Filed 10/29/20
Opinion on 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B292752
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA461416)
v.
VANELLE VASHAN
JACKSON,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los
Angeles County. Michael A. Tynan, Judge. Conditionally
reversed and remanded with directions.
Patricia S. Lai, 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, Senior
Assistant Attorney General, Steven D. Matthews and Analee J.
Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Vanelle Vashan Jackson pled
guilty to one count of second degree robbery and admitted a prior
strike conviction. She was conditionally released to a residential
substance abuse treatment program. After absconding from the
program, defendant was detained and sentenced to a six-year
state prison term. Defendant was denied a certificate of probable
cause and filed an appeal raising sentencing issues and
requesting remand so that she could be considered for mental
health diversion pursuant to Penal Code section 1001.36, a new
statute enacted after her 2017 conviction.
In our original unpublished opinion filed January 13, 2020,
we affirmed defendant’s conviction, concluded Penal Code
section 1001.36 did not apply retroactively and directed the trial
court on remand to reduce the restitution fine and parole
revocation fine to the statutory minimum and to correct the
amount of total presentence custody credits.
Defendant filed a petition for review with the Supreme
Court. The Supreme Court granted review and deferred further
consideration of the matter pending its disposition in People v.
Frahs (2020) 9 Cal.5th 618 (Frahs). After the issuance of its
decision in Frahs, the Supreme Court, by order dated August 19,
2020, transferred the matter to this court with directions to
vacate our original decision and reconsider the cause in light of
Frahs.
Having done so, we conclude, in light of Frahs, that a
conditional reversal and limited remand is warranted to allow
the trial court the opportunity to conduct a mental health
diversion eligibility hearing pursuant to Penal Code
section 1001.36. (Frahs, supra, 9 Cal.5th at p. 640.)
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FACTUAL AND PROCEDURAL BACKGROUND
On September 26, 2017, defendant tried to leave a liquor
store with alcohol and cigarettes without paying. When the store
clerk attempted to stop her from leaving the store with the
merchandise, defendant hit the clerk several times about the
head and face and also bit his hand.
Defendant was identified outside the store by the victim, as
well as another witness, and arrested. She was charged with
one count of robbery (Pen. Code, § 211). It was also alleged
defendant had suffered a prior robbery conviction which qualified
as a strike under the “Three Strikes” law and as a felony
enhancement.
In December 2017, defendant pled guilty to the robbery and
admitted the prior qualifying strike. The court accepted
defendant’s plea and waivers on the record. The parties
stipulated to a factual basis for the plea as set forth in the police
report of the incident. During the plea colloquy, defendant was
advised she would be required to pay the statutory minimum
fines and she acknowledged her understanding that the fines
were part of the negotiated agreement.
The court appointed Dr. Jack Rothberg to evaluate
defendant. Defendant was found suitable to participate in the
Substance Treatment and Re-Entry Transition program for
women. On January 24, 2018, the court ordered defendant
conditionally released to participate in the residential treatment
program.
Shortly thereafter, defendant absconded from treatment.
On February 21, 2018, the court issued a bench warrant. After
defendant was returned to custody, the court ordered various
continuances to allow counsel the opportunity to find another
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suitable residential program for defendant. No alternative
program was found.
In August 2018, the court imposed a six-year state prison
term (a midterm of three years, doubled due to the strike prior).
The court awarded defendant total presentence custody credits of
222 days, inclusive of 23 days of residential treatment credits
(People v. Davenport (2007) 148 Cal.App.4th 240). Over the
prosecution’s objection, the court dismissed the felony
enhancement pursuant to Penal Code section 667,
subdivision (a)(1) in the interests of justice. The court imposed a
restitution fine in the amount of $1,200 (Pen. Code, § 1202.4,
subd. (b)), a $40 court operations assessment (Pen. Code,
§ 1465.8), and a $30 criminal conviction assessment (Gov. Code,
§ 70373). The court imposed and stayed a parole revocation fine
in the amount of $1,200 (Pen. Code, § 1202.45).
Defendant requested a certificate of probable cause based
on the grounds she received ineffective assistance of trial counsel,
causing her not to fully understand the terms of her plea
agreement. The court denied defendant’s request.
Following remand from the Supreme Court, respondent
filed a supplemental brief acknowledging Frahs but arguing
remand was not warranted because the January 2018 mental
health evaluation of defendant was “equivocal” as to a diagnosis.
Defendant filed a supplemental brief requesting a conditional
reversal and remand for a proper eligibility hearing.
DISCUSSION
1. Mental Health Diversion (Pen. Code, § 1001.36)
Penal Code section 1001.36 was enacted in June 2018. It
authorizes the diversion of certain alleged offenders into mental
health treatment programs in lieu of criminal prosecution.
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(§ 1001.36, subd. (a) [court may “grant pretrial diversion to a
defendant pursuant to this section if the defendant meets all of
the requirements specified in paragraph (1) of subdivision (b)”].)
Frahs concluded that Penal Code section 1001.36 applies
retroactively to cases not yet final on appeal because it mitigates
the possible punishment for a specific class of offenders with
certain enumerated mental health conditions and there is no
clear contraindication of legislative intent. (Frahs, supra,
9 Cal.5th at pp. 630-637; see also In re Estrada (1965) 63 Cal.2d
740, 742-748 [an amendatory statute lessening punishment for a
crime is presumptively retroactive, absent clear legislative intent
for prospective application, and applies to all defendants whose
judgments are not final at the time the statute becomes
effective].)
Frahs explained that, in light of the retroactivity of the
statute, “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.” (Frahs,
supra, 9 Cal.5th at p. 640.)
