People v. Ortiz

Filed 1/26/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049698
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 21CR006264)
v.
ALAN CHRISTOPHER ORTIZ,
Defendant and Appellant.
Under Penal Code section 1385,1 trial courts have long had broad discretion to
dismiss a charge or allegation “in furtherance of justice.” (See People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 530-531 (Romero).) As the California Supreme Court
has recognized, however, “ ‘the concept’ of ‘furtherance of justice’ . . . is
‘ “amorphous.” ’ ” (People v. Williams (1998) 17 Cal.4th 148, 159 (Williams).) The
Legislature in Senate Bill No. 81 (2021-2022 Reg. Sess.) (Sen. Bill 81) has now given
greater definition to the concept by enumerating certain mitigating circumstances which
the trial court—“[i]n its exercise of discretion”—is to “weigh[] greatly” in favor of
dismissal of an enhancement, unless “dismissal of the enhancement would endanger
public safety.” (§ 1385(c)(2).) Defendant Alan Christopher Ortiz asks us to interpret the
great weight contemplated by section 1385(c)(2) as amounting to a presumption in favor
1
Undesignated statutory references are to the Penal Code. We refer to
subdivision (c) of section 1385 as section 1385(c).
of dismissal that is rebuttable only by a danger to public safety. We, however, read both
the plain language of the statute and the legislative history as reflecting the Legislature’s
considered rejection of such a presumption. Accordingly, we affirm.
I. BACKGROUND
On August 6, 2021, Ortiz took a baseball bat to an unoccupied parked Jeep
belonging to a random stranger, breaking the window and damaging the doorframe.
Ortiz “wanted to ‘let out some anger[]’ following an argument with his mother.”
The Monterey County District Attorney charged Ortiz with one count of felony
vandalism causing property damage in excess of $400 (§ 594, subd. (b)(1)). The district
attorney alleged that Ortiz had one prior strike (§§ 1170.12, subd. (c)(1), 667,
subd. (e)(1)), an attempted robbery (§§ 211, 664) conviction in September 2020. Ortiz
pleaded no contest and admitted the prior strike.
At the sentencing hearing, the only evidence before the court was the probation
officer’s presentence investigation report, which summarized the nature and
circumstances of the current offense and the following information from Ortiz’s
background.
Ortiz, 28 years old at the time of sentencing, had associated with a criminal street
gang from the age of 12 and had accrued a succession of sustained juvenile petitions,
adult convictions, and violations of probation and parole. According to jail records,
“Ortiz was known for assaultive behavior and a history of assaulting jail staff[,]”
including during his detention on the current offense.
Ortiz’s supervising parole agent reported that a month after his most recent release
from prison, Ortiz started using methamphetamine, was obliged to leave his sister’s house
for violating her rules, and, once homeless, increased his methamphetamine use. From
that point, Ortiz violated his conditions of parole multiple times by absconding and
having drug paraphernalia. The parole agent tried to enroll Ortiz in drug treatment
programs, but Ortiz would either disappear or refuse to go, at most spending one week in
2
a residential program around May 2021 before his participation ended with a positive
drug test.
Ortiz reported that he drinks “three to four ‘tall cans[]’ of beer weekly to the point
of intoxication,” smokes approximately two grams of marijuana per day, and smokes 1-
2 grams of methamphetamine per day. Ortiz said he has a “ ‘slight addiction to drugs’ ”
and expressed interest in residential treatment. Ortiz was unemployed and not seeking
employment, as he had “chosen to use drugs instead and panhandles when he needs
money.”
Ortiz was diagnosed with schizophrenia in 2013 and depression at some
unspecified time. Ortiz reported that he takes medication to treat his symptoms for both,
including when not in custody. However, Ortiz’s parole agent expressed doubt as to
whether Ortiz “remains medication compliant as claimed when not in custody,” stating
that “Ortiz has a history of self-medicating with methamphetamine.”
