Filed 9/24/20 P. v. Prieto CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F076200
Plaintiff and Respondent,
(Super. Ct. No. BF166768A)
v.
MARKOS ANTHONY PRIETO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua
and Tiffany Organ-Bowles, Judges.
William W. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M.
Vasquez, Amanda D. Cary, Lewis A. Martinez, and William K. Kim, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Markos Anthony Prieto—charged and convicted as Marcos Anthony
Prieto—contends reversal is required because the court erroneously conditioned its grant
of his self-representation motion on his forfeiting a continuance. He further argues he is
entitled to a remand to permit the court to exercise its discretion whether to permit him to
seek mental health diversion under the newly enacted section 1001.36 of the Penal Code.
(Undesignated statutory references are to the Penal Code.) Additionally, the parties agree
Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136), which amended section
667.5, former subdivision (b), applies retroactively to defendant, and his prior prison
enhancements must be stricken under the amended statute.
In our initial opinion, we remanded for the court to strike the enhancements
imposed under section 667.5, former subdivision (b) and to resentence defendant
accordingly. We rejected defendant’s claim that section 1001.36 was retroactive. The
matter was subsequently transferred to us by the California Supreme Court to reconsider
our decision in light of People v. Frahs (2020) 9 Cal.5th 618, 631–636 (Frahs) in which
the California Supreme Court held section 1001.36 applies retroactively to judgments not
yet final on appeal.
We now conditionally reverse defendant’s conviction and remand for the trial
court to conduct an eligibility hearing pursuant to section 1001.36. On remand, if the
court determines defendant does not meet the eligibility criteria under section 1001.36, or
defendant does not successfully complete diversion and his convictions and sentence are
reinstated, the court is ordered to strike the enhancements imposed under section 667.5,
former subdivision (b) and to resentence defendant accordingly.
In all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
In September 2016, defendant, who was incarcerated, was assigned to the
electronic monitoring program (EMP). Through the EMP, defendant was released from
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custody to his home and was required to wear an ankle monitor. Before his release, a
sheriff’s aide advised defendant he could be charged with escape if he took off the ankle
monitor.
Three days after his release into the EMP, the sheriff’s office received a tamper
notice from defendant’s ankle monitor. Two deputies went to defendant’s registered
address and found the ankle monitor in the driveway. The monitor’s strap had been cut.
The deputies knocked on the door to the house and announced their presence, but no one
answered. Three months later, a probation officer encountered defendant, and defendant
falsely identified himself when the officer asked for his identity. After the probation
officer ran the name defendant provided through dispatch and was unable to verify
defendant’s identity, she took him to the central receiving facility to identify him.
Defendant was subsequently arrested and charged with escape by use of force in violation
of section 4532, subdivision (b)(2).
Before trial on the escape charge, defendant requested the appointment of a new
attorney and the court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118
(Marsden). During the hearing, defendant stated he would feel more comfortable
representing himself than proceeding with his appointed counsel. The court ultimately
denied defendant’s request to substitute a new attorney and noted defendant could raise
his request for self-representation before a different court.
A week later, on the day of the scheduled jury trial—which was the last day of the
60-day trial period—another court heard defendant’s request to represent himself
pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). During the Faretta
hearing, the court directed defendant to complete an advisement and waiver of right to
counsel form and admonished defendant of the risks and expectations of self-
representation, including that defendant would “be at a considerable disadvantage going
up against the seasoned trial attorney.” The court explained defendant would not receive
special treatment or help whatsoever from the court if he represented himself. Defendant
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repeatedly stated that he “insist[ed] on representing [him]self.” Before reviewing the
advisement and waiver of counsel form with defendant, the court asked defendant if he
would be ready to proceed with trial that day if the court granted his request to appear pro
se. Defendant responded, “Yeah.” The court again confirmed:
“THE COURT: You would be ready. No continuances or—
“THE DEFENDANT: If I had to, I will, you know, I’ll wing it, but I
could—I need to study, reading, but if I have to, I will.”
The judge later asked defendant if he understood “that no continuances [we]re
going to be allowed in this case absent a showing of good cause and that those requests
made most likely before the trial will be denied.” Defendant responded, “Now I do.”
