Filed 11/30/20 P. v. Ramos CA3
Opinion following rehearing
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
----
THE PEOPLE, C086317
Plaintiff and Respondent, (Super. Ct. No. CRF15078)
v.
JOHN RAMOS,
Defendant and Appellant.
Appointed counsel for defendant John Ramos asked this court to review the record
and determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436 (Wende).) After we issued our original decision in this appeal, we granted
rehearing and requested supplemental briefing from the parties addressing changes in the
law. Having reviewed the record and the supplemental briefs, we will remand the matter
to permit the trial court to determine whether defendant is eligible for pretrial mental
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health diversion pursuant to Penal Code section 1001.36,1 which became effective
June 27, 2018 (Stats. 2018, ch. 34, § 24).
I
Defendant entered the victim’s house in 2015 with the intent to commit theft.
The victim contacted law enforcement and defendant was apprehended. Defendant
refused to cooperate and fought with the officers, ramming a shopping cart into one of
the officers while trying to get away.
A criminal complaint charged defendant with first degree burglary (§ 459 --
count I) and resisting arrest with force or violence (§ 69 -- count II), both felonies.
The complaint further alleged defendant had a prior strike conviction for making criminal
threats.
Based on two separate mental evaluations of defendant’s competency, the trial
court declared defendant incompetent to stand trial and committed him to Napa State
Hospital. The trial court subsequently received a certification of defendant’s mental
competency pursuant to section 1372 and reinstated criminal proceedings.
Defendant pleaded no contest to both counts in exchange for his presentence
release on his own recognizance pursuant to a Cruz waiver.2 He agreed that if he
violated the conditions of his Cruz waiver, he would be allowed to withdraw his plea to
count II and his plea to count I would become a “straight up” plea, meaning he would be
exposed to 2, 4, or 6 years in state prison. The parties stipulated to a factual basis for
defendant’s plea.
Defendant failed to appear for sentencing. The trial court was informed defendant
was in custody in Madera County and had committed two new misdemeanors in Yuba
1 Undesignated statutory references are to the Penal Code.
2 People v. Cruz (1988) 44 Cal.3d 1247, 1250 (Cruz).
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County. Finding defendant violated his Cruz waiver, the trial court issued a bench
warrant for his arrest.
Nearly two years later, defendant admitted he was in violation of his Cruz waiver.
However, he moved to withdraw his plea claiming his attorney at the time of entry of the
plea failed to advise him of the nature and consequences of his Cruz waiver, he was not
properly educated about the nature and consequences of a Cruz waiver while admitted at
Napa State Hospital, and he was not in his proper state of mind at the time of entry of the
plea due to his medications.
The trial court denied defendant’s motion to withdraw his plea. It reiterated the
previous finding that defendant violated his Cruz waiver, denied probation, and sentenced
defendant as follows: the upper term of six years on the burglary conviction (count I),
to be served concurrent to the time defendant was serving in the Madera County case.
The trial court had previously dismissed the prior strike allegation. The trial court
imposed various fines and fees and awarded defendant 479 days of presentence credit
(251 actual days plus 228 conduct days).
The trial court granted defendant’s request for a certificate of probable cause.
II
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days elapsed and we received no communication from defendant.
After we issued our original decision in this appeal, we granted rehearing and
requested supplemental briefing from the parties on changes in the law.
A
We asked the parties to address the applicability of section 1001.36, which
authorizes a trial court to grant pretrial diversion -- postponement of prosecution to allow
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the defendant to undergo mental health treatment -- if the defendant meets specified
requirements. (§ 1001.36, subds. (a), (c).) Successful completion of diversion results in
the dismissal of the original charges. (§ 1001.36, subd. (e).) Section 1001.36,
subdivision (b)(1) identifies the pertinent criteria, including that “defendant suffers from
a mental disorder” and that the “mental disorder was a significant factor in the
commission of the charged offense.” (§ 1001.36, subd. (b)(1)(A), (B).)
Defendant urged retroactive application of section 1001.36, and the California
Supreme Court has now decided the issue, confirming retroactive application to cases not
yet final when the statute took effect, and providing for a limited remand for the trial
court to conduct a mental health diversion eligibility hearing. (People v. Frahs (2020)
9 Cal.5th 618.)
Because defendant’s case is not yet final and the record affirmatively discloses
that defendant appears to meet at least one of the section 1001.36 eligibility requirements
(a recent, qualifying mental disorder diagnosis), we will direct the trial court to
retroactively apply the provisions of section 1001.36 as though the statute existed at the
time defendant was initially charged.
B
At defendant’s request, we also asked the parties to file supplemental briefing
addressing defendant’s ability to pay the imposed fines, fees and assessments. Defendant
relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). In that case the court
held it was improper to impose a restitution fine and court operations and facilities
assessments without first determining the defendant’s ability to pay. (Id. at pp. 1168,
1172.) Some courts have subsequently criticized Dueñas’s legal analysis. (See, e.g.,
People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946.)
Our review of the record indicates the trial court considered defendant’s ability
to pay at sentencing. It expressly found that defendant had an inability to pay the
mandatory $10 fine required by section 1202.5, and it informed defendant that because he
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is indigent, counsel would be appointed to represent him on appeal, but it nevertheless
imposed the restitution fines and assessments with an understanding of defendant’s
ability to pay. Defendant’s Dueñas challenge lacks merit.
Having undertaken an examination of the entire record and having reviewed
the supplemental briefing, we have found no other arguable error that would result
in a disposition more favorable to defendant.
DISPOSITION
The judgment is conditionally reversed and the cause is remanded to the trial court
with directions to conduct a mental health diversion eligibility hearing consistent with
People v. Frahs, supra, 9 Cal.5th 618. If the trial court determines defendant qualifies
for diversion under section 1001.36, then the court may grant diversion. If defendant
successfully completes diversion, then the trial court shall dismiss the charges. However,
if the trial court determines that defendant is ineligible for diversion, or defendant does
not successfully complete diversion, then his conviction and sentence shall be reinstated.
The judgment is otherwise affirmed.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
MURRAY, J.
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