In his Romero motion, Ortiz argued that two mitigating factors should guide the
trial court to dismiss the prior strike: (1) his current offense was “connected to mental
illness”; and (2) his current offense was not a violent felony as defined in section 667.5,
subdivision (c). Through counsel, Ortiz acknowledged his lengthy criminal history but
argued “there do not appear to be any sustained felony convictions for acts of violence
upon others.” Ortiz’s counsel urged that Ortiz had “been arrested and convicted enough
times in his life to know this all needs to stop. [He is a] man with a specific diagnosis
who . . . need[s] to fully commit to sobriety, to taking his psychotropic medications when
and as prescribed[,] to focus[] on applying to . . . services . . . to . . . improve his current
living situation[,] [and] to reach[] out for the help that many organizations would . . .
offer him if he sought their assistance. [He] realizes that if he doesn’t put the effort in,
then nothing will change. If nothing changes, then he will be back again and again and
again on one low level matter after another.” Ortiz asked “the court [to] take a chance
with [him].”
3
Denying the Romero motion, the trial court summarized the caselaw governing
dismissal of prior strikes and stated, “[b]eyond that, Penal Code Section 1385(c) . . . lists
[nine] specific factors, which, if found by the Court, will strongly support the exercise of
the Court’s discretion to dismiss one or more enhancements.” The trial court found that
there was nothing about Ortiz’s present felony that was favorable to his position and
rejected Ortiz’s assertion that the current offense was connected to mental illness. The
trial court did acknowledge, however, that the current offense, as a matter of law, was
“not a violent felony as defined in Penal Code Section 667.5(c),” a factor that the court
“weigh[ed] strongly in favor of dismissal of the prior strike allegation.”
Notwithstanding the mitigating circumstance, the trial court concluded that
countervailing considerations outweighed the mitigating factor in the furtherance of
justice. Specifically, the trial court found that numerous factors weighed against
dismissal: Ortiz’s past convictions and probation/parole violations; his assaultive
behavior in jail and his history of assaulting jail staff; his use of alcohol, marijuana, and
methamphetamine; his failure to dedicate himself to treatment for his substance use; his
decision not to seek employment because he preferred using drugs and panhandling when
he needs money; his association with a criminal street gang; and the specific facts
surrounding the current offense, including that Ortiz broke the window of a stranger’s
parked car with a baseball bat because he was “pissed off” after arguing with his mother
and that Ortiz stated that he was under the influence of methamphetamine at the time.
The trial court reasoned that although “the [instant] vandalism offense does not appear to
be as serious as his prior felony convictions, it is apparent that he continues to engage in
criminal conduct that is impulsive and of increasing concern given that he engaged in
aggressive behavior out of anger in an effort to make himself feel better.”
The trial court imposed a lower-term sentence of 16 months in prison for the
single count of felony vandalism, doubled to 32 months as a consequence of the prior
strike conviction, with 321 days of credit for time served. Ortiz timely appealed.
4
II. DISCUSSION
A. Romero
A trial court’s authority under section 1385, subdivision (a), to dismiss “an action”
includes the authority to dismiss allegations of prior serious or violent convictions (i.e.,
prior strikes) in the furtherance of justice, considering “ ‘ “both . . . the constitutional
rights of the defendant, and the interests of society represented by the People . . . .” ’ ”
(Romero, supra, 13 Cal.4th at p. 530, italics omitted; see also Williams, supra, 17 Cal.4th
at p. 161 [identifying factors to be considered in determining whether a defendant “may
be deemed outside the scheme’s spirit, in whole or in part”].)
We review for abuse of discretion the grant or denial of a Romero motion.
(Williams, supra, 17 Cal.4th at p. 162; see also People v. Garcia (1999) 20 Cal.4th 490,
503.) Absent a showing that the trial court’s refusal to dismiss a strike allegation was
arbitrary or irrational, we presume that the court “ ‘ “acted to achieve [the] legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 376-
377.) Such a discretionary decision “ ‘ “will not be reversed merely because reasonable
people might disagree.” ’ ” (Ibid.)
