Filed 10/8/20 P. v. Bye CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(El Dorado)
----
THE PEOPLE, C087438
Plaintiff and Respondent, (Super. Ct. No. P15CRF0435)
v.
DENISE BYE,
Defendant and Appellant.
A jury found defendant Denise Bye guilty of felony elder abuse as to her husband,
Ronald,1 and two counts of resisting an executive officer in connection with her
subsequent arrest. On appeal, defendant contends: (1) the trial court erred by failing to
explain to Ronald, who testified at trial, that he could not be jailed for refusing to testify;
(2) defense counsel was constitutionally ineffective for failing to advise Ronald that the
1 Because Ronald and Denise share a last name, we will refer to Ronald by his first name
and Denise by “defendant.”
1
court was not permitted to jail him for refusing to testify; (3) the prosecutor committed
misconduct by mischaracterizing the reasonable doubt standard or by implying that
defense counsel did not believe defendant’s version of events; (4) insufficient evidence
supports defendant’s conviction for elder abuse; and (5) the matter must be remanded to
allow the trial court to conduct a mental health diversion eligibility hearing pursuant to
Penal Code section 1001.36.2
Following our Supreme Court’s recent decision in People v. Frahs (2020)
9 Cal.5th 618 (Frahs), we agree the matter must be remanded for consideration of
defendant’s qualifications for mental health diversion pursuant to section 1001.36, and
therefore we conditionally reverse the judgment of conviction. We disagree with each of
defendant’s other claims.
FACTUAL AND PROCEDURAL BACKGROUND
Ronald, who was 85 years old, called 911 to request that paramedics attend to
defendant, his 53-year-old wife; he believed she had taken excessive medications in an
attempt to harm herself. While he was on the phone with dispatch, defendant became
upset with Ronald and tried to hit him. Ronald told dispatch that defendant put on her
jacket, grabbed her purse containing the car keys, and attempted to leave the house.
Ronald told defendant she was not going to take the car, and he blocked the door. The
911 call suddenly disconnected.
El Dorado County sheriff’s deputies were dispatched to the house for a welfare
check. As they approached the house, one deputy heard thudding noises that he
perceived as sounds of a struggle or two people “wrestling around.” Ronald answered
the door after deputies loudly knocked for a minute to a minute and a half. Ronald, who
2 Further undesignated statutory references are to the Penal Code.
2
is about five feet nine inches and 180 pounds, sat in the living room. A deputy agreed that
Ronald is frail, and Ronald testified at trial that he is “[n]ot as strong as [he] used to be.”
Defendant, who is approximately five feet six or seven inches and between 200
and 220 pounds, stood inside the front door in an aggressive posture with her fists
clenched by her sides and her chest puffed out. She was breathing heavily and appeared
to be “upset angry” (as opposed to “upset crying”). She appeared to be under the
influence at the time.
Ronald told a deputy at the scene3 that defendant pulled him from the doorway,
punched him repeatedly all over his body, and threw him into the microwave cart and
then onto the floor. He hurt all over, but he frequently hurts due to his age. He was
fearful during the altercation, and he was relieved when patrol cars arrived. Ronald had
bruising and redness on his left hand, blood blisters on his thumb, and scrapes on his
knuckles from hitting the zipper on defendant’s jacket. The deputy did not see any chairs
turned over or anything broken on the floor.
Based on Ronald’s statements at the scene, the deputies decided to arrest
defendant for domestic violence. As they did so, defendant pulled away from them,
attempted to kick them, thrashed around, and stomped on a deputy’s foot.
Ronald testified at trial about what happened before the deputies arrived at the
house. He took the car keys from defendant, and she lunged forward while he tried to
keep them from her. When she lunged at him, he hit her in the chest with his closed fist.
They began “tussling back and forth for the keys.” Ronald did not remember whether
defendant pushed him away from the doorway or hit him, but she might have punched
him several times on his body. He might have lost his balance and fallen against the cart,
or he might have fallen into the microwave cart when he pushed defendant. He also
3 Ronald testified at trial that he did not remember what he told the deputy but that he
“told her what [he] thought happened.”
3
testified that she pushed him while trying to get the keys in the same way that he pushed
her to keep her from the keys, and during one of her pushes he fell onto the microwave
cart. He stated defendant could not have been trying to hurt him because he would have
been bruised if she had.
