Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. NF9201134, Patrick H. Donahue, Judge.
Tony Rackauckas, District Attorney, and Stephan Sauer, Deputy District Attorney, for Plaintiff and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
RYLAARSDAM, ACTING P.J.
In 1992, a felony complaint charged defendant Eustolia Mendez Ramos with assault with a firearm (Pen. Code, § 245, subd. (a)(2); all further statutory references are to this code) and alleged she had inflicted great bodily injury (§12022.7) and personally used a firearm (§§ 12022.5, 1203.06, subd. (a)(1)). She fled the country but in 2009 turned herself in.
In April 2009, after defendant was held to answer on all counts in an amended felony complaint following a preliminary hearing, the district attorney filed an information charging defendant with attempted willful, deliberate, and premeditated murder (§§ 664, subd. (a), 187, subd. (a); count 1), domestic battery with corporal injury (§ 273.5, subd. (a); count 2), and assault with a firearm (§ 245, subd. (a)(2); count 3). It was further alleged she had personally inflicted great bodily injury (§§ 12022.7, 1192.7, subd. (c)(8), 667.5) and used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8), 667.5). The jury convicted defendant on all counts and found true all enhancement allegations. Over the prosecution’s objection, the trial court dismissed count 1 under section 1385 and sentenced defendant to 10 years in prison.
The district attorney contends the court abused its discretion in dismissing count 1. We are not persuaded.
Defendant also asserts, and the district attorney agrees as do we, the court imposed an unauthorized sentence. The matter is remanded for resentencing. In all other respects, the judgment is affirmed.
FACTS
In April 1992, defendant’s coworker purchased a gun for her after she told him it was for protection and that she would be taking it to her father in Mexico because there were wild animals at his ranch. She paid him for the gun and bought a box of ammunition.
At the time, defendant was separated from her husband, Manuel Alamillo, with whom she had had a son. Alamillo believed their son’s birth affected defendant’s mental stability and that she suffered from postpartum depression.
One day between 5 and 6 p.m., defendant called Alamillo stating she needed milk for the baby. Defendant wanted to go to a park to talk about their relationship. They went to the park, had sex, then drove back to Alamillo’s apartment complex where they parked in the back and talked for two hours. Because it was late, he started up his truck to take defendant home.
As they were leaving the apartment complex, Alamillo heard a gunshot. A bullet went through his left hand, fracturing it and requiring surgery, and shattered the driver’s side window. Two more shots were fired, hitting the roof, but he did not hear them because the first one deafened him. When he heard the first shot, he turned toward defendant, saw a pistol in her purse, and grabbed it; defendant would not let go of the gun initially and he had to pull on it several times before he was able to take it from her. After he crashed his truck, defendant climbed over Alamillo and through the broken driver’s side window. As she started to run away, she told Alamillo to shoot and kill her. Alamillo considered the shooting accidental and believed defendant was “confused and depressed” and “going through a difficult situation.”
Police arrived and transported Alamillo to the hospital. Alamillo told the officer he had been separated from defendant for four or five months and that she had custody of their son. He believed she had mental problems and wanted her to get psychiatric help. They had gone to court earlier that day for a child custody hearing but it was postponed. Around 7:00 p.m., defendant called him to pick her up to get food stamps and food for the child. While they were driving around, defendant talked about getting back together but Alamillo told her she “need[ed] to get some psychiatric help first.” In describing the shooting incident, Alamillo stated he saw defendant lift the gun and when he raised his left hand, she fired, the bullet going through his hand and the window. During the struggle for the gun, Alamillo crashed into the wall, at which point defendant got out of the car and ran off only to return and yell, “‘Kill me. Kill me, ’” before running away again.
A few days after the shooting, defendant’s brothers visited Alamillo and asked him to drop the charges. They told him she was remorseful and would turn herself in if he did so but would not say where she was.
