by Matt Clarke

The Court of Appeal of California, Fourth Appellate District, held that a court resentencing a defendant pursuant to Senate Bill 1393 (“SB 1393”) (Stats. 2018, ch. 1013 (§§ 1, 2)) cannot base its decision solely on its assessment of the defendant’s dangerousness at the time of sentencing. Instead, it must consider the defendant’s dangerousness at the time of a future potential release should it exercise its discretion not to reimpose an enhancement while taking into account the fact that the parole board will be assessing dangerousness at that time.

David Gonzalez fatally shot a man in California in 2014. A jury convicted him of first-degree murder, California Penal Code (“PC”) § 187(a), and found that he personally and intentionally discharged a firearm in the course of committing the murder. PC § 12022.53(d). Based on a prior juvenile conviction for robbery with the personal use of a firearm, PC §§ 211, 12022.53(b), the trial court found a prior serious felony conviction and prior strike. PC §§ 677(a), (c), (e)(1), 1170.12(c)(1).

The trial court sentenced Gonzalez to 50 years to life for murder (including doubling due to the prior strike) with a 25-year firearms enhancement and 5-year consecutive sentence for the prior serious felony conviction. Gonzalez timely appealed. The Court of Appeal remanded to the trial court for it to decide whether to exercise its discretion to dismiss the firearms enhancement under an amendment to that law. Stats. 2017, ch. 682, § 2. The trial court declined to do so.

In a second appeal, the Court of Appeal remanded for the trial court once again to consider exercising its discretion to dismiss a strike or prior serious felony conviction enhancement under another amendment—SB 1393. Again, the trial court declined to do so.

Aided by attorney Johanna Pirko, who was appointed by the Court of Appeal, Gonzalez appealed a third time.

The Court of Appeal noted that Gonzalez had filed a sentencing memorandum prior to resentencing advocating dismissal of the prior serious felony and firearms enhancements. The memorandum referenced People v. Williams, 19 Cal. App. 5th 1057 (2018), as supporting his argument that the resentencing decisions should be based upon the trial court’s assessment of whether Gonzalez posed an unreasonable risk of danger when he would be released if a modification to his sentence is granted. Defense counsel argued that both the parole board and the Governor would be assessing Gonzalez’s dangerousness in the future when he became eligible for parole.

The prosecution and trial court had focused solely on the danger Gonzalez posed to society at the time of his sentencing. Based on a finding of current dangerousness, the trial court declined to dismiss the firearms enhancement but dismissed the 5-year consecutive sentence for the prior serious felony enhancement as superfluous “especially given the 75 years to life that I’m imposing [it] serves no useful purpose because it is highly unlikely that [he] will ever be released.”

The Court reviewed the statutory language regarding whether dismissal of an enhancement would “endanger public safety” and noted that the “Legislature specifically defined “[e]ndanger public safety” to mean “there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” It ruled that the “plain words of the statute do not support the trial court’s singular focus on whether the defendant currently poses a danger. Notably, section 1385, subdivision (c)(2) focuses on the danger associated with the dismissal of an enhancement.” Since any such danger would accrue in the future at the time a defendant would become parole eligible were the enhancement dismissed, the trial court should have based its decision on the risk posed at that time as set out in Williams, the Court explained.

The Court added: “Further, an inquiry into whether public safety will be endangered by the dismissal of an enhancement for a defendant serving a lengthy indeterminate sentence should also take into account that the defendant’s release from prison is contingent on review by the Board of Parole Hearings (and for murder convictions by the Governor), who will have the opportunity to assess the defendant’s dangerousness at that time. That future review will act as a safety valve against a release that would endanger the public and is relevant to a trial court’s analysis of whether the dismissal of an enhancement imposed on a defendant serving an indeterminate prison term will endanger public safety.”

Although Williams involved a different statute, the Court approved of its analysis because both “provisions direct the trial court to consider the impact to public safety if the defendant were granted sentencing relief.” The Court concluded that, “based on the plain language of section 1385, subdivision (c)(2), the trial court erred because it considered only whether Gonzalez currently posed a danger to public safety when assessing if a dismissal of the firearms enhancement would ‘endanger public safety.’” Thus, the Court held that this “application of an erroneous legal standard constitutes an abuse of discretion” that was prejudicial.

Accordingly, the Court vacated and remanded for resentencing consistent with its opinion. See: People v. Gonzalez, 103 Cal. App. 5th 215 (2024).  

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