Ronald acknowledged at trial that he testified previously at the preliminary
hearing. At that hearing, Ronald testified he did not remember how many times
defendant hit him because everything happened so quickly. He might have testified
defendant started punching him and throwing him around, but she was not punching him
that hard. He recalled testifying at the preliminary hearing that defendant shoved him
against the microwave cart while trying to get the keys.
A jury found defendant guilty of elder abuse as to Ronald (§ 368, subd. (b)(1);
count 2) and two counts of resisting an executive officer (§ 69; counts 3 and 4). The jury
found defendant not guilty of willfully inflicting corporal injury to Ronald. (§ 273.5,
subd. (a); count 1.) The trial court sentenced defendant to three years’ formal probation
with a 90-day jail sentence as a special condition of probation. The jail term was stayed
pending appeal.
Additional facts will be set forth in the Discussion as necessary.
DISCUSSION
I
Advising Ronald of Contempt
Defendant claims the trial court failed to correctly advise Ronald that it could not
jail him should he refuse to testify. She points to Code of Civil Procedure section 1219,
subdivision (b), which provides in relevant part: “Notwithstanding any other law, a court
shall not imprison or otherwise confine or place in custody the victim of a sexual assault
or domestic violence crime for contempt if the contempt consists of refusing to testify
concerning that sexual assault or domestic violence crime.”
4
Before trial, the court excluded evidence that defendant had been previously
arrested and that she suffered from posttraumatic stress disorder (PTSD). The court
prohibited Ronald from discussing those topics during his testimony and warned Ronald
it would hold him in contempt if he violated the order. Ronald asked the court, “You’ll
put me in jail if I violate that order?” The court replied, “I didn’t say that. You could be
held in contempt. So that’s the Court’s order. And [defense counsel] understands it, [the
prosecutor] understands it, and that’s the way that it is. So you have an absolute right to
disagree with it. You’ve got no right whatsoever to disobey it.” The court did not
explain further.
Defendant suggests that we should construe Code of Civil Procedure section 1219,
subdivision (b) to apply to situations where domestic violence victims “testif[y] too
much” by violating a court order while testifying. And based on defendant’s proposed
broad reading of the statute, she argues the trial court’s response to Ronald’s question
improperly implied that it could jail him for violating a court order restricting the content
of his testimony.
“ ‘Under settled canons of statutory construction, in construing a statute we
ascertain the Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We
must look to the statute’s words and give them their usual and ordinary meaning.
[Citation.] The statute’s plain meaning controls the court’s interpretation unless its words
are ambiguous.’ [Citations.]” (People v. Arias (2008) 45 Cal.4th 169, 177.) The plain
language of Code of Civil Procedure section 1219, subdivision (b) clearly demonstrates
the statute’s narrow application to situations where “the contempt consists of refusing to
testify concerning that sexual assault or domestic violence crime.” Code of Civil
Procedure section 1219, subdivision (b) is inapplicable where a victim of domestic
violence intends to disrupt a trial by testifying in violation of a court order.
5
Here, Ronald did not refuse to testify, and his question to the court did not involve
any refusal to testify. Rather, Ronald asked the court if he would be jailed if he violated
the court’s order to refrain from discussing defendant’s previous arrest and her PTSD,
which the court had excluded as irrelevant. Because Ronald’s inquiry did not involve his
refusal to testify, Code of Civil Procedure section 1219, subdivision (b) is irrelevant to
our analysis here. We are aware of no authority requiring a court to advise a victim of
domestic violence that he or she cannot be jailed for contempt where, as here, the witness
neither indicated any refusal to testify nor requested any information from the court as to
what might be the consequences of such refusal. The court correctly informed Ronald in
response to his query that it would hold him in contempt should he violate a court order
restricting his testimony to admissible topics. Defendant’s claim of error lacks merit.
II
Ineffective Assistance of Counsel
Defendant next contends her (two different) counsel at both the preliminary
hearing and at trial were ineffective because they failed to advise Ronald that the trial
court could not jail him for refusing to testify. Implicit in defendant’s argument is the
assertion that defense counsel has both the ability and the duty to ensure that domestic
violence victim witnesses are prophylactically advised that the court may not jail them
for refusing to testify. We disagree.
To prevail on her claim of ineffective assistance of counsel, defendant must show
(1) that her counsel’s representation was deficient, i.e., that it “fell below an objective
standard of reasonableness,” and (2) that prejudice resulted, i.e., that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668,
687-688, 694.) “If the defendant makes an insufficient showing on either one of these
components, the ineffective assistance claim fails.” (People v. Rodrigues (1994) 8
Cal.4th 1060, 1126.)
