s
commitment illegal and entitles him to a dismissal of the information on timely motion.
[Citations.] Deprivation of a substantial right is properly addressed by a section 995
motion when the error is visible from the ‘four corners’ of the preliminary hearing
transcript. By contrast, an error that is not known or visible at the hearing itself . . . may
be called to the court’s attention through a nonstatutory motion to dismiss.” (People v.
Duncan (2000) 78 Cal.App.4th 765, 772; see Stanton v. Superior Court (1987)
193 Cal.App.3d 265, 271 (Stanton) [“where, as here, the deprivation of a substantial
right is not shown in the transcript of the preliminary hearing, the nonstatutory motion to
dismiss is the proper device to raise the issue”].)
Fairchild’s perjury was not known at the time of the preliminary hearing and is not
visible from the transcript of that hearing. The perjury was only discovered at trial, when
he admitted lying at the preliminary hearing. Thus, this case is different from Jennings v.
Superior Court (1967) 66 Cal.2d 867 (Jennings), where the errors were immediately
visible at the preliminary hearing when the trial court prevented the defendant from
presenting a defense witness and from effectively cross-examining the principal
prosecution witnesses, depriving the defendant of substantial rights at the preliminary
hearing. (Id. at pp. 875-878; see also People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 526
(Pompa-Ortiz) [denial of the right to a public preliminary hearing could be raised by
section 995 motion to dismiss].)
7
The nonstatutory motion to dismiss was the appropriate vehicle to raise
defendant’s claim that Fairchild’s perjury at the preliminary hearing deprived defendant
of substantial rights by preventing him from presenting an affirmative defense when
defense counsel was unable to meaningfully cross-examine Fairchild. However, unlike in
Stanton, supra, 193 Cal.App.3d 265, where the defendant was deprived of the substantial
right to cross-examine certain prosecution witnesses at the preliminary hearing by the
prosecution’s failure to disclose an investigative report casting doubt on the witnesses’
credibility (id. at pp. 268, 271), here, Fairchild’s perjury was not known to the
prosecution at the time of the preliminary hearing, and there is no evidence that the
prosecution withheld evidence that would have cast doubt on Fairchild’s credibility
at the preliminary hearing.
In that regard, this case is more analogous to People v. Brice (1982)
130 Cal.App.3d 201 (Brice), in which the appellate court rejected the defendant’s
assertion that the prosecution committed misconduct by relying on perjured testimony at
the preliminary hearing. (Id. at p. 210.) The court explained that “[t]he record is devoid
of evidence which would support a conclusion that the district attorney knowingly
elicited false testimony . . . at the preliminary hearing.” (Ibid.) The court also explained
that “it cannot be said that the prosecutor knowingly relied upon perjured testimony in
the filing of the information.” (Id. at p. 211.) Moreover, the defendant “took full
advantage of his opportunity to impeach [the witness’s] trial testimony and the jury was
well aware of her inconsistent testimony.” (Ibid.) Similarly, here, there is no evidence
the prosecution knowingly elicited false testimony from Fairchild at the preliminary
hearing. And, as we explain immediately below, there is no showing of prejudice.
It is only where “the defendant makes a timely motion to dismiss and brings
the matter [to the reviewing court] on a petition for writ of prohibition” that “he is
entitled to [relief from the unlawful commitment] without further showing.” (Jennings,
supra, 66 Cal.2d at p. 881.) However, where the matter proceeds to trial, the defendant
8
“will ordinarily receive a fair trial if correct rulings are thereafter made at the trial on the
merits; in that event, on an appeal from a judgment of conviction the errors may be found
to have been cured in the subsequent proceedings.” (Id. at pp. 880-881.) In other words,
reversal of a judgment after trial is required “only if defendant can show that he was
deprived of a fair trial or otherwise suffered prejudice as a result of the error at the
preliminary examination.” (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.)
