Opinion
H036811
04-17-2012
THE PEOPLE, Plaintiff and Appellant, v. GILBERT VINCENT GRIJALVA, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County
Super. Ct. No. CC811940)
Defendant Gilbert Vincent Grijalva pleaded guilty to attempted second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), 664) and assault with a deadly weapon (§ 245, subd. (a)(1)) and admitted allegations that he had suffered three prior "strikes" (§§ 667, subds. (b)-(i), 1170.12) and two prior serious felony convictions (§§ 667, subd. (a), 1192.7). He also admitted having served a prior prison term (§ 667.5, subd. (a)). After a Romero hearing, the trial court dismissed two of defendant's prior strikes and sentenced him to an aggregate term of 17 years and four months in prison.
Further statutory references are to the Penal Code unless otherwise noted.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On appeal, the district attorney argues that the trial court abused its discretion in dismissing two of defendant's strike priors. We affirm.
I. Background
Since defendant pleaded guilty, we take the facts from the transcript of the preliminary examination and from the probation report.
Late one afternoon in July 2008, defendant approached a bank teller and in a nonaggressive and not "too, like, demanding" voice said, "Give me the money." There was a "strong" odor of alcohol on defendant's breath, and he seemed a "little sluggish," so the teller "didn't take it as a robbery at first." He asked defendant for his ATM card. "No," defendant replied, "give me the money." When the teller asked again, defendant put a bag on the counter and said, "This is a hold-up, give me the money." The teller still "didn't think much of it." He locked his computer screen, asked defendant to give him a minute, and walked toward a supervisor to ask that a guard escort defendant out. When he heard defendant yell an expletive, the teller turned around and saw him "stab the customer standing to his left" and then run out of the bank.
Gustavo Lopez, who was at a teller window endorsing a check, saw defendant "arguing" with the teller at the next window. Lopez saw the teller "step back" with "kind of like a smile on his face and [defendant] kept telling the teller, 'Come here,' 'Come here . . . .' " When the teller helping Lopez took his check to verify it, Lopez turned around, "and [defendant] came up to me and said, 'F-you,' and bumped into me . . . . And all of a sudden I started feeling all this blood dripping down my arm." The stab wound was "pretty deep." It required four stitches and took about three weeks to heal.
Defendant was apprehended almost immediately. Police noticed blood soaking through his shirt, and when they asked him if he was okay, he lifted up his shirt and announced, "I did that in the creek. I cut myself to wake me up." Officers saw several old lacerations on his chest and some fresh ones that were still bleeding. Defendant denied having been in the bank.
Jail staff referred defendant to the Santa Clara Valley Health and Hospital System for evaluation. Dr. Michael Echols opined that defendant "likely has a serious mental illness." Dr. Echols diagnosed defendant with psychotic disorder not otherwise specified (NOS), polysubstance dependence, and antisocial personality disorder. He offered possible additional diagnoses of schizophrenia, paranoid type, mood disorder NOS, and malingering.
Dr. David Echeandia was appointed at the public defender's request to evaluate defendant. He opined that defendant suffered from "a serious, chronic mental disorder" and offered a "provisional diagnosis of Psychosis NOS." He was "inclined to believe" defendant was "suffering some acute psychotic disorder" when he attempted to rob the bank.
The court appointed Dr. Bradley Novak and Dr. Robert Perez to evaluate defendant's competency. Finding the evidence "too evenly split between a diagnosis of malingering and a diagnosis of severe mental illness such as schizophrenia," Dr. Novak was unable to reach a conclusion. Dr. Perez found defendant "grossly incompetent." Noting that other treating clinicians had diagnosed "a chronic schizophrenic condition," Dr. Perez said he had "absolutely no reason to disagree with their judgment." Based on Dr. Perez's report, the court found defendant incompetent to stand trial. Defendant was committed in November 2008 to the Department of Mental Health (§ 1370, subd. (a)(2)).
In February 2009, defendant was certified competent by the Medical Director of Atascadero State Hospital (ASH). The hospital's report reflected diagnoses of malingering, alcohol and amphetamine dependence in a controlled environment, and antisocial personality disorder and stated that "[t]he defendant is not currently prescribed any psychotropic medications due to lack of clinical need." Contradictorily, however, ASH's medical director asserted in a February 13, 2009 letter to the court that defendant was "being returned to court on psychotropic medication," and it was "important that [he] remain on this medication for his own personal benefit and to enable him to be certified . . . ."
Criminal proceedings were reinstated in August 2009. In November, defendant pleaded not guilty by reason of insanity (NGI).