6
Defendant bases her claim on People v. Resendez (1993) 12 Cal.App.4th 98
(Resendez). In Resendez, the defendant’s spouse testified against him at the preliminary
hearing without knowledge that the spousal privilege shielded her from testifying against
her spouse. (Id. at pp. 105, 106.) At trial, the defendant’s spouse indicated she did not
want to testify against her husband. (Id. at p. 106.) The trial court asked her why she
testified at the preliminary hearing, and the spouse replied she did not want to, but “they”
told her she had to. (Ibid.) The court ruled that she waived her privilege and had to
testify at trial because she had testified at the preliminary hearing. (Id. at p. 107; see
Evid. Code, § 973 [“Unless erroneously compelled to do so, a married person who
testifies in a proceeding to which his spouse is a party, or who testifies against his spouse
in any proceeding, does not have a privilege under this article in the proceeding in which
such testimony is given”].)
The appellate court concluded that the defendant had presented insufficient
evidence that the spouse was “erroneously compelled” to testify at the preliminary
hearing because the spouse failed to show how she was compelled or who or what
compelled her. (Resendez, supra, 12 Cal.App.4th at p. 108.) The court also concluded
that no authority compelled the trial court to advise a testifying spouse of the existence of
spousal privileges or of the potential loss of those privileges under Evidence Code section
973. (Resendez, at pp. 108-109.)
In a footnote, the Resendez court stated in dicta: “If defendant had been
particularly concerned about Sylvia’s loss of privileges resulting from testifying at the
preliminary hearing, there was nothing to preclude defense counsel, at the time of the
preliminary hearing, from (a) advising Sylvia directly of her privileges (and the
consequences attending her loss of those privileges as a result of her testifying at the
preliminary hearing) and/or (b) requesting the magistrate to advise/question Sylvia in the
manner suggested by People v. Lankford [(1976)] 55 Cal.App.3d 203.” (Resendez,
supra, 12 Cal.App.4th at p. 109, fn. 6.)
7
Resendez is readily distinguishable from the facts here. The court in Resendez did
not hold that a defense attorney has the duty to inform a witness--who the attorney does
not represent and, in this case, is an adverse witness--of his or her right to decline to
testify due to spousal privilege. But even if the Resendez court did suggest such a
proposition, no authority extends that duty to require an attorney to advise an adverse
witness that the court may not jail the witness for refusing to testify. Therefore,
defendant’s two counsels’ performances did not fall below a standard of reasonable
competence, and her claim of ineffective assistance of counsel fails.
III
Prosecutorial Misconduct
Defendant claims that the prosecutor committed misconduct during closing
argument by either misrepresenting that the standard of proof in a criminal case is
something less than reasonable doubt or by asserting that defense counsel was admitting
defendant’s guilt by arguing reasonable doubt in closing.
In his rebuttal to defense counsel’s closing argument, the prosecutor stated: “So
back in law school, my trial advocacy professor once told me that in a criminal trial when
you have the facts in your favor, argue the facts. When you have the law in your favor,
argue the law. And when you don’t have the facts or the law in your favor, you argue
reasonable doubt. So for the last 15 minutes, Mr. Cramer, because he’s a good attorney --
he’s been doing this longer than I have -- has argued to you reasonable doubt, because the
facts are not in Mr. Cramer’s favor, the law certainly isn’t in Mr. Cramer’s favor, and so
he began and ended his closing argument with reasonable doubt.
“And reasonable doubt is an important standard, and I hope you do follow that
instruction, because that’s what the law is, and that’s what we’ve been discussing and
what I’ve gone over with you throughout my initial closing argument and the facts that
meet all the elements, and so I’m not going to bore you by reiterating all of those all over
again.”
8
Defense counsel did not object to the prosecutor’s statements or request that the
court admonish the jury; therefore, the People assert that defendant’s claim is forfeited.
We agree. “As a general rule, ‘ “[a] defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion, and on the same ground, the
defendant objected to the action and also requested that the jury be admonished to
disregard the perceived impropriety.” ’ [Citation.] The defendant’s failure to object will
be excused if an objection would have been futile or if an admonition would not have
cured the harm caused by the misconduct. [Citation.]” (People v. Centeno (2014) 60
Cal.4th 659, 674.) Nothing in the record here indicates that an objection to the
prosecutor’s statement would have been futile or that the prosecutor’s statement was so
extreme or pervasive that a prompt objection and admonition would not have cured the
harm.
