Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD208659 John M. Thompson and Jeffrey F. Fraser, Judges.
BENKE, J.
Sophia Ortiz entered a negotiated guilty plea to assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and admitted she had a prior serious/violent or strike conviction within the meaning of section 667, subdivisions (b) through (i). As part of the plea bargain, the prosecutor agreed to dismiss an allegation that Ortiz personally had used a deadly weapon, to wit, a knife, during the assault (§ 1192. 7, subd. (c)(3)), which would have made the current offense a strike. The plea bargain also called for the sentence to run concurrent with the sentence she received for a parole violation.
Statutory references are to the Penal Code unless otherwise specified.
The trial court denied Ortiz's motion to withdraw her guilty plea. At sentencing, the court denied Ortiz's Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) motion to dismiss the prior strike allegation, and sentenced her to six years in prison—the mid-term of three years for the assault count doubled under the Three Strikes law. (§ 667, subd. (e)(1).)
Ortiz appeals, contending the trial court erred by denying her motions to (1) withdraw her guilty plea and (2) dismiss her prior strike allegation. Ortiz also contends she received ineffective assistance of counsel when her first attorney advised her to plead guilty without investigating her mental illness, the change in medications she was taking while in jail and her borderline intelligence. We affirm as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On August 24, 2007, Ortiz used a key to let herself and a friend, Johanna, into the apartment of Marco Sac. Sac was awakened by yelling and discovered Ortiz and Johanna in his apartment. Sac and Ortiz had dated for about a year, but had broken up a week earlier. When Ortiz saw Sac, she picked up a table and threw it across the living room. Ortiz went into the kitchen, picked up a knife and walked toward Sac; as she approached him, Ortiz made a stabbing motion. Johanna intervened, grabbed Ortiz and took her outside. Ortiz then dropped the knife. Sac retrieved his key from Ortiz's key chain, which Ortiz had left behind. Sac told police after the incident that he feared Ortiz was going to stab him.
Two days later, Sac complained to the police that Ortiz was calling him and threatening to come over to his apartment to get her key chain; Sac told police he was afraid of what might happen if Ortiz did so. Ortiz subsequently contacted the police and said she wanted to get her key chain but was afraid of Sac. An officer told Ortiz he would arrange for her to pick up the key chain at the police station. When Ortiz went to the police station, she was arrested. Ortiz told police Sac falsely accused her of assault and that it was he—not she—who had committed an assault. At Ortiz's preliminary hearing, Sac recanted his assault accusation.
The trial court denied Ortiz's request for a certificate of probable cause. Ortiz filed a petition for a writ of mandate with this court, seeking an order directing the trial court to issue a certificate of probable cause. We denied the petition. Ortiz sought review before the California Supreme Court, which transferred the matter to this court with directions to vacate our order denying the petition for writ of mandate. We vacated the order and directed the trial court to issue a certificate of probable cause. On June 1, 2009, the trial court issued a certificate of probable cause nunc pro tunc to May 29, 2009. Subsequently, we asked the parties for supplemental briefing.
DISCUSSION
I. Motion to Withdraw Guilty Plea
Ortiz claims the trial court abused its discretion by denying her motion to withdraw her guilty plea because the plea was not voluntary, knowing and intelligent. The contention is without merit.
Background
On December 7, 2007, Ortiz and her retained counsel, Michael Pedretti, appeared before superior court judge David J. Danielsen and entered her negotiated guilty plea to assault with force likely to produce great bodily injury. Judge Danielsen questioned Ortiz about, among other things, her understanding of the consequences of the plea bargain. Ortiz answered "yes" when the judge asked if she understood that her case carried a mandatory prison term. The judge then explained that a grant of probation was possible only if the sentencing court agreed to dismiss her prior strike allegation and that there was no guarantee the court would do so. When asked if she understood this, Ortiz answered "yes." The judge further explained that if the sentencing court agreed to dismiss the strike allegation the case was still a presumptive prison case because of the two felonies on Ortiz's record. The court then asked Ortiz if she understood it was more difficult for someone with her record to get probation; Ortiz replied she understood.
During Ortiz's probation interview on December 20, the probation officer told her that she was going to recommend the maximum prison sentence of eight years. Ortiz "freak[ed] out" after the probation interview and tried to reach Pedretti by telephone many times.