In January 2010, the court appointed Dr. Rudolph Cook, Dr. David Berke, and Dr. Peel Joel Leifer to evaluate defendant (§ 1027). Dr. Cook concluded that defendant's "longstanding mental illness of Schizophrenia and a 'psychotic break' rendered him amnesic, unable to understand the nature and quality of his act [or to distinguish] right from wrong" at the time of the crimes. Dr. Berke described defendant as an "intellectually impaired, mentally ill, drug-addicted, dual diagnosis man . . ." who was "suffer[ing] from a psychotic disorder" and had "an extensive history of drug abuse," and "a history of not taking his anti-psychotic medication when he is using drugs or drinking." Dr. Berke concluded that defendant "was psychotic at the time of the alleged crime because he had stopped taking his medication and . . . was under the influence of alcohol." Dr. Leifer, on the other hand, concluded that "major contradictions" in defendant's behavior when observed without his awareness suggested that he was "malingering symptoms of a severe mental disorder." Dr. Leifer concluded that defendant had "longstanding, maladaptive personality deficits" rather than a severe mental illness.
In August 2010, defendant withdrew his NGI plea, pleaded guilty to the charges, and admitted the allegations. In January 2011, he filed a Romero motion seeking dismissal of his three strike priors (convictions in 1986 for first degree burglary and attempted first degree burglary and a conviction in 1997 for arson of an inhabited structure). He argued that his strike priors were remote in time, that his current offense was "halfhearted and not taken seriously," and that it and his arson strike were "clearly driven by mental illness." "Other than the strike priors," he asserted, his criminal history consisted of "misdemeanors and minor felonies[] related to drugs and theft."
Defendant's convictions for "minor felonies" were a 1988 conviction for possession of stolen property, a 1989 conviction for possession of a controlled substance (Health & Saf. Code, § 11377), and a 1995 conviction for petty theft with a prior (§ 666).
Defendant's mental health picture was "complicated," the motion asserted, with family members and some clinicians attesting that he had long suffered from a serious mental illness, and other clinicians opining that he was a malingerer. "[T]here is some truth on both sides of this issue," the motion conceded; while defendant "has a propensity to exaggerate his symptoms," he is also "truly mentally ill."
Not so, the district attorney countered in his opposition, arguing that ASH clinicians who evaluated defendant after he was declared incompetent "caught onto" his malingering and "[i]n just two months" concluded that he was competent. The district attorney attributed defendant's recidivism not to mental illness but, to "decades of uncontrolled substance abuse." Defendant "now has a total of eight felony convictions, five of which are strikes, and 19 misdemeanor convictions," the district attorney argued, and "nothing" about his current offense, his criminal history, background, character, or prospects supported his claim that he fell outside the spirit of the "Three Strikes" law. The district attorney urged the court to sentence him to consecutive 20-year and 50 years to life prison terms.
Approximately 25 friends and family members came to the hearing on defendant's Romero motion. Six of them addressed the court on his behalf and described his history of mental health problems. Responding to these accounts before it heard argument on the motion, the court explained that there were "limits" to what it could do under the law. "I have to be concerned about the community as a whole. And I have to do what's individually right in his case. But I have to be mindful of aspects of punishment, of community safety, accountability."
Defendant's trial counsel argued that the burglary strikes were remote in time and that defendant was intoxicated and under the influence of PCP when he committed them. Defendant "had little choice" in his developing addiction, counsel asserted. First, "he had a genetic proclivity quite possibly to substance abuse because his father was a severe alcoholic. That's well accepted now." Secondly, "he was introduced to alcohol and marijuana when he was very young. . . . [T]hat's a significant mitigating factor . . . . At the age of nine you can't go out and find alcohol. . . . These are things that have to be given to you . . . that somebody has to teach you how to use . . . . And using those substances at such a young age is . . . traumatizing and it's something that lasts for a lifetime."
Turning to the arson prior, counsel argued that police reports showed "it was basically a suicide attempt." Defendant locked himself in the office of the motel that employed him, splashed lighter fluid around the room, and ignited it. When police tried to force their way into the room, "he repeatedly told them I want to die, I'm trying to kill myself."
