REHAN NAZIR, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
B310806
(Los Angeles County Super. Ct. No. VA151320)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 6/2/22
CERTIFIED FOR PUBLICATION
Okabe & Haushalter, Mark Haushalter and Joe Weimortz; Kravis, Graham & Zucker, Bruce Zucker and Thomas Ian Graham for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Blythe J. Leszkay, Deputy Attorney General as Amicus Curiae on behalf of Petitioner and Real Party in Interest.
Claudia Y. Bautista, Public Defender (Ventura), and Michael C. McMahon, Senior Deputy Public Defender for California Public Defenders Association and Claudia Y. Bautista, Public Defender, as Amicus Curiae on behalf of Petitioner.
Michael Romano, Erwin Chemerinsky, and Miriam Krinsky for 76 Current and Former Elected Prosecutors and Attorneys General as Amicus Curiae on behalf of Petitioner.
Frederick R. Bennett for Respondent.
Browne George Ross O‘Brien Annaguey & Ellis, Eric M. George, Thomas P. O‘Brien, Nathan J. Hochman, David J. Carroll, and Matthew O. Kussman for Association of Deputy District Attorneys for Los Angeles County as Amicus Curiae on behalf of Respondent.
Greg D. Totten and Robert P. Brown, Chief Deputy District Attorney (San Bernardino) for California District Attorneys Association as Amicus Curiae on behalf of Respondent.
Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice Legal Foundation as Amicus Curiae on behalf of Respondent.
INTRODUCTION
“[T]here is a long history of dispute among the various branches of state government over the application of [Penal Code] section 1385 to sentencing allegations.”1 (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 521-522 (Romero).) In this latest chapter of that history, Rehan Nazir argues the trial court abused its discretion in refusing to dismiss under section 1385 certain firearm enhancements the People alleged against him. Nazir and the People argue the trial court should have dismissed the sentence enhancements “in furtherance of justice” under section 1385 in accordance with a policy issued by the district attorney for Los Angeles County, George Gascón, upon his election. That policy directs all deputy district attorneys “to orally amend the charging document to dismiss or withdraw any [sentence] enhancement” alleged in a pending case.
Based on the district attorney‘s new policy, the prosecutor moved under section 1385 to dismiss firearm enhancements alleged under sections 12022.5 and 12022.53. The trial court denied the motion and refused to consider the new policy in determining whether to dismiss the enhancements under section 1385.
We agree with Nazir and the People that the trial court misunderstood the scope of its discretion under section 1385 when it refused to consider the district attorney‘s new policy, but we disagree with the People that the trial court lacked discretion to deny a motion by the People to dismiss enhancements pursuant to that policy. Under the relevant statutory scheme, long-standing case authority, and the rules of court governing sentencing, a trial court deciding whether to dismiss a sentence enhancement in furtherance of justice under section 12022.5 or 12022.53 must consider case-specific factors as well as general sentencing objectives. Therefore, we grant Nazir‘s petition for a writ of mandate and direct the trial court to vacate its December 18, 2020 order denying the People‘s motion to dismiss and to conduct a new hearing to reconsider the People‘s motion.
A. The People Charge Nazir with 35 Counts and Allege Certain Firearm Enhancements
Nazir was a former Torrance police officer who became a bail agent. In July 2019 he was arrested for crimes allegedly committed in the course of his work, including kidnapping, false imprisonment, and grand theft of an automobile. Nazir was arraigned on July 26, 2019.
