Filed 9/4/20 P. v. Gilpin CA3
(opinion following transfer from Supreme Court)
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C087517
Plaintiff and Respondent, (Super. Ct. No. 18CR000448)
v. OPINION ON REMAND
BILLY SHANE GILPIN,
Defendant and Appellant.
Defendant Billy Shane Gilpin was sentenced to five years in prison pursuant to a
plea agreement in which he pled guilty to possession of a controlled substance,
methamphetamine, and misdemeanor possession of controlled substance paraphernalia.
He contends Penal Code1 section 1001.36 applies retroactively, requiring conditional
reversal of his convictions and sentence and remand of the matter for the trial court to
1 All further section references are to the Penal Code unless otherwise specified.
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conduct a mental health diversion eligibility hearing. Defendant also argues the
concurrent sentence on the paraphernalia possession count should be stayed pursuant to
section 654.
The People originally argued defendant’s mental health diversion claim should be
dismissed for failure to obtain a certificate of probable cause and, in any event, the claim
fails on the merits because section 1001.36 does not apply retroactively. As to the second
contention, the People concede the trial court should have stayed punishment on the
paraphernalia possession count under section 654.
We originally disagreed with the People that a certificate of probable cause was
required to raise the section 1001.36 issue. We did not reach the question of retroactivity,
however, because we concluded defendant failed to show section 1001.36 may apply to
him. Finally, we accepted the People’s concession and agreed the concurrent sentence on
the paraphernalia possession count violates section 654. We accordingly stayed the
sentence on that count. In all other respects, we affirmed the judgment.
Our Supreme Court granted review but deferred further action pending disposition
in Frahs. (People v. Frahs (2020) 9 Cal.5th 618.) Following its decision in Frahs, the
court transferred this matter back to us with directions to vacate our decision and
reconsider the cause in light of Frahs. In Frahs, the court found section 1001.36 applies
retroactively to defendants whose cases were not yet final when the Legislature enacted
section 1001.36. (Frahs, at p. 640-641.) The court further concluded a defendant need
only argue he suffers from a qualifying mental disorder to be entitled to a limited remand
to allow the trial court to conduct a mental health diversion eligibility hearing. (Id. at
p. 640.) As we are bound by our Supreme Court’s decision in Frahs, we will grant a
limited remand for the purposes of determining defendant’s eligibility for mental health
diversion under section 1001.36. Our holding as to defendant’s concurrent sentence
remains unchanged, and his sentence on the paraphernalia possession count is stayed as it
violates section 654.
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FACTUAL AND PROCEDURAL BACKGROUND
On February 26, 2018, a parole officer conducted an unannounced visit at
defendant’s home. Defendant told the officer he would test positive for
methamphetamine. The officer searched defendant’s home and found a hypodermic
syringe, a spoon with a piece of cotton stuck to it, and a baggie with one-tenth of a gram
of methamphetamine in a bedroom closet.
Defendant was charged with possession of a controlled substance,
methamphetamine, and misdemeanor possession of controlled substance paraphernalia.
As to the controlled substance count, the information alleged defendant had a prior strike
and had served a prior prison term.
On April 23, 2018, defendant entered an open plea of guilty on both counts and
admitted the special allegations in return for a seven-year “lid” and the right to seek
Romero relief. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The plea
agreement further provided defendant would be referred to the behavioral health court.
The trial court denied defendant’s Romero request and application for probation. The
behavioral health court denied defendant’s referral, noting he “has severe mental health
and substance use issues” and suffers from a mental disorder identified in the fifth edition
of the Diagnostic and Statistical Manual of Mental Disorders. On June 4, 2018, the court
sentenced defendant to five years in prison.
Defendant filed a timely notice of appeal. He did not obtain a certificate of
probable cause.
DISCUSSION
I
Mental Health Diversion
A
No Certificate Of Probable Cause Required
The People contend defendant’s section 1001.36 argument should be dismissed for
failure to obtain a certificate of probable cause. We disagree.
