Filed 12/10/20 P. v. Torres CA2/8
Opinion following 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
B292495
Plaintiff and Respondent,
v. (Los Angeles County
Super. Ct. No. BA451597)
VICTOR TORRES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Craig Richman, Judge. Conditionally
reversed and remanded with directions.
Aurora Elizabeth Bewicke, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Kim Aarons and Shezad H. Thakor,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
The California Supreme Court has directed us to reconsider
this matter in light of its recent decision in People v. Frahs (2020)
9 Cal.5th 618, 631 (Frahs), which holds pretrial mental health
diversion under Penal Code sections 1001.35 and 1001.361 may
be retroactively applied to cases in which the judgment is not yet
final. Victor Torres’s case is not yet final and he seeks remand of
this matter for a pretrial diversion hearing. We follow Frahs to
conditionally reverse the judgment and remand the matter for
this limited purpose.
Torres also contends his one-year prior prison term
enhancement (§ 667.5, subd. (b)) should be stricken and the
matter remanded for the trial court to exercise its discretion to
strike his five-year serious felony enhancement (§ 667, subd.
(a)(1)). We agree Torres is entitled to resentencing as to those
enhancements. However, resentencing should occur only if
Torres is found ineligible for mental health diversion or if he fails
to successfully complete the diversion program.
Lastly, Torres asserts remand is warranted to allow him
the opportunity to request a hearing under People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas) regarding his ability to pay
the imposed fines and fees. We previously determined Torres
forfeited this issue and decline to reconsider our holding.
PROCEDURAL BACKGROUND
A jury convicted Torres of assault with a semi-automatic
firearm (§ 245) and negligent discharge of a firearm (§ 246.3).
It also found true Torres personally used a firearm in the
commission of the assault (§ 12022.5, subd. (a)). In a bifurcated
trial, the court found Torres had suffered a prior prison term
1 All further statutory references are to the Penal Code
unless otherwise specified.
2
(§ 667.5, subd. (b)) and a serious felony conviction (§ 667, subd.
(a)(1)). The trial court sentenced Torres to a total term of 22
years and four months. The trial court selected the assault
conviction as the base term and imposed the midterm of six
years, doubled to 12 years due to the strike, plus four years for
the firearm enhancement. As to the negligent discharge
conviction, the trial court imposed a term of eight months (one-
third the midterm), doubled to 16 months due to the strike, plus
five years for the prior felony conviction, to run consecutively to
the base term. The trial court imposed and stayed a one-year
sentence for the prior prison term enhancement pursuant to
section 654.
The trial court further ordered Torres to pay an $80 court
operation assessment (§ 1465.8), a $60 conviction assessment
(Gov. Code, § 70373), and $300 in restitution (§ 1202.4, subd. (b)).
A further $300 parole restitution fine was imposed and
suspended under section 1202.45.
On appeal, we affirmed the convictions but remanded the
matter to allow the trial court to exercise its discretion to strike
or dismiss the firearm enhancement under section 12022.5,
subdivision (c). At the resentencing hearing, the trial court
declined to do so. Torres appealed. In the second appeal, Torres
argued remand was necessary for the trial court to exercise its
discretion to: (1) order pretrial mental health diversion pursuant
to section 1001.36; (2) impose or strike a serious felony
enhancement pursuant to Senate Bill No. 1393 (2017–2018 Reg.
Sess.) (SB 1393); and (3) hold a hearing to determine his ability
to pay various fines, fees, and assessments pursuant to Dueñas,
supra, 30 Cal.App.5th 1157.
3
In an unpublished opinion dated October 10, 2019, we
again affirmed the convictions. We held section 1001.36 was not
retroactive and declined to remand Torres’s case for a diversion
hearing. We found Torres was entitled to resentencing pursuant
to SB 1393 but determined he had forfeited his claims under
Dueñas because he failed to request an ability-to-pay hearing at
the time the fines and fees were imposed. (People v. Torres (Oct.
10, 2019, B292495) [nonpub. opn.].)
In a petition for rehearing, Torres sought additional relief
from then-newly passed Senate Bill No. 136 (2019–2020 Reg.