People v. Becerra (2008) 165 Cal.App.4th 1064 is instructive. There, the appellate
court held that the defendant was not prejudiced by perjury during grand jury testimony
because “the trial jury heard about the witness’s perjury and still found defendant guilty
beyond a reasonable doubt.” (Id. at p. 1067.) The court elaborated: “The prosecution
elicited at trial an admission from [the witness] that he had lied to the grand jury about
not being present at the murder scenes. The defense cross-examined [the witness]
vigorously on his perjury. The trial jury, after being informed of [the] perjury,
nevertheless found beyond a reasonable doubt that defendant committed the . . . murders
as well as the other crimes. Defendant thus suffered no prejudice at trial from [the
witness’s] grand jury perjury, rendering any error in the grand jury proceeding harmless.”
(Id. at p. 1071; see also Brice, supra, 130 Cal.App.3d at p. 210 [defendant made no
showing that any “illegality at the preliminary hearing prejudiced him at trial”].)
Here, any assumed deprivation of a substantial right at the preliminary hearing
was harmless. Defense counsel’s cross-examination of Fairchild at trial was very
effective. Fairchild came clean and admitted following defendant up the hill toward his
house and continuing the confrontation there. That revelation was beneficial to defendant
and caused the prosecutor to apologize to the jury for misstating what the evidence would
show during his opening statement. Fairchild’s admitted perjury at the preliminary
hearing also allowed defense counsel to argue to the jury that it should disbelieve
everything Fairchild had said about his confrontation with defendant that night.
Defendant received a fair trial. And after hearing all of the evidence, a properly
9
instructed jury acquitted defendant of attempted murder, found him guilty of attempted
voluntary manslaughter, and also found him guilty of the remaining charges. There was
no prejudice.
Defendant further argues the trial court denied his motions to dismiss based on an
erroneous standard. However, as already indicated, we review the trial court’s rulings
and not its reasoning. (Armstrong, supra, 232 Cal.App.3d at pp. 241-242.) Moreover, as
also explained, on appeal from a judgment of conviction, defendant must show prejudice.
He has not done so.
II
Defendant next claims the evidence is insufficient to support his criminal threat
conviction.
“When the sufficiency of the evidence is challenged on appeal, we apply the
familiar substantial evidence rule. We review the whole record in a light most favorable
to the judgment to determine whether it contains substantial evidence, i.e., evidence that
is credible and of solid value, from which a rational trier of fact could find beyond a
reasonable doubt that the accused committed the offense.” (In re Ryan D. (2002)
100 Cal.App.4th 854, 859 (Ryan D.).) “In deciding the sufficiency of the evidence, a
reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.]
Resolution of conflicts and inconsistencies in the testimony is the exclusive province of
the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient to support a conviction.
[Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
“[S]ection 422 makes it a crime to ‘willfully threaten to commit a crime
which will result in death or great bodily injury to another person’ under specified
circumstances . . . .” (People v. Toledo (2001) 26 Cal.4th 221, 224.) The crime has five
elements: “(1) that the defendant ‘willfully threaten[ed] to commit a crime which will
result in death or great bodily injury to another person,’ (2) that the defendant made the
10
threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if
there is no intent of actually carrying it out,’ (3) that the threat . . . was ‘on its face and
under the circumstances in which it [was] made, . . . so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a gravity of purpose and
an immediate prospect of execution of the threat,’ (4) that the threat actually caused the
person threatened ‘to be in sustained fear for his or her own safety or for his or her
immediate family’s safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’
under the circumstances.” (Id. at pp. 227-228.)
Fairchild testified that defendant walked over to him in the Dollar General parking
lot, pulled a gun out from behind his back, and said he was going to kill him. M.P.
testified that defendant, while pointing the gun at Fairchild’s head, said “something along
the lines of, ‘Do you want to fucking die tonight?’ ” Defendant acknowledges this
testimony, but argues his statement was “rhetorical” and “could hardly be considered an
expression of ‘intent to inflict serious evil’ on Fairchild which would instill sustained fear
in a reasonable person.” We are not persuaded.