Alamillo did not see or talk to defendant or their son for the next 17 years. Defendant contacted him approximately a year and a half to two years before trial saying she felt bad he had not seen his son in so long and wanted to take care of the situation. She asked him to write a letter about the shooting, which he did, stating defendant had wanted to show him a pistol she had bought and as she was reaching inside her bag, it had “accidentally fired two or three times....” He mentioned that she had changed after the birth of their son, possibly due to postpartum depression, but had apologized and had done a good job raising their son. He had forgiven her and wanted to help.
Defendant was picked up on an outstanding warrant at the United States-Mexico border. Upon being re-interviewed by the police, the coworker who had bought defendant’s gun remembered he had commented on the size of the gun defendant had chosen, asking if she was going to shoot bears. When they returned two weeks later to pick up the gun, they also purchased ammunition and the coworker watched defendant test-fire the gun several times at the shop’s indoor gun range.
The gun defendant used to shoot Alamillo was ordered destroyed in 2000. But forensics determined it was a Rutger.357 magnum revolver, which took 12 pounds of pressure to pull the trigger and had a safety device to prevent accidental firing. The hole in defendant’s purse, which defendant had left in Alamillo’s car, was consistent with a gun being shot through the inside of the purse. Inside the purse, police found several letters defendant addressed to Alamillo’s sister, accusing her of breaking up defendant’s marriage with Alamillo with “lots of lies” and stating “[t]hat is why I killed him” and herself.
DISCUSSION
1. Dismissal of Count 1
The defense rested after the prosecution’s case and moved for an acquittal of count 1 (attempted murder) under section 1118.1, which the court denied because it believed “there is... sufficient evidence for an appellate court to sustain a conviction....” Over the prosecution’s objection, the court gave a lesser included offense instruction of attempted voluntary manslaughter as to count 1.
After trial and before sentencing, the court indicated it was considering dismissing the attempted murder conviction and imposing sentence on counts 2 and 3. The prosecutor did not believe section 1385 authorized the court to dismiss count 1 but the court had “done a lot of research on it” and believed it did, although it was not sure “because [it] ha[d] never done this before in 150 felony trials.” The court explained, defendant “committed this offense in 1992. She was convicted of it. She should be punished for it. But in 1992 she was charged with a [section] 245 [assault with a firearm] with great bodily injury and the use of a gun, and she should be punished for all of those things. [¶] Apparently some time in... 2009 [¶]... [¶]... [defendant] talked to an attorney while she was still in Mexico” seeking “advice on what she should do about the charges and the warrant that was out pending for her... for the [section] 245 [charge].” Her attorney tried to work something out with the district attorney but was told nothing would be done. Defendant nevertheless turned herself in because she wanted to be able to see her son while he was attending college in the United States. During that time, police found the letters to Alamillo’s sister, which caused the attempted murder charges to be filed. Additionally, Alamillo testified, and the probation and sentencing reports confirmed, he did not want defendant prosecuted, “much less punished for a life sentence.” The court continued the matter to allow the prosecutor to address the matter in writing.
At the further hearing, addressing the prosecutor’s comments “retrial was not an issue in this case [because t]he court apparently does not believe there is sufficient evidence to sustain defendant’s conviction of attempted murder, ” the court stated it “believe[d] there was sufficient evidence for the jury to return the verdict, but... it started the court thinking about [grounds] for [a] retrial. And also as I looked at [section] 1181... dealing with retrials, it got me to go back and review the notes of this trial. And... I had counsel read these pages as well—and in it there is talk of post[]partum depression, that [defendant] was not right, and it goes on for about three or four pages. [¶] And... I didn’t give an instruction on how a mental defect would affect a specific intent. The court doesn’t believe that it affects count 2, the general intent crimes of [section] 245 but... as I sat there and reviewed the jury instructions and the record on the case... I was wondering based upon the testimony should I have given an instruction on how mental defect affects specific intent.” The court was also concerned it should have given CALCRIM NO. 3428, dealing with mental impairment, and continued the hearing to allow the prosecution an opportunity to address it.