On January 8, 2008, the trial court granted Ortiz's motion to relieve Pedretti as her counsel and appointed the public defender's office to represent her. Subsequently, Ortiz filed a motion to withdraw her guilty plea. The written motion argued that Ortiz should be permitted to withdraw her plea because Pedretti had told her she would receive probation if she pleaded guilty and there was no need for her to go to trial. The motion also complained about Pedretti's failure to contact Ortiz despite more than 50 calls she made to his office following her guilty plea.
At the motion hearing Ortiz testified Pedretti had visited her once before the September 12, 2007, preliminary hearing and she made numerous unsuccessful attempts to contact him by phone afterward. Ortiz did not speak with Pedretti again until December 7, 2007, when she pleaded guilty. Ortiz testified she suffers from bipolar disorder, and that two or three days before she pleaded guilty, the jail doctors had changed the dosage of her medications. As a result Ortiz was feeling more depressed than usual, sleeping a lot and not comprehending much that was said to her, particularly by her family and Pedretti.
Ortiz said everything happened very quickly when she was unexpectedly brought to court on December 7. Pedretti told her it was in her best interest to plead guilty. Ortiz understood Pedretti to say she would receive a year in county jail and probation. Ortiz estimated Pedretti spent about three minutes in the holding tank with her, urging her to plead guilty and going over the plea form with her. Ortiz testified that Pedretti did not read each provision to her and explain it, but rather was telling her about the deal while she was initialing the boxes.
Ortiz testified Pedretti did not tell her that she could go to prison or that she could receive a sentenced doubled by a strike, and that if she had known that she could have been sentenced to prison, she would not have pleaded guilty. Ortiz said her medications made it difficult to comprehend what Pedretti told her, likening her condition to being in a daze. Ortiz did not remember any details of what happened in the courtroom when she appeared before the judge other than raising her hand. When asked why she initialed the provision on the plea form regarding no consumption of drugs, alcohol and narcotics, Ortiz said she did not think the question concerned prescription drugs.
Pedretti testified he was uncertain, but thought he had visited Ortiz in jail twice or three times and talked to her at least once on the phone. Pedretti said that a few days before Ortiz pleaded guilty, she had told him in a phone conversation that she wanted to settle the case and authorized him to do so. During the plea negotiations, Pedretti testified, the prosecutor suggested that if Ortiz did not take the deal, he could amend the information to allege a five-year prior serious felony enhancement and a prior prison term, which would have increased Ortiz's prison exposure. Pedretti said he relayed this information to Ortiz.
Pedretti testified he was unaware of Ortiz's bipolar disorder, and during the 10 to 15 minutes he spent going over the plea bargain with her, he did not notice anything indicating she did not understand what she was doing when she initialed the plea form. If he had believed there was a problem with Ortiz's comprehension, Pedretti said he would not have proceeded with the plea agreement. Pedretti read each provision of the plea agreement to Ortiz word for word as he normally did. Pedretti testified he told Ortiz that he would try to get probation for her, but never promised her probation.
In denying Ortiz's motion to withdraw her guilty plea, the trial court (Judge John M. Thompson) stated:
"I think that the case, when everything is pared down, really comes to a point whether or not Ms. Ortiz entered her plea based upon a representation made by Mr. Pedretti, one that he, without [the prosecutor's] acquiescence, could really never guarantee, and that is that she would receive a probationary grant.
"All indications from the pleadings are that she was on parole; that any sentence she was going to receive was going to be concurrent with her parole violations.
"It's telling what is absent from the proof as much as what is before me.
"Generally speaking, when you see a case like this, I'm barraged by information there was a viable defense that things were not investigated, the defendant was railroaded into the plea when trial was certainly the more likely outcome. There's nothing here to suggest that.
"For me to conclude that Ms. Ortiz should be allowed to withdraw her plea, I'd have to find that neither Mr. Pedretti, who the court knows has been a member of the defense bar for a substantial period of time, and that Judge Danielsen, who has been doing criminal law just a short period less than I have, that both of these people absolutely disregarded or were completely unaware of anything that might suggest that Ms. Ortiz's plea was not knowing and intelligent.
"I kind of think it went down like Mr. Pedretti has tacitly suggested, and that is that the plea in the abstract was obviously a good deal. She was—she limited her exposure—virtually cut her exposure in half. The fact that Mr. Pedretti was looking toward striking the strike and trying to secure a local time commit I think would suggest that notwithstanding probation's recommendation of eight years, neither he nor [the prosecutor] nor Judge Danielsen contemplated that type of sentence. It sounded more like it was going to be a prison commit or local commit.