The People filed a fourth amended complaint on May 4, 2020, alleging 35 counts against Nazir. In connection with 22 of those counts, the People alleged Nazir personally used a firearm, within the meaning of
B. The New District Attorney Adopts a Policy Regarding Sentence Enhancements
On November 3, 2020 the voters of Los Angeles County elected George Gascón to replace Jackie Lacey as district attorney. On December 8, 2020 the new district attorney issued Special Directive 20-08, which made changes to the Legal Policies Manual. Special Directive 20-08 stated that “sentence enhancements or other sentencing allegations . . . shall not be filed in any cases and shall be withdrawn in pending matters.” The Special Directive explained that “the current statutory ranges for criminal offenses alone, without enhancements, are sufficient to both hold people accountable and also to protect public safety” and that “studies show that each additional sentence year causes a 4 to 7 percent increase in recidivism that eventually outweighs the incapacitation benefit.” An appendix to Special Directive 20-08 stated that there was no compelling evidence California‘s 100-plus sentence enhancements improved public safety, that such enhancements contributed to prison overcrowding, and that they “exacerbate[d] racial disparities in the justice system.” The appendix also stated “long sentences do little” to deter crime.
Special Directive 20-08 instructed deputy district attorneys in pending cases to move to dismiss or withdraw sentence enhancement allegations. On
“‘The People move to dismiss and withdraw any strike prior (or other enhancement) in this case. We submit that punishment provided within the sentencing triad of the substantive charge(s) in this case are [sic] sufficient to protect public safety and serve justice. Penal Code section 1385 authorizes the People to seek dismissal of all strike prior(s) (or other enhancements) when in the interests of justice. Supreme Court authority directs this Court to determine those interests by balancing the rights of the defendant and those of society “as represented by the People.” The California Constitution and State Supreme Court precedent further vest the District Attorney with sole authority to determine whom to charge, what charges to file and pursue, and what punishment to seek. That power cannot be stripped from the District Attorney by the Legislature, Judiciary, or voter initiative without amending the California Constitution. . . . Additional punishment provided by sentencing enhancements or special allegations provide[s] no deterrent effect or public safety benefit of incapacitation—in fact, the opposite may be true, wasting critical financial state and local resources.‘”2 If a trial court refused to dismiss allegations of prior serious or violent
felony convictions under the three strikes law or refused to dismiss sentencing allegations under section 1385, Special Directive 20-08.1 instructed deputy district attorneys to “seek leave of the court to file an amended charging document pursuant to Penal Code section 1009.”
C. The Trial Court Denies the People‘s Motion To Dismiss the Firearm Enhancements
On December 11, 2020 the People orally moved under section 1385 to dismiss the firearm enhancements alleged in the fourth amended complaint. The trial court, stating it understood the motion was “based solely on District Attorney Gascón‘s Special Directive,” denied the motion. The court stated that “the People may file an amended information omitting the enhancements that are at issue here, and if they do that, we can proceed, but insofar as the motion to dismiss the existing information under . . . section 1385, it is without legal justification.” The court said the cases “are clear that the
On December 18, 2020 the People filed a written motion under section 1385 to dismiss the firearm enhancements, restating verbatim the arguments recited in Special Directive 20-08.1. In the alternative the People sought leave to file an amended complaint omitting the firearm allegations. At the hearing, the prosecutor did not present any argument in support of the motions, other than parroting the language of Special Directive 20-08.1.
Counsel for Nazir argued the court erred in denying the People‘s previous motion to dismiss by applying case law that involved a trial court dismissing prior convictions on its own motion, rather than a motion by the People. Counsel for Nazir also argued denying the People‘s motion would violate Nazir‘s equal protection rights because Nazir would be subject to greater punishment for the same crimes committed by someone charged (originally) by the new district attorney under Special Directive 20-08. Counsel for Nazir further argued that, because a defendant charged before the change in policy was treated differently from a similarly situated defendant charged after the change, granting the People‘s motion was in furtherance of justice under section 1385.
The trial court again denied the People‘s motion to dismiss the firearm allegations. The court stated that, because the “exclusive basis” for the motion was the Special Directive, in order to grant the motion the court “would have to adopt [the district attorney‘s] rationale,” which the court concluded was “not a permissible basis” on which to grant the motion. The court, after considering “the preliminary hearing transcript, information, the probation report,” and “the nature of the offense and the background and character of Mr. Nazir,” ruled “the motion to dismiss the enhancements is not in the interest of justice.”
