Filed 9/25/20 P. v. Cross CA3
Opinion on 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C087767
Plaintiff and Respondent, (Super. Ct. Nos. 16F5140 &
17F2259)
v.
OPINION ON TRANSFER
GARY JOSEPH CROSS,
Defendant and Appellant.
After defendant Gary Joseph Cross filed a motion to withdraw his no contest plea,
the trial court denied the motion and sentenced him to state prison. He contends the court
abused its discretion by denying the motion, or, alternatively, that the matter should be
remanded for the trial court to determine whether he should be granted mental health
pretrial diversion under Penal Code section 1001.36.1
1 Undesignated statutory references are to the Penal Code.
1
We originally concluded the trial court did not abuse its discretion by denying
defendant’s motion to withdraw his plea, and that defendant was not entitled to relief
under section 1001.36. We therefore affirmed the judgment.
Our Supreme Court granted review but deferred further action pending disposition
in People v. Frahs (2020) 9 Cal.5th 618 (Frahs). 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.2 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 pp. 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 motion to withdraw his
plea remains unchanged.
FACTUAL AND PROCEDURAL BACKGROUND
On September 21, 2016, an information was filed in case No. 16F5140 charging
defendant with theft of a vehicle with a prior vehicle theft (Veh. Code, § 10851,
subd. (a)/Pen. Code, § 666.5—count 1), receiving a stolen vehicle with a prior vehicle
theft (§§ 496d, subd. (a)/666.5—count 2), and misdemeanor possession of a controlled
substance (Health & Saf. Code, § 11377, subd. (a)—count 3). As to counts 1 and 2, the
information alleged that defendant had previously been convicted of unlawful driving or
taking of a vehicle (Veh. Code, § 10851, subd. (a)), a serious or violent felony
(§ 1170.12), and had four prior prison terms (§ 667.5, subd. (b)).
2 Neither defendant nor the People filed supplemental briefs on the issue. (Cal.
Rules of Court, rule 8.200(b)(1).)
2
On December 19, 2016, defendant pleaded no contest to count 1 and admitted the
prior serious felony and one prison prior in return for a stipulated state prison term of five
years.3
On April 25, 2017, a felony complaint was filed in case No. 17F2259 charging
defendant with unauthorized use of personal information to obtain credit (§ 530.5) and
alleging a prior strike conviction and three prison priors. On May 23, 2017, defendant
pleaded no contest to misdemeanor identity theft in return for dismissal of the balance of
the charging document and a concurrent term.
On July 9, 2018, defendant filed a motion to withdraw his plea in case
No. 16F5140. The trial court denied the motion and imposed the stipulated sentences in
both cases.
DISCUSSION
1.0 Denial of Motion to Withdraw Plea
Defendant contends the trial court should have granted his motion to withdraw his
plea because the motion sufficiently alleged that his plea—entered on December 19,
2016—was not knowing, voluntary, and intelligent due to the effects of illness, mental
health problems, and medications he was taking. We disagree.
3 The only factual basis for the plea in the record is the trial court’s recital of what
defendant pleaded to and defendant’s affirmative responses. As to count 1, the court
stated that according to the information, on or about August 6, 2016, defendant willfully
and unlawfully drove or took a 1994 Nissan pickup truck belonging to J.V. without his
consent and with the intent to permanently or temporarily deprive him of title to or
possession of the vehicle; at that time defendant had a conviction for a prior offense of
the same character. As to the remaining allegations, defendant had a prior conviction for
arson of property of another, a strike, occurring on or about December 8, 2000, and a
prior conviction for unauthorized use of personal identification to obtain credit on or
about March 10, 2015, and failed to remain free of prison custody for five years
thereafter.
3
1.1 Background
1.1.1 The Motion
Defendant’s motion asserted the following “factual background,” supported by
attached exhibits:
After entry of his plea in case No. 16F5140, on February 16, 2017, defendant
received a one-month continuance of sentencing “due to a desire to pursue inpatient
treatment, and also based on his father’s health issues.” He received a further one-month
continuance to complete a drug treatment program.