"There's simply not anything here to suggest this plea was not knowing and intelligent.
"It was a good deal for her. It appears that it became a bad deal when she got spooked by probation. And as [the prosecutor] suggested, I think it's really nothing more than buyer's remorse."
Legal Principles
Section 1018 allows the trial court to grant a defendant's request to withdraw his or her plea of guilty or no contest "before judgment... for good cause shown.... " "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citation.] But good cause must be shown by clear and convincing evidence." (People v. Cruz (1974) 12 Cal.3d 562, 566.) The influence of drugs may support a finding that a defendant was incompetent to plead guilty or that the plea was not of his or her free will. (Sanders v. U.S. (1963) 373 U.S. 1, 19-20.)
We review the trial court's ruling on the motion for abuse of discretion, and we adopt the court's factual findings if substantial evidence supports them. (People v. Wharton (1991) 53 Cal.3d 522, 585.) Abuse of discretion is found only if the trial court has exercised its discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)
The law distinguishes involuntary pleas from those that are made reluctantly or unwillingly. (People v. Urfer (1979) 94 Cal.App.3d 887, 892-893.) "Assuming [defendant] was reluctant or 'unwilling' to change his plea, such state of mind is not synonymous with an involuntary act. Lawyers and other professional men [and women] often persuade clients to act upon advice which is unwillingly or reluctantly accepted. And the fact that such advice is unwillingly or reluctantly acted upon is not a '... factor overreaching defendant's free and clear judgment'...." (Id. at p. 892, fn. omitted.) Moreover, a plea may not be withdrawn simply because the defendant has changed his or her mind. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
Analysis
Here, the core of Ortiz's claim that she should have been allowed to withdraw her plea is she lacked the mental capacity to make a voluntary, knowing and intelligent plea because of her mental illness, the changes in her medications while in jail and her borderline intelligence. Ortiz's written motion did not refer to these issues; it merely asserted (1) that Pedretti had incorrectly told her she would get probation by pleading guilty, and (2) Pedretti did not stay in touch with her. At the hearing on the motion, Ortiz testified she suffers from bipolar disorder, her medications were changed a number of times while she was in jail, and she was in a daze on the day she pleaded guilty because of a recent change in her medications. Ortiz also represented that when she pleaded guilty she understood she was going to get probation and she otherwise would not have pleaded guilty.
At the hearing on Ortiz's motion to withdraw her guilty plea, there was no evidence before the trial court that Ortiz had a borderline intelligence.
Even though Ortiz's testimony about her bipolar disorder and the change in her medications while she was in jail were uncontroverted, the trial court was not required to accept Ortiz's testimony that at the time of the plea she was mentally impaired and not capable of making a voluntary, intelligent and knowing plea. (People v. Brotherton (1966) 239 Cal.App.2d 195, 201-203.) The court also was entitled to accept Pedretti's testimony that Ortiz did not manifest any signs that she was mentally impaired at the time of the plea, and, if she had, he would not have proceeded with the plea bargain.
Furthermore, any fair reading of the reporter's transcript for the December 7 hearing at which Ortiz pleaded guilty shows she indicated numerous times she understood the consequences of the plea, and it was more likely she would receive a prison sentence rather than probation. During the colloquy with the court, Ortiz was informed (1) the case carried a mandatory prison term; (2) a grant of probation was possible only if the sentencing judge dismissed her prior strike allegation and there was no guarantee the judge would do so; (3) even if the prior strike allegation was dismissed, the case was still a presumptive prison case because she had two felonies on her record; and (4) it was more difficult for someone with her record to get probation. Ortiz told the court that she understood all four of these facts. Such an attestation in open court about one's ability to understand the consequences of a plea generally is credited by reviewing courts. (People v. Ravaux (2006) 142 Cal.App.4th 914, 918.)
The trial court did not abuse its discretion in denying Ortiz's motion to withdraw her guilty plea. There was sufficient, substantial evidence supporting the court's denial of the motion.
II. Ineffective Assistance of Counsel Claim
Ortiz contends she received ineffective assistance of counsel from Pedretti because he did not investigate available evidence to properly assess her mental condition, and, therefore, was unable to understand her diminished ability to comprehend and process legal advice. As a result, Ortiz contends, Pedretti's limited communication with her was inadequate to allow her to intelligently plead guilty. The contention is without merit.
"Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel." (In re Resendiz (2001) 25 Cal.4th 230, 239.) "It is well settled that where ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea." (In re Alvernaz (1992) 2 Cal.4th 924, 934.)
In Hill v. Lockhart (1985) 474 U.S. 52, the Supreme Court held the two-part test pronounced in Strickland v. Washington (1984) 466 U.S. 668 applies to challenges to guilty pleas based on ineffective assistance of counsel, noting the second part of that test is modified. (Hill v. Lockhart, supra, at pp. 58-59.) Under the modified test, a defendant has the burden to prove by a preponderance of the evidence: (1) his or her counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) he or she suffered prejudice from counsel's deficient performance, i.e., "there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." (Id. at p. 59; see also In re Resendiz, supra, 25 Cal.4th at pp. 239, 248-254.)
A defendant's claim that he or she would not have pleaded guilty had the defendant received effective assistance of counsel " 'must be corroborated independently by objective evidence.' " (In re Resendiz, supra, 25 Cal.4th at p. 253, quoting In re Alvernaz, supra, 2 Cal.4th at p. 938.) "A defendant's statement to that effect is not sufficient.... [T]here must be some objective showing." (In re Vargas (2000) 83 Cal.App.4th 1125, 1140.)
In evaluating trial counsel's actions, "[a] court must indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance." (People v. Dennis (1998) 17 Cal.4th 468, 541.) The constitutional test for counsel's performance is " 'reasonableness,' viewed from counsel's perspective at the time of his challenged act or omission." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1243-1244.) An evaluation of trial counsel's performance must be based on his or her perspective at that time; a court must not allow itself to be swayed by "the distorting effects of hindsight." (Strickland v. Washington, supra, 466 U.S. at p. 689; In re Andrews (2002) 28 Cal.4th 1234, 1255.)
Ortiz claims that if Pedretti had conducted an adequate pretrial investigation, he would have learned that she was bipolar, undergoing a change of medications in jail, had a history of drug and alcohol abuse and was borderline intelligent—all of which combined to render her incapable of comprehending and processing legal advice.
Competent counsel should realistically examine the case, the evidence and the issues and pursue those avenues of defense that to their best and reasonable professional judgment seem appropriate under the circumstances. (See generally, People v. Freeman (1994) 8 Cal.4th 450, 509; People v. Eckstrom (1974) 43 Cal.App.3d 996, 1002-1003.) However, even in death penalty cases, counsel are not under a "blanket obligation to investigate possible 'mental' defenses." (People v. Gonzalez, supra, 51 Cal.3d at p. 1244.)
"To establish that investigative omissions were constitutionally ineffective assistance, defendant must show at the outset that 'counsel knew or should have known' further investigation might turn up materially favorable evidence." (People v. Gonzalez, supra, 51 Cal.3d at p. 1244.) In Gonzalez, our Supreme Court emphasized that all its decisions "finding culpably deficient investigation of diminished capacity have involved initial facts known to counsel from which he [or she] reasonably should have suspected that a meritorious defense was available." (Ibid.)
On this record, there is no showing that Pedretti suspected or reasonably should have suspected Ortiz had mental issues that should have been investigated. Pedretti testified he was unaware Ortiz had bipolar disorder, and he did not detect any mental impairment when he met with Ortiz on December 7, 2007, and informed her of the plea bargain he had negotiated. Likewise, Judge Danielsen, the experienced jurist who took the plea from Ortiz and engaged her in a colloquy, also did not notice any impairment. There is nothing in the record suggesting that Ortiz's "mental disabilities were obvious from [her] demeanor or conversation" with Pedretti. (People v. Gonzalez, supra, 51 Cal.3d at p. 1244.) Also, there is nothing in the record to indicate Ortiz told Pedretti she (1) suffered from mental illness, (2) was experiencing confusion and other side effects from the change in her medications while she was in jail, (3) had a history of drug and alcohol abuse, and (4) was borderline intelligent. From the beginning of the case, Ortiz maintained that the assault had not occurred and Sac had lied when he reported the crime. In light of the absence of any evidence in the record to the contrary, we can rationally presume this is what Ortiz told Pedretti about the charged crime. Sac's recantation at the preliminary hearing bolstered such a defense theory. Thus, the need to investigate possible mental defenses to the crime was not reasonably manifested. A counsel's duty to make a reasonable investigation is concurrent with his or her decision that a particular investigation is not necessary. (Strickland v. Washington, supra, 466 U.S. at pp. 690-691.)