B. Senate Bill 81 and Section 1385(c)
Senate Bill 81, effective January 1, 2022, amended section 1385 “ ‘to specify
factors that the trial court must consider when deciding whether to strike enhancements
from a defendant’s sentence in the interests of justice.’ ” (People v. Johnson (2022) 83
Cal.App.5th 1074, 1091 (Johnson), italics added, review granted Dec. 14, 2022,
S277196; Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 501-502; see also
§ 1385(c)(2), (7).) However, the specification of mandatory factors did not displace the
trial court’s obligation to exercise discretion in assessing whether dismissal is “in
furtherance of justice.” (§ 1385(c)(1)-(2); Johnson, supra, 83 Cal.App.5th at p. 1091
[enactment of Senate Bill 81 “reinforced” conclusion that “Legislature intended to confer
5
on trial courts a range of sentencing options and broad discretion to choose among
them”].)
Senate Bill 81 added subdivision (c), which provides,2 “[n]otwithstanding 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.”
(§ 1385(c)(1).) “In exercising its discretion under [subdivision (c)], the court shall
consider and afford great weight to evidence offered by the defendant to prove that any of
the mitigating circumstances in [the subparagraphs to subdivision (c)(2)] 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.” (§ 1385(c)(2).)
The mitigating circumstances identified in the subparagraphs include, among
others: (1) “The current offense is connected to mental illness[;]” and (2) “The current
offense is not a violent felony as defined in subdivision (c) of Section 667.5.”
(§ 1385(c)(2)(D) & (F).) “A court may conclude that a defendant’s mental illness was
connected to the offense if, after reviewing any relevant and credible evidence, including,
but not limited to, police reports, preliminary hearing transcripts, witness statements,
statements by the defendant’s mental health treatment provider, medical records, records
or reports by qualified medical experts, or evidence that the defendant displayed
symptoms consistent with the relevant mental disorder at or near the time of the offense,
the court concludes that the defendant’s mental illness substantially contributed to the
defendant’s involvement in the commission of the offense.” (§ 1385(c)(5).)
2
Section 1385(c) was further modified by amendments that went into effect on
June 30, 2022. Those amendments did not alter the substantive statutory provisions we
discuss here.
6
C. Analysis
Ortiz contends that the trial court erred in its application of section 1385(c) in
three ways: (1) the trial court did not find that Ortiz’s current offense was “connected to
mental illness;” (2) the trial court did not treat the mitigating circumstances as weighing
greatly in favor of dismissing the enhancement; and (3) the trial court was required to
grant the motion if any of the mitigating circumstances were present, unless it made a
finding that Ortiz would endanger the public safety if it granted the motion.
Assuming for purposes of this appeal that the trial court was correct in its
threshold determination that section 1385(c) applied at all, Ortiz has not shown that the
trial court misapplied subdivision (c) here.3
First, Ortiz argues that the trial court failed to give “great weight to evidence
offered by the defendant to prove” that the current offense was “connected to mental
illness.” (See § 1385(c)(2).) In the trial court, Ortiz relied on the probation report, which
reflected that Ortiz was diagnosed with both schizophrenia and depression, though his
self-reported compliance with prescribed medication was subject to dispute, given his use
of methamphetamine. Ortiz further asserted, given the history documented in the
probation report, that he suffers from an addiction disorder.
The trial court acknowledged Ortiz’s schizophrenia diagnosis but noted that Ortiz
had not provided “records or reports by qualified medical experts or . . . any evidence that
[he] displayed symptoms consistent with the relevant mental disorder at or near the time
of the offense.” Accordingly, the trial court did not conclude that Ortiz’s mental illness
“substantially contributed to the defendant’s involvement in the commission of the
vandalism offense.” Indeed, there was no evidence identifying potentially relevant
symptoms of schizophrenia or depression, nor any evidence (or even reasoned argument)
3
Ortiz’s appellate arguments depend on the disputed premise that section 1385(c)
applies to strike priors. To the extent it does not, as the Attorney General argues, Ortiz
has asserted no alternative basis for reversal.