Whether defendant directly said he was going to kill Fairchild, or instead asked if
he wanted to die, is of no consequence. Either way, it amounted to a criminal threat. As
this court explained in Ryan D., “the communication and the surrounding circumstances
are to be considered together. ‘Thus, it is the circumstances under which the threat is
made that give meaning to the actual words used. Even an ambiguous statement may be
a basis for a violation of section 422.’ [Citations.]” (Ryan D., supra, 100 Cal.App.4th at
p. 860.) The surrounding circumstances include, among other things, “the manner in
which the communication was made” and “the actions of the accused after making the
communication.” (Ibid.) “I’m going to kill you” is not ambiguous at all. “Do you want
to fucking die tonight?” is also sufficiently clear when viewed in the context of defendant
pointing a gun at Fairchild’s head and then pulling the trigger. There can be no doubt that
this evidence supports a finding that defendant willfully threatened to commit a crime
11
that would result in death or great bodily injury. (See People v. Fierro (2010) 180
Cal.App.4th 1342, 1348.) The evidence also supports a finding that he did so with the
specific intent that his statement be taken as a threat. Indeed, as in Fierro, we can
perceive no rational explanation for defendant’s actions and accompanying utterance
unless he “had the specific intent that [Fairchild] interpret his actions as a threat.” (Ibid.)
We also have no difficulty concluding that the threat was, both on its face and under the
circumstances in which it was made, sufficiently unequivocal, unconditional, immediate,
and specific to convey to Fairchild a gravity of purpose and an immediate prospect of
execution. The jury could reasonably have concluded this was no mere emotional
outburst or angry utterance, but rather an attempt to instill fear. (Ryan D., at p. 861.)
The final two elements are also supported by substantial evidence. Defendant
argues that Fairchild was not in sustained fear because he thought the gun was “a toy
gun.” However, although Fairchild testified that he initially thought the gun was fake,
he also “assumed the worst” and was “pretty scared.” Defendant then struck him in
the head with it, which revealed to Fairchild that the gun was in fact real. During the
subsequent fight in the parking lot, Fairchild became “really scared” that defendant
would shoot him, thereby following through on the threat. And even after he disarmed
defendant and drove home, Fairchild was still “pretty freaked out” as he described the
events to the deputy who took his statement, evidencing “ ‘sustained fear,’ ” which
simply “means a period of time that extends beyond what is momentary, fleeting, or
transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [15 minutes amounted
to sustained fear where the defendant was armed and threatened to kill the victim and
her daughter].) Moreover, there can be no doubt that Fairchild’s fear was reasonable
under the circumstances.
Defendant points to Fairchild’s testimony that he was afraid of being sent back
to prison for violating his parole. Two things can be true. That testimony does not
necessarily detract from Fairchild’s testimony that he was scared defendant would shoot
12
him. The fact that Fairchild was also afraid of being sent back to prison does not
undermine the jury’s finding of reasonable, sustained fear stemming from the threat.
III
In addition, defendant claims the trial court abused its discretion in declining to
dismiss the serious felony enhancement and the firearm enhancements attached to counts
1, 2, and 5. The claim contains two sub-arguments, which we address in turn.
A
Defendant argues “the plain language of section 1385, subdivision (c)(2)(B)
required the trial court to strike all but one of the enhancements.” Not so.
Senate Bill No. 81 (2021-2022 Reg. Sess.) “amended section 1385 to specify
factors that the trial court must consider when deciding whether to strike enhancements
from a defendant’s sentence in the interest of justice. (Stats. 2021, ch. 721, § 1.)”
(People v. Sek (2022) 74 Cal.App.5th 657, 674.) As amended, section 1385,
subdivision (c)(1) states: “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.”
Section 1385, subdivision (c)(2) lists nine mitigating circumstances and states in
relevant part: “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 paragraphs (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.” Subdivision (c)(2)(B) sets forth the following mitigating circumstance:
“Multiple enhancements are alleged in a single case. In this instance, all enhancements
beyond a single enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(B).)
