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.

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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.

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____________________________

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