7
linking those symptoms to Ortiz’s commission of the current offense or his reported
anger at his mother.4 By its terms, the statute requires the trial court to consider “relevant
and credible evidence” before it “may” find that the offense is connected to mental
illness. (See § 1385(c)(5), italics added.) We identify no error in the trial court’s
determination: the record here did not compel it to reach the opposite conclusion.5
Second, even though the trial court did not find that the offense was connected to
mental illness, the trial court did find that a subdivision (c) mitigating factor was
present—Ortiz’s current offense was not violent. (See § 1385(c)(2)(F).) The trial court
weighed the mitigating factor strongly in favor of granting the requested dismissal but
concluded that other factors outweighed it. In so doing, the trial court did not abuse its
discretion.
To the extent Ortiz contends that the trial court failed to give this mitigating factor
great weight, we disagree with Ortiz’s construction of the trial court’s oral remarks. In its
introductory remarks, the trial court stated that “there is nothing” about the “present
4
There was evidence that could be interpreted to support a connection between
Ortiz’s diagnosed mental illnesses and drug use—Ortiz’s parole agent stated that Ortiz
used methamphetamine to self-medicate. There was also evidence that Ortiz was under
the influence of methamphetamine on the day of the offense. But Ortiz did not draw
those connections for the trial court and instead relied on the bare fact of his diagnoses to
assert that his mental illness “substantially contributed to [his] involvement in the
commission of the offense.” (§ 1385(c)(5).)
5
It is immaterial to our conclusion whether the appropriate standard of review, as
to this specific conclusion, is abuse of discretion or substantial evidence. Pursuant to
section 1385(c), Ortiz bore the burden of persuasion. Thus, even if the trial court’s
determination is best understood as a factual finding subject to review for substantial
evidence, the question before us would be whether the evidence compels a finding in
favor of Ortiz as a matter of law. (See generally In re. I.W. (2009) 180 Cal.App.4th 1517,
1528 [discussing application of substantial evidence standard where the issue on appeal
turns on a failure of proof at trial], disapproved on another ground in Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) It did not. Even if the evidence favorable to
Ortiz is “afford[ed] great weight” (§ 1385, subd. (c)(2)), the gaps in the evidentiary
showing preclude a determination that the evidence compelled a finding in Ortiz’s favor.
8
felony or [the] prior strike conviction that is favorable to Ortiz’s position.” But the trial
court proceeded to acknowledge that “the current offense is not a violent felony” such
that “a mitigating factor does weigh strongly in favor of dismissal of the prior strike
allegation,” but determined that the mitigating factor was outweighed by countervailing
considerations. While the trial court’s initial statement could be construed as overbroad,
we understand it to refer to the specific circumstances of the present vandalism offense as
compared to similar offenses, rather than vandalism’s legal classification as a nonviolent
offense. The court’s detailed explanation of its reasoning demonstrates that, as directed
by section 1385(c), it engaged in a holistic balancing with special emphasis on the
enumerated mitigating factors. (See § 1385(c)(1)-(2); see also Carmony, supra, 33
Cal.4th at pp. 376-377 [the party attacking the judgment must clearly show that the
decision was irrational or arbitrary].)
To the extent Ortiz contends that the mitigating factor warranted a presumption in
favor of dismissal that could only be rebutted by a showing that dismissal would
endanger public safety, we disagree with Ortiz’s construction of section 1385(c)(2)(B).