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Section 1237.5 provides in relevant part that “[n]o appeal shall be taken by the
defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . .
except where both of the following are met: [¶] (a) The defendant has filed with the trial
court a written statement, executed under oath or penalty of perjury showing reasonable
constitutional, jurisdictional, or other grounds going to the legality of the proceedings.
[¶] (b) The trial court has executed and filed a certificate of probable cause for such
appeal with the clerk of the court.”
“ ‘The purpose for requiring a certificate of probable cause is to discourage and
weed out frivolous or vexatious appeals challenging convictions following guilty and
nolo contendere pleas. [Citations.] The objective is to promote judicial economy “by
screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and
money is spent preparing the record and the briefs for consideration by the reviewing
court.” [Citations.]
“ ‘It has long been established that issues going to the validity of a plea require
compliance with section 1237.5. [Citation.] Thus, for example, a certificate must be
obtained when a defendant claims that a plea was induced by misrepresentations of a
fundamental nature [citation] or that the plea was entered at a time when the defendant
was mentally incompetent [citation]. Similarly, a certificate is required when a defendant
claims that warnings regarding the effect of a guilty plea on the right to appeal were
inadequate. [Citation.]’ [Citation.]
“ ‘In determining whether section 1237.5 applies to a challenge of a sentence
imposed after a plea of guilty or no contest, courts must look to the substance of the
appeal: “the crucial issue is what the defendant is challenging, not the time or manner in
which the challenge is made.” [Citation.] Hence, the critical inquiry is whether a
challenge to the sentence is in substance a challenge to the validity of the plea, thus
rendering the appeal subject to the requirements of section 1237.5.’ ” (People v. Buttram
(2003) 30 Cal.4th 773, 781-782.)
Our Supreme Court has explained that a plea in which the parties agree to a
maximum sentence does not require a certificate of probable cause unless the defendant
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challenges the legal validity of the maximum sentence itself. (People v. Buttram, supra,
30 Cal.4th at pp. 790-791.) “When the parties negotiate a maximum sentence, they
obviously mean something different than if they had bargained for a specific or
recommended sentence. By agreeing only to a maximum sentence, the parties leave
unresolved between themselves the appropriate sentence within the maximum. That
issue is left to the normal sentencing discretion of the trial court, to be exercised in a
separate proceeding.” (Id. at p. 785.)
“[A] certificate of probable cause is not required to challenge the exercise of
individualized sentencing discretion within an agreed maximum sentence. Such an
agreement, by its nature, contemplates that the court will choose from among a range of
permissible sentences within the maximum, and that abuses of this discretionary
sentencing authority will be reviewable on appeal, as they would otherwise be.
Accordingly, such appellate claims do not constitute an attack on the validity of the plea,
for which a certificate is necessary.” (People v. Buttram, supra, 30 Cal.4th at pp. 790-
791; see id. at p. 777 [“Unless it specifies otherwise, a plea agreement providing for a
maximum sentence inherently reserves the parties’ right to a sentencing proceeding in
which (1) . . . they may litigate the appropriate individualized sentence choice within the
constraints of the bargain and the court’s lawful discretion, and (2) appellate challenges
otherwise available against the court’s exercise of that discretion are retained”].)
Here, the parties agreed to a maximum sentence of seven years in the plea
agreement and the trial court exercised its discretion by imposing a lesser sentence of five
years. Defendant’s challenge to the trial court’s sentencing discretion relating to the
application of section 1001.36 does not require a certificate of probable cause.
B
Defendant Is Entitled To Conditional Reversal Under Section 1001.36
Defendant contends we should conditionally reverse his convictions and sentence
and remand the matter for the trial court to conduct a mental health diversion eligibility
hearing under section 1001.36 because he suffers from “a qualifying diagnosed mental
disorder.” He contends the statute applies retroactively to him as the Legislature enacted
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section 1001.36 after his sentencing but before his case was final, relying on People v.
