Filed 10/8/26 P. v. Brown CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A173870
v.
KRIS BROWN, (San Mateo County
Super. Ct. No. 24-SF-0012250-A)
Defendant and Appellant.
Defendant Kris Brown appeals from a judgment in which the trial court
limited his conduct credits to 15 percent of his presentence confinement
period after the court imposed a sentencing enhancement and struck only its
punishment. We conclude the record is, at best, ambiguous whether the trial
court misunderstood its discretion to dismiss or strike an enhancement
pursuant to Penal Code1 section 1385. Accordingly, we vacate the sentence
and remand for resentencing.
I. BACKGROUND
As reflected in the probation report, during an altercation, Brown
punched the victim in the face and the victim fell and hit his head on the
pavement. After being in a coma, the victim died from his injuries a few
1 Undesignated statutory references are to the Penal Code.
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weeks later. Brown was charged by amended information, and he pled no
contest to assault by means of force likely to produce great bodily injury
(GBI) (§ 245, subd. (a)(4)) and admitted a GBI enhancement (§ 12022.7,
subd. (a)) and various aggravating factors. The trial court accepted Brown’s
plea and dismissed the balance of the information.
In his sentencing memorandum, Brown requested probation due to
unusual circumstances which he argued overcame the presumption of
ineligibility. He asserted that the probation report and a psychological
evaluation demonstrated he had a traumatic childhood and upbringing.
Additionally, he suffered several traumatic events, including his siblings’
deaths and a recent attempted robbery where he was shot. According to the
psychological evaluation, Brown had been diagnosed with post-traumatic
stress disorder, major depressive disorder, mild intellectual disability, and
moderate alcohol and cocaine use disorders. The evaluation identified his
risk level as “moderate to high for future violence based on his history of
aggressive behavior, current psychiatric symptoms, cognitive limitations, and
unstable future circumstances.” The probation report confirmed Brown’s
traumatic upbringing. The probation department recommended the trial
court deny probation.
At the sentencing hearing, the trial court explained that when it had
pre-tried the case, it believed the charge should have been amended to
involuntary manslaughter after the victim died. It acknowledged the
“unfortunate set of circumstances where a challenge to fight” resulted in one
punch and the victim’s death. But the court believed Brown should have
continued to walk away. “[W]ith that,” the court explained it had reviewed
the probation report, Brown’s sentencing memorandum, and the psychology
evaluation, and it concluded probation was not proper. The court considered
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that Brown admitted three aggravating factors and had been assessed as
presenting a moderate to high risk of future violence.
The trial court sentenced Brown to the upper term of 4 years in prison.
Regarding the enhancement, the court stated, “[O]n the great bodily injury
enhancement under [section] 12022.7, the [c]ourt is going to strike that for
purposes of punishment only. So this will still be deemed as a violent and
serious felony . . . and the credits . . . will be so given accordingly.” In giving
its reasons for striking the enhancement’s punishment, the court stated, “The
different factors that I am considering in making that decision . . . were those
that were laid out by [defense counsel] and that were present in the probation
report[,] factors that the current offense with regard to Mr. Brown’s life could
be argued that it is connected to mental illness or connected to prior
victimization or childhood trauma.” In pronouncing sentence, the court
reiterated that the enhancement was “imposed” but “the punishment [was]
stricken.” The court awarded 283 days actual credits and 42 days conduct
credits, for a total of 325 days presentence credits. That is, the court limited
Brown’s presentence conduct credits to 15 percent of the actual number of
days he spent in custody.
II. DISCUSSION
Brown argues the trial court misunderstood its discretion under section
1385 in relying on mitigating circumstances enumerated in subdivision (c) of
the statute to determine the appropriateness of dismissing only the
punishment for the GBI enhancement pursuant to subdivision (b)(1).
Accordingly, he contends remand for resentencing is necessary.2
2 In his initial briefing, Brown argued the trial court erred in limiting
his presentence conduct credits to 15 percent of his confinement period after
it struck the punishment for the GBI enhancement. In reviewing the record
to consider his challenge, we requested the parties submit supplemental
3
Brown was convicted of assault (§ 245, subd. (a)(4)) with a true finding
as to the GBI enhancement allegation (§ 12022.7, subd. (a)). The
enhancement brought the offense within the meaning of a violent felony
under section 667.5, subdivision (c)(8). Based on the enhancement, he could
accrue conduct credits of no more than 15 percent of his actual period of
confinement. (§ 2933.1, subds. (a), (c).)
