P. v. Montoya

Filed 10/11/06 P. v. Montoya CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Kenneth Barr, Judge. Affirmed.

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant Michael Montoya pled guilty to one count of sexual penetration with a foreign object, in violation of Penal Code^[1] section 289. He also admitted two prior strike allegations, one for burglary and one for attempted rape. On May 29, 2003, a court trial was commenced based on defendant’s additional plea of not guilty by reason of insanity. Trial was delayed due to various continuance requests, competency proceedings, and periods in which defendant was found not competent to stand trial. Trial was finally completed on March 28, 2005, and defendant was found to have been sane at the time of the offense. Defendant was then sentenced under the “Three Strikes” law to an indeterminate term of 25 years to life in prison.

FACTUAL AND PROCEDURAL BACKGROUND

On September 5, 2001, defendant was a patient at Patton State Hospital, a psychiatric hospital for criminal offenders. He lured a female psychiatric social worker into an interview room under a pretext. When they entered the room, defendant grabbed the social worker, pinned her arms back, and inserted his fingers in her vagina.

DISCUSSION

A. Defendant’s Romero Motion and Appellate Argument

On September 15, 2005, defendant filed a motion to strike his two prior convictions for sentencing purposes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). On October 7, 2005, the motion was denied and the two prior strike convictions were the basis for defendant’s sentencing under the Three Strikes law.

Defendant’s sole contention on appeal is that the trial court abused its discretion in denying his Romero motion. Specifically, he argues that the trial court erred when it refused to consider his mental illness as a mitigating factor, considered facts not supported by substantial evidence, and applied an incorrect standard to determine that the two prior convictions should not be treated as one.

In Romero, our Supreme Court held that the trial court’s power to dismiss a criminal action “in furtherance of justice” under section 1385, includes the power to dismiss strike allegations under the three strikes law, “subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion.” (Romero, supra, 13 Cal.4th at p. 504.) After an extensive review, the court offered guidelines for determining whether the trial court had abused its discretion: “From these general principles it follows that a court abuses its discretion if it dismisses a case, or strikes a sentencing allegation, solely ‘to accommodate judicial convenience or because of court congestion.’ [Citation.] A court also abuses its discretion by dismissing a case, or a sentencing allegation, simply because a defendant pleads guilty. [Citation.] Nor 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.’ [Citation.]” (Id. at p. 531.)

Our Supreme Court expanded on its discussion of discretionary factors in People v. Williams (1998) 17 Cal.4th 148 (Williams). The court held that the trial court had acted improperly in dismissing a strike allegation under section 1385. It set forth the proper approach to the issue as follows: “We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.” (Williams, at p. 161.)

The decision of the trial court not to dismiss a strike allegation is also subject to abuse of discretion review. (People v. Barrera (1999) 70 Cal.App.4th 541) “‘”The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.]” (Id. at p. 554.)

Defendant first argues that the trial court disregarded the Williams admonition that the trial court must consider “the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects” in deciding a Romero motion, and it must state its reasons on the record. (Williams, supra, 17 Cal.4th at p. 161.) He argues that the trial court failed to do so when it refused to consider his mental illness.

Secondly, defendant argues that the trial court abused its discretion when it considered the allegations of a trailing case, involving an assault on a deputy in county jail, to be true.

Third, defendant argues that his two prior convictions should have been treated as one, and the trial court abused its discretion in not considering the close connection between the offenses. The two prior offenses, burglary and attempted rape, were committed when defendant entered a home in an attempt to rape its occupant.

B. The Trial Court’s Denial of the Romero Motion

In discussing the Romero motion, the trial court first noted the basic principle that the court must ultimately determine whether the defendant should be deemed to be outside the spirit of the Three Strikes law. (§ 1385; Williams, supra, 17 Cal.4th at p. 161.) In addition to Romero and Williams, the court cited People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, a case which considered the trial court’s discretion under section 17, subdivision (b) to reduce a felony to a misdemeanor when prior strike convictions were alleged. Our Supreme Court emphasized, “since all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.]” (Id. at p. 978.) It also said: “[T]he lesson we reiterate today is that any exercise of that authority must be an intensely fact-bound inquiry taking all relevant factors, including the defendant’s criminal past and public safety, into due consideration; and the record must so reflect.” (Id. at pp. 981-982.)