The court, stating it had “rethought” its position since the December 11, 2020 hearing, also denied the People‘s motion for leave under section 1009 to file an amended information that omitted the enhancement allegations. The court ruled it was not “proper” for the People to proceed on an amended information that omitted “the very enhancements” that were the subject of the motion to dismiss under section 1385. The court stated that, if the People were “displeased” with the court‘s ruling, they could appeal or dismiss the information and refile charges against Nazir that did not include the firearm allegations.
The People did not appeal, but on March 8, 2021 Nazir filed a petition for writ of mandate or prohibition. Nazir argued the trial court abused its discretion in denying the People‘s motion to dismiss the firearm enhancements and by denying, after initially indicating it would grant, the People‘s motion for leave to file an amended information without the firearm enhancements. Nazir also argued the trial court‘s rulings violated Nazir‘s equal protection rights. Nazir sought a peremptory writ of mandate directing the trial court to vacate its decision denying the People‘s motion to dismiss or in the alternative to vacate its order denying the People‘s motion for leave to amend the information, and to grant Nazir “whatever alternative or further relief as may be appropriate in the interests of justice.”
This court denied the petition, and Nazir filed a petition for review in the Supreme Court. The Supreme Court granted the petition for review and transferred the matter to this court with directions to issue an order to show cause why the relief sought in the petition should not be granted. (Nazir v. Superior Court (May 26, 2021, S267713).)3
DISCUSSION
Nazir and the People argue the trial court‘s ruling violates the separation of powers guaranteed under
A. Standard of Review
We review a trial court‘s order denying a motion to dismiss a sentence enhancement under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373-374; People v. Flores (2021) 63 Cal.App.5th 368, 376; People v. Pearson (2019) 38 Cal.App.5th 112, 116.) A trial court may abuse its discretion where “its decision is so irrational or arbitrary that no reasonable person could agree with it,” “where the trial court was not ‘aware of its discretion‘” to dismiss a sentencing allegation under section 1385, or “where the court considered impermissible factors in declining to dismiss.” (Carmony, at pp. 377-378; see People v. Tirado (2022) 12 Cal.5th 688, 694 (Tirado) [a “court acting while unaware of the scope of its discretion is understood to have abused it“]; People v. Pearson (2013) 56 Cal.4th 393, 419 [a court abuses its discretion when it misunderstands the scope of that discretion].)
“Because ‘all discretionary authority is contextual’ [citation], we cannot determine whether a trial court has acted irrationally or arbitrarily in refusing to strike a [sentencing] allegation without considering the legal principles and policies that should have guided the court‘s actions.” (People v. Carmony, supra, 33 Cal.4th at p. 377.) Thus, whether the trial court in this case abused its discretion depends on the scope of that discretion under sections 1385, 12022.5, and 12022.53. We review this question of statutory interpretation de novo. (Tirado, supra, 12 Cal.5th at p. 694.)
B. The Statutory Scheme
1. Section 1385
“[S]ections 1385 and 1386, enacted in 1872, codify California‘s rejection of the English rule of nolle prosequi, under which the prosecutor alone had authority to discontinue a prosecution, in favor of granting sole authority to the courts to dismiss actions in furtherance of justice.”5 (People v. Bonnetta, supra, 46 Cal.4th at pp. 148-149, fn. omitted.) “Because nolle prosequi is abolished in California, the prosecutor may not unilaterally abandon a prosecution (
In general, a court may dismiss an action or sentence enhancement in furtherance of justice in any situation where the Legislature has not clearly evidenced a contrary intent. (See People v. Fuentes (2016) 1 Cal.5th 218, 230 [“in light of section 1385‘s ‘prominent and contentious history’ [citation], it is critical and even ‘demanded,’ that the
But that does not end the inquiry; a court does not have absolute power to dismiss an action in furtherance of justice. (See People v. Williams (1998) 17 Cal.4th 148, 158 (Williams) [“‘“The trial court‘s power to dismiss an action under [section 1385], while broad, is by no means absolute.“‘“]; see also Romero, supra, 13 Cal.4th at p. 530; People v. Orin (1975) 13 Cal.3d 937, 945; Wheeler v. Appellate Division of Superior Court (2021) 72 Cal.App.5th 824, 842.) Although section 1385 does not define “in furtherance of justice,” a large body of precedent has created boundaries on the judicial power conferred by the statute. (Williams, at p. 159; see People v. Hatch, supra, 22 Cal.4th at p. 268 [“the concept of ‘furtherance of justice’ [citation] is amorphous“].) Under section 1385 trial courts must balance “‘“‘the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal.‘“‘” (Williams, at p. 159; see Hatch, at p. 268; Orin, at p. 945.)