Dr. Rothberg, the psychiatrist appointed by the court to
evaluate defendant in connection with the court’s consideration of
sending defendant to a substance abuse program, concluded that
defendant “does have an underlying mental disorder apart from
the various traumas that she has encountered including PTSD”
(posttraumatic stress disorder). Dr. Rothberg indicated the most
likely diagnosis is that defendant suffers from bipolar disorder.
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Both bipolar disorder and posttraumatic stress disorder are
enumerated at Penal Code section 1001.36, subdivision (b)(1)(A).
Whether or not one views Dr. Rothberg’s evaluation as
“equivocal,” Frahs held that an eligibility hearing should be
ordered where the defendant “appears” to suffer from a qualifying
mental disorder. (Frahs, supra, 9 Cal.5th at p. 640.) The record
here demonstrates defendant suffers from a qualifying mental
health disorder exacerbated by substance abuse issues.
The record also establishes defendant was not convicted of
any of the disqualifying offenses enumerated in subdivision (b)(2)
of Penal Code section 1001.36.
Moreover, the fact defendant was denied a certificate of
probable cause does not defeat her request for an eligibility
hearing. As the Supreme Court concluded in People v. Stamps
(2020) 9 Cal.5th 685, 696, a defendant’s request to obtain the
ameliorative benefit of the new statute does not constitute an
attack on the validity of the plea agreement.
Accordingly, we find defendant is entitled to a conditional
limited remand to allow the trial court the opportunity to conduct
a mental health diversion hearing in accordance with Penal Code
section 1001.36. If the trial court finds that defendant suffers
from a qualifying mental disorder, does not pose an unreasonable
risk of danger to public safety, and otherwise meets all of the
statutory criteria set forth in section 1001.36, then the court may
grant mental health diversion in accordance with the statutory
scheme. 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 Penal Code section 1001.36, or if
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defendant does not successfully complete mental health
diversion, then her conviction and sentence shall be reinstated.
In the event defendant’s conviction is reinstated, we discuss
and resolve defendant’s other appellate contentions. As in our
original opinion, we conclude she forfeited the contention she is
entitled to an inability-to-pay hearing with respect to the
imposition of statutory fines and fees. We conclude defendant is
entitled to a reduction of the restitution fine and parole
revocation fine to the statutory minimum of $300, and to an
award of total presentence custody credits of 225 days.
2. Imposition of Statutory Fines and Fees
Defendant contends she is entitled to a remand for a
hearing on her ability to pay the statutory fines and assessments.
Defendant forfeited her objection by failing to object on this
basis in the trial court and also by consenting during the plea
colloquy to imposition of the fines. (People v. Frandsen (2019)
33 Cal.App.5th 1126, 1153-1155 [finding forfeiture where no
objection raised in trial court to imposition of court operation
assessment, criminal conviction assessment and restitution fine];
see also People v. Avila (2009) 46 Cal.4th 680, 729 [finding
forfeiture where the defendant failed to raise ability-to-pay
objection to imposition of restitution fine under Pen. Code, former
§ 1202.4].)
We further reject defendant’s alternative argument her
trial counsel was ineffective for failing to raise a constitutional
objection to the imposition of the fines. The fines and
assessments were imposed pursuant to clear statutory authority.
Defendant has not demonstrated any basis for finding her
counsel was ineffective for failing to raise constitutional
objections to the fines similar to those set forth in People v.
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Dueñas (2019) 30 Cal.App.5th 1157. Dueñas not only involved
unique factual circumstances not applicable here, but the validity
of its analytical framework has been questioned by numerous
courts: see, e.g., People v. Allen (2019) 41 Cal.App.5th 312, 326-
329, review denied January 2, 2020; People v. Kingston (2019)
41 Cal.App.5th 272, 279-282; People v. Hicks (2019)
40 Cal.App.5th 320, 326-329, review granted September 14, 2019,
S258946; People v. Caceres (2019) 39 Cal.App.5th 917, 926-929,
review denied January 2, 2020.
3. Correction of Sentencing Errors
Defendant argues the court erred by imposing a restitution
fine in an amount four times the agreed-upon minimum, and by
failing to award the correct number of presentence custody
credits. Respondent concedes these errors and that the
appropriate remedy is for this court to reduce the fines to the
statutory minimum and order correction of the custody credits.
We agree. The record supports that during the plea
colloquy it was contemplated by the parties that the minimum
statutory fines would be imposed. When the fines were
ultimately imposed eight months later by a different judge, that
fact was apparently not noted in the record and the court
imposed a restitution fine four times the statutory minimum.
Therefore, the restitution fine, and corresponding parole
revocation fine, should be reduced to the agreed-upon $300.
There also appears to have been a calculation error in the
number of presentence custody credits. Defendant was entitled
to 176 days of custody credits, 23 days of custody credits for time
spent in a residential treatment program, and 26 days of conduct
credits.
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DISPOSITION
The conviction and sentence of defendant and appellant
Vanelle Vashon Jackson is conditionally reversed for a limited
remand with the following instructions:
If the trial court finds that defendant suffers from a
qualifying mental disorder, does not pose an unreasonable risk of
danger to public safety, and otherwise meets all of the statutory
criteria set forth in Penal Code section 1001.36, then the court
may grant mental health diversion in accordance with the
statutory scheme. 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 Penal Code section 1001.36, or if
defendant does not successfully complete mental health
diversion, then her conviction and sentence shall be reinstated.
In the event defendant’s conviction is reinstated, the trial court
shall reduce the restitution fine and parole revocation fine to
$300 each, shall correct the award of total presentence custody
credits to 225 days, and shall thereafter prepare and forward a
new abstract of judgment to the Department of Corrections and
Rehabilitation.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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