As noted above, defendant’s first argument is that the trial court failed to consider his mental condition in deciding the Romero motion. The trial court’s discussion of defendant’s mental condition was in response to defendant’s argument that the mitigation rule of the determinate sentencing law should be applied. Under the determinate sentencing rules, defendant’s mental condition reduces criminal culpability. (Cal. Rules of Court, rule 4.423(b)(2).) In response to defendant’s argument that he should fall outside the Three Strikes indeterminate sentencing scheme due to his mental illness, the trial court stated that if it considered factors in aggravation and mitigation, it would have to find that the factors in aggravation far outweigh the factors in mitigation. It then noted, “that’s not the criteria.” The court went on to consider defendant’s criminal history and the facts of the current offense.

Based on this record, we must reject defendant’s initial assertion that the trial court refused to consider his mental illness in reaching its decision on the Romero motion. Instead, we find that the trial court was properly rejecting defendant’s argument that his mental illness should be considered to be an overriding mitigating circumstance under California Rules of Court, rule 4.423(b)(2).^[2]

Defendant’s second argument is based on the following statement of the trial court: “Also what should be noted, in looking at the scheme or the criteria, the Court also has before it Case No. FWV-034037 which has been trailing. And then December 15 of 2004, while being held in custody at the county jail pending this case, he was charged with a violation of Penal Code Section 243.9 (a), a felony battery, by gassing upon a deputy, again, in a county jail, a lock-down facility. I think that is critical. This recent conduct and crimes are committed while in a locked-down facility and while being supervised and medicated.” Although the trial court’s statements appear to disregard the presumption of innocence, the incident on which the charge was based was described in the file of the trailing case, which contained a police report,^[3] and may have contained a transcript of the preliminary hearing, or other information which was relevant to defendant’s “background, character and prospects.” (Williams, supra, 17 Cal.4th at p. 161.) The trial court is not limited in its decision to convictions but can, and should, consider all of the relevant facts and circumstances available to it at the time of its decision. “A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or “out-of-court” information relative to the circumstances of the crime and to the convicted person’s life and characteristics.’ [Citation.]” (People v. Arbuckle (1978) 22 Cal.3d 749, 754.) We find that the trial court did not abuse its discretion under section 1385 by considering the information in the file in the trailing case.

Defendant’s third argument is based on the following statements of the trial court: “The defendant’s past crimes were also violent and, more importantly, demonstrated the defendant is a sexually violent predator. The two prior crimes: Even though it was the same case and same victim, the first one was a residential burglary. As the law states, burglary is committed once there is entry with the intent, and there is case law that says as long as you have that, you don’t even have to follow up and do what you intended. You can still be guilty. And then after the entry was made with the intent, then the attempted sexual assault, attempted rape on that victim was committed in the prior.”

Defendant cites People v. Benson (1998) 18 Cal.4th 24. In that case, defendant also had two prior convictions, one for burglary and one for attempted murder. Both convictions were sustained in one action and arose out of the same set of facts and, at sentencing, one of the sentences was stayed pursuant to 654. (People v. Benson, at p. 26.) The issue was whether defendant had sustained one prior conviction or two, and our Supreme Court held that there were two prior convictions for purposes of sentencing under the Three Strikes law. (Id. at pp. 26-27.)

Although the court’s holding does not help defendant, he cites footnote 8: “Because the proper exercise of a trial court’s discretion under section 1385 necessarily relates to the circumstances of a particular defendant’s current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected-for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct-that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.” (People v. Benson, supra, 18 Cal.4th at p. 36, fn. 8.) The footnote does not help defendant’s position either because the court was expressly declining to review the issue defendant now raises. However, in this case, the burglary and the attempted rape were separate acts and, as the trial court properly noted, section 654 did not apply.