Almost all of that precedent arose in the context of a trial court dismissing an action, charge, or enhancement on its own motion, followed by an appeal by the People. (See Williams, supra, 17 Cal.4th at p. 159 [addressing whether the trial court abused its discretion in dismissing on its own motion one of two prior serious or violent felony convictions under the three strikes law]; People v. Hatch, supra, 22 Cal.4th at p. 268 [addressing the consequences of a trial court order dismissing on its own motion certain charges for lack of evidence]; Romero, supra, 13 Cal.4th at p. 530 [addressing whether a trial court may dismiss on its own motion a prior serious or violent felony conviction under the three strikes law in furtherance of justice]; People v. Orin, supra, 13 Cal.3d at p. 945 [addressing whether the trial court could dismiss on its own motion two of three counts against the defendant].) In that context, the “‘“interests of society represented by the People““” refers to the “‘legitimate interest in “the fair prosecution of crimes properly alleged,“‘” and a “‘“‘dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.‘“‘” (Romero, at p. 531, italics omitted; accord, Williams, at p. 159; see Orin, at pp. 946-947 [“appellate courts have shown considerable opposition to the granting of dismissals under section 1385 in instances where the People are thereby prevented from prosecuting defendants for offenses of which there is probable cause to believe they are guilty as charged“].) When the trial court, on its own motion or at the request of the defendant, considers whether to dismiss an action under section 1385, the court must keep the “scales of justice . . . in balance” (People v. Winters (1959) 171 Cal.App.2d Supp. 876, 887) by not having a case brought by the People “thrown out of court except for a reason which can be said to be that which would motivate a reasonable judge” (People v. Curtiss (1970) 4 Cal.App.3d 123, 126; see People v. Clancey, supra, 56 Cal.4th at pp. 580-581; People v. Vasquez (2021) 72 Cal.App.5th 374, 381). Thus, for example, a court may not on its own motion dismiss a charge or allegation “‘“to accommodate judicial convenience or because of court congestion“‘” (Clancey, at p. 581), “‘because a defendant pleads guilty‘” (ibid.), or based on “bare antipathy to the consequences for any given defendant” (Williams, at p. 161; see Romero, at p. 531 [“[n]or would a court act properly if ‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,’ while ignoring ‘defendant‘s background,’ ‘the nature of his present offenses,’ and other ‘individualized considerations‘“]).
But “the interests of society represented by the People” do not begin or end with the mechanical prosecution of charges properly alleged. “The public prosecutor ‘“is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.“‘” (People v. Eubanks (1996) 14 Cal.4th 580, 589; accord, People v. Dehle (2008) 166 Cal.App.4th 1380, 1387.) “‘The nature of the impartiality required of the public prosecutor follows from the prosecutor‘s role as representative of the People as a body, rather than as individuals. “The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of ‘The People’ includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name.“‘” (Dehle, at p. 1388, quoting Corrigan, On Prosecutorial Ethics (1986) 13 Hastings Const.L.Q. 537, 538-539.) Thus, “the district attorney is expected to exercise his or her discretionary functions in the interests of the People at large . . . .” (Eubanks, at p. 589; accord, People v. Martin (2018) 26 Cal.App.5th 825, 838; Dehle, at p. 1388.)
