Opinion
H036305
12-13-2011
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW SANTOS MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CC822543)
Defendant Matthew Santos Martinez pleaded guilty to three counts of petty theft with a specified prior conviction (Pen. Code, § 666), and pleaded no contest to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), reckless driving while attempting to elude a peace officer (Veh. Code, § 2800.2, subd. (a)), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Defendant admitted allegations that he was out of custody on bail at the time some of the offenses were committed (§ 12022.1) and that he had served five prior prison terms (§ 667.5, subd. (b)). The trial court found that defendant had one prior conviction that qualified as a strike. (§§ 667, subds. (b)-(i), 1170.12.) After defendant entered his pleas and admissions, the court denied defense counsel's request that a psychiatrist be appointed to evaluate defendant. Following the denial of defendant's motion to strike his strike prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the court sentenced defendant to 11 years four months in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court abused its discretion when it denied his Romero motion. He also argues that the trial court's denial of the request to appoint a psychiatrist in connection with the anticipated Romero motion was an abuse of discretion, denied him equal protection, and was prejudicial.
For reasons we will explain, we will affirm the judgment.
BACKGROUND
The Offenses
As defendant was convicted by plea, the following facts are taken from the probation report.
Counts 1, 2, and 3
In September 2008, the police conducted a parole search at a residence. During the search, the police observed defendant discarding a plastic sandwich bag in the residence and then covering the bag with a box. Defendant was held at gunpoint after the police "[f]ear[ed] he was attempting to reach for a weapon." Defendant "displayed objective symptoms of being under the influence of a controlled substance," and he later tested positive for being under the influence of methamphetamine. Defendant consented to the search of his person. A hypodermic needle was found in his pocket. A black tar substance, which later testing revealed was 10.5 grams of heroin, was found in the bag that defendant had attempted to hide. Defendant was arrested and later released on bail.
Count 4
In November 2008, an individual took several items of clothing from a store without paying for them. A loss prevention officer unsuccessfully attempted to apprehend the individual who ultimately fled in a vehicle. Based on the license plate number of the vehicle and video surveillance from the store, the police determined that defendant was responsible for the theft.
Count 5
In December 2008, a store employee observed an individual looking at eyeglasses. The individual "appeared 'suspicious' " and ultimately left the store without buying anything. A few days later, the store conducted an inventory and discovered that five pairs of glasses had been stolen. The store's video surveillance showed defendant stealing the glasses.
Counts 6 and 7
In January 2009, a police officer driving a marked patrol vehicle attempted to stop an individual, later determined to be defendant, for speeding. Defendant accelerated through a red light and hit a curb. During the pursuit, defendant reached speeds of up to 75 miles per hour in a 35 mile-per-hour zone. Several vehicles travelling in the opposite direction had to brake or swerve to avoid a collision with him. The police officer eventually lost sight of the vehicle, which was found unoccupied approximately 20 minutes later. The police officer eventually identified defendant as the driver of the vehicle, and papers in the vehicle also linked defendant to the case. Inside the vehicle were hypodermic needles and syringes, as well as 3.19 grams of methamphetamine.
Count 8
In January 2009, defendant entered a store and attempted to hide items in his coat and leave without paying. Defendant was apprehended by store employees. He attempted to flee but was restrained by the employees "after a short struggle."
The Consolidated Information and Defendant's Plea
In May 2009, defendant was charged by consolidated information with possession for sale of a controlled substance (Health & Saf. Code, § 11351; count 1), possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140; count 2, a misdemeanor), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 3, a misdemeanor), three counts of petty theft with a specified prior conviction (§ 666; counts 4, 5, & 8), reckless driving while attempting to elude a peace officer (Veh. Code, § 2800.2, subd. (a); count 6), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 7). The information further alleged that defendant had suffered a prior conviction within the meaning of Health and Safety Code sections 11370.2, subdivision (a) and 11370, subdivision (a); that he had two prior convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12); that he had served five prior prison terms (§ 667.5, subd. (b)); and that he was out of custody on bail at the time the offenses in counts 4 through 8 were committed (§ 12022.1).
