Under New PC 1385(c): Must Judge Dismiss Enhancements?

Our office has received many calls from inmates in state prison, their family and their friends asking if the inmate is “eligible” for the many new sentencing laws “that mandate removing enhancements from a sentence.” Because we receive so many calls that similarly express the understanding that certain enhancements “must be” dismissed from a sentence, we wanted to write a summary of a recent published ruling that addresses this common misperception.

The case of Charles Cota and the Fifth Appellate District Court’s ruling on his appeal is just that case.

The underlying facts are that in 2015, at a Bakersfield gas station, at about 2:15 a.m., Mr. Cota stabbed a young man in two locations on his back and arm and then ran away. When the gas station manager reviewed the gas station’s security video, he recognized Mr. Cota as the suspect because Mr. Cota frequently hung out at the gas station, asking for money and alcohol from customers. A few days after the attack, he was arrested when he returned to the gas station to resume his routine of asking for money and alcohol.

Mr. Cota was convicted in 2016 in Kern County Superior Court of assault with a deadly weapon (Penal Code § 245(a)(1)), with an enhancement found true for personal infliction of great bodily injury (Penal Code § 12022.7); battery with serious bodily injury (Penal Code § 243(d)), with an enhancement found true for personal use of a deadly weapon (Penal Code § 12022(b)(1)); and child abuse under circumstances likely to cause great bodily injury or death (Penal Code § 273a(a)), with an enhancement found true for personal infliction of great bodily injury (Penal Code § 12022.7).

In bifurcated proceedings, Judge Chad Louie found true that Mr. Cota had suffered a prior serious felony conviction which was also a strike and had suffered six prior prison terms within the meaning of Penal Code § 667.5(b).

Judge Louie sentenced Mr. Cota to a determinate term of 25 years as follows: 12 years on the child abuse (calculated as high term of six years, doubled for the strike prior), plus 3 years for the great bodily injury enhancement; a consecutive 5 year term for the prior serious felony conviction; and five consecutive one-year terms for the prior prison term enhancements. Sentencing on the 245(a)(1) and 243(d) counts was imposed, but stayed.

On Mr. Cota’s direct appeal, two of the one-year prison priors were stricken because those offenses had been reduced to misdemeanors.

In April, 2022, Mr. Cota himself filed a petition for resentencing under former Penal Code § 1171 (now renumbered as Penal Code § 1172.7) and former section 1171.1 (now renumbered as 1172.75 as enacted by Senate Bill (SB) 483).

In December 2022, Judge Louie conducted a resentencing hearing at which time it dismissed the prior prison term enhancements. However, Judge Louie declined Mr. Cota’s request to strike the prior serious felony enhancement and Mr. Cota was resentenced to an aggregate determinate term of 20 years.

Judge Louie explained that he had reviewed Mr. Cota’s criminal history dating back to 1980, which he summarized as showing numerous violations of the law involving theft-related offenses, crimes of violence, being under the influence of a controlled substance and resisting arrest. There was an assault in 1992. There was an assault with a deadly weapon conviction in 1993, a criminal threats case in 2000, a battery in 2006 and another battery in 2009. He picked up a strike in 2011 and was paroled in 2012, but then picked up the present case in 2015. Judge Louie then found that dismissal of the enhancements for Mr. Cota would endanger public safety.

Mr. Cota then appealed Judge Louie’s decision not to dismiss the prior serious felony conviction enhancement and the great bodily injury enhancement, arguing that dismissal of such enhancements was mandatory under Penal Code § 1385(c)(2)(B), as added by Senate Bill (SB) 81.

The Fifth Appellate District agreed with Mr. Cota that Judge Louie had jurisdiction to resentence Mr. Cota as alleged, but that Penal Code § 1385(c)(2)(B) does not mandate dismissal of any enhancements when the judge finds in his or her discretion that dismissal of the enhancements would endanger public safety, as Judge Louie found.