Defendant's trial counsel was "surprised" that the prosecution challenged the idea that defendant suffered "from any type of mental illness." Counsel acknowledged that "[c]linicians have disagreed about whether he's mentally ill at all, whether he's exaggerating his symptoms," and he conceded "the possibility that [defendant] was exaggerating his symptoms at various points. . . ." It was "undeniable," however, that defendant also suffered from an underlying mental illness. "Both things can be true; that somebody is ill and is also attempting to exaggerate his symptoms in order to benefit himself." Counsel chronicled the evidence "from numerous witnesses who saw defendant exhibiting symptoms of mental illness outside the penal system." Family accounts described him "cutting himself, burning himself, drinking bleach." They described him talking to himself and acting erratically. There were accounts of him lighting firecrackers in his mouth. Defendant's mother was schizophrenic, counsel noted, "[a]nd . . . there's a genetic component to that as well and . . . other family members have also had similar problems." The evidence that defendant suffered from some sort of mental illness, he told the court, was "overwhelming."
Defendant's current crimes were serious, his counsel acknowledged, but there were mitigating facts in those crimes too. The robbery attempt was "a complete blunder job," described in the police reports as unplanned, unsophisticated, and unimpressive. The assault was "a completely irrational act," because the person who was stabbed had nothing to do with the robbery. Defendant may have been responding to "some delusion" that caused him to attack Lopez. "Most importantly," counsel argued, when police found defendant after the robbery he had fresh lacerations across his chest, which he claimed to have inflicted that morning. "In sum," counsel argued, defendant's case was "extraordinary"—not one contemplated by those who had enacted the Three Strikes law.
The district attorney argued that defendant was "exactly the person the Legislature and the voters had in mind" when they enacted the Three Strikes law. She did not dispute that defendant was "a troubled individual," but she attributed his problems to his "rampant" drug use rather than to mental illness. Noting that "after this case," defendant would have five strikes, the district attorney argued that "[w]hen a defendant has come to this point, it's not about the defendant anymore." Instead, "[i]t's about incarcerating him for as long a period as possible for the protection of the community."
The court allowed defendant to make a brief statement before sentencing. "I just wanted to apologize for what happened on that day," he told the court. "And it's because of voices that I did it . . . . I broke my arm because of the voices. I've lost two teeth because of voices. I need surgery on my shoulder because of voices. They're just, you know, they've destroyed my life. And I just wanted to apologize . . . ."
The court granted defendant's Romero motion in part, striking the burglary and the attempted burglary priors, but not the arson prior. "I can't undo the circumstances that got [defendant] to where he is today," the court explained. "And I can't overlook and omit the offenses that got him here. And ultimately to me the choices are whether to sentence him as a three striker or a one striker. His history, the facts and circumstance of this case, he is by no means a probation candidate and I can't imagine any tortured reading that would get me there. The issue frankly is whether the Court should strike two strikes or strike no strikes. And I have to . . . go through individualized facts and circumstances and criteria. I can't generalize as to [defendant]. And interestingly enough different people could look at his strikes in different ways. One can say, well, we take the first two strikes, he is quite youthful at the time, and at the age of 19 committed youthful indiscretions, got a short prison term, and went on from there. And some can look at the '97 strike, the arson, and say it is more recent; it is more aggressive community danger conduct. Yet on the flip side one can say, well, burglaries and attempt[ed] burglaries [are] more mentally specific, can certain[ly] be seen as more premeditated. And the facts and circumstances of the arson seem as clearly, clearly the result of mental issues and/or substance abuse issues that got [defendant] to the point of crisis to where he set the fire and clearly was intending to harm himself. And so depending on which side of the glass you're looking at one can find the strikes from the '80s [more] serious than the strike in the '90s or the strike in the '90s much more serious than the strike in the '80s. It depends on how you're looking at them. There is no question but that he has had this aura of mental health issues and dependency issues throughout his life, and they influence his conduct. And he has not had and/or taken advantage of treatment options that were there. . . . And it may be that the family didn't know how to find them. . . . And he maybe [sic] a malingerer. He may be exaggerating. And there's good reason to believe he may be malingering, but I don't think he's malingering from a position of neutral or good health. I think he is malingering from a variety of issues that are causing him to exacerbate his conditions and they are contributing to that malingering. [Defendant] will be going to prison. . . . And when I weigh all the considerations and I weigh all the factors when I look at the facts and circumstances the Court is satisfied that a [determinate] term is appropriate. It is not a low [determinate] term. It is a high [determinate] term. It will give [defendant] the opportunity to get out on parole. It will not, however, give him a chance to succeed if he does not get the assistance he needs when he gets out. And the family has to be motivated in that regard to see that when he gets out he gets that help, because if not . . . we run the risk, I run the risk, he'll hurt someone and will . . . go to prison forever. And I don't think that's just right now, but it could very easily become just." (Italics added.)