The plain language of section 1385(c)(2) contemplates the trial court’s exercise of
sentencing discretion, even as it mandates that the court give “great weight” to evidence
of enumerated factors. The legislative history of Senate Bill 81 reflects that this was no
accident: the language of section 1385(c)(2) as enacted replaced proposed language that
would have mandated “a presumption that it is in the furtherance of justice to dismiss an
enhancement” that could only “be overcome by a showing of clear and convincing
evidence that dismissal of the enhancement would endanger public safety.” (See Sen.
Bill No. 81 as amended August 30, 2021; see also Sen. Rules Com., Off. of Sen. Floor
Analyses, analysis of Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Aug. 30, 2021,
at p. 2 [reflecting that Assembly amendments to Sen. Bill No. 81 “[r]emove[d] the
presumption that it is in the interests of justice to dismiss an enhancement when specified
circumstances are found to be true and instead provide[] that the court shall, in exercising
9
its discretion to dismiss an enhancement in the interests of justice, consider and afford
great weight to evidence of those specified circumstances”].) Had the Legislature
intended to establish a rebuttable presumption as Ortiz posits, it could have approved the
language of the earlier version of the bill. We are unable to ignore the fact that it did not.
The Legislature’s abstention in section 1385(c)(2) from the language of rebuttable
presumption is consonant with the elastic character of the particular mitigating
circumstances on which Ortiz relies and the trial court’s assessment of evidence as
“reliable and credible.” (See § 1385(c)(5).) For example, a “connect[ion] to mental
illness” does not, as a practical matter, lend itself to the one-size-fits-all formalism of a
presumption that may only be overcome by a danger to public safety.6 In the universe of
cases where a defendant suffers from mental illness, the strength of the connection
between the mental condition and the commission of the current offense will vary widely
depending on a host of factors such as the character of the mental illness, the nature of the
symptoms exhibited near the time of the offense, the defendant’s amenability to
treatment, and the nature of the particular offense.
The language of section 1385(c)(2) as ultimately enacted also reflects a legislative
recognition that a trial court’s exercise of sentencing discretion involves more than a
strictly binary weighing of mitigation against public safety. “[G]enerally applicable
sentencing principles” relevant to a court’s determination of whether dismissal is in
furtherance of justice “relat[e] to matters such as the defendant’s background, character,
6
At the other end of the spectrum, as to the circumstances enumerated at
section 1385(c)(2)(B) (multiple enhancements in a single case) and (c)(2)(C)
(enhancements increasing sentence above 20 years), the Legislature has unambiguously
provided that the operative enhancement(s) “shall be dismissed.” These circumstances,
we note, are unlike the other seven listed in that they are not mitigating in any
conventional sense—as to either the nature and circumstances of the current offense or
the defendant’s “background, character, and prospects” (see Williams, supra, 17 Cal.4th
at p. 160, fn. omitted)—but only by operation of law.
10
and prospects.” (See Williams, supra, 17 Cal.4th at p. 160, fn. omitted.) Those
principles require consideration of circumstances in mitigation (and aggravation) in the
broader context of the recognized objectives of sentencing, which are not limited to
public safety. (See Cal. Rules of Court, rule 4.410.)
We acknowledge that the court in People v. Walker (2022) 86 Cal.App.5th 386(Walker) has adopted the construction urged by Ortiz. The Walker court observed that
(1) “the court ‘shall dismiss an enhancement if it is in the furtherance of justice to do
so,’ ” subject to an inapplicable exception (Walker, supra, 86 Cal.App.5th at p. 398);
(2) “the court shall consider and afford great weight to evidence offered by the defendant
to prove that any of the mitigating circumstances” set forth in the statute are present
(§ 1385(c)(2); see Walker, supra, 86 Cal.App.5th at p. 398); and (3) “[p]roof of the
presence of one or more of” the mitigating circumstances “ ‘weighs greatly in favor of
the enhancement . . . unless the court finds that dismissal of the enhancement would
endanger public safety’ ” (§ 1385(c)(2); Walker, supra, 86 Cal.App.5th at p. 398). From
this, the court concluded that the statute as a whole “places a thumb on the scale that
balances the mitigating circumstances favoring dismissal against whether dismissal
would endanger public safety, and tips that balance in favor of dismissal unless rebutted
by the court’s finding that dismissal would endanger public safety.” (Walker, supra, 86
Cal.App.5th at pp. 398-400.)