On April 24, 2017, defendant was the subject of a newspaper article that described
his “lifestyle changes, including completing outpatient drug treatment and maintaining
his sobriety.” The next day, he was charged in case No. 17F2259.
On May 17, 2017, shortly before he entered a misdemeanor plea in his second
case, he saw Walter Fletscher, M.D., because he anticipated extensive dental work before
his incarceration and because he felt shortness of breath and chest discomfort. On May
19, 2017, Dr. Fletscher wrote a letter indicating that defendant’s testing was abnormal
and suggested coronary artery disease.
On May 23, 2017, when defendant entered his misdemeanor plea in the second
case, he advised the trial court he might need to have his sternum cut open, requiring a
longer recovery time. On May 25, 2017, he had an appointment for cardiac
catheterization, a procedure to check for arterial blockages. On June 12, 2017, Dr.
Fletscher wrote that a treatment plan was being devised, but more time would be needed
to complete testing and evaluation.
On July 25, 2017, defendant did not appear for sentencing because he had been
taken into custody and transported to San Diego on a warrant. On July 31, 2017, the
Shasta County Public Defender’s Office received documents indicating defendant had an
appointment on August 2, 2017.
4
On August 7, 2017, Dr. Fletscher wrote a letter stating defendant had an issue with
his right coronary artery originating from the left coronary artery, and a surgeon had
opined defendant needed surgery as soon as possible.
On September 22, 2017, defendant appeared in court, but had severe medical
issues related to his open-heart surgery; he needed to leave court to lie down. His case
was reset for an October plea date.
On October 24, 2017, defendant appeared in court, but was still very ill. He had
two upcoming appointments with cardiologists.
On November 22, 2017, defendant underwent a clinical assessment at Tehama
County Health Services Agency, during which he reported a lifelong history of physical
abuse, neglect, sexual abuse, and domestic violence. At age six he was diagnosed with
attention deficit hyperactivity disorder (ADHD) and given a prescription for medication
and had taken psychiatric medications on and off since then. According to his wife, he
constantly felt on edge and unable to sit still or concentrate, had regular nightmares, and
suffered from irritability, outbursts of anger, uncontrollable worries and fears, emotional
reactivity and poor impulse control, and depression. He had difficulty making decisions
and relied on his wife for help with paperwork and remembering details because he felt
his mind was “ ‘always going’ ” and he could not remember anything. All of his
psychiatric symptoms had intensified since his recent surgery.
On December 5, 2017, defendant requested a four-month continuance for further
surgery.
On January 2, 2018, Gateway Medical Center gave defendant a list of his current
medications, including several that have “mental side effects.” This list included
Albuterol, lithium carbonate, Ranitidine, Ambien, Hydroxyzine, Duloxetine, Dantrolene
5
Sodium, Baclofen, Gabapentin, Oxycodone, Ibuprofen, “[n]icotine patch,” Atorvastatin,
Lisinopril, and “Bayer.”4
On March 5, 2018, defendant was diagnosed with posttraumatic stress disorder
(PTSD), which was consistent with the psychiatric symptoms described in the clinical
assessment. Due to defendant’s aggressive conduct after his previous surgery, the
surgeon was refusing to perform the further operations defendant needed.
On June 5, 2018, defendant provided a letter from a doctor indicating that his
medical team would need at least two years to complete all the procedures and surgeries
defendant needed; furthermore, his mental health issues had delayed his treatment
program. Defendant was given approximately one month’s further continuance of
sentencing.
“On information and belief, [defendant] has been quoted by his team of doctors as
only having 10 years left to live, optimistically.”
Based on these alleged facts, defense counsel asserted there was clear and
convincing evidence of good cause to withdraw the plea. When defendant entered the
plea he was unaware of the above physical and mental problems; he was “ ‘an entirely
different person’ ” now. The PTSD diagnosis was a particular cause for concern, since
that condition “would tend to interfere with [defendant’s] thinking, memory, and ability
to think rationally and work with his attorney productively.”