"The Court is going to strike the two strikes, the burglary and attempted burglary; not the arson. The minutes should reflect the following. The defendant was youthful at the time of those offenses. It is clear he suffers from a combination of substance abuse issues and mental illness which mitigate, not excuse, mitigate his conduct including the fact that he clearly is genetically addicted to drugs. The facts and circumstances of the current case are not a basis to strike the strikes. They are very significant notwithstanding the fact that the Court is satisfied they clearly show evidence of . . . mental illness, but the Court finds the circumstances of the current offense such as to not be mitigating factors. For those stated factors the Court will strike those two strikes."
The court found defendant ineligible for probation. Selecting the section 245 count as the principal count and finding that the facts in mitigation and aggravation "balance[d] each other," the court imposed the middle term of three years, doubled because of the arson prior. The court imposed a consecutive term of one year and four months (one-third of the middle term) for the attempted robbery count. It imposed two consecutive five-year terms for the two section 667, subdivision (a) priors, and struck the punishment (§ 1385) for the prison prior. The People filed a timely notice of appeal.
II. Discussion
The district attorney contends that the court abused its discretion in dismissing two of defendant's three strikes. We disagree.
Section 1385, subdivision (a) "permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law." (Romero, supra, 13 Cal.4th at pp. 529-530.) "A court's discretion to strike prior felony conviction allegations in furtherance of justice is limited," however, and "is subject to review for abuse." (Id. at p. 530.). " ' " '[I]n furtherance of justice' requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]" [Citations.] At the very least, the reason for dismissal must be "that which would motivate a reasonable judge." [Citations.]' [Citation.]" (Romero, at pp. 530-531.)
"[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.]" (Romero, supra, 13 Cal.4th at p. 531.)
In People v. Williams (1998) 17 Cal.4th 148 (Williams), the California Supreme Court described the factors a court should consider when exercising its section 1385 discretion in a Three Strikes case. The court "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." (Williams, at p. 161.)
This is precisely the approach the court took here. We see nothing in the record to indicate that it considered or relied on any factors extrinsic to the Three Strikes law. (Romero, supra, 13 Cal.4th at p. 531; Williams, supra, 17 Cal.4th at p. 161.) Instead, the court properly considered the nature and circumstances of defendant's present and prior convictions and the particulars of his background, character, and prospects. (Williams, at p. 161.) Weighing those considerations, the court determined that defendant should be deemed outside the spirit of the Three Strikes law in part, because he "was youthful at the time of those [two 1986] offenses," and suffered from a combination of substance abuse and mental health issues that mitigated his conduct.
The district attorney challenges that decision, arguing that defendant "simply cannot distinguish himself from the defendant in Williams"—indeed, he asserts, defendant's history is "worse than the defendant's history in Williams." "If it was an abuse of discretion to strike a prior conviction in Williams," he argues, "it was certainly an abuse of discretion to strike the defendant's prior convictions here." We cannot agree.
Williams is distinguishable. The trial court's dismissal of one of Williams's two strike priors "fell outside the bounds of reason" because the record on appeal in that case was "devoid of mitigation." (Williams, supra, 17 Cal.4th at p. 163.) The trial court in Williams got the facts wrong, moreover, stating that there had been "no 'crimes involving actual violence' " in the 13-year interim between Williams's prior and current offenses. (Id. at p. 163.) In fact, there had been several. (Id. at pp. 163-164.) Williams had not only had his parole revoked after an arrest for assault with a deadly weapon, he had also committed spousal battery, "plainly a 'crime[] involving actual violence,' " just three months before his current crime. (Id. at pp. 163-164.)
The record here, by contrast, was not devoid of mitigation. As the probation report noted, defendant was suffering from a mental or physical condition that significantly reduced his culpability for the crime. (Cal. Rules of Court, rule 4.423(b)(2); see People v. Reyes (1987) 195 Cal.App.3d 957, 963 ["Alcoholism or drug addiction may be regarded as a 'mental or physical condition'; but a separate finding that the condition significantly reduced culpability or partially excused his conduct must be made."].) The court made both findings here, and the district attorney does not challenge either as not supported by substantial evidence. Indeed, he concedes that "there was substantial evidence to support the trial court's finding: 'There is no question but that [defendant] has had this aura of mental health issues and dependency issues throughout his life, and they influence his conduct.' " Because they were supported by substantial evidence, the trial court was entitled to weigh defendant's mental health and substance abuse issues in determining whether to dismiss one or more of his strike priors. (Williams, supra, 17 Cal.4th at p. 161 ["preponderant weight must be accorded to factors intrinsic to the scheme, such as . . . the particulars of [the defendant's] background, character, and prospects."].)