Defendant characterizes the People’s assertion that she forfeited her misconduct
claim as “pointless” because the court in Centeno, after concluding defendant forfeited a
prosecutorial misconduct claim by failing to object at trial, proceeded to treat defendant’s
claim as a claim of ineffective assistance of counsel. (People v. Centeno, supra, 60
Cal.4th at p. 674.) Defendant asserts, “It should have been obvious to anyone reading the
opening brief that [she] was raising Centeno error in the same way that the appellant
raised such error in Centeno, since [she] specifically discussed Centeno and argued that
defense counsel was ineffective.” It was not obvious.
In Centeno, unlike here, the defendant expressly claimed that his counsel was
ineffective for failing to object to the prosecutor’s allegedly objectionable statements.
(Centeno, at p. 666 [“On appeal, defendant urges his conviction must be reversed because
the prosecutor committed misconduct, and his counsel was constitutionally ineffective for
failing to object”].) Here, defendant failed to include the ineffective assistance of counsel
claim in her argument heading. (See Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179
[“Failure to provide proper headings forfeits issues that may be discussed in the brief but
9
are not clearly identified by a heading”].) Her heading stated: “The prosecution erred in
rebuttal argument by mischaracterizing the reasonable doubt standard and implying that
defense counsel believed [defendant] was guilty.” Further, defendant failed to expressly
raise the issue of ineffective assistance of counsel in her briefing. Therefore, Centeno is
inapposite, and the argument is forfeited.
Nevertheless, we shall address the merits of defendant’s claim of ineffective
assistance of counsel and conclude it is not well taken. We described the standard for
determining whether an attorney provided ineffective assistance of counsel ante. (See
Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 694.) We conclude defendant
failed to show that there is a reasonable probability that, but for her counsel’s failure to
object, the result of the proceeding would have been different.
While defendant contends that the prosecutor’s argument encouraged the jury to
convict her using a lesser standard than reasonable doubt, we see nothing in the record to
suggest the prosecutor attempted to “water down” the reasonable doubt standard. The
cases defendant cites are distinguishable. The prosecutor did not argue that the
reasonable doubt standard required the jury to find defendant’s innocence was reasonable
(see People v. Ellison (2011) 196 Cal.App.4th 1342, 1353), that defendant had the burden
of producing evidence to demonstrate reasonable doubt (see People v. Hill (1998) 17
Cal.4th 800, 832), that the jury could find defendant guilty even if the evidence raised
reasonable doubt as to her intent (see Deck v. Jenkins (9th Cir. 2014) 768 F.3d 1015,
1026), or that the decision regarding guilt or innocence is an ordinary decision of the kind
people make a hundred times a day (see People v. Cowan (2017) 8 Cal.App.5th 1152,
1161). While we agree the prosecutor suggested that arguing reasonable doubt was a
defense tactic aimed at avoiding arguing the facts or the law, the most reasonable
interpretation of the prosecutor’s statements is that an argument about reasonable doubt is
separate from an argument about the substantive facts or the substantive legal standard.
We find nothing in the record suggesting that the prosecutor diluted the reasonable doubt
10
standard; indeed, the prosecutor urged the jury to follow the “important” reasonable
doubt instruction “because that’s what the law is.”
We also disagree that the prosecutor’s statements necessarily implied that defense
counsel believed defendant was guilty rather than merely asserted that the defense case
was weak. While it is improper for a prosecutor to accuse defense counsel of fabricating
a defense, a prosecutor “has wide latitude in describing the deficiencies in opposing
counsel’s tactics and factual account.” (People v. Bemore (2000) 22 Cal.4th 809, 846,
see also People v. Medina (1995) 11 Cal.4th 694, 759 [no misconduct where prosecutor
said counsel can “ ‘twist a little, poke a little, try to draw some speculation, try to get you
to buy something’ ”].) We agree with defendant that the facts and law are necessarily on
a defendant’s side if there is reasonable doubt that a defendant committed the charged
offenses; in that respect the argument “makes no sense” and was improvidently made.
