People v. Demedio CA4/2

Filed 12/4/20 P. v. Demedio CA4/2
Opinion following order vacating prior opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E068595

v. (Super.Ct.No. SWF1203227)

RONALD RALPH DEMEDIO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,

Judge. Reversed and remanded with directions.

Rene Rich and Jill M. Kent, under appointment by the Court of Appeal, for

Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief

Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Michael Pulos

and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

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 I

INTRODUCTION

A jury found defendant and appellant Ronald Ralph Demedio guilty of first degree

residential burglary (Pen. Code, § 459; count 1);1 receiving stolen property (§ 496,

subd. (a); count 2); and grand theft of a firearm (§ 487, subd. (d)(2); count 3). Defendant

subsequently admitted that he had suffered five prior prison terms (§ 667.5, subd. (b)),

three prior serious felony convictions (§ 667, subd. (a)), and three prior strike convictions

(§§ 667, subds. (c), (e)(2), 1170.12, subd. (c)(2)(A)). As a result, in 2015, defendant was

sentenced to a total indeterminate term of 25 years to life and a total determinate term of

13 years in state prison.

In his first appeal, defendant argued that his sentence of 25 years to life on count 2

was unauthorized and that the trial court erred in staying, rather than striking, two of his

prior prison term enhancements. In a nonpublished opinion, we held that the trial court’s

finding that defendant’s conviction for receiving stolen property as alleged in count 2 was

a dual conviction was legally erroneous because defendant’s convictions for theft and

receipt are based on separate property. Therefore, the trial court was required to impose a

sentence on count 2 and its failure to do so was unauthorized. (People v. Demedio

(Oct. 21, 2016, E063425) [nonpub. opn.] pp. 7-8 (Demedio I).) We also concluded that

defendant was entitled to a second strike double determinate sentence on count 2

pursuant to the Reform Act (Proposition 36) because receiving stolen property is neither

1 All future statutory references are to the Penal Code unless otherwise stated.

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a serious nor violent felony offense. Accordingly, we vacated the sentence and remanded

the matter for a new sentencing hearing. (Ibid.)

On remand, the trial court imposed an indeterminate term of 25 years to life on

count 1, a determinate term of six years on count 2, and a stayed indeterminate term of

25 years to life on count 3. The court also struck two of the previously stayed one-year

prior prison terms and imposed the same sentences on the remaining enhancement

allegations as it had in the initial sentencing. In total, defendant was sentenced to a

determinate term of 19 years plus an indeterminate term of 25 years to life.

Defendant thereafter appealed, arguing the trial court erred in imposing a

consecutive term on count 2 because he could not be punished for both the burglary

offense and the receiving stolen property offense pursuant to section 654, and therefore

his sentence on count 2 should have been stayed. Because defendant committed the

burglary and receiving stolen property offenses during a continuous course of conduct

with a single intent, we agreed with the parties and stayed defendant’s sentence on

count 2 pursuant to section 654.

Subsequently, defendant filed a petition for rehearing. He asserted he was entitled

to a mental health diversion hearing under newly enacted section 1001.36. We denied the

petition for rehearing.

Our Supreme Court thereafter 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

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and reconsider the cause in light of Frahs. 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 p. 640-641.) The court also held 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.)

We permitted the parties to file supplemental briefing in response to the Supreme

Court’s order. In his supplemental brief, defendant contends because section 1001.36 is

retroactive to cases not yet final, the convictions should be conditionally reversed to

allow the trial court to determine whether he is eligible for mental health diversion. The

People concede defendant is entitled to a limited remand to the trial court for a

determination on his eligibility for mental health diversion under section 1001.36. In his

supplemental brief, defendant also argues (1) in light of Senate Bill No. 1393 (Stats.

2018, ch. 1013, §§ 1-2) (Senate Bill 1393), which took effect after this court’s now-

vacated opinion of August 23, 2018, the sentence must be reversed and remanded for a

resentencing hearing for the court to exercise its newly granted discretion whether to

impose the five-year sentence enhancement; and (2) in light of Senate Bill No. 136

(Senate Bill 136) (Stats. 2019, ch. 590, § 1), which also took effect after this court’s now-

vacated opinion of August 23, 2018, the prior prison terms must be stricken. The People

did not address defendant’s two above-noted additional contentions in their supplemental

response brief.

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 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 sentence concerning

count 2 remains unchanged, and his sentence on count 2 for receiving stolen property is

stayed as it violates section 654. In addition, if the trial court finds defendant is ineligible

for mental health diversion under section 1001.36, the court shall exercise its discretion

whether to impose the five-year sentence enhancement for the two prior serious felony

convictions pursuant to Senate Bill 1393, and under Senate Bill 136, the prior prison term

enhancements must be stricken.