Although we agree that section 1385(c)(2)(D) seeks to “fine tune” the trial court’s
exercise of discretion (Walker, supra, 86 Cal.App.5th at p. 395), we respectfully decline
to follow Walker in its more formalistic reading of the provision. In our view, the
ultimate question before the trial court remains whether it is in the furtherance of justice
to dismiss an enhancement. To be sure, the Legislature has invested the enumerated
mitigating circumstances with great weight, both in the trial court’s evaluation of the
defendant’s evidence in the first instance and in the trial court’s consideration of the
mitigating circumstance once established. But this does not preclude a trial court from
11
determining that countervailing factors—other than the likelihood of physical or other
serious danger to others—may nonetheless neutralize even the great weight of the
mitigating circumstance, such that dismissal of the enhancement is not in furtherance of
justice. Interpreting the statute, as the Walker court does (see id. at pp. 391, 399), to
require the trial court to dismiss an enhancement absent a finding that dismissal would
endanger public safety would divest the trial court of its ultimate discretion under the
statute to determine what is in furtherance of justice, considering all relevant factors.
The Walker court’s construction of the statute echoes the prior iterations of Senate
Bill 81 which we have noted were superseded by amendment in the Assembly prior to
enactment—the rebuttable presumption contemplated in the prior version of the statute
was replaced with language that expressly acknowledged a trial court’s exercise of
“discretion” under section 1385(c). (Sen. Rules Com., Off. of Sen. Floor Analyses,
analysis of Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Aug. 30, 2021, at p. 2;
Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Apr. 27, 2021.) This legislative
history only bolsters our reading of the statutory text.
Ortiz has not contended that it was inappropriate for the trial court to consider any
of the factors that it decided collectively outweighed the mitigating factor. Although he
dismisses the trial court’s analysis as “a boilerplate recitation of Romero/Williams
factors,” he does not suggest Senate Bill 81 supplanted rather than supplemented the
factors the California Supreme Court has long deemed essential to the “furtherance of
justice” inquiry. (See § 1385, subds. (a), (c)(1)-(2).) Indeed, assuming section 1385(c)
applies in the present context at all, we discern no reason why it would render the
consideration of heretofore proper factors improper. (See generally Johnson, supra, 83
Cal.App.5th at p. 1091.)
Assuming section 1385(c) governed the exercise of discretion here, the trial court
did not abuse its discretion. It assessed the claimed mitigating factors and, finding one
such factor, acknowledged its great weight but determined that other factors were
12
collectively weightier. In so doing, the trial court acted within its discretion. (See
generally Carmony, supra, 33 Cal.4th at pp. 376-377; Johnson, supra, 83 Cal.App.5th at
p. 1091; § 1385, subd. (c)(1)-(2).)
III. DISPOSITION
The judgment is affirmed.
13
____________________________
LIE, J.
WE CONCUR:
____________________________
GREENWOOD, P.J.
_____________________________
GROVER, J.
People v. Ortiz
H049698
Trial Court: Monterey County Superior Court
No.: 21CR006264
Trial Judge: The Honorable Rafael Vasquez
Attorney for Defendant and Appellant Maggie Shrout
Alan Christopher Ortiz: under appointment by the Court
of Appeal for Appellant
Attorneys for Plaintiff and Respondent Rob Bonta
The People: Attorney General
Lance E. Winters,
Chief Assistant Attorney General
Jeffrey M. Laurence,
Senior Assistant Attorney General
Donna M. Provenzano,
Supervising Deputy Attorney General
Melissa A. Meth,
Deputy Attorney General
People v. Ortiz
H049698