Frahs (2018) 27 Cal.App.5th 784, review granted December 27, 2018, S252220.
Originally, we did not reach the question of retroactivity because we concluded defendant
failed to show section 1001.36 may apply to him. However, pursuant to our Supreme
Court’s decision in Frahs, the People concede and we now conclude defendant is entitled
to limited remand to the trial court for a determination on his eligibility for mental health
diversion under section 1001.36. (See People v. Frahs, supra, 9 Cal.5th at pp. 640-641.)
Section 1001.36 was enacted after defendant’s sentencing (Stats. 2018, ch. 34, § 24, eff.
June 27, 2018) and provides pretrial diversion may be granted if the trial court finds all of
the following criteria are met: (1) the defendant suffers from a recently diagnosed mental
disorder enumerated in the statute; (2) the disorder was a significant factor in the
commission of the charged offense, and that offense is not one of the offenses
enumerated in subdivision (b); (3) “[i]n the opinion of a qualified mental health expert,
the defendant’s symptoms of the mental disorder motivating the criminal behavior would
respond to mental health treatment”; (4) the defendant consents to diversion and waives
his right to a speedy trial; (5) the defendant agrees to comply with treatment as a
condition of diversion; and (6) the defendant will not pose an unreasonable risk of danger
to public safety, as defined in section 1170.18, if treated in the community. (§ 1001.36,
subd. (b)(1)-(2).) If the treatment under pretrial diversion is deemed successful, the
charges shall be dismissed and the defendant’s criminal record expunged. (§ 1001.36,
subds. (b)(1)(A)-(C), (c)(3), (e).)
The statute further provides: “At any stage of the proceedings, the court may
require the defendant to make a prima facie showing that the defendant will meet the
minimum requirements of eligibility for diversion and that the defendant and the offense
are suitable for diversion. The hearing on the prima facie showing shall be informal and
may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima
facie showing is not made, the court may summarily deny the request for diversion or
grant any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).)
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In Frahs, our Supreme Court concluded Estrada’s inference of retroactivity
applies to section 1001.36 such that defendants with qualifying mental disorders whose
cases are not yet final are entitled to limited remand for the trial court to determine
whether they are eligible for mental health diversion. (People v. Frahs, supra, 9 Cal.5th
at pp. 624-625; see also In re Estrada (1965) 63 Cal.2d 740.) The court concluded “the
possibility of being granted mental health diversion rather than being tried and sentenced
‘can result in dramatically different and more lenient treatment.’ ” (Frahs, at p. 631,
quoting People v. Superior Court (Lara) 4 Cal.5th 299, 303.) Our Supreme Court relied
on its decision in Lara, where it concluded the ameliorative benefits of Proposition 57,
which prohibits prosecutors from charging juveniles with crimes directly in adult
criminal court, are retroactively applicable to juveniles whose judgments are not yet final
at the time Proposition 57 was enacted. (Frahs, at p. 629; People v. Superior Court
(Lara), supra, at pp. 303-304.) The Frahs court concluded the pertinent facts “are like
those involved in Lara.” (Frahs, at p. 631.) Specifically, the court reasoned “the impact
of a trial court’s decision to grant diversion can spell the difference between, on the one
hand, a defendant receiving specialized mental health treatment, possibly avoiding
criminal prosecution altogether, and even maintaining a clean record, and on the other, a
defendant serving a lengthy prison sentence.” (Ibid.) The court therefore concluded “the
ameliorative nature of the diversion program places it squarely within the spirit of the
Estrada rule.” and thus the program retroactively applies to defendants whose cases are
not yet final. (Frahs, at p. 631.) That is the case for defendant here.
The Frahs court further rejected the People’s argument the defendant there was
not entitled to remand because he did not make an adequate showing of eligibility.