Counsel asserted further that the complete list of defendant’s medications, which
had not been fully available to counsel before the entry of plea, showed that many of
4 The purpose of some of the medications is not stated, and none of their alleged
side effects are described.
6
them “cause drowsiness or otherwise impact mood and cognition,” and some “are
intended to correct mental imbalances such as depression and bipolar disorder.”5
According to counsel, “[h]ad [defendant] known of his latent physical and mental
health diagnoses, he would have pursued different avenues with his defense. He would
have been better able to assist counsel in preparing his defense, he would have been able
to make informed, coherent choices about whether to resolve his case, and had he been in
his right mind and aware of the reduced life expectancy and complex care needs he faces
with his medical prognosis, he would have almost certainly chosen to go to trial and fight
to avoid a prison sentence.”
Defendant attached a supporting declaration, averring: “At the time of my change
of plea on December 19, 2016, I was not aware that I would subsequently be diagnosed
with a serious heart condition as well as need to receive treatment for mental health
issues (PTSD) in connection with my heart condition. [¶] . . . At that time I was also not
aware that I would only have approximately 10 years to live according to my doctors.
[¶] . . . Had I known this, I would not have changed my plea on December 19, 2016
under the terms set forth in the plea agreement and would instead have insisted on either
different terms or a trial by jury in these matters.”
1.1.2 The Opposition
The People opposed the motion, asserting defendant had shown neither good cause
to withdraw his plea nor prejudice from not being allowed to do so.
1.1.3 The Hearing on the Motion
The trial court stated the following tentative ruling: “There is nothing in the
motion which relates [defendant’s declaration] back to the time of the entry of plea, or
any of these things were [a]ffecting [defendant’s] ability to understand, not only the
5 Counsel did not specify which medications could cause these problems or provide
any supporting documentation.
7
offense, the rights which he gave up or the consequences of his plea, such that this would
be a matter that would fall within [section] 1018, and withdraw[al] of the plea. [¶] In
fact from everything else I [gather] there was no way for him or anyone else to know. So
it does not provide, at least in my mind, the—as a trigger, types of things which would
allow that.”
Defense counsel argued that defendant’s ongoing mental health issues, which were
so serious that they prevented defendant from obtaining necessary medical care, were the
weightiest ground to withdraw the plea.
The trial court responded that defendant had not provided any expert opinion that
any condition described in the motion was present at the time of the plea. Thus, it
appeared that the PTSD and defendant’s “stabilizing medications” all postdated the plea
“and is more related to the first surgery and the recovery from that surgery versus
anything that has been related back to the time of the entry of plea.”
The trial court adopted its tentative ruling and denied the motion.
1.2 Analysis
A guilty plea may be withdrawn at any time before judgment for good cause
shown. (§ 1018.) “ ‘Good cause’ means mistake, ignorance, fraud, duress or any other
factor that overcomes the exercise of free judgment and must be shown by clear and
convincing evidence.” (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) The grant
or denial of a motion to withdraw a plea is within the trial court’s sound discretion and
will be reversed only for abuse of discretion. (Ibid.) In reviewing the trial court’s ruling,
we must accept the court’s factual findings if supported by substantial evidence. (Ibid.)
Here, substantial evidence supports the trial court’s factual finding that defendant
did not suffer from any condition at the time of his plea that could have overcome his
exercise of free judgment. As the court observed, defendant put on no evidence that he
had been diagnosed with PTSD or prescribed any medication alleged to be capable of
interfering with his ability to think, reason, and cooperate with counsel until well after the
8
entry of plea. (Furthermore, as noted, defendant’s motion did not even identify which of
his medications could have such effects.)
On appeal, defendant tries to make up for his failure of proof in several ways. All
are unavailing.
