Filed 10/17/14 P. v. Anduja CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040072
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1236021)

         v.

JOSHUA DANIEL ANDUJA,

         Defendant and Appellant.


         After appellant Joshua Anduja pleaded no contest to possession of a controlled
substance for sale, he requested dismissal of a prior “strike” allegation pursuant to Penal
Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497,
529-530. The court denied the request. On appeal, he contends that the court
misunderstood the scope of its discretion and abused its discretion, by mischaracterizing
his criminal history and failing to give appropriate weight to his mental illness and
rehabilitation efforts. We find no error, however, and therefore must affirm the
judgment.
                                                     Background
         Appellant was charged by information with possession of a controlled substance
(methamphetamine) for sale, in violation of Health and Safety Code section 11378. The
information further alleged a prior “strike” conviction (Pen. Code, § 667, subds (b)-(i))
for assault with a deadly weapon, and one conviction for possession of stolen property
resulting in a prison term (Pen. Code, § 496, subd. (a); 667.5, subd. (b).
        On December 6, 2012, appellant pleaded no contest to the single count and
admitted the prior-conviction allegations, with the understanding that his indicated
sentence would be a maximum of 32 months in prison (the mitigated term of 16 months,
doubled as a result of the prior strike conviction).
        On April 2, 2013, appellant filed a request for the court to exercise its discretion to
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dismiss the prior strike allegation pursuant to Penal Code section 1385, as authorized by
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–530 (Romero). On July
31, 2013, after receiving written argument and hearing the matter on two successive
occasions, the court denied the Romero request and sentenced defendant to the indicated
prison term of 32 months. This appeal followed.
                                             Discussion
        In Romero, our Supreme Court held that in cases brought under the Three Strikes
law a trial court retains the discretion under section 1385 to dismiss a prior strike
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conviction “in furtherance of justice.” A “defendant has no right to make a motion, and
the trial court has no obligation to make a ruling, under section 1385,” but a defendant
has “the right to ‘invite the court to exercise its power by an application to strike a count
or allegation of an accusatory pleading, and the court must consider evidence offered by
the defendant in support of his assertion that the dismissal would be in furtherance of
justice.’ ” (People v. Carmony (2004) 33 Cal.4th 367, 375-376, quoting Rockwell v.
Superior Court (1976) 18 Cal.3d 420, 441.) However, the court in Romero emphasized
that “[a] court’s discretion to strike prior felony conviction allegations in furtherance of


1
    All further statutory references are to the Penal Code.
2
   Section 1385, subdivision (a), states: “The judge or magistrate may, either of 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 reasons for the dismissal must be set forth in
an order entered upon the minutes. No dismissal shall be made for any cause which
would be ground of demurrer to the accusatory pleading.”

                                               2
justice is limited. Its exercise must proceed in strict compliance with section 1385(a),
and is subject to review for abuse.” (Romero, supra, 13 Cal.3d at p. 530.)
       In People v. Williams (1998) 17 Cal.4th 148, 161 and again recently, in People v.
Vargas (2014) 59 Cal.4th 635, 641, the court explained that “when facing a motion to
dismiss a strike allegation, the trial court ‘must consider whether, in light of the nature
and circumstances of [the defendant’s] present felonies and prior serious and/or violent
felony convictions, and the particulars of [the defendant’s] 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.’ . . . We quoted this language with approval in
People v. Carmony (2004) 33 Cal.4th 367, 377, and further explained that ‘[b]ecause the
circumstances must be “extraordinary . . . by which a career criminal can be deemed to
fall outside the spirit of the very scheme within which he squarely falls once he commits
a strike as part of a long and continuous criminal record, the continuation of which the
law was meant to attack” [citation], the circumstances where no reasonable people could
disagree that the criminal falls outside the spirit of the three strikes scheme must be even
more extraordinary.’ (Id. at p. 378.)” (People v. Vargas, supra, at p. 641, italics
omitted.) Thus, the law creates “a strong presumption that any sentence that conforms to
these sentencing norms is both rational and proper.” (People v. Carmony, supra, 33
Cal.4th at p. 378.) The “rare” exceptions in which a defendant falls outside the spirit of
the Three Strikes law include those in which the defendant has two strikes that are based
on a single act. (People v. Vargas, supra, at p. 642.)
       The granting of a Romero motion is “subject to review for abuse of discretion.
This standard is deferential. [Citations.] But it is not empty. Although variously phrased
in various decisions [citation], it asks in substance whether the ruling in question ‘falls
outside the bounds of reason’ under the applicable law and the relevant facts.
[Citations.]” (People v. Williams, supra, 17 Cal.4th at p. 162; see also People v. Garcia

