Filed 9/30/26 P. v. Joseph CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G065311
v. (Super. Ct. No. 17WF1996)
DINO KENNETH JOSEPH, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Larry Yellin, Judge. Affirmed.
Michelle T. LiVecchi-Raufi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Donald W. Ostertag and Elana Miller, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant Dino Kenneth Joseph appeals from his resentencing,
claiming the trial court abused its discretion by declining to dismiss a firearm
enhancement. He contends the court insufficiently considered his mitigating
circumstances. But the record shows the court considered all the information
that Joseph provided, expressly including Joseph’s “family circumstances.”
Nonetheless, the court reasonably found dismissing the enhancement was not
in the interest of justice due to the nature of the offense and Joseph’s
significant role in it. We affirm.
FACTS
According to the police reports, Joseph and two others committed
armed robbery at a store. During the robbery, Joseph brandished a gun and
forced an employee to open the safe and registers while other employees were
bound in the back. He and his accomplices stole about $13,000 in cash and
merchandise. Police apprehended them after a high-speed car chase that
resulted in a crash and an ensuing foot pursuit.
Joseph pleaded guilty in 2019 to three counts of robbery. He also
admitted having personally used a firearm and having served two prior
prison terms. He was sentenced to a total of 15 years in prison, which
included 10 years for the firearm enhancement and 1 year for each of the
prior prison terms (Pen. Code,1 former § 667.5, subd. (b)).
The Legislature later retroactively limited the application of
prison priors and enacted section 1172.75 to enable those serving time for
now-invalid prison priors to be resentenced. (People v. Rhodius (2025) 17
Cal.5th 1050, 1053–1055.)
1 All statutory references are to this code.
2
After these changes, the trial court recalled Joseph’s sentence
and held a new sentencing hearing. Joseph asked the court to dismiss the
firearm enhancement and provided evidence of certain mitigating
circumstances. Among other things, he provided a letter he wrote recounting
that, when he was a child, family members taught him about “hustling” and
how to get out of trouble, which led him down a path of associating with gang
members and committing crimes. He also provided evidence of his
rehabilitation efforts in prison. For instance, he participated in substance
abuse programs and firefighter training and he learned a new trade.
The prosecution, on the other hand, asked the court to reimpose a
15-year sentence. Among other things, it cited Joseph’s 15 rule violations in
prison, which included substance abuse, fighting, and delaying a peace officer
in the performance of their duties.
The trial court imposed a 13-year sentence, omitting the now-
invalid prison-priors but declining to dismiss the firearm enhancement. The
court noted it had “read and considered” the information the parties provided,
including Joseph’s “family circumstances” and rehabilitation efforts in prison,
on one hand, and the “things that were not going so well in prison,” on the
other. It concluded that dismissing the enhancement was not “in the interest
of justice,” explaining that Joseph had “a primary role, if not the leadership
role” in the robbery and was the one who used a gun. It found there was
“certainly a lot of risk involved to the community.”
The prosecution asked the trial court to find either that (1) the
new sentence was a reduction in Joseph’s sentence or that (2) reducing the
sentence would “endanger public safety” for purposes of section 1172.75. The
court replied that the new sentence was indeed a reduction.
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DISCUSSION
In conducting the full resentencing contemplated by section
1172.75,2 the trial court permissibly declined to strike the firearm
enhancement. A trial court must dismiss an enhancement if it determines “it
is in the furtherance of justice to do so.” (§ 1385, subd. (c)(1).) Unless the
court finds that dismissing the enhancement would endanger public safety, it
must assign great weight to certain mitigating circumstances, including the
fact that “[t]he current offense is connected to . . . childhood trauma.” (§ 1385,
subd. (c)(2) & (E).) But the court retains the discretion to impose or dismiss
the enhancement based on a “‘holistic balancing’”—there is no “rebuttable
presumption” in favor of dismissal. (People v. Walker (2024) 16 Cal.5th 1024,
1029.)
The record shows that the trial court considered the mitigating
evidence Joseph presented. It noted both his description of his upbringing
and his rehabilitation efforts. To the extent section 1385 required the court to
assign significant weight to the circumstances of Joseph’s upbringing, we
presume the court did so. (See People v. Bravo (2025) 107 Cal.App.5th 1144,
1157 [“‘[a]bsent evidence to the contrary, we presume that the trial court
2 In his opening brief, Joseph suggests the court was required to
find that dismissing the enhancement would “endanger public safety” under
section 1172.75, subdivision (d)(1). We read the statute differently. That
provision states that a resentencing under the statute must “result in a lesser
sentence . . . as a result of the elimination of the repealed [prison-prior]
enhancement, unless the court finds . . . that imposing a lesser sentence
would endanger public safety.” (Ibid.) The trial court’s elimination of Joseph’s
prison priors resulted in a lesser sentence: 13 years instead of the original 15.
So as the Attorney General’s brief notes, no endangerment finding was
necessary. Joseph does not pursue the issue further in his reply brief.
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knew the law and followed it’”].) The court made no statement to the
contrary.
Yet the court was entitled to conclude that dismissing the
enhancement was nevertheless not in the interest of justice given the
aggravating circumstances. Joseph played a primary role in a concerted,
multi-victim armed robbery, stealing property worth about $13,000 and
posing “a lot of risk” to the community. That risk continued as Joseph and his
accomplices led police on a high-speed chase that resulted in a crash. And
while in prison, Joseph committed numerous rule violations. It was for the
trial court to decide what weight to assign these aggravating circumstances.
(People v. Carmony (2004) 33 Cal.4th 367, 377 [appellate court may not
substitute its judgment for that of sentencing judge].)
Contrary to Joseph’s contention, the court was not required to
explain its application of section 1385’s framework. Section 1385, subdivision
(a), requires a trial court to state its reasons for dismissing an enhancement
but there is no similar requirement when the court declines to dismiss one.
(People v. Bravo, supra, 107 Cal.App.5th at p. 1157.) And nothing suggests
the court used an incorrect framework.
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DISPOSITION
The judgment is affirmed.
SCOTT, J.
WE CONCUR:
MOTOIKE, P. J.
SERVINO, J.
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