On July 15, 2009, defendant pleaded guilty to three counts of petty theft with a specified prior conviction (§ 666; counts 4, 5, & 8) and admitted having served five prior prison terms (§ 667.5, subd. (b)).
On July 17, 2009, following a court trial, the court found that defendant had two prior convictions that qualified as strikes. (§§ 667, subds. (b)-(i), 1170.12.) At the same proceeding, the prosecution stipulated to amending count 1 to instead charge misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Further, on motion of defendant and over the prosecution's objection, the court reduced count 6, reckless driving while attempting to elude a peace officer (Veh. Code, § 2800.2, subd. (a)), to a misdemeanor pursuant to section 17. Defendant thereafter pleaded guilty to counts 1 and 6, as well as to possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140; count 2), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 3), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 7).
In August 2009, the trial court granted defendant's motion to withdraw his guilty pleas to counts 1, 2, 3, 6, and 7. The court indicated that the felonies that had been reduced or amended to misdemeanors (counts 1 and 6) "to facilitate the agreement" that defendant would plead guilty would go "back to being" felonies. The prosecution and defense counsel also confirmed that the on-bail enhancement allegation would be "reinstated" as a result of the withdrawal of defendant's guilty pleas.
In April 2010, on motion of the prosecution, the trial court determined that defendant had only one prior conviction that qualified as a strike, rather than two as it had previously found.
In June 2010, on motion of the prosecution, the information was amended in count 1 to charge possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). Defendant pleaded no contest to this count, as well as to possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140; count 2), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 3), reckless driving while attempting to elude a peace officer (Veh. Code, § 2800.2, subd. (a); count 6), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 7). Defendant pleaded no contest with the understanding that he would receive a maximum of 11 years four months and that he could bring a Romero motion. Defendant admitted the on-bail enhancement allegation. (§ 12022.1) The allegation under Health and Safety Code sections 11370.2, subdivision (a) and 11370, subdivision (a) were stricken.
Sentencing
In late August or early September 2010, defense counsel submitted a declaration requesting that the trial court appoint a psychiatrist to evaluate defendant in connection with an anticipated Romero motion. At a hearing on September 3, 2010, the trial court denied the request.
In October 2010, defendant filed a Romero motion. After a hearing on the motion, the trial court denied the motion and sentenced defendant to 11 years four months in prison. The sentence consists of four years (the midterm, doubled) on count 6 (Veh. Code, § 2800.2, subd. (a)); a concurrent term of four years (the midterm, doubled) on count 7 (Health & Saf. Code, § 11377, subd. (a)); four consecutive terms of 16 months (one-third the midterm, doubled) on counts 1, 4, 5, and 8 (Health & Saf. Code, § 11350, subd. (a); § 666); and a consecutive term of two years for the on-bail enhancement (§ 12022.1). The court struck the additional punishment for the five prison priors pursuant to section 1385, and imposed a 180-day concurrent term on counts 2 and 3 (Bus. & Prof. Code, § 4140; Health & Saf. Code, § 11550, subd. (a)).
DISCUSSION
The Romero Motion
Defendant contends that the trial court's denial of his Romero motion was an abuse of discretion. According to defendant, the court denied the motion "based exclusively on an analysis of his prior and current offenses" and did not give "any consideration" to "his history of drug addiction" which was "one of the most important particulars of [his] background." Defendant asserts that his "history of drug addiction . . . strongly indicates that he needs treatment, not incarceration." The Attorney General responds that the court "was fully aware of [defendant's] history of drug addiction," took his "lifelong drug addiction into account in denying the motion," and "reasonably found [defendant's] drug addiction did not take him outside the spirit of the Three Strikes law."
Background
The probation report included defendant's history of drug use. Defendant admitted to the probation officer that he had a serious drug addiction. He stated that he needed counseling and therapy, and that he wanted to stop using drugs.