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(1999) 20 Cal.4th 490, 503.) This abuse of discretion standard also applies to appellate
review of the denial of Romero motions. (People v. Carmony, supra, 33 Cal.4th at pp.
374–376.) It is the defendant’s burden as the party attacking the sentencing decision to
show that it was arbitrary or irrational, and, absent such showing, there is a presumption
that the court “ ‘ “acted to achieve the legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set aside on
review.” ’ [Citations.]” (Id. at p. 377.) Such a discretionary decision “ ‘ “will not be
reversed merely because reasonable people might disagree.” ’ ” (Ibid.)
       In his motion appellant argued that he had been participating in a six-month
rehabilitation program through the Salvation Army and was anticipating his graduation
and employment thereafter. He pointed out that his current offense was not violent and
obliquely suggested that the motion could be granted because his sentence would
otherwise be long. In their opposition the People maintained that there were “no
legitimate grounds” for granting his request, because appellant’s current crime and
history placed him “squarely” within the spirit of the Three Strikes law.
       The matter was continued twice until June 28, 2013, giving the court an
opportunity to read both parties’ arguments, the probation report, personal letters,
treatment status reports, and two reports from the Salvation Army program. By this time
appellant had been involuntarily discharged from that program just a week short of
graduation. But he had already sought mental health treatment after learning that his
involvement with drugs and alcohol was in “great measure due to his underlying mental
health issues,” which the Salvation Army had not been equipped to treat.
       At the June 28 hearing defense counsel described the progress appellant had made,
and he emphasized the discovery that appellant was in need of mental health treatment in




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conjunction with drug treatment. Appellant had already made efforts to begin that
treatment through the Evans Lane Wellness & Recovery Program at the Santa Clara
Valley Medical Center, and LifeChoices Treatment Services. The court heard from the
LifeChoices program director, who confirmed that the Salvation Army program had been
inadequate to address the mental health component of appellant’s behavior. The program
director testified that more than 90 percent of all patients in substance abuse programs
actually had “mental health issues,” many undiagnosed. The court confirmed the
witness’s view that someone (like appellant) who had had extensive treatment but had
been unsuccessful—either by leaving the program or being terminated from it—“that’s
because the dual diagnosis issues were not addressed in that treatment.” The court also
indicated that it would welcome testimony from a Salvation Army representative. The
district attorney objected to any further continuance, but the court agreed to order one last
continuance in order to consider further treatment information.
       The court then addressed appellant directly, making it clear that it was considering
the issues carefully: “I don’t take anything that comes before me lightly. I recognize it is
your life I’m dealing with. The greatest difficulty is that . . . timing is everything in life,
and your decisions, your life choices have not been good to date. [¶] I do want to consider
what effect any mental health issues that ha[ve] not been addressed plays into that. I am
going to allow for that so that I am comfortable with whatever decision that I make.” The
court expressed concern that appellant’s activity of selling drugs affected many others
who were struggling with addiction. It also observed that appellant’s extensive prior
criminal conduct created a concern for the safety of the community. The court
emphasized, however, that “before I make a decision, I want to feel comfortable that it’s
the right decision and that I’m taking everything into consideration.” Accordingly, the


3
   Counsel summarized appellant’s diagnoses of bipolar disorder, posttraumatic stress
disorder, and attention deficit hyperactivity disorder.