The court advised defendant against proceeding pro se and recommended he accept the
court-appointed counsel. The prosecutor objected to defendant’s request for self-
representation, noting the potential for delay if defendant wanted time to research
defenses and the charges.
Defendant again repeatedly advised the court he would be ready to proceed with
trial that day.
“THE COURT: And, [defendant], as you sit there now, if this motion
is granted and you by law can represent yourself, is it your understanding
that you are ready to proceed to trial since today is the day for jury trial?
“THE DEFENDANT: Yeah, I understand.
“THE COURT: Is that a yes?
“THE DEFENDANT: Yes.”
“[THE COURT:] [Defendant], if I understood you correctly, you
stated numerous times you are ready for trial to begin today if you are
representing yourself. Is that correct?
“THE DEFENDANT: If the CALCRIM was all I needed to be—
“THE COURT: It’s a yes or no question, sir.
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“THE DEFENDANT: All right. If the CALCRIM is what I needed
to—is all I need, then, yes, I am ready, but other than that, then I’m unsure.
But yes.
“THE COURT: All right. Let me ask you one more time, and all I
want to hear is yes or no. [¶] If this motion is granted, since today is day 60
of 60 for purposes of jury trial, are you ready to proceed to jury trial today?
“THE DEFENDANT: Yeah, we could go to jury trial today.
“THE COURT: Is that a yes?
“THE DEFENDANT: Yes, your Honor.”
Defendant’s former counsel informed the court she had provided defendant with
all the discovery in the case except for the body camera footage. She explained, though
the Faretta hearing took place on the last day of the 60-day trial period, defendant had
voiced his request for self-representation after the Marsden hearing, which was originally
scheduled weeks before but had to be rescheduled based on defense counsel’s scheduling
conflict.
The court held the request was “not untimely in that even though today is day 60
of 60, it appears to the Court that [defendant] has reasons for making this motion, as well
as [defendant] is ready to proceed today with trial so it would not cause any delay
whatsoever.” It noted defendant, “while not substantially qualified to represent himself,
is at least competent enough to do so.” Accordingly, the court accepted defendant’s
understanding and waiver of his right to an attorney and granted his request to represent
himself.
The case was then assigned to the trial department. The trial court confirmed
defendant intended to represent himself and that he was ready to proceed with trial.
“THE COURT: Okay. Are you ready to proceed to trial today?
“[DEFENDANT]: Yes.
“THE COURT: So you want to go forward with trial?
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“[DEFENDANT]: Yeah.”
The judge also confirmed defendant had received the discovery file and the
preliminary hearing transcript from his former counsel. The case proceeded to trial and a
jury convicted defendant of escape by force and found true two charged prison prior
enhancements under section 667.5, former subdivision (b) and a strike prior. The trial
court sentenced defendant to eight years, the midterm doubled based on his strike prior,
enhanced by an additional two years based on defendant’s prison prior enhancements, for
a total term of imprisonment of 10 years’ imprisonment.
DISCUSSION
I. The Court Did Not Err in Analyzing Potential for Delay When Considering
Defendant’s Faretta motion
Defendant first contends the court erred in conditioning the grant of his Faretta
motion on him forgoing a continuance.
A. Standard of Review and Applicable Law
A criminal defendant has a constitutional right to counsel at all critical stages of a
criminal prosecution. (People v. Doolin (2009) 45 Cal.4th 390, 453.) However, a
defendant also has the constitutional right to waive his right to counsel and represent
himself upon a timely and unequivocal request. (See Faretta, supra, 422 U.S. at pp. 819,
834–835; People v. Marshall (1997) 15 Cal.4th 1, 20–21.)
A trial court must grant a defendant’s request for self-representation if the
defendant is mentally competent, unequivocally asserts that right within a reasonable
time prior to the commencement of trial, and makes his request voluntarily, knowingly,
and intelligently. (People v. Welch (1999) 20 Cal.4th 701, 729; People v. Windham
(1977) 19 Cal.3d 121, 127–128.) “The timeliness requirement ‘serves to prevent a
defendant from misusing the motion to delay unjustifiably the trial or to obstruct the
orderly administration of justice.’ [Citation.]” (People v. Doolin, supra, 45 Cal.4th at p.