The probation report also summarized defendant's criminal history. Defendant had eight prior felony convictions, consisting of three convictions for possession of a controlled substance and one conviction each of reckless driving during commission of a crime, possession of stolen property, assault with a deadly weapon, importation of phencyclidine, and inflicting corporal punishment on a current or former spouse or cohabitant. Defendant also had 25 prior misdemeanor convictions, including Vehicle Code violations and domestic violence, petty theft, and drug and alcohol related offenses. The probation officer observed that although defendant's prior strike conviction for assault with a deadly weapon occurred approximately 19 years ago, he had committed seven felonies and 23 misdemeanors since that time. He had also violated parole on at least 11 separate occasions since his release from prison for the prior strike conviction. Further, while in custody in jail, defendant had "behavioral problems," including making " 'pruno' " in his cell on multiple occasions, refusing to enter his cell when ordered, and being in other inmates' cells. Correctional officers at the jail described defendant as " 'sophisticated' and 'very manipulative.' "
The probation officer characterized defendant's current offenses as "not particularly egregious in nature," but pointed out that defendant had a "lengthy criminal history," that he had served a prior prison term, that he was on parole at the time he committed the instant offenses, and that his past performance on parole was "unsatisfactory." According to the probation officer, defendant wanted the court to consider "that he has 'accepted the Lord' into his life," "has completely changed his life, and plans to be a productive citizen upon his release from custody."
In a written Romero motion, defendant stated that he was 41 years old and divorced, and that he had three children, with the youngest being three years old. Defendant acknowledged that he was a "drug addict." He had smoked marijuana and sniffed paint by age 11 or 12, and his "drug addiction escalated in his 20s to heroin and methamphetamine." Defendant also admitted that he has been "in and out of custody" since the age of 13. He stated that "[m]ost of his criminal history involve[d] non-violent drug offenses and driving without or on a suspended license," and that "more than a third of his prior convictions are drug and/or alcohol related." Defendant further stated that he was "seriously addicted to heroin" and that he committed the instant offenses "to support that addiction." With respect to the recent conviction for reckless driving while attempting to elude a peace officer, defendant acknowledged that he reached 75 miles per hour and ran four red lights.
According to the motion, defendant knew he was "in need of counseling and therapy and wishe[d] to be drug-free." In 2008, defendant completed a "Sober Living" program and took parenting courses, and had passed random drug tests from June to September 2008, before "succumbing to his addiction and committing the offenses charged in" counts 1 through 3. While in custody, defendant was participating in a treatment program by mail with The Salvation Army, and had completed five courses. Regarding his prior strike conviction for assault with a deadly weapon, defendant indicated that the offense occurred in 1991. Defendant stated that he was also convicted of misdemeanor using or being under the influence of a controlled substance, which was "consistent" with his "lifetime battle with drug addiction." Attached to defendant's motion were documents reflecting his completion of various courses by The Salvation Army in 2009 and 2010, and letters of support from individuals who knew defendant and who believed that defendant wanted to better his life.
At the hearing on the Romero motion, the trial court stated that it had read defendant's motion as well as the probation report. In opposition to the motion, the prosecutor argued that "in almost every occasion" defendant had "denied culpability" and "tried to manipulate the system" with respect to his past and current crimes. Further, although "many of his crimes" were related to substance abuse, and although many of the defendants who come before the court because of a substance abuse problem want to get better and "want to try to do things the right way and finally get it," the prosecutor contended that defendant "doesn't get it, and he doesn't want to get better." The prosecutor asserted that defendant "would commit [crimes] whether he was sober or not," and that he was "very manipulative and will continue to commit crimes."
In response to the prosecutor's argument, the trial court referred to defendant being 41 years old and expressed doubt about whether it could determine that defendant would commit crimes when he is not using drugs because, "he's been using drugs since he was . . . at juvenile hall at 13 years old." The court further stated that defendant "has been a drug addict all his life."
Defense counsel thereafter argued that defendant had a "really serious illness and that illness is stemming from drug use." Counsel contended that defendant needed "a lot of help in that area" and that defendant "realize[d] that his major issue always stems from his drug abuse." Counsel further stated that drugs were the "one common factor throughout [defendant's] life and led him to the life where he's at now."
