Reset A A Font size: Print

Court of Appeal, Sixth District, California.

THE PEOPLE, Plaintiff and Respondent, v. ALI ABDUL MALIK, Defendant and Appellant.


Decided: March 27, 2017




It is ordered that the opinion filed herein on March 27, 2017, be modified as follows:

On page 4, second paragraph, replace fourth sentence starting with “Defendant inappropriately” so that the new sentence reads: “Defendant inappropriately refers us to multiple web sites describing mental health conditions, homelessness, and the ill effects of combining certain prescription drugs, although these resources were not offered as evidence to the lower court.”

There is no change in the judgment. The petition for rehearing is denied.

Defendant Ali Abdul Malik appeals from a judgment entered upon his no contest plea to first degree burglary (Pen. Code, §§ 459-460 1 ). He asserts only sentencing error, contending that the trial court abused its discretion by declining to dismiss his prior “strike” conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We find no error and affirm the judgment.

Background 2

In the early morning hours of February 3, 2015, defendant entered the home of the victim while he and his stepson were sleeping. When the victim woke up, defendant ran out of the house, taking the victim's iPhone and wallet, the stepson's shoes, and other items. Defendant was apprehended later that morning after the victim used the iCloud locator service.

Defendant was charged by information with one count of first degree burglary. The information further alleged that defendant had a prior residential burglary conviction, a serious felony within the meaning of the Three Strikes Law (§ 667.5, subd. (c)) and the sentence enhancement provisions of section 667, subdivision (a). On November 2, 2015, defendant waived his trial rights and pleaded no contest to the charge, and he admitted that it qualified as a violent felony within the meaning of section 667.5, subdivision (c)(21) because the residents were present during the commission of the offense. Defendant also admitted the allegation that he had suffered a prior serious felony conviction based on a 2003 burglary in which he took jewelry, clothing, and a laptop computer from his aunt's house.

On December 30, 2015, defendant asked the court to dismiss the strike prior under section 1385, citing Romero. His attorney recounted defendant's personal history, including the murder of his father, his mother's struggle to raise him, his erratic employment history, his “cognitive deficits,” and past treatment for epilepsy and schizoaffective disorder. The defense argued that defendant did not fall within the spirit of the Three Strikes Law, because (1) his mental illness was a mitigating factor, (2) his prior conviction involved minimal harm, (3) the current offense did not involve a significant degree of criminal sophistication, and (4) he “ha[d] prospects for rehabilitation,” given his recognition of “the importance of staying sober, taking his medication, and persevering in mental health treatment when he is released into the community.”

On February 5, 2016, the court denied the Romero motion, denied probation, and imposed the nine-year prison term recommended by the probation department. The sentence consisted of the mitigated term of four years, doubled due to the strike prior, plus five years for the enhancement, with an adjustment for the plea agreement's top of nine years. This timely appeal followed.


In Romero, our Supreme Court held that section 1385 permits a trial court to “strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, ‘in furtherance of justice.’ ” (People v. Williams (1998) 17 Cal. 4th 148, 158-159 (Williams); People v. Carmony (2004) 33 Cal.4th 367 373.) The court further explained that determining whether a dismissal would be “in furtherance of justice” requires consideration of “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 his 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.” (Williams, supra, at p. 161.)

“[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (Carmony, supra, 33 Cal.4th at p. 375.) The party attacking the sentence bears the burden “ ‘ “to clearly show that the sentencing decision was irrational or arbitrary.” ’ ” (Id. at p. 376.) Reversal is not required “ ‘ “merely because reasonable people might disagree.” ’ ” (Id. at p. 377.) Accordingly, we must not substitute our judgment for that of the trial court.

In this case the trial court first expressed its thorough understanding of the nature and extent of its discretion in evaluating the motion. It considered not only the fact that the current conviction was for a serious offense, but also the fact that the prior conviction was “somewhat remote in time,” and that neither the current offense nor the prior involved violence. It was to defendant's credit that he ran instead of harming the victim when the victim awoke. However, defendant had a “long and continuous criminal background,” even though most of it was nonviolent and “relatively minor.”3 This crime, another burglary, was more serious than a prior drug offense that had previously been struck. Although defendant had “real potential to have employment history in the future,” it concerned the court that he had not been properly medicated for two years. That factor was a “mixed bag when it comes to [being both] a mitigator and aggravator,” because it gave the court “the impression that you just casually purposefully chose not to [take your] medication.”