For example, after charges have been filed, a prosecutor may seek a dismissal under section 1385 for many reasons, including to effectuate a plea agreement. (See People v. Bonnetta, supra, 46 Cal.4th at p. 153, fn. 5; People v. Orin, supra, 13 Cal.3d at p. 946.) By definition, plea “bargaining” trades a defendant‘s maximum exposure for expediency and finality (see People v. Segura (2008) 44 Cal.4th 921, 929 [plea agreements benefit the criminal justice system by “promoting speed, economy, and the finality of judgments“]), factors a court may not consider in dismissing a charge under section 1385 on its own motion (see People v. Clancey, supra, 56 Cal.4th at p. 581; Romero, supra, 13 Cal.4th at p. 531). Thus, under section 1385 the “interests of society” promoted by a prosecutor‘s motion to dismiss under section 1385 are broader than those a court may seek to advance on its own motion. (See People v. Superior Court (King) (1967) 249 Cal.App.2d 714, 718 (King) [“Under the adversary nature of our criminal procedure, the prosecuting attorney, as the People‘s representative, is often in a position to make application for a dismissal ‘in furtherance of justice’ when the record then before the trial judge would not justify a dismissal by the judge on his own motion.” (Italics omitted.)].)6
2. Sections 12022.5 and 12022.53
As discussed, the People alleged sentence enhancements against Nazir under sections 12022.5, subdivisions (a) and (d), and 12022.53, subdivision (b).
“Section 12022.53 was first enacted in 1997 as part of the state‘s ‘Use a Gun and You‘re Done’ law. [Citation.] The statute sets out ‘sentence enhancements for personal use or discharge of a firearm in the commission’ of specified felonies.” (Tirado, supra, 12 Cal.5th at pp. 694-695, fn. omitted; see People v. Anderson (2020) 9 Cal.5th 946, 950-951.) Under
“shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years.”
Before 2018, sections
The legislative history of Senate Bill No. 620 indicates the Legislature was also motivated to amend sections
In determining whether to dismiss a firearm enhancement under section
C. The Trial Court Erred in Refusing To Consider the District Attorney’s Special Directive in Denying the People’s Motion To Dismiss Under Section 1385
The trial court misunderstood the scope of its discretion when it refused to consider Special Directive 20-08 in determining whether to grant the motion to dismiss the firearm enhancements alleged against Nazir. Special Directive 20-08 states that the district attorney’s new policy was based on research showing that existing sentence enhancements do not deter crime or reduce recidivism, which are objectives of the criminal justice system a court may consider in determining whether to impose a firearm enhancement under section
In Williams the trial court, on its own motion, dismissed one of two 13-year-old prior convictions for serious or violent felonies, observing that, although the defendant had “‘run afoul [of] the law many times,’” he had not in the interim committed “‘crimes involving actual violence.’” (Williams, supra, 17 Cal.4th at pp. 156-157.) In considering whether the trial court abused its discretion, the Supreme Court stated trial courts must “look for ‘justice’ in the [sentencing] scheme’s interstices, informed by generally applicable sentencing principles relating to matters such as the defendant’s background, character, and prospects,” and the Court cited the California Rules of Court as the source of such “sentencing principles.” (Id. at p. 160 & fn. 5.) The Supreme Court held the three strikes law, which was the sentencing scheme at issue, precluded a trial court from giving weight to “factors extrinsic to the scheme” when balancing a defendant’s constitutional rights against “society’s legitimate interests” in “the fair prosecution of properly charged crimes.” (Id. at pp. 160-161.) Thus, as discussed, a trial court may not consider antipathy toward the law or its consequences in a particular case; instead, in determining whether dismissing a prior serious or violent felony under the three strikes law would be in furtherance of justice, a court must consider only whether a defendant falls “outside the scheme’s spirit” by reference to “factors intrinsic to the scheme, such as the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.” (Ibid.)