The court questioned defense counsel about "the danger [defendant] poses to the community driving 75 miles an hour through the City of Santa Clara evading police officers," and the fact that defendant had previously evaded police officers in another case. Defense counsel responded that defendant was "not . . . trying to discount his conduct in any way" and was "willing to take responsibility for his actions." Defendant was "only . . . asking the court to . . . exercise its discretion" to either "give him less time or allow him [the] opportunity to earn credits at a faster pace . . . ." Defense counsel stated that defendant had made a "commitment . . . to himself that he's going to be clean and sober and wants to lead a different life." Defense counsel further stated that "we're also dealing with a person who is aging . . . and his outlook on life is changing," and pointed to the "work that he's done with The Salvation Army" which had "kind of made him just have a different perspective on life."
In ruling on the Romero motion, the trial court referred to the fact that defendant's instant consolidated case resulted from at least five cases, and that all the cases were committed by him "as a striker." The court explained that the offenses by defendant "amount to things that he's done in the past, continued theft and drug offenses," as well as creating "an extremely dangerous situation" for citizens during the police chase by driving at "speeds of over 70 miles an hour, . . . running three or four red lights and hitting a curb and making cars swerve to avoid him." The court observed that defendant had engaged in "evasive acts" on other occasions as well and that "someone could have been injured." The court stated that "all these put together amount to serious conduct in the new cases where individually the cases aren't that serious except for the evading . . . ." The court observed that defendant had a prior conviction for felony evading a police officer, in addition to the prior strike for assault with a deadly weapon. The court stated that defendant's "prospects unfortunately appear to be poor because he's been a drug addict for over 30 years and continues in that behavior" and he commits "violent crimes such as domestic violence." The court referred to defendant's "continuous" criminal record, which included drug, theft, and other offenses, and stated that it "doesn't show any real prospects for turning it around any time soon." The court concluded that "unfortunately the Romero has to be denied because of poor prospects, serious prior and all these cases that amount to serious behavior in these cases."
Analysis
In People v. Carmony (2004) 33 Cal.4th 367 (Carmony), the California Supreme Court set forth the basic principles applicable to a trial court's decision to strike a prior strike. " 'In Romero, we held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to . . . section 1385(a).' [Citation.] We further held that '[a] court's discretionary decision to dismiss or strike a sentencing allegation under section 1385 is' reviewable for abuse of discretion. [Citation.]" (Carmony, supra, 33 Cal.4th at p. 373.)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] 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." ' [Citations.] Second, a ' "decision will not be reversed 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." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
" '[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." ' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.) " '[I]n 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.' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.)
Here, in denying the Romero motion, the record reflects that the court considered all the relevant factors, including the nature and circumstances of defendant's past and present offenses, and his background, character, and prospects. Moreover, it is clear from the court's comments that, contrary to defendant's contention on appeal, the court did consider defendant's history of drug addiction in deciding whether the prior strike should be stricken. The trial court stated at the outset of the hearing that it had read defendant's Romero motion and the probation report. Both documents addressed, among other things, defendant's history of drug use. Further, at the hearing, both the prosecutor and defense counsel argued to the court the extent to which defendant's substance abuse or drug use warranted the striking of the prior strike. The trial court, in discussing the issue in response to the prosecutor's argument, referred to the fact that defendant had been using drugs since a young age and that he had been a drug addict "all his life." In denying the Romero motion, the court stated that defendant's "prospects unfortunately appear to be poor because he's been a drug addict for over 30 years and continues in that behavior." The court also referred to defendant's "continuous" criminal record, which included violent crimes, and the instant offenses, one of which presented an "extremely dangerous situation" to other citizens when he was speeding away from the police. In view of the record, we cannot say that the court's decision to not strike defendant's strike was an abuse of discretion. (Cf. People v. Garcia (1999) 20 Cal.4th 490, 503 [concluding that the trial court did not abuse its discretion in striking a strike where the defendant's crimes were related to drug addiction, he "cooperated" with the police, his prior convictions "arose from a single period of aberrant behavior," and his criminal history did "not include any actual violence"].)
