Opinion
H024803.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY TOLENTINO, Defendant and Appellant.
Defendant Anthony Tolentino appeals from a judgment after a plea of no contest to one count of robbery in the second degree (Pen. Code, §§ 211 and 212.5, subd. (c)), and an admission to two strike priors, and two prison priors. Defendant subsequently brought a motion to dismiss a prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628. The trial court denied the motion, and sentenced defendant to 25 years to life. On appeal, defendant asserts the trial court abused its discretion in failing to consider mitigating evidence presented in the motion to dismiss the prior conviction. We disagree and affirm the judgment.
STATEMENT OF PROCEDURE
On March 16, 2001, the Santa Clara County District Attorney filed an information charging defendant with two counts of carjacking and three counts of robbery (Pen. Code, §§ 215, 211 and 212.5, subd. (c)). The information also alleged that defendant had been convicted of two prior robberies, both of which were violent or serious felonies within the meaning of Penal Code sections 667.5, subdivision (c) and 1192.7, subdivision (c), and constituted "strikes" within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12.
On August 2, 2001, defendant pleaded no contest to count 5 of the information (robbery), and admitted the two prior serious felony convictions and the two prison priors with the understanding that the district attorney would dismiss the additional charges in the information, as well as the elderly victim enhancement alleged as to the robbery count pursuant to Penal Code section 667.9, subdivision (a).
This appeal is based on grounds occurring after the entry of plea, and does not challenge the pleas validity. Therefore, there is no requirement that defendant obtain a certificate of probable cause. (Cal. Rules of Court, rule 31(d); People v. Ward (1967) 66 Cal.2d 571, 58 Cal. Rptr. 313, 426 P.2d 881.)
On May 9, 2001, defendant filed a Romero motion to dismiss the strike priors. On May 24, 2001, the trial court denied the motion, and sentenced defendant to 25 years to life.
Defendant filed his notice of appeal on July 15, 2002.
STATEMENT OF FACTS
All facts are taken from the Probation Report.
On May 12, 1998, at approximately 4:20 p.m., the victim, an 81-year-old woman, was driving home in her 1992 Ford Crown Victoria. Upon arriving home, she noticed a strange car parked in her neighbors driveway. When she exited her vehicle, defendant approached her and demanded her purse. The victim gave defendant her purse, and heard another man with defendant yell, "Get the key, get the key." The victim gave her key to defendant and began running toward her front door, screaming for help. The defendant pushed the victim to the ground. Defendant and the man with him drove away in the victims car.
The victims car was recovered on May 14, 1998, in Riverside County after a high-speed pursuit with sheriffs deputies. Defendant confronted a sheriffs deputy with a knife and the deputy shot defendant in the leg.
The Romero Motion
At the hearing on the Romero Motion to dismiss a strike prior, defendant presented a detailed personal history showing the following: Defendant was born in San Francisco on December 30, 1968. At an early age, defendant began to suffer from Attention Deficit Hyperactivity Disorder, also known as ADHD. ADHD is a disorder that results in the nervous system being over stimulated.
Defendant had difficulty in school as a result of his ADHD. Despite these difficulties, defendant helped with two programs for troubled youth, one run by the San Francisco Police Department and the other by a San Francisco High School teacher, Wayne McDonald. McDonald testified at the sentencing hearing that when defendant was 16 or 17 years old, he helped McDonald with the Urban Program, a program for high school children that included community service and wilderness survival. McDonald stated at the hearing that defendant "was one of the most exceptional kids I had the privilege of teaching." McDonald had so much confidence in defendant that on a day McDonald was sick, defendant taught his class for the entire day. McDonald opined that he would "hate to see him locked away. . . . I think to lock [defendant] away would be throwing away someone we can use."
In addition to his work with McDonald on the Urban Program, defendant worked with a wilderness youth program run by the San Francisco Police Department. The program involved off-duty police officers taking children from the housing projects to the wilderness, where they would camp, canoe and repel.
Although defendant did have some success in high school through his participation in the two programs for troubled youth, his ADHD had a detrimental effect on his life. Defendant was not diagnosed with ADHD until late in his teens, when a doctor prescribed Ritalin, a stimulant commonly used to treat the disorder. Believing Ritalin would have a negative effect on her son, defendants mother rejected the prescribed medication. After high school, defendant began to use illegal drugs to "self-medicate" his condition. Defendant found stimulants such as cocaine and methamphetamine to have a calming effect, and he became addicted.