Sess.) (SB 136), which eliminated most prior prison term
enhancements under section 667.5, subdivision (b). Because SB
136 was not yet in effect, we denied the petition for rehearing but
advised Torres to raise the issue after its effective date of
January 1, 2020, “by whatever procedural means that may be
available at that time.” (People v. Torres (Oct. 21, 2019,
B292495) [nonpub. order].)
Torres petitioned the Supreme Court for review. The court
granted review and deferred further action pending its
“consideration and disposition of a related issue in People v.
Frahs, S252220.” On June 18, 2020, the high court issued its
decision in Frahs, supra, 9 Cal.5th at page 631. It then
transferred the matter to this court with directions to vacate the
October 10, 2019 decision and to reconsider the cause in light of
Frahs.
DISCUSSION
I. Mental Health Diversion Is Retroactive
Torres relies on Frahs to argue remand is necessary for the
trial court to conduct a hearing to determine his eligibility for
pretrial mental health diversion. The People oppose, arguing
4
Torres has failed to demonstrate he suffers from a qualifying
mental illness, and remand would be futile because the trial court
has clearly stated Torres presents a danger to society. We follow
Frahs and remand the matter for a diversion hearing pursuant to
section 1001.36.
A. The Pretrial Mental Health Diversion Statute
Section 1001.36 authorizes pretrial diversion for
defendants with qualifying mental disorders. “ ‘[P]retrial
diversion’ means 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).)
A trial court may grant pretrial diversion under section
1001.36 if the court finds: (1) the defendant suffers from a
qualifying mental disorder; (2) the mental disorder played a
significant role in the commission of the charged offense; (3) a
qualified mental health expert opines the defendant’s symptoms
will respond to treatment; (4) the defendant consents to diversion
and waives his or her speedy trial rights; (5) the defendant agrees
to comply with the 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 he is treated in the
community. (§ 1001.36, subd. (b)(1)(A)–(F).) Pretrial diversion is
not available to defendants charged with murder, voluntary
manslaughter, certain enumerated sex offenses, and certain
offenses involving the use of weapons of mass destruction.
(§ 1001.36, subd. (b)(2)(A)–(H).)
5
If the trial court grants pretrial diversion and the
defendant performs “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.” (§ 1001.36, subd.
(e).) If the defendant does not perform satisfactorily in diversion,
including by committing new crimes, the court may reinstate
criminal proceedings. (§ 1001.36, subd. (d).)
In Frahs, supra, 9 Cal.5th at page 631, the Supreme Court
held the pretrial mental health diversion statute applies
retroactively to those cases that were not yet final at the time the
statute became effective. There, the defendant’s case was not
final and “[t]here [was] evidence in the record that appear[ed] to
support the first of the statute’s threshold eligibility
requirements, and one other besides.” (Id. at p. 640.) A clinical
and forensic psychologist testified the defendant suffered from a
qualifying mental disorder and opined that his criminal behavior
was a consequence of this disorder. (Ibid.)
As a result, the Court of Appeal conditionally reversed the
defendant’s convictions and sentence and directed the trial court
on remand to make an eligibility determination regarding
pretrial diversion. (Frahs, supra, 9 Cal.5th at p. 637.) It
“ ‘instruct[ed] the trial court — as nearly as possible — to
retroactively apply the provisions of section 1001.36, as though
the statute existed at the time [defendant] was initially
charged.’ ” (Ibid.) It further provided: “ ‘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
6
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.’ ” (Id. at p. 638.) The Supreme Court agreed with the
Court of Appeal and adopted its disposition. (Id. at p. 641.)
B. Remand Is Warranted For a Pretrial Diversion
Hearing
As in Frahs, remand is warranted for the trial court to
conduct a pretrial diversion hearing. Torres’s case is not yet final
on appeal. (People v. Smith (2015) 234 Cal.App.4th 1460, 1465
[“[a] judgment becomes final when the availability of an appeal
and the time for filing a petition for certiorari have expired”]; see
also Bell v. Maryland (1964) 378 U.S. 226, 230 [“[t]he rule applies
to any such [criminal] proceeding which, at the time of the
supervening legislation, has not yet reached final disposition in
the highest court authorized to review it”].)