454.) When considering whether a motion for self-representation is timely, “a trial court
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properly considers not only the time between the motion and the scheduled trial date, but
also such factors as whether trial counsel is ready to proceed to trial, the number of
witnesses and the reluctance or availability of crucial trial witnesses, the complexity of
the case, any ongoing pretrial proceedings, and whether the defendant had earlier
opportunities to assert his right of self-representation.” (People v. Lynch (2010) 50
Cal.4th 693, 726, abrogated on other grounds as stated in People v. McKinnon (2011) 52
Cal.4th 610, 637.)
B. Analysis
Defendant argues the court improperly curtailed his right to self-representation and
violated his rights to due process and a fair trial by indicating it would grant his timely
Faretta motion only if he would immediately proceed to trial. He further contends the
court was required to grant him a reasonable continuance to allow him to prepare his
defense. He asserts it is immaterial that he did not actually seek a continuance because
the court committed reversible error by preemptively denying any such request. The
People respond the court was allowed to consider defendant’s representation he was
ready to proceed to trial without delay in ruling upon his Faretta motion, and “the court’s
grant of self-representation was not conditioned upon [defendant] not asking for a
continuance.” We agree with the People.
Our Supreme Court has held a court does not abuse its discretion in concluding a
defendant can represent himself only if he is ready to proceed to trial without delay. (See
People v. Valdez (2004) 32 Cal.4th 73, 103 (Valdez) [“‘a midtrial Faretta motion may be
denied on the ground that delay or a continuance would be required’”]; People v. Jenkins
(2000) 22 Cal.4th 900, 1039–1040 (Jenkins) [same]; People v. Clark (1992) 3 Cal.4th 41,
110 (Clark) [same].) In Valdez, Jenkins, and Clark, the California Supreme Court
recognized the existence of case law suggesting a continuance is required where a
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Faretta motion is granted,1 but it explained this authority was not controlling where the
“trial court made clear its intent to deny the Faretta motion as untimely if a continuance
would be necessary,” and “[t]he Faretta motion was ultimately granted only when
defendant expressly represented he was able to proceed without a continuance.” (Clark,
supra, at p. 110; see Valdez, supra, at pp. 102–103 [holding trial court acted within its
discretion by conditioning grant of Faretta motion, made “moments before jury selection
was set to begin,” on defendant’s agreement trial would not be delayed, reasoning that
trial court’s authority to deny a Faretta motion as untimely necessarily includes authority
to condition grant of a Faretta motion on defendant’s agreement grant of motion would
not result in delay]; Jenkins, supra, at p. 1039 [reaffirming principle announced in Clark
“sanction[ing] the trial court’s decision to condition the granting of the right of self-
representation on defendant’s waiver of a continuance”].)
Thus, here, the court was entitled to consider whether defendant was ready to
proceed with trial when evaluating whether his Faretta motion, made on the last day of
the trial period, was timely and should be granted. (See Valdez, supra, 32 Cal.4th at p.
103; see also People v. Tyner (1977) 76 Cal.App.3d 352, 355 [defendant’s motion for
self-representation was timely because it was “made prior to trial and was not
accompanied by any request for a continuance” and “its grant would not have obstructed
the orderly administration of justice”]; People v. Herrera (1980) 104 Cal.App.3d 167,
1Prior to the California Supreme Court’s decisions in Valdez, Jenkins and Clark, a
number of courts had held or suggested that once a trial court grants an untimely motion for self-
representation, it must then grant “a reasonable continuance for preparation by the defendant.”
(See People v. Fulton (1979) 92 Cal.App.3d 972, 976 [“While it is now settled that a trial court
may deny a request for self-representation made on the very eve of trial, on the ground that
granting the motion would involve a continuance for preparation, the very rationale of that
doctrine requires that, if the trial court, in its discretion, determines to grant the request for self-
representation it must then grant a reasonable continuance for preparation by the defendant”];
People v. Bigelow (1984) 37 Cal.3d 731, 741, fn. 3 [noting in dictum trial court “should have
considered granting a continuance” where it did not intend to deny defendant’s motion for self-
representation as untimely]; see also People v. Wilkins (1990) 225 Cal.App.3d 299, 307; People
v. Hill (1983) 148 Cal.App.3d 744, 756.)
