Discretion To Dismiss An Enhancement Does Not Apply To Allow The Court To Strike The Jury’s Premeditation And Deliberation Finding

People v. Serrano (Cal. Ct. App., Mar. 28, 2024, No. A166011) 2024 WL 1320422, at *6–9

Exercise of Discretion Under Section 1385(c)

Serrano argued  that the trial court erred by failing to exercise its discretion under section 1385(c) to consider striking the jury’s premeditation and deliberation findings.

The People responded that section 1385(c) does not apply to premeditation and deliberation findings because they are not enhancements. The Court of Appeal agreed.

Section 1385(c) 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 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….”3 (§ 1385, subd. (c)(1)–(2).)

Allegations of premeditation and deliberation accompanying attempted murder counts are not enhancements

Serrano claims that the allegations of premeditation and deliberation accompanying the attempted murder counts constitute “enhancement[s]” within the meaning of section 1385(c). The plain language of section 1385(c) does not support his claim.

“[S]ubdivision (c) of section 1385 expressly applies to the dismissal of an ‘enhancement.’ (§ 1385, subd. (c)(1).) The term ‘enhancement’ has a well-established technical meaning in California law. ([People v. Superior Court (Romero) (1996)] 13 Cal.4th [497,] 526–527].) ‘A sentence enhancement is “an additional term of imprisonment added to the base term.” ’ (People v. Jefferson (1999) 21 Cal.4th 86, 101.)

The “Three Strikes” law is not an enhancement under section 1385(c). It is “well established” that the law is instead “an alternative sentencing scheme for the current offense.” Courts have “presume[d] the Legislature was aware of, and acquiesced in, both this established judicial definition of enhancement and the distinction between an enhancement and an alternative sentencing scheme such as the Three Strikes law. “[I]f the Legislature had wanted section 1385, subdivision (c) to apply to prior strikes as well as to enhancements as legally defined, it would have said so.” (People v. Olay (2023) 98 Cal.App.5th 60, 67.)

This same reasoning applies to premeditation and deliberation findings. Serrano  received two indeterminate terms of 15 years to life, one for each count of premeditated and deliberate attempted murder of a peace officer. This sentence was imposed pursuant to sections 187, subdivision (a), and 664. Here,  664, subdivision (e) provides: “Notwithstanding subdivision (a), if attempted murder is committed upon a peace officer …, and the person who commits the offense knows or reasonably should know that the victim is a peace officer …, the person guilty of the attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.” (§ 664, subd. (e).) However, “if the elements of subdivision (e) are proven in an attempted murder and it is also charged and admitted or found to be true by the trier of fact that the attempted murder was willful, deliberate, and premeditated, the person guilty of the attempt shall be punished by imprisonment in the state prison for 15 years to life.” (§ 664, subd. (f).)

Section 664, subdivisions (e) and (f) provide alternative penalty provisions depending on whether the underlying offense of attempted murder of a peace officer was committed with premeditation and deliberation. Section 664, subdivision (a), prescribing a punishment of life imprisonment with the possibility of parole for an attempt to commit murder that is ‘willful, deliberate, and premeditated’ does not establish a greater degree of attempted murder but, rather, sets forth a penalty provision prescribing an increased sentence (a greater base term) to be imposed upon a defendant’s conviction of attempted murder when the additional specified circumstances are found true by the trier of fact. (

Unlike an enhancement, which provides for an additional term of imprisonment, a penalty provision sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute. Section 664, subdivisions (a), (e) and (f) provide alternative penalties for the offenses of attempted murder and attempted murder of a peace officer committed with premeditation and deliberation rather than enhancements. Therefore, section 1385(c) did not afford the trial court discretion to dismiss the jury’s premeditation and deliberation findings based on the evidence of defendant’s mitigating circumstances. Had the Legislature wanted section 1385(c) to apply to premeditation findings as well as to enhancements as legally defined, it would have said so.

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