(Super. Ct. No. CRF 02-823)
The opinion of the court was delivered by: Nicholson , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Michael Alan Khatoonian got into a heated exchange with another driver and followed the man to his residence. Defendant returned to the residence later the same night and started a fire in front of the garage, damaging the home. A friend of defendant admitted she was with him when he started the fire with a plastic container of gasoline and a rag. The other driver and his family were upstairs asleep when defendant set the fire. A man riding a bicycle by the house noticed the fire, pounded on the door, and told the family their house was burning. Defendant later admitted to police that he committed the offense.
Defendant pleaded no contest to arson of an inhabited structure (Pen. Code, § 451, subd. (b); further statutory references are to this code) and admitted an enhancement for use of an accelerant or delayed ignition device (§ 451.1, subd. (a)(5)). Defendant also admitted a prior conviction of felony battery with serious bodily injury (§ 243, subd. (a)) but reserved the right to challenge whether it constituted a serious felony conviction for the purposes of the "Three Strikes" law.
The trial court subsequently found the prior conviction was not a serious felony and granted defendant's motion to dismiss the strike allegation. The trial court sentenced defendant to a six-year prison term, consisting of a lower term of three years for arson and a consecutive three-year term for the enhancement, plus a concurrent two-year term for violating probation in another case.
The People appealed the trial court's dismissal of the strike. We reversed the trial court's order on the prior conviction and remanded for resentencing. On remand, the trial court imposed a six-year term, consisting of a lower term of three years for arson, doubled to six years due to the strike. The court struck the three-year sentence for the enhancement pursuant to section 1385 and imposed a concurrent two-year term for the probation violation.
The People appeal, contending it was an abuse of discretion to dismiss the enhancement for use of an accelerant. We affirm.
Defendant presented testimony from his psychiatrist, Dr. Albert Globus, at the initial sentencing hearing. Dr. Globus was hired by defendant's family in 2002, when defendant exhibited psychiatric symptoms while incarcerated in county jail, including four suicide attempts. According to Dr. Globus, both defendant's criminal behavior and his suicidal actions at county jail were due to his bipolar disorder. Because defendant switched rapidly from depressive to manic cycles, his illness required constant monitoring and adjustment of his medication. Without such constant treatment, he would be at high risk of suicide. In Dr. Globus's opinion, defendant could not receive adequate mental health treatment in prison because prison officials could not monitor him with sufficient frequency, nor dispense the necessary medications.
At the sentencing hearing, the trial court found that defendant's mental illness was a significant mitigating factor and imposed the lower term for arson. Finding no justification for striking the enhancement, the court imposed a consecutive three-year term, for a total term of six years.
On remand, defendant submitted records from his prison file showing he had no write-ups or gang involvement, and that his classification score dropped from an original 31 points to 19 points, the best possible score based on his offense. Defendant had been placed under prison psychiatric care, where he was given psychoactive medications for nine months before being weaned off of them. He was drug and symptom free at the time of resentencing.
Defendant asked the trial court to strike the enhancement based on his good behavior in prison. The People argued that defendant's claim of mental illness at the initial sentencing hearing was ...