Section 1385 governs a trial court’s discretion to dismiss various
elements of an action or sentence. Under section 1385, subdivision (a), the
trial court “may . . . in furtherance of justice, order an action to be dismissed.”
This authority includes the power to dismiss or strike a sentencing
enhancement. (People v. Thomas (1992) 4 Cal.4th 206, 209.) Section 1385,
subdivision (b)(1), states that “[i]f the court has the authority pursuant to
subdivision (a) to strike or dismiss an enhancement, the court may instead
strike the additional punishment for that enhancement in the furtherance of
justice.” “In other words, striking an enhancement is different from striking
the punishment for the enhancement.” (People v. Tang (2025)
109 Cal.App.5th 1003, 1010.) California Rules of Court,3 rule 4.428(b),
briefing addressing whether the trial court misunderstood its discretion
under section 1385 and failed to apply the statute appropriately and, if so,
the appropriate remedy. Both sides submitted supplemental briefing. We
necessarily rejected the People’s contention that Brown forfeited his claim of
conduct credit error by failing to object below. To the extent his claim could
be forfeited, we would exercise our discretion to consider it because it involves
a pure question of law presented by undisputed facts (see People v. Hines
(1997) 15 Cal.4th 997, 1061; see also In re Sheena K. (2007) 40 Cal.4th 875,
887, fn. 7) and to forestall a petition for writ of habeas corpus based on
ineffective assistance of counsel (see People v. Williams (2000) 78 Cal.App.4th
1118, 1126). However, given our disposition, we do not reach the merits of
Brown’s challenge to his conduct credit award.
3 Further references to rules are to the California Rules of Court.
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provides factors for the court’s determination, stating, “In determining
whether to strike the entire enhancement or only the punishment for the
enhancement, the court may consider the effect that striking the
enhancement would have on the status of the crime as a strike, the accurate
reflection of the defendant’s criminal conduct on his or her record, the effect it
may have on the award of custody credits, and any other relevant
consideration.”
Prior to 2022, section 1385 “did not provide direction as to how courts
should exercise that discretion” to dismiss or strike enhancements. (People v.
Anderson (2023) 88 Cal.App.5th 233, 238.) Effective January 1, 2022, Senate
Bill No. 81 (2021–2022 Reg. Sess.) amended section 1385 “to specify
mitigating circumstances courts must consider when deciding whether to
strike enhancements in furtherance of justice.” (People v. Dain (2025)
115 Cal.App.5th 235, 246.) Senate Bill No. 81 added subdivision (c) to section
1385 (Stats. 2021, ch. 721, § 1), which now provides, in part: “(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
[enumerated] mitigating circumstances . . . 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.” (§ 1385, subd. (c)(1)–(2).) As relevant here,
the enumerated mitigating circumstances include: the “current offense is
connected to mental illness” and the “current offense is connected to prior
victimization or childhood trauma.” (§ 1385, subd. (c)(2)(D), (E).)
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Under section 1385, subdivision (c), “absent a finding that dismissal
would endanger public safety, a court retains the discretion to impose or
dismiss enhancements provided that it assigns significant value to the
enumerated mitigating circumstances when they are present.” (People v.
Walker (2024) 16 Cal.5th 1024, 1029.) That is, “if the court does not find that
dismissal would endanger public safety, the presence of an enumerated
mitigating circumstance will 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.’ ” (Ibid.) If a trial court
dismisses an enhancement pursuant to subdivision (c) of section 1385, “then
both the enhancement and its punishment must be dismissed.” (Rule
4.428(c)(3).)
“We review a court’s sentencing choices for abuse of discretion.”
(People v. Nielsen (2026) 119 Cal.App.5th 816, 823.) “A defendant is entitled
to a sentencing decision made in the exercise of informed discretion.” (Ibid.)
“We presume the court knows and applies the applicable law, absent evidence
to the contrary.” (Ibid.) “[W]here the record affirmatively discloses that the
trial court misunderstood the scope of its discretion, remand to the trial court
is required to permit that court to impose sentence with full awareness of its
discretion.” (People v. Fuhrman (1997) 16 Cal.4th 930, 944; compare with
People v. Brown (2007) 147 Cal.App.4th 1213, 1229 [“[R]emand is
unnecessary if the record is silent concerning whether the trial court
misunderstood its sentencing discretion. Error may not be presumed from a
silent record.”].) Additionally, a record that is, “[a]t best, . . . ambiguous”
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about whether the court understood its sentencing discretion warrants
remand. (People v. Ochoa (2020) 53 Cal.App.5th 841, 852–853.)