Ultimately, the court dismissed count 1 under section 1385 reasoning: (1) defendant voluntarily turned herself in despite her attorney’s inability to resolve the section 245 charges against her with the district attorney; (2) she “ha[d] no other arrest or convictions other than the instant case”; (3) the victim, at both trial and to the probation department, had stated he did not want defendant prosecuted; (4) “[t]he court heard the testimony at trial and believes the evidence of guilt was not overwhelming as to the specific intent to kill required for attempt[ed] murder. If... defendant had taken shooting lessons, either she was a bad shot or didn’t want to kill the victim. Additionally, the evidence was somewhat unclear as to how all the shots were fired. They could have been discharged while the victim was struggling with... defendant or she could have fired the shots into the roof of the car by herself. The testimony is not clear. Further, ... defendant had just had sex with the victim in the car. The specific intent was not overwhelming”; and (5) “there was evidence of postpartum depression and some mental instability at trial. A jury instruction on mental impairment as to the specific intent to kill could have been given for the jury’s consideration. The court believes that in a new trial that there would be additional evidence involving her mental state.” Although the court “underst[ood] and consider[ed] that the People represent the interest of society and expect that defendants should be punished for their crimes[, ]... defendant will be punished for her crimes” and when it “consider[ed] the constitutional rights of... defendant and the interest of society in this case, it f[ound] that it [was] in the interest of justice to dismiss count 1.”
The district attorney contends the court abused its discretion in dismissing count 1 after the jury convicted defendant in a “fair, error-free trial” with “overwhelming” evidence. We disagree.
Section 1385, subdivision (a) provides: “The judge or magistrate may, either on his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” The trial court has broad discretion in ordering a dismissal under section 1385 and may do so “before, during and after trial.” (People v. Orin (1975) 13 Cal.3d 937, 946.) Nevertheless, its power, “while broad, is by no means absolute. Rather, it is limited by the amorphous concept which requires that the dismissal be ‘in furtherance of justice.’” (Id. at p. 945). “Furtherance of justice” as used in section 1385 “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.]” (People v. Orin, supra, 13 Cal.3d at pp. 945-946.)
“A determination whether to dismiss in the interests of justice after a verdict involves a balancing of many factors, including the weighing of the evidence indicative of guilt or innocence, the nature of the crime involved, the fact that the defendant has or has not been incarcerated in prison awaiting trial and the length of such incarceration, the possible harassment and burdens imposed upon the defendant by a retrial, and the likelihood, if any, that additional evidence will be presented upon a retrial.” (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 505.)
Here, the trial court’s statements demonstrate it balanced the necessary factors and considered both defendants’ constitutional rights and society’s interest. It weighed the evidence, determining it was not overwhelming as to defendant’s intent for attempted murder, and took into account her absence from the jurisdiction from 1992 to 2009, the evidence of postpartum depression and mental disability, and the failure to instruct on mental impairment. But it also acknowledged the prosecution represented society’s interest in having defendant punished and to that end sentenced her to a total of 10 years on counts 2 and 3.
The district attorney cites People v. Orin, supra, 13 Cal.3d 937, for the proposition that “appellate courts have shown considerable opposition to the granting of dismissals under section 1385 in instances where the People are thereby prevented from prosecuting defendants for offenses of which there is probable cause to believe they are guilty as charged. Courts have recognized that society, represented by the People, has a legitimate interest in ‘the fair prosecution of crimes properly alleged.’ [Citation.]” (Id. at pp. 946-947.) He also relies on People v. Superior Court (Montano) (1972) 26 Cal.App.3d 668, which states, “‘a dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.’ [Citations.]” (Id. at p. 671.) We agree with this reasoning but in this case the court did not act arbitrarily.
We also agree with the district attorney that a “court... acts improperly if guided solely by its personal belief regarding the effect a particular sentencing law may have on a defendant, while ignoring the defendant’s background, the nature of the defendant’s present offenses, and other individualized considerations. [Citation.]” (People v. Orabuena (2004) 116 Cal.App.4th 84, 99.) But there is no showing the court in this case did that.