To show he was suffering from conditions that could have overcome his free
judgment when he entered his plea, defendant points to statements in the Tehama County
Health Services Agency clinical assessment (prepared long after his plea) which indicate
that he “was badly beaten with a baseball bat and left for dead after a sporting event in
2011; . . . was frequently abused as a child; suffers from ADHD; and had taken
psychiatric medication as recently as 2011.” According to the assessment form, these
statements all stem from defendant’s self-reporting, and nothing on the single page of the
form attached to defendant’s motion (said to be “[p]age 1 of 4”) shows whether any
attempt was made to verify them. But even if we assume them to be true, they do not
meet defendant’s burden. Defendant does not explain how events occurring no later than
2011 could affect his ability to enter a knowing, voluntary, and intelligent plea in
December 2016; nor does he cite any authority holding that ADHD, without more, could
do so.6
Defendant also points to his substance abuse treatment, which began before he
entered his plea. But defendant cites no authority holding that substance abuse in itself
proves incapacity to enter a knowing, voluntary, and intelligent plea, and we know of
none.
6 Defendant attempts to present evidence as to his alleged conditions and their
effects by citing to materials that were not before the trial court and have not been
proffered to this court by a motion to take new evidence or a request for judicial notice.
We do not consider such materials. (See In re K.P. (2009) 175 Cal.App.4th 1, 5 [sources
cited only in an appellate brief not evidence on appeal].)
9
Lastly, defendant asks in a footnote: “Who knows what other evidence of
[defendant’s] medical and mental health conditions there would have been had a
probation report been done prior to sentencing[?]” Such speculation is not grounds for
reversal.
In any event, the transcript of defendant’s plea agreement hearing itself constitutes
substantial evidence that he entered his plea knowingly, voluntarily, and intelligently.
The trial court asked whether defendant had read and understood whatever he
initialed on the written plea form; defendant said, “Yes.” The court asked whether
defendant had discussed any questions with counsel and whether counsel could answer
them; defendant said, “Yes.” The court asked if once defendant had an understanding of
what was in the form, he had signed and dated the form; defendant said, “Yes, sir.”
The trial court observed: “There’s a part of the form that’s a bit ambiguous and
one that was not initialed. [¶] So let me ask first, are Counsel of the opinion that the plea
could result in permanent exclusion from CalWORKs, food stamps, or general
assistance?” Defendant said: “I refuse to sign then.” Defense counsel added: “I don’t
think so. And so that’s why we X’d it out, Your Honor.”
The trial court stated that if this condition applied, it would not be ordered by the
court but would be imposed by statute or regulation, and the court did not know whether
Vehicle Code section 10851 had that effect. The point needed to be resolved now,
because if the statute did require that condition and defendant refused to sign it, the court
could not accept his plea.
The trial court noted another condition defendant had not initialed (paragraph 24),
setting out his constitutional rights and his acknowledgment that entry of plea waived
them. Defendant asked if he could speak with the court. The court said he could not
unless his counsel had discussed it with him first.
Defendant and counsel conferred off the record.
10
The trial court stated: “So, Mr. Cross, what we are going to assume going forward
is, No. 1, that this is not an offense which would exclude you from benefits. And that if it
were, it would be something that would allow you to withdraw from the plea agreement,
okay?” Defendant said: “Okay.” The court asked: “Make sense?” Defendant said:
“Yes.”
The trial court confirmed that defendant had now initialed and understood
paragraph 24.
The trial court asked whether defendant understood the charges and enhancements
he was pleading to and what it took to prove them, whether he had discussed potential
defenses with counsel, and whether he understood that he was agreeing to a five-year
stipulated term in state prison, “with other fines and fees imposed, and those
consequences which you initialed.” Defendant answered “Yes” to each question.
The trial court asked defendant whether anyone had tried to get him to enter his
plea by promises or threats; defendant said, “No.” The court asked: “And you are
thinking clearly about the plea and the consequences; is that true?” Defendant said,
“Yes.”
The trial court then obtained defendant’s no contest plea to each count and
allegation in the plea agreement, and counsel’s stipulation to the factual basis for the plea.