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174–175 [finding Faretta request timely because defendant indicated he did not need
continuance]; see generally People v. Lynch, supra, 50 Cal.4th at p. 722 [purpose of
timeliness requirement is “‘to prevent the defendant from misusing the [Faretta] motion
to unjustifiably delay trial or obstruct the orderly administration of justice’”].) And it
was not error for the court to grant defendant’s Faretta motion only if defendant was
ready to proceed to trial immediately. (See Valdez, supra, at pp. 102–103; Clark, supra,
3 Cal.4th at p. 110; Jenkins, supra, 22 Cal.4th at p. 1039.) Thus, we cannot conclude
defendant’s rights to due process and a fair trial were violated.
Notably, the court did not explicitly condition the grant of the motion on
defendant’s agreement he would not request a continuance of the trial proceedings.
Rather, the court informed defendant “no continuances [we]re going to be allowed in this
case absent a showing of good cause and that those requests made most likely before the
trial will be denied.” (Italics added.) This statement was not the functional equivalent of
a preemptive bar against any continuance. Instead, it appropriately notified defendant a
continuance would not be granted in the absence of good cause. (See People v. Espinoza
(2016) 1 Cal.5th 61, 81 [finding no error where court admonished defendant “that if he
chose to represent himself, he was ‘not going to get any continuances unless they are
reasonable requests, which given the time frame we’ve given to the jurors we need to
move forward with this case” and holding the court “acted within its discretion to
condition the grant of defendant’s Faretta motion on his ability to immediately proceed
to trial unless he had a reasonable basis for a short continuance”]; People v. Windham,
supra, 19 Cal.3d at p. 128, fn. 5 [“a defendant should not be allowed to misuse the
Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the
orderly administration of justice. For example, a defendant should not be permitted to
wait until the day preceding trial before he moves to represent himself and requests a
continuance in order to prepare for trial without some showing of reasonable cause for
the lateness of the request. In such a case the motion for self-representation is addressed
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to the sound discretion of the trial court[.]” (Italics added.)]; see also § 1050, subd. (e)
[“Continuances shall be granted only upon a showing of good cause”]; People v. Jenkins,
supra, 22 Cal.4th at p. 1039 [“Defendant was no more entitled to a continuance when he
became his own counsel than he was entitled to a continuance at former counsel’s
request”].) Defendant never requested a continuance. Instead, he repeatedly confirmed
he was ready to proceed with trial that day. And we cannot conclude on the record before
us that if defendant had sought a reasonable continuance for good cause, the trial court
would have necessarily denied such a request.
We reject defendant’s first contention.
II. Defendant Is Entitled to a Limited Remand for the Court to Consider His
Eligibility for Pretrial Diversion Pursuant to Section 1001.36
Defendant next contends his case should be remanded to permit the trial court to
consider whether he should be granted pretrial diversion pursuant to newly enacted
section 1001.36. We agree remand is warranted on this basis.
A. Section 1001.36
Effective June 27, 2018, the Legislature created a diversion program for
defendants with diagnosed and qualifying mental disorders such as schizophrenia, bipolar
disorder, and posttraumatic stress disorder. (§ 1001.36, subd. (a).) One of the stated
purposes of the legislation was to promote “[i]ncreased diversion of individuals with
mental disorders … while protecting public safety.” (§ 1001.35, subd. (a).)
“‘[P]retrial diversion’ means the postponement of prosecution, either temporarily
or permanently, at any point in the judicial process from the point at which the accused is
charged until adjudication, to allow the defendant to undergo mental health treatment.”
(§ 1001.36, subd. (c).) “If the defendant has performed satisfactorily in diversion, at the
end of the period of diversion, the court shall dismiss the defendant’s criminal charges
that were the subject of the criminal proceedings at the time of the initial diversion.” (Id.,
subd. (e).)
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“On an accusatory pleading alleging the commission of a misdemeanor or felony
offense, the court may, after considering the positions of the defense and prosecution,
grant pretrial diversion … if the defendant meets all of the requirements ….” (§ 1001.36,
subd. (a).) There are six requirements. (Id., subd. (b)(1).) First, the court must be
“satisfied that the defendant suffers from a mental disorder as identified in the most
recent edition of the Diagnostic and Statistical Manual of Mental Disorders.” (Id., subd.