(People v. Frahs, supra, 9 Cal.5th at pp. 637-638.) The People argued the defendant had
to demonstrate he met all six threshold eligibility requirements before the appellate court
could remand. (Id. at p. 638.) The court found imposing such a high bar for remand
“would be unduly onerous and impractical” and “inconsistent with any sensible
retroactive application of the statute.” (Ibid.) Instead, the court concluded “a conditional
limited remand for the trial court to conduct a mental health diversion eligibility hearing
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is warranted when, as here, the record affirmatively discloses that the defendant appears
to meet at least the first threshold eligibility requirement for mental health diversion -- the
defendant suffers from a qualifying mental disorder.” (Id. at p. 640.)
Defendant argues he suffers from posttraumatic stress disorder. The “Behavioral
Health Team Assessment,” performed on defendant’s referral to behavioral health court,
noted defendant suffers from posttraumatic stress disorder. The assessment further noted
defendant suffers from severe mental health issues. Posttraumatic stress disorder is a
qualifying mental disorder under section 1001.36. Per Frahs, because defendant has
argued he suffers from a qualifying mental disorder, he is entitled to a conditional remand
to allow the trial court to conduct a mental health diversion eligibility hearing under
section 1001.36.
II
The Sentence On The Drug Paraphernalia Possession
Count Must Be Stayed Under Section 654
Defendant contends his concurrent sentence on the drug paraphernalia possession
count was imposed in error because the sentence should have been stayed under section
654. The People concede the point. We accept the concession and agree.
Section 654, subdivision (a) provides in pertinent part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” As this court
explained in Louie: “The challenge in applying section 654 arises because, ‘[f]ew if any
crimes . . . are the result of a single physical act.’ [Citation.] Accordingly, courts have
long recognized that the proscription against multiple punishment may also apply when a
course of criminal conduct violates more than one statute. [Citation.] Where a
defendant’s crimes are the result of a course of criminal conduct, courts endeavor to
determine whether the course of conduct is divisible, i.e., whether it constitutes more than
one criminal act. [Citation.] A course of conduct will give rise to more than one criminal
act if the actions were incident to more than one objective. [Citation.] The point of
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determining whether a defendant had more than one criminal objective is to discover
whether the defendant’s multiple actions should be considered one criminal act or more
than one criminal act for the purpose of section 654.” (People v. Louie (2012) 203
Cal.App.4th 388, 396-397.)
As the People explain, the methamphetamine and syringe were found in the same
place -- defendant’s bedroom closet. Those items were found along with a spoon, a tool
commonly used to prepare methamphetamine for injection. There is no evidence in the
record suggesting defendant had a different or separate intent with regard to the
paraphernalia other than to use it to inject the methamphetamine. Thus, there is no
substantial evidence to support the trial court’s implied finding of a separate intent or
objective. (People v. Islas (2012) 210 Cal.App.4th 116, 129.) Section 654 applies to stay
the punishment for the drug paraphernalia possession count.
DISPOSITION
We conditionally reverse the judgment and remand to the trial court for an
eligibility determination under section 1001.36. “If the trial court finds that [defendant]
suffers from a mental disorder, does not pose an unreasonable risk of danger to public
safety, and otherwise meets the six statutory criteria (as nearly as possible given the
postconviction procedural posture of this case), then the court may grant diversion. If
[defendant] successfully completes diversion, then the court shall dismiss the charges.
However, if the court determines that [defendant] does not meet the criteria under
section 1001.36, or if [defendant] does not successfully complete diversion, then his
convictions and sentence shall be reinstated.” (People v. Frahs, supra, 9 Cal.5th at
p. 641.)
If the trial court reinstates defendant’s sentence, it shall stay the term imposed for
the possession of drug paraphernalia conviction pursuant to section 654. The trial court
shall prepare an amended abstract of judgment and forward a certified copy to the
Department of Corrections and Rehabilitation.
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/s/
Robie, Acting P. J.
We concur:
/s/
Murray, J.
/s/
Butz, J.*
* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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