Having done so, the court found the plea, admissions and waiver were “free and
voluntary, with a knowing and intelligent waiver of rights.”7
Unlike many plea hearings where a defendant simply answers “yes” or “no” when
called on, here defendant not only gave appropriate responses but played an active and
7 As defendant points out, the trial court failed to ask defendant whether he was
taking any medication that might impair his ability to enter a knowing, voluntary, and
intelligent plea. However, defendant does not cite any authority holding that this
omission is enough to invalidate the court’s finding, which was based on the court’s
observation of defendant’s responses and demeanor throughout the hearing.
11
productive part in the proceedings. He objected to a supposed plea term and got the trial
court to resolve the question by stating tentatively that the term did not apply, or that if it
did he could withdraw the plea. He sought to engage the court directly on another point.
He conferred with counsel in response to a question raised by the court. He then initialed
a term he had left blank before. Only after all this did the court ask whether defendant
understood the plea and whether he had been improperly induced to enter it. There is
simply nothing in this record that suggests any impairment of defendant’s will or
intelligence.
Defendant has failed to show that the trial court abused its discretion by denying
his motion to withdraw his plea.
2.0 Pretrial Mental Health Diversion
Defendant alternatively asks us to remand the matter so the trial court can
determine whether he is eligible for pretrial diversion due to a specified mental disorder
under the recently enacted section 1001.36, which he argues is retroactive as to all cases
not yet final. Originally, we agreed with those cases finding that section 1001.36 did not
apply retroactively to nonfinal cases. However, pursuant to our Supreme Court’s
decision in Frahs, we now conclude defendant is entitled to a limited remand to the trial
court for a determination of his eligibility for mental health diversion under section
1001.36. (Frahs, supra, 9 Cal.5th at pp. 640-641.)
Section 1001.36, which went into effect before defendant’s judgment will become
final on appeal (Stats. 2018, ch. 34, § 24, eff. June 27, 2018), 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;8
8 Section 1001.36, subdivision (b)(1) provides, in pertinent part: “Pretrial diversion
may be granted pursuant to this section if all of the following criteria are met: (A) The
court is satisfied that the defendant suffers from a mental disorder as identified in the
12
(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. (§ 1001.35, 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).)
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. (Frahs, supra, 9 Cal.5th at pp. 624-
625; see In re Estrada (1965) 63 Cal.2d 740.) The “possibility of being granted mental
health diversion rather than being tried and sentenced ‘can result in dramatically different
most recent edition of the Diagnostic and Statistical Manual of Mental Disorders,
including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or
post-traumatic stress disorder, but excluding antisocial personality disorder, borderline
personality disorder, and pedophilia.”
13
and more lenient treatment.’ ” (Frahs, at p. 631, quoting People v. Superior Court (Lara)
4 Cal.5th 299, 303.) As the court explained, “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.” (Frahs, at p. 631.) Thus, “the ameliorative nature of the diversion
program places it squarely within the spirit of the Estrada rule,” and the program
retroactively applies to defendants whose cases are not yet final. (Ibid.) That is the case
for defendant here.
Furthermore, the record shows a clinical assessment in which defendant reported
being diagnosed with ADHD as a very young child, and taking prescribed medication for
the condition. He had taken psychiatric medications on and off since his ADHD
diagnosis. Defendant was later diagnosed with PTSD, which was consistent with the
psychiatric symptoms described in the clinical assessment.
Given the above evidence, defendant apparently meets at least the first threshold
requirement for eligibility for mental health diversion--he suffers from a qualifying
mental disorder (ADHD & PTSD). (§ 1001.36, subd. (b)(1)(A); Frahs, supra, 9 Cal.5th
at p. 640.) A conditional remand for the trial court to conduct a mental health diversion
eligibility hearing is therefore appropriate under the circumstances.
DISPOSITION
We conditionally reverse defendant’s 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.
14
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.
/s/
BUTZ, J.*
We concur:
/s/
RAYE, P. J.
/s/
HULL, 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.
15