We cannot agree with the district attorney's assertion that "[u]ntreated and uncontrolled substance abuse and mental illness that contribute in whole or in part to a defendant's violent criminal behavior are not sufficient reasons to dismiss a prior strike allegation." The cases on which he relies involved defendants with substance abuse problems. They say nothing about mental illness. (E.g., Williams, supra, 17 Cal.4th at p. 163 [abuse of discretion to dismiss strikes where the record was "devoid of mitigation;" noting that Williams "did not follow through in efforts to bring his substance abuse problem under control."]; People v. Barrera (1999) 70 Cal.App.4th 541, 553, 555 (Barrera) [trial court properly refused to strike prior felony convictions where the record belied the defendant's claim that he had "sought help to break himself of his addiction" to drugs]; People v. Gaston (1999) 74 Cal.App.4th 310, 320, 322 [abuse of discretion to dismiss the defendant's strike prior where he had an "unrelenting record of recidivism," and the record was "barren of any attempts by [him] to 'root out' [his] destructive drug dependency."]; see People v. Martinez (1999) 71 Cal.App.4th 1502, 1511 [noting that "drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment."].)
The remaining cases that the district attorney claims defendant "cannot distinguish himself from" are, in fact, distinguishable, because none of them involved a defendant who was struggling with mental illness. (E.g., People v. Strong (2001) 87 Cal.App.4th 328.) People v. Humphrey (1997) 58 Cal.App.4th 809 (Humphrey) is inapposite for another reason as well. In that case, the court held that it was an abuse of discretion to dismiss the defendant's strike prior "predicated solely upon its being remote in time" because the defendant had continued his life of crime thereafter. (Id. at pp. 812-813.) Even if we accept the district attorney's assertion that the court relied on the remoteness of defendant's 1986 convictions here (and we do not believe it did, given its comments about "youthful indiscretions"), remoteness was not the sole basis for striking defendant's priors in this case. People v. DeGuzman (1996) 49 Cal.App.4th 1049 (DeGuzman) can be further distinguished because in that case, "[n]either counsel argued that the priors should be stricken under section 1385 and the record [was] silent as to the court's intent." (DeGuzman, at p. 1053.) The Court of Appeal held that whether the trial court believed it had discretion to dismiss the strike priors or not, it would have been a manifest abuse of discretion to strike them where the probation report listed seven circumstances in aggravation and none in mitigation. (Id. at pp. 1053, 1055.) Here, unlike in DeGuzman, the probation report listed defendant's substance abuse and mental illness as facts in mitigation. Finally, People v. Garcia (1999) 20 Cal.4th 490 (Garcia) does not advance the district attorney's position. In Garcia, the California Supreme Court held that the trial court acted within its discretion in dismissing some but not all of the defendant's strike priors. (Id. at p. 503.) The sentence imposed, which was "not lenient," was consistent with the purpose of the Three Strikes law, and the other reasons the trial court articulated, including the defendant's cooperation with police and the fact that his crimes "were related to drug addiction," did not fall outside the bounds of reason. (Ibid.) Here, as in Garcia, defendant's crimes were related to his substance abuse and mental health issues. As in Garcia and consistent with the purpose of the Three Strikes law, the sentence of 17 years and four months that the court imposed here was not lenient. Although the facts of this case may not be as strong as those in Garcia, we think Garcia advances rather than detracts from defendant's position.
The district attorney argues that defendant "provides no rational explanation as to why there should be a distinction between a mental illness such as schizophrenia, which can be stabilized with medication . . . and a mental illness such as substance abuse, which can also be stabilized with appropriate treatment." We reject his attempt to equate substance abuse and mental illness; the two are plainly not the same. It was not in any event defendant's burden to distinguish the two. " ' "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." ' (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978)." (Barrera, supra, 70 Cal.App.4th at p. 554.) Where, as here, the trial court properly considered the relevant Williams factors, did not rely on irrelevant factors, and articulated reasons for dismissing two of defendant's three strike priors that " ' 'would motivate a reasonable judge," ' " (Romero, supra, 13 Cal.4th at pp. 530-531), we cannot say the court's ruling fell " 'outside the bounds of reason' under the applicable law and the relevant facts [citations]." (Williams, supra, 17 Cal.4th at p. 162.) This is particularly so where the court sentenced defendant fully in accordance with the Three Strikes law as a result of the arson prior it declined to strike (see Garcia, supra, 20 Cal.4th at p. 503).
III. Disposition
The judgment is affirmed.
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Mihara, J.
WE CONCUR:
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Bamattre-Manoukian, Acting P. J.
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Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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