But given that the prosecutor emphasized the importance of the reasonable doubt
standard instruction, did not water down that standard or shift the burden of proof to the
defense, and did not personally attack defense counsel’s credibility, we conclude that
defense counsel’s objections to the prosecutor’s statements, if made, were not reasonably
likely to have changed the outcome of the trial.
IV
Sufficiency of the Evidence
Defendant contends her conviction for felony elder abuse must be reversed
because insufficient evidence supports a finding that any pain she inflicted on Ronald
was done under conditions likely to produce death or great bodily harm. We disagree.
“In determining the sufficiency of the evidence to support a conviction, ‘the
relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ [Citation.]” (People v. Leon (2008) 161 Cal.App.4th 149,
156, see also People v. Johnson (1980) 26 Cal.3d 557, 578 [judicial review of a claim of
11
insufficient evidence includes review of “the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial evidence -- that is,
evidence which is reasonable, credible, and of solid value -- such that a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt”].)
A defendant is guilty of felony elder abuse when he or she “knows or reasonably
should know that a person is an elder . . . and who, under circumstances or conditions
likely to produce great bodily harm or death, willfully causes or permits any elder . . . to
suffer, or inflicts thereon unjustifiable physical pain or mental suffering.” (§ 368, subd.
(b)(1), italics added.) The court instructed the jury on elder abuse as follows: “To prove
that the Defendant is guilty of this crime, the People must prove that: [¶] One, the
Defendant willfully inflicted unjustifiable physical pain or mental suffering on [Ronald];
[¶] Two, the Defendant inflicted suffering on [Ronald] under circumstances or
conditions likely to produce great bodily harm or death; [¶] Three, [Ronald] is an elder;
[¶] And, four, when the Defendant acted, she knew or reasonably should have known
that [Ronald] was an elder.
“Great bodily injury means significant or substantial physical injury. It is an
injury that is greater than minor or moderate harm. [¶] An elder is someone who is at
least 65 years old. [¶] Unjustifiable physical pain or mental suffering is pain or suffering
that is not reasonably necessary or is excessive under the circumstances. [¶] An elder
does not need to actually suffer great bodily harm, but if an elder does suffer great bodily
harm, you may consider that fact, along with all the other evidence, in deciding whether
the Defendant committed the offense.”
Defendant contends there is insufficient evidence to support the elder abuse
conviction because there is no evidence she attacked Ronald with a weapon or hit him in
the head, face, or other vulnerable area, Ronald did not describe the amount of force
defendant used, and Ronald only suffered a few marks on his left hand and bruises on his
12
right hand. In support of her contention, she relies on In re Brandon T. (2011) 191
Cal.App.4th 1491 and People v. Beasley (2003) 105 Cal.App.4th 1078.
In In re Brandon T., supra, 191 Cal.App.4th at pages 1497 to 1498, the appellate
court concluded that the defendant could not have committed an assault with a deadly
weapon (§ 245, subd. (a)(1)) because the dull butter knife used to commit the assault was
not a deadly weapon. The court observed that the knife was dull and failed to cut the
victim’s cheek and throat despite the defendant’s attempts to do so. (Brandon T., at p.
1497.) Moreover, the knife broke when the defendant pressed it harder against the
victim, which demonstrated the knife was not capable of producing death or great bodily
injury. (Ibid.) Noting that the victim had only a small scratch on his cheek, the court
stated, “ ‘if injuries result [from an assault], the extent of such injuries and their location
are relevant facts for consideration’ in determining whether an object or instrument was
used in a manner likely to produce death or great bodily injury. [Citation.]” (Ibid.)
In People v. Beasley, supra, 105 Cal.App.4th 1078, the appellate court concluded
insufficient evidence supported defendant’s assault with a deadly weapon (§ 245, subd.
(a)(1)) conviction where the defendant struck the victim with a broomstick and a vacuum
cleaner attachment (Beasley, at p. 1086). The court observed; “It is certainly
conceivable that a sufficiently strong and/or heavy broomstick might be wielded in a
manner capable of producing, and likely to produce, great bodily injury, e.g., forcefully
striking a small child or a frail adult or any person’s face or head. [Citation.]” (Id. at p.
1087.) But the court concluded that the victim’s testimony was “far too cursory” to
establish that defendant used the broomstick in such a manner that “was capable of
causing, and likely to cause, great bodily injury or death.” (Ibid.) The court observed
that the victim did not describe the degree of force the defendant used in hitting her with
the stick, and the record did not indicate the composition of the broomstick. (Ibid.)
13
Unlike Brandon T. and Beasley, this case is not about whether a weapon used by a
defendant constituted a deadly weapon. Rather, the issue before us is whether, viewed in
the light most favorable to the verdict, defendant inflicted suffering on Ronald under
circumstances or conditions likely to produce great bodily harm or death. Therefore, we
must determine whether the version of events Ronald relayed to the deputy at the scene--
that defendant pulled him from the doorway, punched him repeatedly all over his body,
threw him into the microwave cart, and threw him onto the floor--constituted
circumstances or conditions likely to produce great bodily harm or death as to Ronald, a
frail, elderly man.
In People v. Racy (2007) 148 Cal.App.4th 1327, the defendant zapped the 74-year-
old victim in the leg with a stun gun, followed him into the bedroom, took his wallet, and
tore his jean pocket (id. at pp. 1330-1331). The victim tripped during the struggle. (Id. at
p. 1331.) We concluded the evidence supported a felony elder abuse conviction “because
there was sufficient evidence from which the jury reasonably could have concluded
defendant willfully inflicted pain or mental suffering on [the victim] ‘under
circumstances or conditions likely to produce great bodily harm or death.’ (§ 368, subd.
(b)(1).)” (Id. at p. 1333.) We observed that the jury could have concluded that the
defendant’s actions “likely could have caused [the victim] to fall and break a bone,
causing him great bodily harm. As stated, [the victim’s] knees are disabled and he is 74
years old, which, as a matter of common knowledge, is an age that carries with it an
increased risk of bone fractures from a fall. The jury was in the best position to observe
[the victim’s] condition at trial, and we will not second-guess the jury’s finding that
defendant inflicted pain or suffering on [the victim] ‘under circumstances or conditions
likely to produce great bodily harm or death’ where the record contains sufficient
evidence to support that finding.” (Ibid.)
14
Defendant attempts to distinguish Racy by arguing that case is actually about an
armed attack on a disabled person, rather than an elderly person. We agree that Racy
does not support the conclusion that any attack on an elderly person constitutes elder
abuse. But the 85-year-old Ronald told the deputy that the much younger and larger
defendant punched him all over his body, threw him into the microwave, and threw him
on the ground. While Ronald’s lack of serious injuries was a factor for the jury to
consider, a reasonable jury could have concluded that throwing a frail, elderly man to the
ground carries with it a high risk of bone fractures or other great bodily injury.
Defendant also asserts the jury’s not guilty finding on the corporal injury to spouse
count supports her argument that there is insufficient evidence to support the elder abuse
count. But an acquittal on one charge does not affect the evidence of another. (See
§ 954; People v. Lewis (2001) 25 Cal.4th 610, 655-656 [“It is well-settled that . . .
inherently inconsistent verdicts are allowed to stand”]; People v. Pahl (1991) 226
Cal.App.3d 1651, 1656-1657.) “The United States Supreme Court has explained: ‘[A]
criminal defendant . . . is afforded protection against jury irrationality or error by the
independent review of the sufficiency of the evidence undertaken by the trial and
appellate courts. This review should not be confused with the problems caused by
inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the
courts of whether the evidence adduced at trial could support any rational determination
of guilty beyond a reasonable doubt. [Citations.] This review should be independent of
the jury’s determination that evidence on another count was insufficient.’ [Citation.]”
(Lewis, at p. 656, quoting United States v. Powell (1984) 469 U.S. 57, 67.) Therefore, the
jury’s finding as to the corporal injury count is irrelevant to our analysis.
V
Section 1001.36
Defendant argues the case must be remanded for the trial court to conduct a
diversion hearing pursuant to newly enacted section 1001.36, which she contends applies
15
retroactively to all cases not yet final on appeal. The People counter that section 1001.36
is not retroactive and that remand would be futile because defendant has not met her
burden of proving she qualifies for diversion under the statute. After the briefing on
appeal had completed, our Supreme Court resolved this issue in favor of defendant in
Frahs, supra, 9 Cal.5th 618.
A. Section 1001.36
Effective June 27, 2018, the Legislature passed Assembly Bill No. 1810 (2018
Reg. Sess.), which added sections 1001.35 and 1001.36 to the Penal Code (Stats. 2018,
ch. 34, § 24) and authorizes pretrial diversion for qualifying defendants with mental
health disorders that contributed to the commission of the charged offense. (See Frahs,
supra, 9 Cal.5th at pp. 624, 626.) Two express purposes of the law are to promote
“[i]ncreased diversion of individuals with mental disorders to mitigate the individuals’
entry and reentry into the criminal justice system while protecting public safety” and
“[p]roviding diversion that meets the unique mental health treatment and support needs of
individuals with mental disorders.” (§ 1001.35, subds. (a) & (c); Frahs, at p. 626.)
The statute defines “pretrial diversion” as “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).) The trial court may grant pretrial diversion under
section 1001.36 if it finds: (1) defendant suffers from an identified mental disorder,
including PTSD; (2) the mental disorder was a significant factor in the commission of the
charged offense; (3) defendant’s symptoms will respond to treatment; (4) defendant
consents to diversion and waives her speedy trial rights; (5) defendant agrees to comply
with treatment; and (6) defendant will not pose an unreasonable risk of danger to public
safety if treated in the community. (§ 1001.36, subd. (b)(1)(A-F).) If diversion is
granted, the court may postpone prosecution for a maximum of two years and refer the
defendant to an inpatient or outpatient mental health treatment program. (§ 1001.36,
16
subd. (c)(1)(B), (c)(3).) Assuming the defendant performs satisfactorily during the period
of diversion, the court must dismiss her criminal charges. (§ 1001.36, subd. (e).)
B. Retroactivity
Laws generally apply prospectively rather than retrospectively. (See § 3.) “ ‘But
this presumption against retroactivity is a canon of statutory interpretation rather than a
constitutional mandate. [Citation.] Therefore, the Legislature can ordinarily enact laws
that apply retroactively, either explicitly or by implication. [Citation.] In order to
determine if a law is meant to apply retroactively, the role of a court is to determine the
intent of the Legislature.’ ” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307.)
In In re Estrada (1965) 63 Cal.2d 740, our Supreme Court stated: “When the Legislature
amends a statute so as to lessen the punishment it has obviously expressly determined
that its former penalty was too severe and that a lighter punishment is proper as
punishment for the commission of the prohibited act. It is an inevitable inference that the
Legislature must have intended that the new statute imposing the new lighter penalty now
deemed to be sufficient should apply to every case to which it constitutionally could
apply. The amendatory act imposing the lighter punishment can be applied
constitutionally to acts committed before its passage provided the judgment convicting
the defendant of the act is not final.” (Estrada, at p. 745.) This rule “rests on the
presumption that, in the absence of a savings clause providing only prospective relief or
other clear intention concerning any retroactive effect, ‘a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend as broadly as possible,
distinguishing only as necessary between sentences that are final and sentences that are
not.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 881.) The Estrada rule applies to
legislation that ameliorates punishment for a class of persons. (Lara, at p. 308.)
In Frahs, supra, 9 Cal.5th at pages 631 through 637, our Supreme Court
concluded section 1001.36 applies retroactively to all cases not yet final on appeal.
Defendant’s case is not yet final on appeal. (See People v. Vieira (2005) 35 Cal.4th 264,
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306 [“ ‘[A] judgment is not final until the time for petitioning for a writ of certiorari in
the United States Supreme Court has passed’ ”].) Therefore, defendant is eligible for
diversion.
C. Futility and Remedy
The People contend that even if section 1001.36 is retroactive to all cases not yet
final on appeal, defendant failed to make a prima facie showing that she meets all six
requirements for diversion. Our Supreme Court rejected this argument in Frahs, supra,
9 Cal.5th at pages 637 to 638. The court held: “[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 health disorder (§ 1001.36, subd. (b)(1)(A).” (Id. at p. 640,
italics added.) Defendant’s probation report specified that she is diagnosed with PTSD, a
qualifying mental disorder under the statute. (§ 1001.36, subd. (b)(1)(A).) Because
defendant appears to meet the first threshold eligibility requirement, conditional limited
remand is appropriate.
We follow the remand procedure set forth in Frahs, supra, 9 Cal.5th at pages 640
to 641, “which conditionally reversed defendant’s convictions and sentence with the
following instructions for the trial court in considering defendant’s eligibility for
diversion 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 [her] convictions and
sentence shall be reinstated.”
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DISPOSITION
The judgment is conditionally reversed and remanded for proceedings consistent
with this opinion, to commence no later than 90 days from the filing of the remittitur.
/s/
Duarte, J.
We concur:
/s/
Murray, Acting P. J.
/s/
Krause, J.
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