In People v. Walker (2024) 16 Cal.5th 1024 (Walker), the California Supreme
Court held that section 1385 “does not erect a rebuttable presumption in favor of
13
dismissal that can only be overcome by a finding that dismissal endangers public safety.”
(Id. at p. 1033.) Instead, so long as the trial court “assigns significant value to the
enumerated mitigating circumstances when they are present” (id. at p. 1029), “trial courts
retain their discretion to impose an enhancement based on circumstances ‘long deemed
essential to the “furtherance of justice” inquiry.’ ” (Id. at p. 1033.) Moreover, in People
v. Mazur (2023) 97 Cal.App.5th 438, review dismissed after Walker was decided, the
appellate court held that “the ‘shall be dismissed’ language of the mitigating
circumstances in subdivisions (c)(2)(B) and (C)—read in the context of the statute as a
whole—only requires the court to dismiss the enhancement if it first finds that dismissal
is ‘in the furtherance of justice.’ [Citation.]” (Mazur, at p. 445.) This is because “the
statutory phrase ‘shall be dismissed’ in section 1385, subdivisions (c)(2)(B) and (C)
cannot be read in isolation. [Citations.] Construed as a whole, the statute makes
clear that all the mitigating circumstances listed in subdivision (c)(2) merely guide
the court’s discretion in determining whether a dismissal is in furtherance of justice.
Subdivision (c)(1) first sets forth the controlling ‘furtherance of justice’ standard for
dismissal. Subdivision (c)(2) then states that the court must give great weight to the
presence of any one or more of the nine listed mitigating circumstances ‘[i]n exercising
its discretion’ whether to dismiss.” (Mazur, at p. 445.)
Thus, the fact that multiple enhancements were found true in this case did not
automatically require the trial court to dismiss all but one enhancement. Instead, the trial
court was required to give great weight to the fact that multiple enhancements were found
true, not as an aggravating factor, but as a mitigating factor, which would “generally
result in the dismissal of an enhancement unless the sentencing court finds substantial,
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.]” (Walker, supra, 16 Cal.5th at p. 1038.)
14
B
Defendant further contends the trial court “was unaware that it had discretion to
strike the five-year [serious felony] enhancement.”
After dismissing defendant’s prior strike for purposes of three strikes sentencing,
the trial court stated its tentative intended sentence on the record. The trial court
explained that defendant was ineligible for probation and did not overcome that
ineligibility. During that explanation, the trial court pointed out that defendant actively
engaged and continued to engage in the confrontation with Fairchild, including by
retrieving a firearm that he was not allowed to possess, advancing on Fairchild with that
firearm in the parking lot, and pulling the trigger.
Turning to the intended sentence, the trial court stated that it would impose the low
term of one and a half years for the attempted voluntary manslaughter (count 1). It
selected the low term based on childhood trauma and certain mental health conditions
being contributing factors in the commission of the offense. The trial court stated with
respect to the serious felony enhancement: “I am required to impose the enhancement
and discretionarily, I don’t believe I have a basis to strike the enhancement, which is five
years. Let me say that differently. Exercising my discretion, I will not strike the
enhancement.” The trial court then cited People v. Turner (1998) 67 Cal.App.4th 1258, a
case decided at a time when the serious felony enhancement was mandatory and could
not be stricken. (Id. at pp. 1268-1269.) The trial court also stated that it intended to
impose the three-year firearm enhancement, for a total base term of nine years, six
months. The remainder of the intended sentence would be: one year for the assault with
a firearm (count 2), plus one year, four months for the firearm enhancement attached to
that count, plus eight months for unlawful possession of a firearm (count 3). Sentences
imposed for counts 4 and 5 would be stayed.