II

FACTUAL BACKGROUND2

In August 2012, the Bessey family resided in a motel in Hemet, California. On

August 21, 2012, Mrs. Bessey left for work around 8:30 or 8:45 a.m., and was the last

person to leave their room, No. 120. Before she left, she closed the window to their

room, locked the door to the adjoining room, and shut the outside door. When

Mrs. Bessey returned home from work around 4:00 or 4:30 p.m., she found the room in

disarray and noticed some of their property was missing. She then left and returned to

the room with her husband. Upon examination, they discovered that many of their items

were missing, including a briefcase which contained a handgun registered to Mr. Bessey,

a pearl necklace, pearl earrings, two men’s rings, and important family documents. Also

2The factual background is taken from this court’s nonpublished opinion in
defendant’s prior appeal. (See Demedio I, supra, E063425, pp. 2-3, fn. omitted.)

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missing were two laptops, a bag containing Mr. Bessey’s drawing materials, a digital

camera, a flash drive, clothing, and various other items.

The Besseys reported the loss to the motel manager and to the police. Reviewing

the motel’s surveillance video, the manager saw a man exit room 120 and then enter

room 119 carrying an item which looked like a laptop or briefcase. The manager

recognized the man in the video to be defendant.

Investigating the incident, Hemet Police Department Officer Derick Spoelstra

spoke with the motel manager and reviewed the motel’s video surveillance. After

reviewing the video, the officer contacted defendant in room 119. The officer asked

defendant if he could search the room, and defendant consented. Officer Spoelstra found

an empty briefcase under defendant’s bed, and defendant had a ring, two crosses, and a

necklace with a cross in his pocket. Mrs. Bessey identified the items as some of the items

that were taken from her room. Defendant initially denied being in the Bessey’s room,

but later admitted he took the briefcase from room 120 and dumped the paperwork from

the briefcase into a nearby dumpster.

III

DISCUSSION

A. Mental Health Diversion

After we filed the nonpublished opinion in defendant’s second appeal on

August 23, 2018, defendant filed a petition for rehearing arguing he was entitled to a

mental health diversion hearing under newly enacted section 1001.36 because he suffers

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from a qualifying diagnosed mental disorder. He requested that this court should

conditionally reverse his convictions and sentence and remand the matter for the trial

court to conduct a mental health diversion eligibility hearing under section 1001.36. We

denied the petition for rehearing on September 19, 2018.

On September 28, 2018, our colleagues in Division Three issued a published

decision finding section 1001.36 applies retroactively to a defendant whose case is not

yet final on appeal and where the appellate record shows a defendant meets at least one of

the statute’s requirements. (See People v. Frahs (2018) 27 Cal.App.5th 784, review

granted Dec. 27, 2018, S252220.) Our Supreme Court affirmed the decision in Frahs on

June 18, 2020. (See Frahs, supra, 9 Cal.5th 618.) Pursuant to our Supreme Court’s

decision in Frahs, we now conclude defendant is entitled to limited remand to the trial

court for a determination on his eligibility for mental health diversion under

section 1001.36. (See Frahs, at pp. 640-641.)

Section 1001.36 was enacted after defendant’s sentencing (Stats. 2018, ch. 34,

§ 24, eff. June 27, 2018) and 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; (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)(2); (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

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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.

(§ 1001.36, subd. (b)(1)(A)-(F).) “If the defendant has performed satisfactorily in

diversion, at the end of the period of diversion, the court shall dismiss the defendant’s

criminal charges that were the subject of the criminal proceedings at the time of the initial

diversion. . . . Upon successful completion of diversion, if the court dismisses the

charges, the arrest upon which the diversion was based shall be deemed never to have

occurred, and the court shall order access to the record of the arrest restricted.”

(§ 1001.36, subd. (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 the Estrada3 rule’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

3 In re Estrada (1965) 63 Cal.2d 740 (Estrada).

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determine whether they are eligible for mental health diversion. (Frahs, supra, 9 Cal.5th

at pp. 624-625.) The Supreme Court explained “the possibility of being granted mental

health diversion rather than being tried and sentenced ‘can result in dramatically different

and more lenient treatment.’ ” (Id. at p. 631, quoting People v. Superior Court (Lara) 4

Cal.5th 299, 303 (Lara).) The court relied on its decision in Lara, where it concluded the

ameliorative benefits of Proposition 57, which prohibits prosecutors from charging

juveniles with crimes directly in adult criminal court, are retroactively applicable to

juveniles whose judgments are not yet final at the time Proposition 57 was enacted.