The Benson case was remanded for resentencing because the trial court mistakenly believed that it lacked authority to strike a prior conviction allegation. (People v. Benson, supra, 18 Cal.4th at pp. 36-37.) However, the Supreme Court emphasized that Romero “affirms that a trial court retains discretion in such cases to strike one or more prior felony convictions under section 1385 if the trial court properly concludes that the interests of justice support such action. [Citation.]” (Id. at p. 36.)

Benson does not assist defendant because it makes it clear that, even when section 654 applies, Three Strikes law sentencing may be appropriate. For example, in People v. Lawrence (2000) 24 Cal.4th 219, our Supreme Court summarized the issue by saying: “We read the mandatory consecutive-sentencing provision of the three strikes law as follows: If there are two or more current felony convictions ‘not committed on the same occasion,’ i.e., not committed within close temporal and spacial proximity of one another, and ‘not arising from the same set of operative facts,’ i.e., not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted, then ‘the court shall sentence the defendant consecutively on each count’ pursuant to [section 667,] subdivision (c)(6). Conversely, where a sentencing court determines that two or more current felony convictions were either ‘committed on the same occasion’ or ‘aris[e] from the same set of operative facts’ as we have construed those terms in Deloza and the instant case, consecutive sentencing is not required under the three strikes law, but is permissible in the trial court’s sound discretion.” (Id. at p. 233.)

The trial court impliedly found section 654 inapplicable when it addressed defendant’s argument and noted that the crimes here were separate. Since burglary and attempted rape are separate acts and separate crimes, even when a burglary is made to carry out a rape, it cannot be said that it abused its discretion in counting the two crimes as two strikes. The trial court also clearly acknowledged the appropriate cases delimiting the scope of its discretionary power under section 1385. Unlike the Benson court, the trial court here understood the scope of its discretion.^[4]

Exercising its sentencing discretion, the trial court found that defendant is not a person who should be deemed to be outside the spirit of the Three Strikes law. Defendant has not shown that this decision was irrational or arbitrary, and we agree with respondent that the court is therefore presumed to have acted to achieve legitimate sentencing objectives. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978; People v. Barrera, supra, 70 Cal.App.4th at p. 554.)

DISPOSITION

The judgment is affirmed.

/s/ RAMIREZ

P.J.

We concur:

/s/ HOLLENHORST

J.

/s/ McKINSTER

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise indicated.

^[2] We disagree with the dicta in People v. Cluff (2001) 87 Cal.App.4th 991: “On this record, there are strong arguments that Cluff should be treated as though he fell outside the Three Strikes scheme. In addition to the factors discussed above, we note that none of the circumstances in aggravation listed in the California Rules of Court appear to apply here (Cal. Rules of Court, rule 4.421), while some circumstances in mitigation may apply (see, e.g., Cal. Rules of Court, rule 4.423(a)(1), (6), (7), (b)(6)). The court should consider all of these factors in exercising its discretion to strike one or more of the prior convictions.” (Id. at p. 1004, fn. omitted.) Cluff involved a technical violation of a sex offender registration requirement which led to a Three Strikes sentence. The dictum is merely an example of the principle that “hard cases make bad law.” (Cf. People v. Carmony (2005) 127 Cal.App.4th 1066.)

^[3] After the Romero motion was denied, and at the prosecution’s request, the parties stipulated that the police report of the assault on the jail deputy should be made part of the record “so that any reviewing court can look at the facts of that case . . . .” However, the report is not in our appellate record. The trailing case was dismissed after sentencing.

^[4] It is also worth noting that defendant here admitted two prior felony convictions under the Three Strikes law. In effect, his trial court sentencing argument, and his current argument, contradicts his admission by arguing that the trial court should have found that there was really only one strike.