(b)(1)(A).) “Evidence of the defendant’s mental disorder shall be provided by the
defense and shall include a recent diagnosis by a qualified mental health expert.” (Ibid.)
Second, the court must also be “satisfied that the defendant’s mental disorder was a
significant factor in the commission of the charged offense.” (Id., subd. (b)(1)(B).) “A
court may conclude that the defendant’s mental disorder was a significant factor in the
commission of the charged offense if, after reviewing any relevant and credible evidence,
… the court concludes that the defendant’s mental disorder substantially contributed to
the defendant’s involvement in the commission of the offense.” (Ibid., italics added.)
Third, “a qualified mental health expert” must opine that “the defendant’s symptoms of
the mental disorder motivating the criminal behavior would respond to mental health
treatment.” (Id., subd. (b)(1)(C).) Fourth, subject to certain exceptions, the defendant
must consent to diversion and waive his or her right to a speedy trial. (Id., subd.
(b)(1)(D).) Fifth, the defendant must agree “to comply with treatment as a condition of
diversion.” (Id., subd. (b)(1)(E).) And finally, the court must be “satisfied that the
defendant will not pose an unreasonable risk of danger to public safety … if treated in the
community.” (Id., subd. (b)(1)(F).)
If a trial court determines that a defendant meets the six requirements, then the
court must also determine whether “the recommended inpatient or outpatient program of
mental health treatment will meet the specialized mental health treatment needs of the
defendant.” (§ 1001.36, subd. (c)(1)(A).) The court may then grant diversion and refer
the defendant to an approved treatment program. (Id., subd. (c)(1)(B).) “The period
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during which criminal proceedings against the defendant may be diverted shall be no
longer than two years.” (Id., subd. (c)(3).) If the defendant commits additional crimes,
or otherwise performs unsatisfactorily in diversion, then the court may reinstate criminal
proceedings. (Id., subd. (d).) However, if the defendant performs “satisfactorily in
diversion, at the end of the period of diversion, the court shall dismiss the defendant’s
criminal charges that were the subject of the criminal proceedings ….” (Id., subd. (e).)
B. Section 1001.36 Applies Retroactively to Defendant’s Case
Defendant contends his case should be remanded for the trial court to consider his
eligibility for pretrial diversion pursuant to section 1001.36, which he claims applies to
his case retroactively. The People maintain section 1001.36 does not apply retroactively
to cases, such as this, that are already adjudicated.
The California Supreme Court recently resolved a split amongst the Courts of
Appeal regarding the retroactivity of section 1001.36 and concluded section 1001.36
applies retroactively to judgments not yet final on appeal. (Frahs, supra, 9 Cal.5th at pp.
631–636.) It held “neither the text nor the history of section 1001.36 clearly indicates
that the Legislature intended that the [In re Estrada [(1965) 63 Cal.2d 740] rule[, which
states that an amendatory statute lessening punishment for a crime is presumptively
retroactive and applied to all persons whose judgments were not yet final at the time the
statute took effect,] would not apply to this diversion program.” (Frahs, supra, at p.
624.)
Here, defendant was convicted and sentenced before section 1001.36 went into
effect and his appeal was pending when this provision became effective. Thus, pursuant
to the Supreme Court’s holding in Frahs, section 1001.36 applies retroactively to this
case.
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C. Defendant is Entitled to Conditional Reversal of His Conviction
We next consider whether the record before us supports a limited remand and
conditional reversal of defendant’s conviction for the trial court to consider defendant’s
eligibility for mental health diversion. Defendant argues remand is warranted because
the record establishes the first eligibility prong: he was diagnosed with an unspecified
personality disorder during the section 1369 evaluation process. The People argue, even
if the statute is deemed to be retroactive, defendant has not made an adequate showing his
case should be remanded. They contend defendant has not established he satisfies the six
eligibility criteria listed in section 1001.36.2 They further argue remand would be futile
because, in concluding there were no mitigating circumstances, “the court necessarily
reached the conclusion that any mental disorder or illness that [defendant] suffers from
was not a significant factor in the commission of the offense.” Additionally, they
contend because defendant was statutorily ineligible for probation, he “would also be
ineligible for diversion because he would pose an unreasonable risk of danger to public
safety if treated in the community.” Finally, they argue defendant was prohibited from
receiving a suspended sentence; but if the court granted diversion, it would necessarily
have to suspend imposition of sentence in violation of sections 667 and 1203. We
conclude remand is warranted.
