SB 81: No Rebuttable Presumption of Dismissal

On August 6, 2021, Alan Christopher Ortiz took a baseball bat to an unoccupied Jeep belonging to a random stranger, breaking the window and damaging the doorframe.  According to the police report, he told police he “wanted to ‘let out some anger’ following an argument with his mother.” 

Ortiz was arrested and charged by the Monterrey County District Attorney with one count of felony vandalism causing property damage in excess of $400 (Penal Code § 594(b)(1)).  The district attorney also charged that Ortiz had one prior strike (Penal Code §§ 1170.12(c)(1), 667(e)(1)), an attempted robbery (Penal Code §§ 211, 664).

Ortiz pleaded no contest to the charge and admitted the prior strike.

At sentencing, Ortiz was 28 years old.  The probation officer’s report explained that he had been associated with a criminal street gang since he was 12 years old and had accumulated a series of sustained juvenile petitions and adult convictions, as well as violations of probation and parole.

When in jail or prison, he had a history of assaulting jail staff, even on his detention for the felony vandalism charge.

His parole agent reported that one month after his most recent release from prison, he began using methamphetamine and had become homeless when his family would not tolerate this.  Ortiz refused to undergo treatment or get a job, explaining he would just panhandle when he needed money.  He told his parole agent he used 1 to 2 grams of methamphetamine per day, as well as two grams of marijuana per day.

In 2013, he was diagnosed with schizophrenia and depression, but refused treatment.

In the vandalism case, the judge denied Ortiz’s Romero motion to strike the prior strike for purposes of sentencing.  People v. Superior Court (Romero) (1996) 13 Cal. 4th 497, 530-531.  In the motion, Ortiz argued that his vandalism was related to his mental illness and his current offense was not violent as defined under Penal Code § 667.5(d). 

In sentencing, the judge imposed the lower term of sixteen months, doubled to 32 months by the prior strike.

Mr. Ortiz appealed this sentence to the Sixth Appellate District, citing to Senate Bill 81, which amended Penal Code § 1385 by enumerating certain mitigating conditions which the trial court, “[i]n its exercise of discretion” “must consider” and is to “weigh greatly” in favor of dismissal of an enhancement, unless “dismissal of the enhancement would endanger public safety.”  Penal Code § 1385(c)(2).

One of the mitigating conditions listed is whether “the current offense is connected to mental illness” and another is whether the pending offense is “not a violent felony as defined in Penal Code § 667.5(c).”

Mr. Ortiz argued to the Sixth Appellate Court that Senate Bill 81 creates a presumption in favor or dismissal that is rebuttable only by a danger to public safety, meaning the judge was required to dismiss the prior strike in his case if it found any of the mitigating circumstances present and could only refuse to do so if it found that doing so would endanger public safety.

The Sixth Amendment denied the appeal, stating that the amendments to Penal Code § 1385 did not create a presumption of dismissal as Mr. Ortiz argued.

The appellate court further explained that the trial court did not agree that Mr. Ortiz’s vandalism was “connected to mental illness.”  In reaching this conclusion, the appellate court found that in its statements on the record, the trial court had followed Penal Code § 1385(c)(5).

Penal Code § 1385(c)(5) states that “[a] court may conclude that a defendant’s mental illness was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental illness substantially contributed to defendant’s involvement in the commission of the offense.”

Here, the judge undertook such an analysis and did not find Mr. Ortiz’s purported schizophrenia or depression was a factor in the vandalism.  The judge agreed that vandalism is not listed as a violent felony.

However, the judge found that the aggravating factors of the crime and Mr. Ortiz’s criminal history did not support striking the prior strike for purposes of sentencing. 

The appellate court did not find this to be an abuse of discretion so it affirmed the trial court.

We present this summary because we want readers to understand the limits of Senate Bill 81 and appreciate that no presumption in favor of dismissal is implied in the new law.

For more information about Senate Bill 81, please click on the following articles: