Filed 9/28/20 P. v. Tidmore CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B290325
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA102806
v.
SHEDRICK TIDMORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jesus (Jesse) I. Rodriguez, Judge. Reversed and
remanded with instructions.
Paul Kleven, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Senior Attorney General, Scott A. Taryle and Daniel C. Chang,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted appellant and defendant Shedrick Tidmore
of driving or taking a vehicle without consent (Veh. Code,
§ 10851, subd. (a); count one) and dissuading a witness from
reporting a crime (Pen. Code, § 136.1, subd. (b)(1); count two).1
The jury also found true the allegation that Tidmore dissuaded
the witness for the benefit of, at the direction of, or in association
with a criminal street gang. (§ 186.22, subd. (b)(4).) Based on the
gang enhancement, the trial court sentenced Tidmore to an
indeterminate term of life imprisonment with a seven-year
minimum on count two. The court sentenced him to a concurrent
three-year term on count one.
On appeal, Tidmore raises two arguments: (1) the
indeterminate life sentence imposed on count two must be
reversed because the trial court prejudicially erred by failing to
instruct the jury that it was required to find the dissuasion of the
witness was accompanied by an express or implied threat of force
or violence; and (2) section 1001.36 applies to him retroactively,
and his case should be remanded for a mental health hearing. We
agree with both arguments. We vacate the sentence imposed on
count two. We also conditionally reverse the judgment and
remand the case to the trial court with instructions to determine
whether Tidmore is eligible for mental health diversion. If the
court does not grant diversion, or if the court grants diversion but
later determines the criminal proceedings should be reinstated,
the court shall reinstate Tidmore’s convictions and resentence
him in a manner consistent with this opinion.
1 All undesignated statutory references are to the Penal
Code.
2
PROCEDURAL BACKGROUND
On October 9, 2015, the Los Angeles County District
Attorney (“District Attorney”) filed a complaint charging Tidmore
with committing various crimes. Less than two weeks later,
defense counsel declared a doubt as to Tidmore’s competency
under section 1368, and the case was transferred to mental
health court. The court found Tidmore incompetent in November
2015 and committed him to the Department of Mental Health for
placement at Metropolitan State Hospital. The court found him
competent on March 8, 2016.
On August 5, 2016, the District Attorney filed an
information charging Tidmore with driving or taking a vehicle
without consent (Veh. Code, § 10851, subd. (a); count one) and
dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1);
count two). The information further alleged he committed count
two for the benefit of, at the direction of, or in association with a
criminal street gang. (§ 186.22, subd. (b)(4).)2
The jury found Tidmore guilty of both counts and found the
gang allegation true. The court sentenced him to an
2 Tidmore’s attorney again declared a doubt about his
competency on September 16, 2016. The court again suspended
criminal proceedings under section 1368 and set the matter for a
competency hearing. On the date set for the competency hearing,
Tidmore attacked his attorney and threatened a bailiff. At a later
hearing, through new counsel, Tidmore waived his right to a jury
for the competency hearing, and the trial court found him
competent and reinstated criminal proceedings.
3
indeterminate seven-year to life sentence on count two and a
concurrent upper determinate term of three years on count one.3
Tidmore timely appealed.
FACTUAL BACKGROUND
I. Car theft and Tidmore’s encounter with C.C.
At around 9:40 on the evening of October 6, 2015, an
employee of Green Trucking, LLC saw someone steal two Dodge
Ram trucks from his employer’s lot in Paramount. He called the
police.
At approximately 11:30 the following evening, Tidmore was
driving one of the stolen trucks when he crashed into a Honda
Civic parked in front of a house in Long Beach. The Civic
belonged to C.C., who lived in the house. C.C. came out of the
house and approached Tidmore.4
Tidmore apologized to C.C. for crashing into his car and
offered to pay for the damages. Tidmore told C.C. he was an
active member of the Insane Crips. C.C. felt intimidated and very
nervous. He believed that if he called the police, he could be
threatened, beaten up, or suffer retaliation from the gang.
3 Defense counsel submitted materials under People v.
Franklin (2016) 63 Cal.4th 261 because Tidmore was 18 when he
committed the offenses.
4 At trial, C.C. testified he did not recognize Tidmore as the
man he had seen that night. C.C.’s brother, who was also there
that night, similarly testified he did not recognize Tidmore. Long
Beach Police Officer Kevin Skeen testified that when he arrived
at the scene, Tidmore was standing next to the truck and
speaking with C.C.
4
Officer Kevin Skeen arrived approximately 30 minutes
later. C.C. told Officer Skeen he felt Tidmore was trying to
intimidate him with possible violence or retaliation in order to
prevent him from reporting the incident to the police. As C.C.
spoke with Officer Skeen, Tidmore began walking away. Officer
Skeen asked Tidmore to stop. Tidmore replied he had not been
driving the truck and was going home. Officer Skeen began
walking after Tidmore and told him he needed to stay and help
with the report or it would be a hit and run. Tidmore began
walking faster. Officer Skeen radioed other officers, and they
detained Tidmore. Officer Skeen ran the truck’s information and
determined it had been reported stolen.
The following day, Long Beach Police Detective Bruce
Roberson spoke with C.C., who said Tidmore had told him not to
call the police because he was an Insane Crip and had friends
who lived up the street. Tidmore also told C.C. that if he called
the police, he would “have somebody come by and take care of
[C.C.].”
II. Tidmore’s recorded phone call from jail
On October 9, 2015, Detective Roberson obtained a
recording of phone calls Tidmore made from jail. In one of the
calls, which was played for the jury, Tidmore told someone
named Quan he was in jail because of a hit and run. He told
Quan C.C. had called the police on him, and he gave C.C.’s
address to Quan. Quan asked Tidmore what kind of car C.C
owned, and Tidmore told him it was a Honda Civic. Quan replied:
“All right. Say no more. That’s all I need to know.” Tidmore told
Quan: “Find [him] for me, and tell [him] he better not go . . . .”
Tidmore also said: “Post by his car, post by his house . . . .”
5
Believing C.C. and his family’s lives were in jeopardy, Detective
Roberson called C.C. and told him about the phone call.
III. Gang evidence
Based on a previous encounter from 2014, Officer Jason
Lehman testified Tidmore was an active member of the Insane
Crips criminal street gang. Officer Gavin Purdy testified as the
People’s gang expert. He testified the Insane Crips gang has
approximately 700 to 800 members. The gang’s primary activities
include robbery, burglary, grand theft auto, prostitution,
narcotics sales, assault with a deadly weapon, unlawful firearm
possession, homicide, and witness intimidation.5
C.C.’s home is located within Insane Crips gang territory.
When asked about a hypothetical scenario with facts analogous to
the ones presented in Tidmore’s case, Officer Purdy opined the
individual would have driven the stolen truck and dissuaded the
witness from reporting the crime for the benefit of and to further
and promote the gang. He also testified the Insane Crips gang
has a reputation for retaliating and using violence against
individuals who cooperate with the police.
5 Officer Purdy also testified two Insane Crip members were
convicted of crimes enumerated in section 186.22, subdivision (e)
based on incidents that occurred in 2015 and 2016. The People
introduced court dockets supporting this testimony.
6
DISCUSSION
I. Tidmore’s life sentence
Tidmore first argues the indeterminate life sentence
imposed on count two must be reversed because the trial court
prejudicially erred by failing to instruct the jury that it was
required to find Tidmore’s dissuasion of C.C. was accompanied by
an express or implied threat of force or violence. In support of his
argument, Tidmore relies primarily on two cases: People v. Lopez
(2012) 208 Cal.App.4th 1049 (Lopez) and People v. Anaya (2013)
221 Cal.App.4th 252 (Anaya). The Attorney General agrees the
court erred by not instructing on the threat element of the
offense, but argues the error was harmless beyond a reasonable
doubt because, based on the evidence presented at trial, no
rational jury could have found the missing element unproven.
We conclude the Fifth, Sixth and Fourteenth Amendments
and the California Constitution prohibited the trial court from
imposing a life sentence when a necessary element was not found
true by the jury beyond a reasonable doubt. (See Apprendi v. New
Jersey (2000) 530 U.S. 466, 476, 490, 500 [120 S.Ct. 2348, 147
L.Ed. 2d 435] (Apprendi); People v. Flood (1998) 18 Cal.4th 470,
479-480.) We reject the Attorney General’s argument that the
error was harmless. The trial court sentenced Tidmore as though
he was convicted of violating section 136.1, subdivision (c)(1).
Tidmore was never charged with violating that subdivision, the
jury was never instructed on all the elements necessary to convict
him of the offense set forth therein, and consequently, the jury
never convicted him of committing that offense. Under these
circumstances, it would be fundamentally unfair to affirm the
punishment imposed. We vacate the sentence on count two and
remand the matter to the trial court for resentencing.
7
A. Background
Tidmore was charged in count two with dissuading a
witness from reporting a crime in violation of section 136.1,
subdivision (b)(1).6 The information alleged the offense was
committed for the benefit of or in association with a criminal
street gang under section 186.22, subdivision (b)(4). The court
instructed the jury on the elements of section 136.1, subdivision
(b)(1) using CALCRIM 2622.7 Tidmore was not charged with
6 Section 136.1, subdivision (b)(1) provides: “(b) Except as
provided in subdivision (c), every person who attempts to prevent
or dissuade another person who has been the victim of a crime or
who is witness to a crime from doing any of the following is guilty
of a public offense and shall be punished by imprisonment in a
county jail for not more than one year or in the state prison: [¶]
(1) Making any report of that victimization to any peace officer or
state or local law enforcement officer or probation or parole or
correctional officer or prosecuting agency or to any judge.”
7 The court instructed the jury as follows: “The defendant is
charged in Count 2 with intimidating a witness in violation of
Penal Code section 136.1. [¶] To prove that the defendant is
guilty of this crime, the People must prove that: [¶] 1. The
defendant maliciously tried to prevent or tried to discourage
[C.C.] from making a report that someone else was a victim of a
crime to any peace officer or state or local law enforcement
officer; [¶] 2. [C.C.] was a witness; [¶] AND [¶] 3. The defendant
knew he was trying to prevent or trying to discourage [C.C.] from
making a report that someone else was a victim of a crime to any
peace officer or state or local law enforcement officer and
intended to do so. [¶] A person acts maliciously when he
unlawfully intends to annoy, harm, or injure someone else in any
way, or intends to interfere in any way with the orderly
administration of justice. [¶] As used here, witness means
8
violating section 136.1, subdivision (c)(1).8 While section 136.1,
subdivision (c)(1) includes, as an element of the offense, either
the use of force or an express or implied threat of force or
violence, section 136.1, subdivion (b)(1) does not. Consequently,
the court did not instruct the jury to determine whether the
dissuasion of C.C was accompanied by an express or implied
threat of force or violence. (See § 136.1, subd. (c)(1); CALCRIM
2623.)9 The jury found Tidmore guilty of count two and found the
someone or a person the defendant reasonably believed to be
someone who knows about the existence or nonexistence of facts
relating to a crime. [¶] It is not a defense that the defendant was
not successful in preventing or discouraging the witness. [¶] It is
not a defense that no one was actually physically injured or
otherwise intimidated.”