In Frahs, the California Supreme Court held “a conditional limited remand for the
trial court to conduct a mental health diversion eligibility hearing is warranted when …
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 (§ 1001.36, subd. (b)(1)(A)).” (Frahs, supra, 9 Cal.5th at p.
640.) In so holding, the Frahs court acknowledged that “[w]hen, as here, a defendant
was tried and convicted before section 1001.36 became effective, the record on appeal is
2The People did not file additional briefing after the California Supreme Court issued its
decision in Frahs, supra, 9 Cal.5th 618.
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unlikely to include information pertaining to several eligibility factors, such as whether
the defendant consents to diversion (§ 1001.36, subd. (b)(1)(D)), agrees to comply with
treatment as a condition of diversion (id., subd. (b)(1)(E)), or has provided the opinion of
a qualified mental health expert that the defendant’s symptoms would respond to mental
health treatment (id., subd. (b)(1)(C)).” (Frahs, at p. 638.)
Here, we conclude “the record affirmatively discloses” defendant “appears to meet
at least the first threshold eligibility requirement for mental health diversion,” he suffers
from a qualifying mental disorder. (See Frahs, supra, 9 Cal.5th at p. 640.) Before trial,
defense counsel raised a doubt as to defendant’s competency to stand trial within the
meaning of section 1368. The court appointed a physician to evaluate defendant, and the
physician prepared a report discussing his evaluation and diagnosis of defendant. In his
assessment, the physician opined defendant was competent to stand trial and listed the
following under the heading “DSM V Diagnosis”: “Unspecified Personality Disorder”
and “Adult Antisocial Behavior.”3 As defendant acknowledges, antisocial personality
disorder is not a qualifying mental disorder for pretrial diversion pursuant to section
1001.36, subdivision (b)(1)(A). However, “unspecified personality disorder” is not
excluded as a qualifying mental disorder under this section. (See Ibid.) Thus, we
conclude this record sufficiently reflects defendant “appears to meet at least the first
threshold eligibility requirement.” (Frahs, supra, 9 Cal.5th at p. 640, see id. at p. 638.)
We also cannot conclude the record before us establishes that remand would be
futile. In Frahs, the California Supreme Court expressly considered and rejected the
People’s contention raised here, that in concluding there were no mitigating
circumstances, “the court necessarily reached the conclusion that any mental disorder or
illness that [defendant] suffers from was not a significant factor in the commission of the
3After considering the physician’s report, the court found defendant competent to stand
trial.
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offense.” The Frahs court held “these findings do not conclusively establish that a
remand would be futile.” (Frahs, supra, 9 Cal.5th at p. 639.) Rather, “the trial court
could find that th[is] criteri[on] for diversion [is] satisfied even if the court believed
defendant’s mental disorder did not significantly reduce his culpability for the crimes.”
(Ibid.)
We also cannot conclude defendant’s ineligibility for probation establishes he
would “be ineligible for diversion because he would pose an unreasonable risk of danger
to public safety if treated in the community.” Rather, as the Frahs court held,
“As a preliminary matter, the Legislature left it to trial courts to make fact-
specific evaluations of risk under section 1001.36, subdivision (b)(1)(F). If
the Legislature had intended to make all defendants who are ineligible for
probation also ineligible for diversion, it could have easily said so, just as
the amendments enacted by Senate Bill 215 (2017–2018 Reg. Sess.)
specified that defendants charged with certain crimes were categorically
disqualified. Moreover, a defendant may be ineligible for probation for
numerous reasons other than being found to be an unreasonable risk of
danger of public safety. (E.g., § 1210.1, subd. (b).) Here, defendant …
was ineligible for probation under section 1203, subdivision [(e)(4)
(probation shall not be granted to any person who has been previously
convicted twice in this state of a felony) and section 667, subdivision (c)(2)
(probation shall not be granted to any defendant who is convicted of a
felony where it has been pled and proved that the defendant has one or
more prior serious or violent felony convictions)]. The trial court made no
finding regarding whether defendant would pose an unreasonable risk of
danger to public safety if treated in the community, and we decline to
interpret its ruling in such a manner.” (Frahs, supra, 9 Cal.5th at p. 639.)