Defendants stepfather, Manual Robleto, a police officer, testified at the sentencing hearing that every time defendant got into trouble he was using crack cocaine. He further opined that while defendant should be punished for his conduct, he also deserved intensive rehabilitation and therapy. Finally, Robleto noted that with help, defendant could be a productive member of society.
Finally, Dr. Stephen Pittel, who conducted numerous tests on defendant and has extensive experience in ADHD, testified at the sentencing hearing that defendants life could have been turned around at an early age had he been given the proper treatment. At the hearing, Dr. Pittel stated: "I dont think Ive ever, in my 30 some odd years of experience, dealt with a young man where the evidence for his Attention Deficit Disorder was so clear or where it was so apparent to me that his life could have been turned around had he been treated appropriately when it first came to the attention of the authorities."
DISCUSSION
A trial courts ruling on a motion to dismiss prior convictions alleged under the "Three Strikes" Law is reviewed for abuse of discretion. (People v. Williams (1998) 17 Cal.4th 148, 948 P.2d 429 (Williams).) "An appellant who seeks reversal must demonstrate that the trial courts decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance. [Citation.]" (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
Defendant contends the trial court erred in its denial of the motion to dismiss a prior strike conviction, because the court unduly focused on defendants criminal history, and "failed to give due consideration to [defendants] background, character and prospects." We disagree.
In People v. Superior Court (Romero), supra, 13 Cal.4th 497, the California Supreme Court held that trial courts have the authority under Penal Code section 1385 to dismiss a prior conviction in the interests of justice. In determining whether to dismiss a defendants prior convictions under Penal Code section 1385 , the trial court must take into consideration the defendants background, the nature of the current offense, and other " individualized considerations. " (People v. Superior Court (Romero), supra, 13 Cal.4th. at p. 531.) The trial courts discretion to dismiss a "strike" conviction under Romero is not limitless. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) Although the court must consider both the constitutional rights of the defendant and the interests of society, the court may not dismiss a strike solely to accommodate judicial convenience, relieve court congestion, or in response to a guilty plea. (Id. at pp. 530-531.) Further, the court may not dismiss a strike solely because it disagrees with the harsh effects the Three Strikes law may have on a particular defendant. (Ibid.)
In exercising its discretion in evaluating a motion to dismiss a prior conviction, the trial court must accord "preponderant weight . . . to factors intrinsic to the [Three Strikes] scheme, such as the nature and circumstances of the defendants present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (Williams , supra, 17 Cal.4th at p. 161.) Ultimately, a court must determine whether "the defendant may be deemed outside the schemes spirit, in whole or in part." (Ibid.) In ruling on the Romero motion in the instant case, the trial court stated: "The Court finds that the defendant is well within the spirit and intent of the Three Strikes law. He has a series of violent felonies, and theres, in addition, the benefit of having sticken the serious felony priors that were alleged. Each would have carried five years or more for a total of ten years in addition."
Although defendant contends the trial court did not properly consider defendants background, character and prospects in ruling on the Romero motion, we disagree. Indeed, the court considered all of the evidence presented by the defense at the motion, in particular, the testimony of Dr. Stephen Pittel regarding defendants ADHD, commenting that the evidence was "very well presented." Additionally, regarding Dr. Pittels contention that defendant "self-medicated" his ADHD with crack cocaine, and that such conduct contributed to defendants criminal behavior, the trial court noted: "Theres been no indication that the defendant was not aware of the consequences of what he was doing. The use of the drugs in fact enhanced his perception rather than decreased it."
It appears from the record before us that the trial court considered and balanced the relevant facts presented in the Romero motion, and reached an impartial decision in conformity with the spirit of the Three Strikes law. While the court considered Dr. Pittels diagnosis and opinion that defendants untreated ADHD contributed to his criminal conduct and that with proper treatment, there would be hope for defendant in the future, it was not persuaded that defendants strike prior should be dismissed in the interests of justice. The context of defendants current robbery offense, the fact that he was on parole when the offense occurred, his prior serious and violent conduct, including seven prior felony convictions, the persistence of his addiction, and the danger he poses to society as a recidivist violent offender with a serious drug problem amply support the trial courts finding that defendant falls within the spirit of the Three Strikes law. Under the circumstances, defendant has failed to convince us that the trial courts decision exceeded the bounds of reason or was otherwise arbitrary, capricious, or unreasonable such that it was an abuse of discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Elia, Acting P.J., Mihara, J.