During argument, the prosecutor reminded the trial court that it had discretion
under section 1385 to strike the firearm enhancements, but asked the court “not to use its
15
discretion” to do so. The trial court then stated: “So if I use my discretion, I maintain
where I’m at.” With respect to striking enhancements, defense counsel asked the trial
court to strike all enhancements. Defense counsel argued: “If you look at . . . [s]ection
1385 and why the Legislature, you know, has changed, and made these assessments, there
are these enhancements, discretionary now, I think [defendant’s] case is . . . looking at
about 75 percent of a sentence is going to be enhancement based.” Defense counsel
argued that the same reasoning applicable to dismissing the prior strike for purposes of
three strikes sentencing also applied to striking the serious felony enhancement.
Defense counsel added that section 1385, subdivision (c)(2)(B) required dismissal of
“all enhancements beyond a single enhancement.” Defense counsel then pointed to other
factors listed in that section, such as where the current offense was connected to mental
illness, or there was childhood trauma, or where the firearm was inoperable. Defense
counsel argued those factors supported a grant of probation, but if the trial court was not
going to do that, it should at least dismiss all three enhancements, adding: “I think
[section] 1385 provides a . . . framework of why you should do that and how you can do
that.” Later in the argument, the prosecutor reiterated that “the [section] 1385 factors
which are now in place” supported the trial court’s decision not to strike any
enhancements. In response, defense counsel argued, “not to rehash everything I just said,
but the . . . five-year enhancement is old, the firearm was inoperable, this was such a
unique, wild situation that [defendant] . . . should get every benefit that the law
allows . . . .” The trial court declined to “exercise discretion in a way that would strike an
enhancement” and it imposed the intended sentence.
In announcing its intended sentence, the trial court said, “Exercising my
discretion, I will not strike the enhancement.” But even if the trial court initially believed
it had no discretion to dismiss the serious felony enhancement, the parties repeatedly
informed the trial court that it possessed such discretion, and the trial court clearly stated
that it declined to strike any enhancements. The record supports a conclusion that the
16
trial court was aware of its discretion to dismiss the enhancements under section 1385,
including the serious felony enhancement, and declined to do so.
We also conclude that defendant has not demonstrated an abuse of that discretion.
Although the trial court did not specifically state that it was giving great weight to the
mitigating circumstances identified by defense counsel at the sentencing hearing,
defendant’s sentencing brief clearly identified that as the appropriate standard. Absent
a showing to the contrary, we presume the trial court was aware of and followed
applicable law. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) We must presume
the trial court found countervailing factors that neutralized the great weight of the
mitigating circumstances, such that dismissal of the enhancements was not in furtherance
of justice. (Walker, supra, 16 Cal.5th at p. 1038.) Many such countervailing factors exist
in this case. The crime involved the threat of great bodily harm. (Cal. Rules of Court,
rule 4.421(a)(1).) Defendant was armed with, and used, a firearm. (Id., rule 4.421(a)(2).)
Defendant engaged in violent conduct indicating a serious danger to society. (Id.,
rule 4.421(b)(1).) Defendant has a lengthy criminal record and has served a prior prison
term. (Id., rule 4.421(b)(2), (3).) During the sentencing hearing, the trial court noted the
grave nature of the offense, defendant’s inability to disengage from conflict, both during
the present offense and during a prior battery offense that occurred in 2017, defendant’s
decision to arm himself and use a firearm even though he was prohibited from possessing
such a weapon, and defendant’s history of “criminality that spans every decade of [his]
life.”
Discretion is abused when “the court exceeds the bounds of reason, all of the
circumstances before it being considered. The burden is on the party complaining to
establish an abuse of discretion, and unless a clear case of abuse is shown and unless
there has been a miscarriage of justice a reviewing court will not substitute its opinion
and thereby divest the trial court of its discretionary power.” (People v. Thompson (1994)
24 Cal.App.4th 299, 308.) Defendant has not shown an abuse of discretion.
17
DISPOSITION
The judgment is affirmed.
/S/
MAURO, J.
We concur:
/S/
EARL, P. J.
/S/
HULL, J.
18