Finally, we disagree with the People that sections 667 and 1203 prohibit the court
from suspending defendant’s sentence to allow for pretrial diversion. As the Frahs court
reasoned, “by conditionally reversing defendant’s convictions and sentence for an
eligibility hearing under section 1001.36, the case would be restored to its procedural
posture before the jury verdict for purposes of evaluating defendant’s eligibility for
pretrial mental health diversion. [Citation.] At that point, defendant faced … mere
allegation[s] of a prior serious or violent felony conviction [and two prior felony
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convictions], which [are] not enough to prohibit a suspended sentence or diversion.”
(Frahs, supra, 9 Cal.5th at pp. 639–640.)
Accordingly, a conditional remand is warranted. We express no view concerning
whether defendant will be able to show eligibility on remand or whether the trial court
should exercise its discretion to grant diversion if it finds him eligible. “‘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.’” (Frahs, supra, 9 Cal.5th at p.
641.)
III. Senate Bill 136
In supplemental briefing, defendant contends his 2 one-year prior prison term
enhancements imposed pursuant to Penal Code section 667.5, former subdivision (b)
must be stricken in light of Senate Bill 136, which was signed into law on October 8,
2019, and became effective on January 1, 2020. The People concede Senate Bill 136
applies retroactively to this case and the prison prior enhancements should be stricken.
(See In re Estrada, supra, 63 Cal.2d at p. 742.) We remand for the trial court to strike
these enhancements.
At the time defendant was charged, convicted, and sentenced, Penal Code section
667.5, former subdivision (b) provided, in part:
“[W]here the new offense is any felony for which a prison sentence or a
sentence of imprisonment in a county jail under subdivision (h) of Section
1170 is imposed or is not suspended, in addition and consecutive to any
other sentence therefor, the court shall impose a one-year term for each
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prior separate prison term or county jail term imposed under subdivision (h)
of Section 1170 or when sentence is not suspended for any felony ….”
After defendant was sentenced, but while his case was still pending on appeal, the
Legislature enacted Senate Bill 136. (Stats. 2019, ch. 590, § 1.) Effective January 1,
2020, Penal Code section 667.5, subdivision (b) now provides, in pertinent part:
“[W]here the new offense is any felony for which a prison sentence or a
sentence of imprisonment in a county jail under subdivision (h) of Section
1170 is imposed or is not suspended, in addition and consecutive to any
other sentence therefor, the court shall impose a one-year term for each
prior separate prison term for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code ….”
In other words, a prior prison term enhancement will now only apply if a
defendant served the prior prison term for a qualifying “sexually violent offense.” The
Legislature did not expressly declare or in any way indicate it did not intend Senate Bill
136 to apply retroactively.
“When an amendatory statute … lessens the punishment for a crime …, it is
reasonable for courts to infer, absent evidence to the contrary and as a
matter of statutory construction, that the Legislature intended the
amendatory statute to retroactively apply to the fullest extent
constitutionally permissible—that is, to all cases not final when the statute
becomes effective. [Citations.]” (People v. Garcia (2018) 28 Cal.App.5th
961, 972; see In re Estrada, supra, 63 Cal.2d at p. 745.)
We conclude Senate Bill 136 applies retroactively to this case and, because
defendant’s prior prison terms were not served for sexually violent offenses, the related
enhancements imposed pursuant to section 667.5, former subdivision (b) are now
unauthorized and must be stricken. Accordingly, on remand, if defendant’s conviction is
reinstated the trial court is ordered to strike defendant’s prior prison enhancements and to
prepare an amended abstract of judgment reflecting defendant’s sentence with these
enhancements stricken.
17.
DISPOSITION
We conditionally reverse defendant’s conviction and remand for the trial court to
conduct an eligibility hearing pursuant to section 1001.36. On remand, if the court
determines defendant does not meet the eligibility criteria under section 1001.36, or
defendant does not successfully complete diversion and his convictions and sentence are
reinstated, the court is ordered to strike the enhancements imposed under section 667.5,
former subdivision (b) and to prepare and forward a copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
PEÑA, J.
WE CONCUR:
HILL, P.J.
LEVY, J.
18.