The Supreme Court’s decision in Williams did not constrain the trial court in this case for two reasons. First, as stated, the “interests of society represented by the People” are broader than fairly prosecuting properly charged crimes. (See Williams, supra, 17 Cal.4th at p. 161.) But when a court considers on its own motion whether to dismiss a charge or an enhancement, the scope of those interests narrow to reflect the separation of powers between the prosecution, which has sole discretion to “‘determine whom to charge, what charges to file and pursue, and what punishment to seek’” from among those potentially available (Steen v. Appellate Division of Superior Court, supra, 59 Cal.4th at pp. 1053-1054; see People v. Birks, supra, 19 Cal.4th at p. 134), and the court, which has sole discretion to “dismiss a criminal charge” (id. at p. 1055). A court may not “frustrate the orderly and effective operation of our criminal procedure as envisioned by the Legislature,” or “preclude the prosecution” of offenses for which there is probable cause, by dismissing an action, offense, or enhancement under section
Second, the Legislature amended sections
Contrary to the position of the district attorney, however, a prosecutor’s motion to dismiss an enhancement under section
The district attorney also argues that he has the prerogative to determine “‘whether to continue a prosecution’” (People ex rel. Kottmeier v. Municipal Court (1990) 220 Cal.App.3d 602, 609) and that, “[a]s a practical matter, it would be impossible for the court to compel a district attorney to proceed with a prosecution that a district attorney no longer wished to pursue.” The district attorney points to the plea bargaining process and cites the Supreme Court’s statement in People v. Orin, supra, 13 Cal.3d 937 that a prosecutor may secure a plea agreement through the “dismissal of one or more counts of a multi-count indictment or information.” (Id. at p. 942.) But the Supreme Court’s statements in Orin did not mean a prosecutor can on his or her own authority dismiss a count. The Supreme Court merely identified dismissal of one or more counts as one of several possible consequences of a plea agreement, with “the People’s acceptance of a plea to a lesser offense than that charged” as another possibility. (Ibid.) Moreover, in the very next sentence of its opinion in Orin the Supreme Court made clear that “[j]udicial approval is an essential condition precedent” to any plea agreement. (Id. at pp. 942-943; see §§ 1192.1, 1192.3, 1192.4, 1192.5.) While the prosecutor has sole authority to negotiate on behalf of the People, a plea agreement is not self-executing; the court must approve it. (People v. Clancey, supra, 56 Cal.4th at p. 570; Orin, at p. 943). Thus, if a court rejects a plea agreement, the prosecutor must continue to prosecute the case or request dismissal for another reason. (See, e.g., People v. Stringham (1988) 206 Cal.App.3d 184, 190-191 [trial court rejected a plea agreement after the victim’s family opposed it, and the case proceeded to trial]; People v. Cobb (1983) 139 Cal.App.3d 578, 581 [trial court refused to consider a plea agreement proposed after the deadline established by local rules].) Similarly, if the court denies a prosecutor’s request for dismissal under section
Nor is there merit to the district attorney’s argument there is “no need for the [trial] court to consider whether, on the facts of a particular case, dismissal furthers the interests of justice” because, “as the People’s representative,” the prosecutor “has already determined that it is not within the People’s interest to prosecute the defendant for a violation of [the applicable] legislative scheme.” As discussed, if a prosecutor moves to dismiss an enhancement before proving it, the abolition of nolle prosequi requires the court to exercise its discretion in determining whether dismissal furthers the interests of justice. If a prosecutor moves to dismiss an enhancement that has been proven, the court must exercise its sentencing discretion in determining whether to grant the motion. (See People v. Clancey, supra, 56 Cal.4th at p. 580 [“‘The imposition of sentence and the exercise of sentencing discretion are fundamentally and inherently judicial functions.’”]; People v. Sandoval (2007) 41 Cal.4th 825, 847 [“The trial court’s sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’”].) In the context of sections
On remand the trial court must consider Special Directive 20-08 in determining whether to dismiss the firearm allegations against Nazir. Pursuant to the amendments to section
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate its December 18, 2020 order denying the People’s motion to dismiss the sentence enhancements alleged against Nazir and to enter a new order scheduling a hearing to determine whether this is an appropriate case in which to dismiss the sentence enhancements under sections
SEGAL, J.
We concur:
PERLUSS, P. J.
WISE, J. *
* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.