No presumption created by factors that court must weigh heavily in favor of dismissing enhancements

People v. Ortiz (Cal. Ct. App., Jan. 26, 2023, No. H049698) 2023 WL 415617, at *1

Summary: Under Penal Code section 1385, trial courts have 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).)  The California Supreme Court has recognized, however, “ ‘the concept’ of ‘furtherance of justice’ … is ‘ “amorphous.” ’ ” (People v. Williams (1998) 17 Cal.4th 148 (Williams).) The Legislature in Senate Bill No. 81 has enumerated 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).)  Ortiz asked the Court of Appeal to interpret the great weight contemplated by section 1385(c)(2) as amounting to a presumption in favor of dismissal that is rebuttable only by a danger to public safety. The Court of Appeal read the plain language of the statute and the legislative history as reflecting the Legislature’s rejection of such a presumption.

Facts:  Ortiz was charged 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.

Romero motion

In his Romero motion, Ortiz argued that two mitigating factors for dismissal of 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). Ortiz acknowledged his lengthy criminal history but argued “there do not appear to be any sustained felony convictions for acts of violence upon others.”

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.”

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.

Romero motions

The 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)

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) 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, 299 Cal.Rptr.3d 894 [enactment of Senate Bill 81 “reinforced” conclusion that “Legislature intended to confer 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).)

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.

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