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court granted the continuance to July 22, 2013 to give defense counsel an opportunity to
subpoena the Salvation Army representative and to receive the LifeChoices assessment
and thus “consider every factor in making a decision.”
       On July 22, 2013 the hearing was continued yet again, until the matter was finally
determined on July 31, 2013. The court announced that it had reviewed the previously
received information, and defense counsel submitted additional documents and addressed
the court about mental health treatment for appellant. The Salvation Army representative
did not testify, but he authorized counsel to express the representative’s disappointment
that appellant, having made “great strides in changing his behavior,” had been discharged
from the six-month program only one week before successful completion, for what the
representative called a “petty reason.” Meanwhile, appellant had completed a 30-day
course of treatment at LifeChoices and was now scheduled to enter Evans Lane for
long-term treatment of “the very issues that confront Mr. Anduja.” Counsel reminded the
court that appellant’s only strike was old. All of his “contacts over the years with the
criminal justice system,” he argued, were “directly attributable to his mental health issues
that have, for such a long period of time, gone undiagnosed and untreated.” Without
beneficial treatment, he argued, appellant would be released from custody “in the same
situation that he’s always been,” with no benefit to him or society. The Evans Lane
treatment facility, on the other hand, would offer appellant the “best opportunity for
success,” and appellant had “expressed a great willingness to participate” in the program.
Counsel thus urged the court to place appellant on probation and require him to complete
the Evans Lane program, which could take a year. Appellant had the support of family
and friends.
       The court advised the parties that it had “spent extensive time on this case because
I don’t take it lightly. It is a big decision clearly for Mr. Anduja more than anybody
else . . . [a decision that] will impact his life.” The court had reviewed the arguments of
both parties, the probation report, and case law. It felt “constrained,” however, by the

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factors it was empowered to consider and those it was not permitted to consider. In
particular, the court said it could not consider “what could be best for society, what might
be the best thing for Mr. Anduja in this case . . . .”
       Acknowledging rehabilitation and punishment as dual sentencing objectives, the
court pointed to “numerous aggravating factors” in this case, including the four parole
violations and termination of four grants of probation. Although appellant’s strike prior
was old, it was serious and violent. Since then he had had four felony convictions and 15
misdemeanor convictions. The current crime indicated planning, as evidenced by the
large quantity of contraband. The court acknowledged the argument of the defense, that
defendant had never been properly treated for his mental health issues, but it rejected any
suggestion that those issues were a cause of the current offense, and it could find no
authority for determining that mental health considerations alone take a defendant outside
the scope of the Three Strikes law. The court also acknowledged appellant’s
improvements in behavior; it “want[ed] to believe it’s a true change in lifestyle” rather
than “because something serious is hanging over your head.” It commended appellant for
“working hard,” and it expressed the hope that he would continue with the changes he
had made. Nevertheless, in light of the “numerous factors [it] had to consider,” the court
“simply [could not] find that Mr. Anduja falls outside of the strike law, and, therefore, the
Romero [motion] is denied.”
       Given the stringent standard for overturning a lower court’s decision under section
1385 and Romero, we cannot find either a failure to exercise its discretion or an abuse
thereof. Appellant’s strike was an October 1997 gang-related offense in which the
passenger of a vehicle was stabbed, leading to appellant’s conviction of assault with a
deadly weapon. Also in 1997 was a robbery charge that led to appellant’s no-contest plea
to second degree burglary. In January 2009 he and one other person shattered the
window of a van and stole a purse containing numerous items, including $200,000 worth
of jewelry. Again he pleaded to second degree burglary as well as grand theft. The