Moreover, the record discloses Torres may meet at least one
of the threshold requirements: suffering from a qualifying
mental disorder. (Frahs, supra, 9 Cal.5th at p. 637.) Section
1001.36, subdivision (b)(1)(A) defines a qualifying mental
disorder as one that is “identified in the most recent edition of the
Diagnostic and Statistical Manual of Mental Disorders [DSM],
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. Evidence of the defendant’s mental
disorder shall be provided by the defense and shall include a
recent diagnosis by a qualified mental health expert. In opining
7
that a defendant suffers from a qualifying disorder, the qualified
mental health expert may rely on an examination of the
defendant, the defendant’s medical records, arrest reports, or any
other relevant evidence.”
Here, the probation report alerts the reader to “additional
information below: indication/admission of significant substance
abuse problem.” The “additional information” discloses that the
police report indicated Torres appeared to be under the influence
of a narcotic at the time of the offense and had prior drug-related
convictions. The report concluded, “Both of these matters
indicated the defendant struggle[d] with substance abuse issues.”
The record also discloses Torres was shot three times in the head
in a prior incident, requiring brain surgery. His parents advised
the court that Torres’s drug and mental health problems led him
to make bad decisions. According to Torres, DSM-identified
mental disorders include “Substance-Related and Addictive
Disorders,” “Trauma- and Stressor-Related Disorders,” and
“Major or Mild Neurocognitive Disorder Due to Traumatic Brain
Injury.”2
The People do not dispute that Torres struggles with
substance abuse or that he had brain surgery as a result of a
traumatic incident. Nor do they dispute these may be qualifying
mental disorders under section 1001.36, subdivision (b)(1)(A).
2 Torres cites to an online version of the fifth edition of the
DSM set out by the American Psychiatric Association. (See
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (5th ed.)
[as of
Dec. 10, 2020].) While Torres does not properly seek judicial
notice of the DSM’s relevant portions, the People do not dispute
Torres’s assertion that these disorders are listed in the DSM.
8
They contend instead that Frahs requires a formal diagnosis
from a qualified mental health expert at this stage of the
proceedings. We disagree that is what Frahs requires for a
conditional reversal and limited remand.
In Frahs, the defendant testified he heard voices and saw a
flying horse shortly before he committed the charged offense. A
clinical and forensic psychologist testified the defendant had been
diagnosed with schizoaffective disorder, and that his criminal
conduct was a byproduct of a psychotic episode. (Frahs, supra,
9 Cal.5th at p. 625.) Although there was a formal diagnosis in
Frahs, the court did not expressly require one in all cases.
Indeed, the court rejected the People’s position that the
defendant must satisfy all six threshold eligibility requirements
before an appellate court may remand the case for a diversion
eligibility hearing. It instead acknowledged, “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)).” (Id. at p. 638.)
The Supreme Court concluded “that 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 [citation].” (Frahs, supra, 9 Cal.5th at p. 640,
9
underlining added.) Thus, it approved the Court of Appeal’s
instruction to the trial court “ ‘as nearly as possible [ ] to
retroactively apply the provisions of section 1001.36, as though
the statute existed at the time [defendant] was initially
charged.’ ” (Id. at p. 637.) Given this reasoning from the Frahs
court, it is clear a formal diagnosis is not required at this stage of
the proceedings. Otherwise, Torres would not simply “appear” to
meet the first threshold eligibility requirement but would
actually have met that requirement.
Next, the People argue it would be futile to remand for a
mental health diversion hearing because the trial court stated at
the original sentencing hearing: “I do find the defendant has
engaged in violent conduct that indicates serious danger to
society.” The People interpret this statement to mean the trial
court would find Torres poses an unreasonable danger to society.
We are not persuaded the trial court’s statement “clearly”
indicates it would make that finding at a diversion hearing. (See
Frahs, supra, 9 Cal.5th at p. 640 [“Because this case does not
present such an issue, we do not address the question of whether
an appellate court may also decline a defendant’s remand request
when the record clearly indicates the trial court would have
found the defendant ‘pose[s] an unreasonable risk of danger to
public safety’ [citation] and is therefore ineligible for diversion.”].)
