Opinion
2d Crim. No. B229814
11-21-2011
THE PEOPLE, Plaintiff and Appellant, v. DANIEL AVILA, Defendant and Respondent.
Gregory D. Totten, District Attorney, Ventura County, Michael D. Schwartz, Special Assistant District Attorney, for Appellant. California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 2005002781)
(Ventura County)
Pursuant to Penal Code section 1385 the trial court exercised its discretion to dismiss three felony charges against Daniel Avila that had been pending since February 2005. It reasoned that Avila, who had been declared incompetent to stand trial (§ 1368), and faced two additional felony cases arising from death threats he allegedly made to the prosecutor and his defense counsel, had "statutorily timed out" and would remain in custody on the remaining felony matters.
All statutory references are to the Penal Code unless otherwise stated.
The People appeal contending that the dismissal was an abuse of discretion. They argue that Avila caused his lengthy pretrial detention by making criminal threats and refusing to be medicated to restore his competency. They caution that, without a felony conviction in this matter, and assuming he is acquitted in the pending cases, Avila would be legally entitled to obtain a firearm on his release from custody. We affirm.
Facts and Procedural History
In February 2005, the People charged Daniel Avila with computer fraud (§ 502, subd. (c)(1)), identity theft (§ 530.5, subd. (a)), and false personation. (§ 529.) The prosecution alleged that, during his November 2004 campaign for a seat on the Thousand Oaks City Council, Avila generated harassing text messages that were made to look as if they had been sent by a rival candidate. Neither Avila nor the rival candidate was elected.
In May 2006, the People filed an amended information against Avila alleging that he used a computer to obtain property by fraud in violation of section 502, subdivision (c)(1) and that he committed identity theft in violation of section 530.5, subdivision (a) A second amended information, alleging computer fraud, identity theft and false personation, was filed in June 2008.
While in custody awaiting trial on that matter, Avila used his access to jail telephones to make three-ways calls to third parties, including to the office of an attorney in the county counsel's office for Ventura County, the home of an assistant district attorney and the office of an assistant attorney general. He also made verbal and written death threats against the prosecutor and his defense counsel, creating two new, separate felony cases against him.
In December 2008, after he had threatened the life of his defense counsel, the trial court appointed new defense counsel for Avila. The new defense counsel declared doubts about Avila's competency to stand trial. Following an evaluation and trial on the matter, the trial court found Avila incompetent to stand trial and ordered him committed to Metropolitan State Hospital. We affirmed that order in a published opinion, People v. Avila (2011) 191 Cal.App.4th 717.
By October 2010, Avila was facing two separate felony cases arising out of the threats he allegedly made against the lives of both the prosecutor and his original public defender. He had been in custody for more than four years and had accumulated more than two years of local conduct credits. (§ 4019.) The trial court exercised its discretion (section 1385) to dismiss the 2005 case in the interest of justice. It reasoned that Avila had "statutorily timed out," having spent more than three years in custody, and would not be released because he was also facing additional felony charges, continued to be incompetent for trial, and would be involuntarily medicated.
We take judicial notice of the fact that, after the trial court entered its order dismissing the 2005 case, Avila was returned to mental health treatment and restored to competency. In April 2011, after a jury trial in Case No. 2008030495, Avila was convicted of making criminal threats against, among others, the prosecutor in the 2005 case, and of threatening public officials. He was sentenced to six years, four months in state prison. Avila's appeal from that judgment is pending. (Evid. Code, §§ 452, subd. (d), 459.)
--------
Discretionary Dismissal
The People contend the dismissal order was an abuse of discretion. They points out Avila's lengthy pretrial incarceration was caused by the criminal threats he made against the prosecutor and defense counsel and by his refusal to consent to medication that would have restored his competency. Avila should not, the People contend, be "rewarded" for that behavior by having the 2005 case dismissed. We are not persuaded.
Section 1385, subdivision (a) provides that a trial court judge may, "on his or her own motion . . . , and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes." We review a trial court's decision to dismiss under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531.) "In exercising its discretion under section 1385, the court should consider the nature and circumstances of the defendant's crimes, the defendant's prior convictions, and the particulars of his or her background, character, and prospects." (People v. Orabuena (2004) 116 Cal.App.4th 84, 99.) It is the appellant's burden to demonstrate that the trial court's order was irrational or arbitrary. (People v. Carmony, supra, 33 Cal.4th at p. 376.) We will not reverse an order to dismiss under section 1385 " ' " merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978, quoting People v. Preyer (1985) 164 Cal.App.3d 568, 573.)
We cannot say that the trial court's decision was irrational or arbitrary. Avila has been in custody continuously since March 1, 2006. The People concede that the maximum sentence he could receive, if convicted on all charges, is three years and eight months in prison. When the trial court entered its order dismissing the case on October 20, 2010, Avila had already been in custody for four years and nearly eight months, far longer than his maximum possible sentence. In addition, Avila was in custody as a defendant in two other felony matters and remained incompetent to stand trial in those matters. He had been committed for treatment and ordered involuntarily medicated to restore his competency. As a consequence, there was no danger Avila would be released from custody as a result of the dismissal. In these circumstances, a reasonable judge could determine, in the exercise of his or her discretion, that it was in the interests of justice to dismiss this case. (People v. Carmony, supra, 33 Cal.4th at p. 377.)
We do not agree with the People that the dismissal "rewarded" Avila for his unlawful behavior. Avila has faced, and continues to face, the penal consequences of making criminal threats against prosecutors and defense counsel. And, there is no showing that he made a tactical decision to delay the case to gain a 1385 dismissal. In Case No. 2008030495, he has been sentenced to six years, four months in prison for threatening the life of the prosecutor. If affirmed on appeal, the convictions he has already suffered will prevent him from lawfully possessing a firearm. The trial court was aware of the other pending cases and his "prospects" for release into the community were not good. (People v. Orabuena, supra, 116 Cal.App.4th at p. 99.) It was not an abuse of discretion for the trial court to conclude that the dismissal 1. was not a "reward" and 2. would not result in an unreasonable threat to public safety.
The judgment (order of dismissal) is affirmed.
NOT FOR PUBLICATION
YEGAN, J. We concur:
GILBERT, P.J.
PERREN, J.
Eugene L. Huseman, Judge
Superior Court County of Ventura
Gregory D. Totten, District Attorney, Ventura County, Michael D. Schwartz, Special Assistant District Attorney, for Appellant.
California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, for Respondent.