(Frahs, at p. 629; Lara, at pp. 303-304.) The court noted the pertinent facts “are like

those involved in Lara.” (Frahs, at p. 631.) Specifically, the court reasoned “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.” (Ibid.) The court therefore concluded “the

ameliorative nature of the diversion program places it squarely within the spirit of the

Estrada rule,” and thus the program retroactively applies to defendants whose cases are

not yet final. (Frahs, at p. 631.) That is the case for defendant here.

Our Supreme Court further rejected the People’s argument the defendant was not

entitled to remand because he did not make an adequate showing of eligibility. (Frahs,

supra, 9 Cal.5th at pp. 637-638.) The People argued the defendant had to demonstrate he

met all six threshold eligibility requirements before the appellate court could remand.

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(Ibid.) The court found imposing such a high bar for remand “would be unduly onerous

and impractical” and “inconsistent with any sensible retroactive application of the

statute.” (Id. at p. 638.) Instead, the court concluded “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.” (Id. at p. 640.)

In this case, the appellate record shows that defendant has a documented history of

bipolar disorder and had been treated for schizophrenia. Bipolar disorder and

schizophrenia are qualifying mental disorders under section 1001.36. Under Frahs,

because defendant has argued he suffers from a qualifying mental disorder, he is entitled

to a conditional remand to allow the trial court to conduct a mental health diversion

eligibility hearing under section 1001.36.

B. Section 654

Defendant contends that his sentence on count 2 for receiving stolen property

should be stayed under section 654 because the burglary and receiving stolen property

offenses were committed during an indivisible course of conduct with a single intent and

objective. The People agree defendant’s sentence on count 2 should be stayed. We also

agree.

As relevant, section 654, subdivision (a), provides: “An act or omission that is

punishable in different ways by different provisions of law shall be punished under the

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provision that provides for the longest potential term of imprisonment, but in no case

shall the act or omission be punished under more than one provision.” “ ‘Section 654

precludes multiple punishments for a single act or indivisible course of conduct.

[Citation.]’ ” (People v. Galvez (2011) 195 Cal.App.4th 1253, 1262.) When it applies,

“the accepted ‘procedure is to sentence defendant for each count and stay execution of

sentence on certain of the convictions to which section 654 is applicable.’ [Citations.]”

(People v. Jones (2012) 54 Cal.4th 350, 353.)

“ ‘Whether a course of criminal conduct is divisible and therefore gives rise to

more than one act within the meaning of section 654 depends on the intent and objective

of the actor. If all of the offenses were incident to one objective, the defendant may be

punished for any one of such offenses but not for more than one.’ [Citation.]” (People v.

Correa (2012) 54 Cal.4th 331, 336.) However, a defendant may be punished for each

offense, “[i]f he [or she] entertained multiple criminal objectives which were independent

of and not merely incidental to each other, . . . even though the violations shared common

acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon

(1973) 8 Cal.3d 625, 639.) Additionally, punishment for each offense is not barred by

section 654, if the facts support a finding of similar, but consecutively held objectives.

(People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)

A defendant’s intent and objective are factual questions for the trial court. (People

v. Green (1988) 200 Cal.App.3d 538, 543-544.) “A trial court’s [express or] implied

finding that a defendant harbored a separate intent and objective for each offense will be

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upheld on appeal if it is supported by substantial evidence. [Citation.]” (People v. Blake

(1998) 68 Cal.App.4th 509, 512.)

In People v. Allen (1999) 21 Cal.4th 846 (Allen), the defendant burglarized three

homes, stealing jewelry from each. He was convicted of three counts of burglary and two

counts of receiving stolen property involving the jewelry taken in two of the burglaries.

(Id. at p. 850.) The Supreme Court held the defendant was properly convicted of both

burglary and receiving stolen property, but also indicated it approved of the trial court’s

stay of execution of sentence for receiving stolen property. “This disposition was correct,

satisfying both section 954 (allowing multiple convictions) and section 654 (barring

multiple punishment).” (Id. at pp. 866-867.)

Here, as in Allen, the property taken in the burglary was the same property that

was the basis of the receiving stolen property charge. In addition, the burglary and

receiving stolen property offenses occurred simultaneously or in close temporal

proximity. (See People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10 [temporal

proximity, while not determinative of whether there was a single objective, is a relevant

consideration].) The circumstances in this case showed that defendant’s intent and

objective in committing the burglary and the receiving stolen property was one and the

same: to obtain the stolen property. Defendant’s intent in committing the burglary was

to obtain the stolen property, one and the same objective. Thus, defendant’s sentence on

count 2 for receiving stolen property must be stayed pursuant to section 654.