On appeal, defendant contends that the court abused its sentencing discretion by failing to give sufficient weight to his mental illness. He argues that he was “afflicted with a significant brain impairment that limits his ability to understand and process information verbally [sic] presented to him.” As a result, he would have been unable to fully understand the need to take his medications and limit his use of alcohol. Defendant inappropriately refers us to web sites describing mental health conditions and those suggesting the ill effects of combining certain prescription drugs, without acknowledging that these resources were not offered as evidence to the lower court. Defendant nonetheless believes that the trial court “could not have meaningfully and properly considered those factors here in the absence of current and expert-provided information about them.”

There is no evidentiary support for defendant's assertion either that he was incapable of understanding the need to take his medication or that the court was obligated to “inquire why [he] had not been taking his prescribed medications before proceeding to judgment.” Counsel provided the court with the medical progress notes from the jail's physician. He did not offer the trial court any additional, specific information—“expert-provided” or otherwise—nor does defendant demonstrate on appeal how such information would have altered the result.

It is clear that the court considered all the circumstances actually presented to it, including the information supplied by the probation officer and defense counsel's portrayal of defendant's personal history and medical consultations at the jail. Counsel noted defendant's childhood learning disability and what he called defendant's “serious cognitive deficits,” as measured by defendant's low performance on a verbal comprehension test. He described defendant's struggles to cope with his psychiatric symptoms by using street drugs to replace the slower-acting medications he had abandoned. Although defendant now speculates that he was unable to understand the importance of taking his medications, his attorney below did not make this argument. In the motion counsel emphasized that defendant was aware that his approach to alleviating his symptoms was “flawed,” and that he was “committed to overcoming his addiction to drugs and to taking his prescribed medications.” His stated plan was to stay away from drugs and to see a doctor regularly to treat his schizoaffective disorder and epilepsy. The court evidently gave these affirmations relatively little credit.

Thus, even if we agreed that the court erred by failing to ensure that it had sufficient information about the circumstances and effects of defendant's mental illness, we would not find a basis for reversal. The court considered defendant's current offense, his prior serious felony conviction, and “ ‘the particulars of his background, character, and prospects' ” before concluding that defendant did not fall outside of the letter and spirit of the Three Strikes sentencing scheme. (Carmony, supra, 33 Cal.4th at p. 377.) The court was not required to place greater weight on mental illness than on other relevant factors. (See People v. Carrasco (2008) 163 Cal.App.4th 978, 992-994 [defendant's “ ‘significant mental health history and issues,’ ” together with long-term drug use, did not compel court to dismiss prior strike conviction where trial court considered all circumstances of defendant's present and past convictions, including his background, character, and prospects].) On the facts presented, we cannot say that the court's ruling “falls outside the bounds of reason” under the applicable law. (Williams, supra, 17 Cal.4th at p. 162) As defendant's case is not so “extraordinary” that “no reasonable people could disagree that [he] falls outside the spirit of the three strikes scheme” (Carmony, supra, at p. 378), the court did not abuse its discretion in denying defendant's request under Romero motion.


The judgment is affirmed.


1.   All further statutory references are to the Penal Code.

2.   The facts underlying defendant's conviction are taken from the probation report.

3.   The probation officer described defendant's criminal history for the court as follows: “The defendant's criminal history consists of two Felony convictions for Residential Burglary in Tulare County, and Possession of Narcotics/Controlled Substance. He also has 14 Misdemeanor convictions from Tulare County, Santa Barbara County, and Santa Clara County for the following offenses, including: Resisting, Delaying, Obstructing an Officer (x3); Driving while License Suspended or Revoked (x3); Health and Safety Code violations (x2); Carrying a Concealed Dirk or Dagger; Theft[-]related offenses (x3); and Assault by Means of Force Likely to Produce Great Bodily Injury (x2).” Defendant had successfully complete probation twice, but currently was on “four separate grants of Court Probation.”



Copied to clipboard