As to Ortiz's purported borderline intelligence, we note that other than test results, the record belies such a characterization. The psychologist who evaluated Ortiz prior to sentencing discounted the test results, pointing out "Ms. Ortiz's prior ability to have earned a GED and a nursing certificate, and the quality of her written responses...." The psychologist added the test "results appear to underestimate her overall functioning which is more likely at a Low Average level." Further, in his statement in mitigation, the deputy public defender, who represented Ortiz after Pedretti was relieved, described his client as "a bright, kind and compassionate 33-year-old woman who struggles with severe mental illness and alcohol addiction." (Italics added.) We can only infer from this record that if Ortiz had borderline intelligence, it was not patently discernible to such an extent as to put Pedretti on notice that he should further investigate her mental capacity.
In sum, given this record, which does not indicate that Ortiz's mental impairments "should have been reasonably apparent to a competent attorney," we conclude Ortiz has not shown Pedretti provided ineffective assistance of counsel by not investigating her mental issues. (People v. Gonzalez, supra, 51 Cal.3d at pp. 1244-1245.)
Because an ineffective assistance of counsel claim fails on an insufficient showing of either element, we need not consider the second element of this test—prejudice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) However, even if we found Pedretti's failure to investigate Ortiz's mental history suspect, she would not prevail on her claim that counsel's omission constituted ineffective assistance of counsel. In addition to proving counsel's incompetency, a defendant must also show prejudice as a demonstrable reality—not simply a speculation about the effect of counsel's alleged errors. (People v. Williams (1988) 44 Cal.3d 883, 937.)
The plea bargain Pedretti negotiated was advantageous; it cut down Ortiz's current and future prison exposure considerably. The only evidence showing there was a reasonable probability Ortiz would not have pleaded guilty had Pedretti adequately performed—that is, learned she was mentally impaired and adequately informed her so she would have comprehended that while he would do his best he could not guarantee she would receive probation rather than a prison term—was her self-serving testimony. That is not enough. Ortiz's assertion " 'must be corroborated independently by objective evidence.' [Citation.]" (In re Resendiz, supra, 25 Cal.4th at p. 253.) If anything, the colloquy between Ortiz and Judge Danielsen, in which he reiterated the strong possibility that she would receive a prison term because of her record, belies Ortiz's testimony. On this record, we are not persuaded it is reasonably probable Ortiz would have rejected the plea bargain and instead insisted on proceeding to trial, had Pedretti learned about her mental impairments and taken more time to explain to her that he could not guarantee probation rather than a prison term. (Id. at p. 254.)
III. Motion to Dismiss Prior Strike
Ortiz contends the trial court abused its discretion by denying her motion to dismiss the prior strike allegation because her history of mental illness and her mental illness at the time of the instant offense reduced her culpability in both offenses. The contention is without merit.
In the furtherance of justice, a trial court may dismiss a prior strike conviction allegation. (Romero, supra, 13 Cal.4th at p. 504; § 1385.) When considering whether to dismiss a prior strike conviction, the relevant factors a court must consider are "whether, in light of the nature and circumstances of [her] present felonies and prior serious and/or violent felony convictions, and the particulars of [her] 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 [she] had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) The three strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm.... [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378.)
A trial court's failure to dismiss a prior strike conviction allegation is reviewed under the deferential abuse of discretion standard. (People v. Carmony, supra, 33 Cal.4th at pp. 374-376.) Under that standard, the defendant must " 'clearly show that the sentencing decision was irrational or arbitrary.' [Citation.]... [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
Ortiz was on parole when the instant crime was committed. In 2004 Ortiz pleaded guilty to inflicting injury on a cohabitant (§ 273.5); this conviction is her prior strike conviction. During the incident Ortiz used a kitchen knife to stab her cohabitant on the web of her right hand. The victim required four stitches.
In denying Ortiz's motion to dismiss her prior strike conviction, the trial court (Judge Jeffrey F. Fraser) stated:
"It's a pretty violent act, and you have a violent past. There's no question about that. And I disagree with the prosecutor. I don't see how I get you to upper term, but I also don't see how I get you to lower term. So based on that I will go with the presumptive middle term. I think that is the appropriate—I think you've earned the strike. And it's recent, and it's also violent, involving a weapon."