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 C. Senate Bill 1393

Defendant contends that Senate Bill 1393 requires this case to be remanded so that

the trial court can exercise its newly authorized discretion to strike his prior serious

felony enhancements under recently amended sections 667 and 1385. We agree Senate

Bill 1393 applies retroactively and that remand is necessary so the court may exercise its

discretion and decide whether to strike the prior serious felony enhancement.

The trial court here sentenced defendant to an indeterminate term of 25 years to

life, plus a determinate term of 19 years. The determinate term included 10 years (five

years each) under section 667, subdivision (a) for the commission of two prior serious

felonies. The prior serious felonies were for residential burglaries committed in 1991 and

1996. At the time of sentencing, 2015, the trial court was precluded by law from striking

a prior serious felony conviction. (See former § 1385, subd. (b) [“This section does not

authorize a judge to strike any prior conviction of a serious felony for purposes of

enhancement of a sentence under Section 667”]; see also § 667, subd. (a) [person with

prior serious felony conviction “shall receive . . . a five-year enhancement”].)

However, effective January 1, 2019, sections 667, subdivision (a), and 1385,

subdivision (b), allow a trial court to exercise its discretion to strike or dismiss a prior

serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28

Cal.App.5th 961, 971 (Garcia).) The trial court therefore is no longer prohibited from

striking prior serious felony convictions during sentencing. Although defendant was

sentenced before the effective date of Senate Bill 1393, we agree that the amendment

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applies to defendant as his case is not final. (Id. at pp. 972-973 [Senate Bill 1393 applies

retroactively to all cases not yet final on the effective date], citing Lara, supra, 4 Cal.5th

at pp. 307-308 & fn. 5, & Estrada, supra, 63 Cal.2d at pp. 744-745; see People v. Jones

(2019) 32 Cal.App.5th 267, 272 [“When it enacted Senate Bill 1393, the Legislature did

not indicate it intended the legislation to apply prospectively only”].)

Because the record contains no clear indication that the trial court would not have

struck the five-year enhancement for the prior serious felony convictions if it had the

discretion to do so, we remand the matter to the trial court in order for it to exercise its

discretion pursuant to sections 1385, and 667, subdivision (a), to determine whether to

strike one or both of the prior serious felony enhancements. We express no opinion how

the trial court should exercise its discretion on remand.

D. Senate Bill 136

Defendant further contends that, under Senate Bill 136, this court must strike the

prior prison terms imposed pursuant to section 667.5, subdivision (b). At the May 5,

2017, resentencing hearing, the trial court imposed three one-year terms for three of the

prior prison terms. Defendant’s prior prison terms were for two burglaries and a petty

theft with a prior.

On October 8, 2019, Senate Bill 136 was signed into law and became effective on

January 1, 2020. Senate Bill 136 modifies section 667.5, subdivision (b), to eliminate the

one-year sentences for prior prison terms served unless the prior prison term involves a

conviction of a sexually violent offense (which is not involved here). Senate Bill 136

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applies retroactively to those defendants whose cases are not yet final. (People v. Lopez

(2019) 42 Cal.App.5th 337, 340-342; see Garcia, supra, 28 Cal.App.5th at p. 973.)

Defendant’s case is not yet final, and as such, the sentence imposed for his three prior

prison terms pursuant to section 667.5, subdivision (b), should be stricken. We will

direct the trial court to strike the one-year prior prison term enhancements that were

imposed pursuant to section 667.5, subdivision (b).

IV

DISPOSITION

We conditionally reverse the 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.

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.’ ” (Frahs, supra, 9 Cal.5th at p. 641.)

If the trial court finds defendant ineligible for mental health diversion and

reinstates defendant’s sentence, it shall stay the six-year consecutive term imposed on

count 2 for the receiving stolen property conviction pursuant to section 654 and strike the

three prior prison term enhancements under Senate Bill 136. The trial court shall also

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exercise its discretion to strike or impose the prior serious felony enhancements pursuant

to Senate Bill 1393. The trial court is directed to prepare an amended abstract of

judgment and minute order of the resentencing hearing, and to forward a certified copy of

the amended abstract of judgment to the Department of Corrections and Rehabilitation,

Division of Adult Operations. (§§ 1213, 1216.) In all other respects, the judgment is

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:

McKINSTER
J.

SLOUGH
J.

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