The trial court’s statement, tracking the language of rule
4.421(b)(1) of the California Rules of Court, was made within the
context of its consideration of the factors in aggravation at
sentencing. The trial court’s finding under rule 4.421(b)(1) does
not equate to a finding of unreasonable risk of danger to public
safety under section 1001.36, subd. (b)(1)(F).
10
II. Resentencing Shall Occur Only If Torres Is Found
Ineligible for Pretrial Diversion or Does Not
Successfully Complete Diversion
At his initial sentencing hearing in 2017, the trial court
imposed and stayed a one-year prior prison term enhancement
pursuant to section 667.5, subdivision (b). On October 8, 2019,
the Governor signed SB 136. SB 136 amended section 667.5,
subdivision (b) to require the one-year enhancement be imposed
only if the defendant’s prior prison term was “for a sexually
violent offense as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code.” (Stats. 2019, ch. 590, § 1.)
SB 136 became effective on January 1, 2020, and applies
retroactively to all defendants whose judgments are not yet final
as of that date. (People v. Lopez (2019) 42 Cal.App.5th 337, 340–
342 (Lopez); People v. Jennings (2019) 42 Cal.App.5th 664, 681.)
On October 21, 2019, we denied Torres’s request for relief
under SB 136 because it was not yet in effect. Torres now renews
his request for this court to strike his one-year prior prison term
enhancement pursuant to SB 136. The People concede, and we
agree, the enhancement should be stricken because Torres’s case
is not yet final and his conviction was not for a sexually violent
offense. (Lopez, supra, 42 Cal.App.5th at pp. 340–342.)
We do not now strike the enhancement, however, because
this matter will be remanded for a pretrial diversion hearing.
If the trial court grants mental health diversion and Torres
successfully completes diversion, the court shall dismiss the
charges and the issue of the enhancement becomes moot. If the
trial court determines Torres is ineligible for mental health
diversion, he commits another crime, or otherwise does not
successfully complete diversion, his convictions will be reinstated.
11
At that time, the trial court shall conduct a resentencing hearing
and strike the one-year prior prison term enhancement pursuant
to SB 136 and also exercise its discretion to strike the five-year
serious felony enhancement pursuant to SB 1393.3
III. Torres Forfeited His Challenge to the Fines, Fees,
and Assessments
Torres urges us to reconsider our previous determination
that he forfeited his challenge to the fines, fees, and assessments
under Dueñas, supra, 30 Cal.App.5th 1157 and People v.
Castellano (2019) 33 Cal.App.5th 485. We decline to do so.
Torres asserts Frahs and People v. Perez (2020) 9 Cal.5th 1, 4
(Perez) lend new support to his argument that he did not forfeit
the issue. Frahs does not address forfeiture and does not hold
that the principles of statutory retroactivity apply to case law or
to fines, fees, and assessments. (See Frahs, supra, 9 Cal.5th
618.) Perez addresses forfeiture of a confrontation clause
objection related to expert basis testimony. (Perez, supra, 9
Cal.5th at p. 4.) Neither Frahs nor Perez requires us to revisit
our previous determination.
3 We adopt our previous holding that Torres is entitled to
remand to allow the trial court to exercise its discretion under SB
1393. The trial court has yet to conduct a sentencing hearing for
this purpose because the matter was pending review in the
Supreme Court.
12
DISPOSITION
Torres’s convictions and sentence are conditionally
reversed. The matter is remanded with the following
instructions for the trial court in considering defendant’s
eligibility for diversion under section 1001.36: If the trial court
finds Torres 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 Torres successfully
completes diversion, then the court shall dismiss the charges.
However, if the court determines Torres does not meet the
criteria under section 1001.36, or if Torres does not successfully
complete mental health diversion, including by committing new
crimes, then his convictions shall be reinstated. In the event his
convictions are reinstated, the trial court shall conduct a
sentencing hearing in which it shall strike the one-year prior
prison term enhancement under section 667.5, subdivision (b)
and decide whether to strike the five-year enhancement pursuant
to section 667, subdivision (a)(1). The trial court shall thereafter
prepare and forward a new abstract of judgment to the
Department of Corrections and Rehabilitation.
BIGELOW, P. J.
We Concur:
GRIMES, J. STRATTON, J.
13