Ortiz does not contradict any of the evidence that the trial court relied upon in reaching this conclusion; rather, she argues that her mental health background mitigated other circumstances and required the court to dismiss her prior strike allegation. Among other things, Ortiz was diagnosed with mental illness after a suicide attempt when she was 11 years old and since then has been repeatedly hospitalized after additional suicide attempts. From 1998 to 2002 Ortiz was hospitalized several times for depression. In August 2004 Ortiz admitted herself to Alvarado Parkway Institute (API) for severe depression, anxiety and confusion; she was given several Axis I diagnoses, including polysubstance abuse and alcohol dependence, and schizoaffective disorder. In April 2005 Ortiz was involuntarily committed to API pursuant to Welfare and Institutions Code section 5150; she was diagnosed on Axis I with bipolar disorder. In 2006 and 2007 Ortiz admitted herself to API. A postplea psychological evaluation reported:
"Most significantly, Ms. Ortiz suffers from trouble with emotional regulation. She is variously overwhelmed by anxiety, depression, and anger, and suffers from wide mood swings. In the face of her intense affect she [is] helpless, and has trouble either damping down or internalizing her feelings. Instead, her feelings come spilling out in her behavior in ways that reflect impaired social judgment. At her worst she can be so emotionally hijacked that she cannot think or concentrate, and experiences impaired reality testing, confusion, altered states of consciousness, and dissociation."
None of these factors, however, establishes the trial court acted illogically or irrationally in concluding that Ortiz, as a recidivist offender, does not fall outside the scope of the three strikes law. Ortiz complains the trial court, in denying the motion did not refer to these factors or "explain[] how, in [the] court's view, none of this mitigated Ortiz's current and prior offense, and placed her outside the spirit of the Three Strikes Law." But these factors were presented to the trial court in written motion, which the court stated it had read and considered. We presume the trial court considered all of the relevant factors in the absence of an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) The fact the court focused its explanatory comments on a particular factor—Ortiz's violence and use of a weapon—"does not mean that it considered only that factor." (Ibid.) Ortiz's claim that the court "did not provide the individualized consideration of [her] background and current circumstances required by law" is not borne out by the record.
The fact that a defendant suffers from a mental illness may be a significant mitigating factor. (Cal. Rules of Court, rule 4.423(b)(2).) But Ortiz's mental illness did not require the court to exercise its discretion in favor of dismissing the prior strike. We defer to the trial court's ruling when it is not capricious, arbitrary or outside the bounds of reason. We cannot say the court's refusal to dismiss the prior strike was irrational or arbitrary. The trial court's " '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.]' [Citation.] " (Alvarez, supra, 14 Cal.4th at p. 978.)
For the first time in her reply brief, Ortiz argues the trial court's denial of her motion resulted in a cruel and unusual punishment. We do not consider an argument first raised in a reply brief without a showing why the argument could not have been made earlier. (People v. Newton (2007) 155 Cal.App.4th 1000, 1005.)
IV. Abstract of Judgment
Ortiz contends, and the Attorney General agrees, the abstract of judgment must be corrected to accurately reflect Ortiz's conviction, the correct number of presentence credits granted her and her status for postconviction credits. We shall order the trial court to amend the abstract of judgment to show Ortiz was convicted of assault with force likely to be produce great bodily injury—not assault with a deadly weapon. The trial court also is ordered to amend the abstract of judgment to show Ortiz is entitled to 372 days of presentence credit, consisting of 248 actual days plus section 4019 credits of 124 days. The court also shall delete the checkmark on the abstract of judgment indicating the case is one in which time credits are limited by section 2933.1.
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect (1) Ortiz was convicted of assault with force likely to produce great bodily injury, (2) she is entitled to a total of 372 days of presentence credit, consisting of 248 actual days plus section 4019 credits of 124 days, and (3) her postconviction time credits are not limited by section 2933.1. The court is further directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.
Before sentencing, the deputy public defender representing Ortiz had her undergo a psychological evaluation, and obtained copies of reports generated when Ortiz was hospitalized for mental health concerns. The evaluation and reports were submitted to the court along with a statement in mitigation for sentencing purposes. There is reference in the psychological evaluation to test results indicating Ortiz had a borderline intelligence, but the evaluating psychologist discounted these test results.
Appellate counsel refers to these materials in his supplemental briefing which deals with the denial of Ortiz's motion to withdraw her plea and her claim of ineffective assistance of counsel. We stress, however, that these documents were not before the trial court when it heard Ortiz's motion to withdraw her guilty plea. The documents were before the court at the sentencing hearing.