8 Section 136.1, subdivision (c)(1) provides: “Every person
doing any of the acts described in subdivision (a) or (b) knowingly
and maliciously under any one or more of the following
circumstances, is guilty of a felony punishable by imprisonment
in the state prison for two, three, or four years under any of the
following circumstances: (1) Where the act is accompanied by
force or by an express or implied threat of force or violence, upon
a witness or victim or any third person or the property of any
victim, witness, or any third person.”
9 The bench notes for CALCRIM No. 2623, the instruction
given when a defendant is charged with violating section 136.1,
subdivision (c), state: “If the defendant is charged with a felony
based on Penal Code section 136.1(c), the court has a sua sponte
duty to instruct on the alleged sentencing factor. This instruction
must be given with CALCRIM No. 2622 . . . .” (Bold type omitted.)
Subdivisions 136.1(c)(1) through (c)(4) each provide different
sentencing factors.
9
gang allegation true.10 The court imposed an indeterminate term
of life imprisonment with a seven-year minimum under section
186.22, subdivision (b)(4).
B. Applicable law
Section 186.22, subdivision (b) deals with increased terms
of imprisonment when the jury finds a crime is committed for the
benefit of a criminal street gang. Section 186.22, subdivision
(b)(4) requires the trial court to impose a term of life in prison for
various underlying offenses, including “threats to victim and
witnesses, as defined in Section 136.1.” (§ 186.22, subd.
(b)(4)(C).)11
Section 136.1, subdivision (b)(1), provides that anyone who
attempts to prevent or dissuade another person who has been the
victim of a crime or who is witness to a crime from reporting that
crime is guilty of an offense that may be punished as either a
misdemeanor or a felony. Section 136.1, subdivision (c)(1)
provides that every person who commits an act described in
subdivision (b) where the act is accompanied by force or by an
express or implied threat of force or violence is guilty of a felony
punishable by imprisonment for two, three, or four years.
10 The prosecution’s theory was C.C. had become aware
Tidmore had stolen the car or there was some other similar
criminal activity afoot, and Tidmore sought to dissuade C.C. from
revealing that to the police.
11 The statute requires the trial court to impose the greater of
two alternatives: (1) the term that would otherwise be imposed
under section 1170 for the underlying conviction, including any
enhancements; or (2) the seven-year minimum life term. (See
§ 186.22, subd. (b)(4)(A), (C).)
10
“The Sixth and Fourteenth Amendments to the United
States Constitution preclude a trial court from imposing a
sentence above the statutory maximum based on a fact . . . not
found to be true by a jury. (Cunningham v. California (2007) 549
U.S. 270, 274–275 [166 L. Ed. 2d 856, 127 S. Ct. 856]; Blakely v.
Washington (2004) 542 U.S. 296, 303–304 [159 L. Ed. 2d 403, 124
S. Ct. 2531]; Apprendi v. New Jersey (2000) 530 U.S. 466, 490
[147 L. Ed. 2d 435, 120 S. Ct. 2348].) Whether a defendant used
an express or implied threat of force when attempting to dissuade
a witness from testifying is a question of fact that subjects the
defendant to a greater sentence. Accordingly, Apprendi and its
progeny require the jury find this fact true beyond a reasonable
doubt.” (Lopez, supra, 208 Cal.App.4th at p. 1064.)
C. Analysis
Applying the above-stated principles, we conclude the trial
court erred by imposing a sentence of seven years to life on count
two. We agree with Tidmore that Lopez and Anaya warrant
reversal. As discussed above, the information charged Tidmore
with violating section 136.1, subdivision (b)(1). The information
did not charge him with using an express or implied threat of
force, the instructions did not inform the jury it must find he
used an express or implied threat of force, and the jury never
made that finding. “Only subdivision (c)(1) of section 136.1 refers
to the use of an implied or express threat. Therefore, the plain
meaning of section 186.22, subdivision (b)(4)(C) is that a seven-
year-to-life sentence can be imposed only if the jury convicts the
defendant of attempting to dissuade a witness by use of an
implied or express threat of force pursuant to section 136.1,
subdivision (c)(1).” (Lopez, supra, 208 Cal.App.4th at p. 1065; see
11
Anaya, supra, 221 Cal.App.4th at p. 270, quoting Lopez.) “[T]he
trial court erred in imposing a sentence of seven years to life
pursuant to section 186.22, subdivision (b)(4)(C) because the
section did not apply to the crime of which [Tidmore] was
convicted and because the sentence was based on a fact not found
true by the jury.” (Lopez, supra, 208 Cal.App.4th at p. 1065; see
Anaya, supra, 221 Cal.App.4th at p. 271; see also People v. Pettie
(2017) 16 Cal.App.5th 23, 40, 41, 56-57.)
The parties disagree over whether the error was
prejudicial. Specifically, Tidmore argues the prosecution cannot
show the error was harmless beyond a reasonable doubt because
the record does not show he threatened C.C. (See Chapman v.
California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].)
The Attorney General argues the error was harmless beyond a
reasonable doubt because the record shows Tidmore did threaten
C.C. Because the sentence the trial court imposed was statutorily
unauthorized as a matter of law, we agree with Lopez and Anaya
that the proper remedy is a remand so the trial court can impose
a lawful sentence. It would be fundamentally unfair to punish
Tidmore as though he were charged with an offense that was
never charged and the jury did not convict him of committing.
(See Washington v. Recuenco (2006) 548 U.S. 212, 218-219 [126
S.Ct. 2546, 165 L.Ed.2d 466] (Recuenco) [reversal is required
where the error “‘necessarily render[s] a criminal trial
fundamentally unfair or an unreliable vehicle for determining
guilt or innocence.’ [Citation.]”].)
In support of the argument that a harmless error analysis
applies, the Attorney General cites Recuenco, supra, and People v.
Sandoval (2007) 41 Cal.4th 825 (Sandoval). Those cases are
inapplicable. Recuenco involved the failure to instruct on a
12
sentencing factor, and the United States Supreme Court held
that in cases involving the failure to instruct on a sentencing
factor, like the failure to instruct on an element, harmless error
analysis applies. (Recuenco, supra, 548 U.S. at pp. 219-220.)
Similarly, Sandoval applied a harmless error analysis to the
failure to submit circumstances in aggravation to the jury.
(Sandoval, supra, 41 Cal.4th at pp. 838-839.) The error in
Tidmore’s case goes further than the failure to instruct on an
element or sentencing factor. It involves punishing Tidmore for
an enhancement that applies to a substantive offense that was
never charged and the jury never found him to have committed.
This case is analogous to a case in which a defendant is charged
with and convicted of theft but sentenced as though he had been
charged with and convicted of robbery. We would not affirm the
sentence in that case. We similarly decline to affirm the sentence
imposed here.
Instead, we vacate the sentence on count two and remand
to the trial court for resentencing. On remand, the trial court is
instructed to sentence Tidmore for his conviction under section
136.1, subdivision (b)(1). The court may, but is not required to,
also impose a gang enhancement under section 186.22,
subdivision (b)(1)(B). (See People v. Neal (1984) 159 Cal.App.3d
69, 72-74; People v. Thomas (1987) 43 Cal.3d 818, 826; see also
§ 1192.7, subd. (c)(37).) Alternatively, the court may exercise its
discretion under section 186.22, subdivision (g) to strike the
punishment for the gang enhancement. Lastly, the court may
reconsider whether to sentence Tidmore consecutively or
concurrently for his conviction under Vehicle Code section 10851.
(See People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a
sentence is stricken on review, on remand for resentencing ‘a full
13
resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed
circumstances.’ [Citations.]”].)
II. Mental health diversion
Tidmore next argues his convictions must be conditionally
reversed because he is entitled to a hearing under section
1001.36, which allows qualifying defendants to participate in
pretrial diversion and receive mental health treatment in lieu of
prosecution. (§ 1001.36, subd. (c).) Tidmore argues the statute
applies to him retroactively. The Attorney General counters the
statute does not apply retroactively, and even assuming it does,
remand would be futile because the record shows the trial court
would not have found Tidmore eligible for diversion.