Here, the record is, at best, ambiguous about whether the trial court
properly understood its discretion under section 1385. The court clearly
stated its intent to impose the GBI enhancement and strike only the
enhancement’s punishment, which it had discretion to do pursuant to section
1385, subdivision (b)(1). At the same time, the court relied on mitigating
circumstances enumerated in section 1385, subdivision (c)(2), in making its
determination. The court stated that the “different factors that” it considered
were “factors that the current offense with regard to Mr. Brown’s life could be
argued that it is connected to mental illness or connected to prior
victimization or childhood trauma.” (See § 1385, subd. (c)(2)(D), (E).) The
text of section 1385 demonstrates that the enumerated mitigating
circumstances are to be “consider[ed] and afford[ed] great weight” when a
court exercises “its discretion under this subdivision,” that is, subdivision (c).
(§ 1385, subd. (c)(2), italics added.) And, if a dismissal is made pursuant to
subdivision (c), “then both the enhancement and its punishment must be
dismissed.” (Rule 4.428(c)(3).)
The remainder of the record provides no further guidance. In his
sentencing memorandum, Brown did not address striking the GBI
enhancement (he only requested probation). Section 1385 was never
mentioned during the change of plea or sentencing hearings. At the
sentencing hearing, striking the GBI enhancement was first addressed when
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the trial court, in pronouncing sentence, stated that it was imposing the
enhancement but striking its punishment.4
The proper remedy is a remand for resentencing. (See People v.
Fuhrman, supra, 16 Cal.4th at p. 944.) The People accurately point out that
remand is unnecessary if “the record ‘clearly indicate[s]’ that the trial court
would have reached the same conclusion ‘even if it had been aware’ ” of its
discretion. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) But we cannot
conclude that the record here so clearly indicates such a result. That is, the
record does not demonstrate “with unusual clarity that remand would be an
idle act.” (People v. Flores (2020) 9 Cal.5th 371, 432.)
To be clear, the presence of a mitigating circumstance enumerated in
section 1385, subdivision (c)(2), does not presume that an enhancement
should be dismissed. Instead, “ ‘the ultimate question before the trial court
remains whether it is in the furtherance of justice to dismiss an
enhancement.’ ” (People v. Walker, supra, 16 Cal.5th at p. 1033; see also
People v. Bravo (2025) 107 Cal.App.5th 1144, 1157.) “This means that,
absent a danger to public safety, the presence of an enumerated mitigating
circumstance will 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.’ ” (Walker, at p. 1036.) Conversely, “ ‘if the trial court
finds that dismissal of an enhancement would endanger public safety, then it
is hard to see how dismissal would further the interests of justice,’
4 We observe that the abstract of judgment does not identify any
enhancement in section 2, and it reflects that presentence conduct credits
were awarded pursuant to section 4019, not section 2933.1.
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notwithstanding the applicability of any mitigating factors identified in
subdivision (c)(2).” (Id. at p. 1033.) Here, the record is unclear whether the
trial court determined that it was in the furtherance of justice to dismiss or
strike any part of the enhancement pursuant to section 1385, subdivision
(b)(1) or subdivision (c). (See § 1385, subds. (b)(1) [court may strike the
enhancement’s additional punishment “in the furtherance of justice”], (c)(1)
[court “shall dismiss an enhancement if it is in the furtherance of justice to do
so”].) Given this record, we believe it is prudent to remand the matter for
resentencing.
Accordingly, we remand the matter for the trial court to properly
exercise its discretion pursuant to section 1385. The court should modify the
abstract of judgment so that it accurately reflects the sentence.5
III. DISPOSITION
The sentence is vacated and the matter is remanded to the trial court
for resentencing consistent with this opinion.
5 We express no opinion on the outcome of the resentencing hearing.
Should the trial court decide to impose the GBI enhancement and strike only
its additional punishment, we express no opinion on the proper award of
custody credits. That is the issue originally raised by this appeal, which we
do not reach given our disposition.
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_________________________
LANGHORNE WILSON, J.
WE CONCUR:
_________________________
BANKE, Acting P. J.
_________________________
SMILEY, J.
People v. Brown / A173870
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