The district attorney distinguishes this case from People v. Superior Court (Howard), supra, 69 Cal.2d 491, which upheld the trial court’s order dismissing an information following the jury’s return of a guilty verdict after determining the evidence was insufficient to support the conviction (id. at pp. 495-496) and the denial of the Sixth Amendment right to counsel at the pretrial lineups, a “critical stage of the proceedings, ” precluded retrial (id. at p. 496). He argues, “unlike the defendant in Howard, the balance of the factors for determining whether a section 1385 dismissal after a guilty verdict is warranted falls squarely against defendant in this case.”
According to the district attorney, the jury resolved inconsistencies in the witnesses’s testimonies against defendant and the court did not find the conviction was unsupported by substantial evidence. Nor did the court explain “why a retrial would have been unfair or prejudicial to defendant. If the court believed defendant was denied a fair trial because her attorney failed to adequately present evidence involving defendant’s mental state or failed to request an instruction regarding mental impairment, it could have granted a new trial pursuant to section 1181.... It was the defendant who decided not to present an affirmative defense or to request instructions regarding mental impairment. By dismissing the attempted murder charge the court arbitrarily cut the rights of the People in the fair prosecution of this serious case without a showing of detriment to defendant.”
But the weighing of these factors was a matter for the trial court. Although the court did not expressly address “the possible harassment and burdens imposed upon the defendant by a retrial” (People v. Superior Court (Howard), supra, 69 Cal.2d at. p. 505), it balanced the prosecution’s right to punish defendant for her crimes against, among other things, the lack of “overwhelming” evidence of specific intent, the fact she had no other arrests or convictions apart from the current case, the evidence of postpartum depression in the context of a marital separation, its failure to instruct on mental defect or impairment, and the victim’s adamant opposition to the prosecution and punishment of defendant.
As Howard recognized, “the standard of furtherance of justice will best be served if we recognize discretion in the trial judge, who viewed the witnesses and heard the conflicting testimony, to dismiss on the basis of the reasons he has set forth rather than severely limit such discretion to cases where the evidence is insufficient as a matter of law.” (People v. Superior Court (Howard), supra, 69 Cal.2d at p. 505.) “Where, as here, a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” (People v. Jordan (1986) 42 Cal.3d 308, 316.) Given the trial court’s recital of reasons, we cannot say the dismissal order was arbitrary or capricious or exceeded the bounds of reason.
We are also not persuaded that the fact the court could have granted a new trial under section 1181 means it abused its discretion under section 1385. The district attorney cites no authority for this proposition and has thus forfeited the issue. (People v. Stanley (1995) 10 Cal.4th 764, 793 [failure to support argument with citations to relevant authority and record forfeits contention].)
Although the district attorney also cites People v. McAlonan (1972) 22 Cal.App.3d 982, 987, which reversed the dismissal of an action motivated solely by the trial court’s belief it would serve defendant’s rehabilitation, he does not attempt to analogize this case to it. In any event, McAlonan is distinguishable because the trial court here did not dismiss count 1 to further rehabilitation. (Ibid.; cf. People v. Orabuena, supra, 116 Cal.App.4th at p. 100 [“court has the authority under section 1385 to dismiss a misdemeanor not related to the use of drugs that would otherwise make a defendant ineligible for Proposition 36 treatment”].)
2. Unauthorized Sentence
In sentencing defendant, the court selected the midterm of three years on the assault with a firearm conviction (count 3), the midterm of four years for the weapon use enhancement (§ 12022.5), and an additional three years for the great bodily injury enhancement (§ 12022.7) for a total of 10 years. Defendant contends this was an unauthorized sentence because in 1992 when defendant committed her offenses, section 1170.1, subdivision (e) provided that “[w]hen two or more enhancements under [s]ections... 12022.5... [and] 12022.7... may be imposed for any single offense, only the greatest enhancement shall apply....” The district attorney agrees this was error, as do we. “[A]n unauthorized sentence may be corrected at any time” even where the party raising the issue did not file a notice of appeal. (People v. Pelayo (1999) 69 Cal.App.4th 115, 122.).
DISPOSITION
The matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.