After briefing was submitted, the California Supreme Court
held section 1001.36 applies retroactively to nonfinal cases.
(People v. Frahs (2020) 9 Cal.5th 618, 630-633 (Frahs).) In
reaching this conclusion, the Supreme Court explained section
1001.36 offers a potentially ameliorative benefit for criminal
defendants who suffer from a qualifying mental disorder, and the
text of the statute does not clearly signal a Legislative intent to
overcome the Estrada inference that the statute applies
retroactively to all cases not yet final on appeal. (Frahs, supra, 9
Cal.5th at pp. 631-632; In re Estrada (1965) 63 Cal.2d 740, 747-
748 (Estrada).) Consistent with the Supreme Court’s holding in
Frahs, we conclude section 1001.36 applies retroactively to
Tidmore.
We now turn to the Attorney General’s argument that
remand would be futile because the record shows the trial court
would not have found Tidmore eligible for mental health
14
diversion. Applying the principles set forth by the Supreme Court
in Frahs, we reject this contention. “[A] conditional limited
remand for the trial court to conduct a mental health diversion
eligibility hearing 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 (§ 1001.36, subd. (b)(1)(A)).” (Frahs, supra, 9 Cal.5th at
p. 640.)12 The record here affirmatively discloses Tidmore may
suffer from several qualifying mental disorders, including bipolar
disorder, a mood disorder, and possibly others.13
We reject the Attorney General’s contention that remand
would be futile because the court found several aggravating
sentencing factors and noted only Tidmore’s age as a mitigating
factor. (See Frahs, supra, 9 Cal.5th at p. 639 [rejecting Attorney
12 Frahs further explains: “When, as here, a defendant was
tried and convicted before section 1001.36 became effective, the
record on appeal is 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, supra, 9 Cal.5th at
p. 638.)
13 Section 1001.36, subdivision (b)(1)(A) defines the qualifying
mental disorders as any “mental disorder as identified in the
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 . . . .”
15
General’s argument that remand would be futile because the
court found no significant mitigating factors that weighed in
favor of striking defendant’s prior enhancement, explaining “the
trial court could find that the[] criteria for diversion are satisfied
even if that court believed defendant’s mental disorder did not
significantly reduce his culpability for the crimes.” Italics in
original.].)
The Attorney General, in arguing remand would be futile,
also relies on People v. Jefferson (2019) 38 Cal.App.5th 399
(Jefferson). Jefferson concluded remand was futile because “the
trial court clearly indicated defendant’s alleged mental health
disorder was not a significant factor in his commission of the
charged offenses, making him ineligible for diversion.” (Id. at p.
408.) The record in Tidmore’s case contains no such indication.
We remand to allow the trial court to determine whether
Tidmore suffers from a mental disorder that qualifies him for
diversion. If the court determines Tidmore suffers from a
qualifying mental disorder, it must then decide whether to grant
him pretrial mental health diversion. Like the Supreme Court in
Frahs, “[w]e express no view regarding whether [Tidmore] 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.” (Frahs, supra, 9 Cal.5th at p. 625.)
16
DISPOSITION
The judgment is conditionally reversed. The case is
remanded to the trial court with instructions to determine
whether Tidmore is eligible for diversion under section 1001.36
and, if so, to exercise its discretion within the procedures set
forth in the statute. If the court does not grant diversion, or if the
court grants diversion but later determines the criminal
proceedings should be reinstated, the court shall reinstate
Tidmore’s convictions and resentence him in the manner set forth
above. The trial court shall correct the abstract of judgment as
necessary upon remand. We also order the clerk of the superior
court to forward a certified copy of any corrected abstract of
judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE
17