The Request for Appointment of Psychiatrist
Defendant next contends that the trial court's denial of the request to appoint a psychiatrist to examine him was an abuse of discretion, denied him equal protection, and was prejudicial. The Attorney General responds that the court did not abuse its discretion, that defendant has forfeited his constitutional claim, and that his claim of prejudice is without merit.
Background
After defendant entered his pleas and admissions but before the sentencing hearing, defense counsel submitted a declaration requesting that the trial court appoint a psychiatrist to evaluate defendant. Counsel explained that he intended to file a Romero motion asking the court to strike defendant's prior strike. Counsel stated: "The underlying theme in all of the cases that were pending against [defendant] was drugs. An evaluation from a psychiatrist could help determine the psychological impact that drug use had on [him]. I also believe that such a 1017 evaluation would provide an in-depth look at [defendant's] social history, family and his upbringing and how these factors affected him psychologically. [¶] . . . These factors are essential to consider and include in a Romero Motion because they could provide mitigating factors that the court may consider in evaluating the Romero Motion."
At a hearing on September 3, 2010, the trial court denied the request. The court stated that, based on defense counsel's declaration, "the reason given by the defense for wanting to hire an investigating officer basically is to do a social history because [defendant] has a Romero pending. That's not the job of a doctor under [Evidence Code section] 1017. [¶] . . . [¶] This appears to be . . . the attorney just trying to get a doctor to conduct a social history of [defendant] rather than himself or some investigating officer or proper person." The court believed that the request was "similar" to one made and rejected in People v. Stuckey (2009) 175 Cal.App.4th 898 (Stuckey). The court concluded that defense counsel's declaration was "wholly inadequate" and refused to appoint a psychiatrist.
Analysis
An indigent defendant is entitled to the appointment of trial counsel and is generally entitled to ancillary services that are reasonably necessary in preparation of a defense. (Ake v. Oklahoma (1985) 470 U.S. 68, 76-77; Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319 (Corenevsky).)A right to ancillary defense services will arise if the defendant "has demonstrated the need for such services by reference to ' "the general lines of inquiry he wishes to pursue, being as specific as possible." ' [Citations.]" (Corenevsky, at p. 320, fn. omitted.) The defendant's motion "can be granted only if supported by a showing that the investigative services are reasonably necessary." (Ibid.)The trial court's order regarding such services is reviewed for abuse of discretion. (Id. at p. 321.) "[A]n appellate court will reverse such an order only when 'the circumstances shown compelled the [trial] court to exercise its discretion only in one way, namely, to grant the motion.' [Citation.]" (Id. at p. 323.)
In Stuckey, the defendant was found in violation of probation. (Stuckey, supra, 175 Cal.App.4th at p. 906.) Before sentencing, the defendant's privately retained counsel sought appointment of a drug treatment evaluator and a psychotherapist. The asserted need for the drug treatment evaluator was " 'to assist the defense in determining and procuring viable, post-incarceration structured rehabilitation options that can be considered in the disposition of this matter.' Defense counsel further stated that he could not effectively represent defendant without an expert in 'addiction, abuse, and recovery' who could recommend effective treatment providers and facilities and who could determine the likelihood of defendant's favorable response to such treatment. Defense counsel believed that the court had several sentencing options, including residential treatment as a condition of probation." (Ibid.)Defense counsel also sought appointment of a psychotherapist "to determine whether defendant should be reinstated on probation and whether he would respond in a favorable manner to mental health treatment as a condition of probation. Counsel stated that defendant committed the offenses due to a mental condition not amounting to a defense, elaborating in his statement in mitigation that the mental condition he believed defendant suffered from was addiction." (Ibid.)The trial court denied the defendant's motions "stating that it did not need expert testimony to help make the sentencing choice in this case." (Id. at p. 904.)