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following month appellant was stopped while driving on a suspended license and was
found to be in possession of a stolen navigational (“GPS”) device. He pleaded no contest
on that occasion to the felony charge of receiving stolen property. He had also incurred
four felony convictions for possession of marijuana for sale and 15 misdemeanor
convictions. His compliance with domestic violence treatment had been poor, he had
failed to register as a narcotics offender, he had tested positive for marijuana, and
probation had twice been revoked for committing new offenses. And he committed the
present offense while on parole for the two 2009 theft offenses. Six months after his
April 2011 parole he violated probation by possessing methamphetamine, marijuana, a
stun gun, and a weapon, followed two months later by a violation for using
methamphetamine, and five months after that for absconding and failing to participate in
drug treatment.
       The court’s explanation of its reasoning demonstrates that it appropriately
considered all the circumstances bearing on the question presented, whether to dismiss
the strike allegation in the interests of justice. It repeatedly emphasized the importance of
careful evaluation of appellant’s circumstances in light of the factors it was required to
consider. Appellant, however, focuses on statements he believes indicate a
mispprehension of the court’s duty: that his post-strike offenses were increasingly
serious; that mental illness was a less significant factor unless it contributed to the
offense; and that the court could not consider the argument that appellant and society
would benefit from his post-arrest rehabilitation.
       The first argument is based on an apparent misunderstanding of the court’s point.
It was not suggesting that the offenses following the assault with a deadly weapon were
more serious than that crime; it only observed the progression of offenses between the
late 1990’s and 2009, when he participated in a vehicle burglary, receiving stolen
property, and possession of methamphetamine for sale. It was not beyond the court’s
authority to consider the lengthy record of crimes, probation violations, and parole

                                               8
violations occurring during this period. There was no error in the court’s treatment of
this history as serious, whether viewed as increasingly so or not. The court’s suggestion
that mental illness was an appropriate consideration only if it was a causal factor in the
commission of the crime reflects the court’s implicit conclusion that selling
methamphetamine was a choice appellant made independent of mental health issues.
And even if misguided, this comment was a minor part of the court’s reasoning; its main
point was not that mental health considerations were irrelevant in this case, but that they
did not in themselves take appellant outside the spirit of the Three Strikes law.
Appellant’s final argument regarding the significance of his rehabilitation efforts
misstates the court’s explanation. Unquestionably the court extended great leeway to the
defense to present evidence, including live testimony, regarding appellant’s rehabilitation
efforts. In the end, however, it did not regard his past and even recent efforts as sufficient
to outweigh the need to protect the public and further the state’s additional purpose of
punishment.
       It is clear from this record that the court gave the defense every opportunity to
establish a convincing factual basis for granting a Romero motion. Nevertheless, after
giving due consideration to “every factor that has been presented”-- including the
specifics of the current offense, the nature of the prior strike offense, appellant’s
background (including his criminal record), and his prospects-- the court was unable to
conclude that “extraordinary circumstances” took appellant outside the letter and spirit of
the Three Strikes law. (People v. Vargas, supra, 59 Cal.4th at p. 641.) As in People v.
Williams, supra, 17 Cal.4th at p. 163, in the years following his strike conviction
appellant “did not refrain from criminal activity . . . and he did not add maturity to age.
Quite the contrary. In those years, he was often in prison or jail; when he was not, he
violated parole and . . . probation.” (See also People v. Philpot (2004) 122 Cal.App.4th
906-907 [court properly concluded that defendant, as a “flagrant recidivist,” was not
outside the spirit of the Three Strikes law, based on defendant’s 20-year history of

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criminal activity, his underlying drug addiction, and the prior and current offense as
indicative of his poor prospects].) Because we can find no failure to exercise the court’s
sentencing discretion; no “arbitrary, capricious, or patently absurd” exercise of that
discretion; and no “extraordinary circumstances” compelling a dismissal of appellant’s
strike under section 1385, the court’s determination of the Romero motion was not “so
irrational or arbitrary that no reasonable person could agree with it.” (People v.
Carmony, supra, 33 Cal.4th at pp. 376-377.) Reversal is not required.
                                        Disposition
       The judgment is affirmed.




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                                  _________________________________
                                  ELIA, Acting P. J.


WE CONCUR:




_______________________________
BAMATTRE-MANOUKIAN, J.




_______________________________
MIHARA, J.




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