On appeal, the defendant argued that appointment of the experts was required by Evidence Code section 730 and the federal and state constitutional guarantees of equal protection, due process, and/or effective assistance of counsel. (Stuckey, supra, 175 Cal.App.4th at pp. 904, 907, 914.) The Court of Appeal disagreed. The court determined that "Evidence Code section 730 does not authorize the appointment of experts after trial in connection with sentencing proceedings." (Stuckey, at p. 905.) The court further determined that the federal and state constitutions do not entitle "an indigent criminal defendant to improve his chances of a favorable sentencing choice by having experts echo the arguments of defense counsel. Although appointment of experts may be required when a defendant shows that they are necessary to formulate an affirmative defense to criminal charges or to rebut an expert witness retained by the prosecution to render an expert opinion at sentencing, a defendant may not require the trial court to appoint experts at public expense merely to supplement the arguments of counsel at sentencing." (Ibid.)
Evidence Code section 730 provides in part: "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required."
The Court of Appeal also discussed the trial court's sentencing discretion, and determined that the trial court did not abuse its discretion in denying appointment of defense experts. (Stuckey, supra, 175 Cal.App.4th at p. 916.) The Court of Appeal explained that the defendant had been given the opportunity to resolve his addiction problem when the trial court previously suspended execution of sentence, and that the defendant had been "unsuccessful" in this regard. (Ibid.)The Court of Appeal stated that "[t]here was no factfinding required by an expert for the court to know that defendant was addicted and unlikely to succeed on probation and that his case was not an unusual one requiring reinstatement on probation to serve the interests of justice (Pen. Code, § 1203, subd. (e))." (Stuckey, at p. 916.)
In determining that the defendant was not denied equal protection, the Court of Appeal stated that "regardless of indigency, the [trial] court had no need to hear about treatment options on reinstatement of probation when the interests of justice clearly required a prison commitment." (Stuckey, supra, 175 Cal.App.4th at p. 920.) The Court of Appeal explained that "[r]egardless of drug addiction treatment options or the extent of defendant's addiction during his prior offenses and violations of probation, the trial court had discretion to determine that defendant's history and pattern of addiction relapse warranted imposition of the prison term to which he had agreed in an earlier plea bargain. The trial court's statements at sentencing indicate that the result would have been no different if defendant had been able privately to retain and offer the testimony of a psychotherapist and drug treatment counselor." (Ibid.)
In this case, we determine that the trial court did not abuse its discretion in denying defense counsel's request for appointment of a psychiatrist to evaluate defendant in connection with an anticipated Romero motion. Although one of the factors to be considered by a trial court in its discretionary decision to strike a strike is the "particulars of [the defendant's] background" (Carmony, supra, 33 Cal.4th at p. 377), defense counsel failed to articulate the relevance of a psychiatric or psychological evaluation of defendant with respect to that factor. According to counsel's declaration, the psychiatrist "could help determine the psychological impact that drug use had on" defendant. (Italics added.) Defense counsel failed to articulate how an expert opinion concerning the psychological impact of defendant's use of drugs might somehow support the notion that defendant should be deemed to be outside the spirit of the Three Strikes scheme. Defense counsel also asserted in his declaration that the expert's evaluation would "provide an in-depth look at [defendant's] social history, family and his upbringing and how these factors affected him psychologically." As the trial court indicated, defense counsel "himself or some investigating officer or proper person" other than a psychiatrist was capable of obtaining information concerning defendant's social history. Defense counsel failed to articulate the need, with respect to the anticipated Romero motion, for an expert evaluation regarding how defendant was "affected . . . psychologically," such that defendant might be deemed to be outside the spirit of the Three Strikes scheme.
Further, assuming defendant's equal protection claim has not been forfeited, we determine that the claim is without merit. "The ability of nonindigent criminal defendants to retain experts unavailable to indigent defendants does not by itself establish an equal protection violation." (Stuckey, supra, 175 Cal.App.4th at p. 919.) In this case, as we have explained, defense counsel failed to show in his declaration that a psychiatrist was reasonably necessary with respect to the anticipated Romero motion. In the absence of a showing that the expert testimony was necessary or that it even would have been helpful with respect to the Romero motion, we conclude that defendant fails to establish an equal protection violation. (See Stuckey, at pp. 919-920.)
DISPOSITION
The judgment is affirmed.
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BAMATTRE-MANOUKIAN, J.
WE CONCUR:
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ELIA, 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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