Filed 4/21/21 P. v. Ware CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B301990
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA083082-01)
v.
JAMES WARE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David B. Gelfound, Judge. Reversed and
remanded with directions.
Laini Millar Melnick, 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, Scott A. Taryle, Supervising Deputy
Attorney General, and David A. Voet, Deputy Attorney General,
for Plaintiff and Respondent.
This is the third time we confront an appeal in this case.
(People v. Ware (May 30, 2017, B271291) [nonpub. opn.]
[reversing the judgment for instructional error and permitting
the People to accept a reduction of a criminal threats conviction
to an attempted criminal threats conviction]; People v. Ware (Feb.
19, 2019, B287995) [nonpub. opn.] [affirming denial of a People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) motion
brought on remand but remanding again to give the trial court
the opportunity to consider exercising its discretion to strike two
five-year prior serious felony conviction enhancements].) We are
now asked to decide whether reversal is required because the
trial court declined to decide whether defendant James Ware
(defendant) is entitled to retroactive consideration for mental
health diversion (see generally People v. Frahs (2020) 9 Cal.5th
618 (Frahs)) and whether the trial court abused its discretion
when opting not to strike the two sentencing enhancements.
I
A
We have previously summarized much of the history of this
case. We reproduce that summary here as pertinent for our
purposes.
Early in the morning on February 26, 2015, defendant’s
mother called 911 to report defendant was causing a disturbance
at her house and refusing to leave the property. Defendant left
the scene before the responding police officers arrived.
Later that same morning, defendant’s brother Rick spoke to
defendant by phone and recorded the call without telling
defendant he was doing so. Rick placed the call on speakerphone
so their mother, who was also in the house, could listen in.
2
Defendant said he wanted to come over to the house so he
could eat, take his diabetes medication, and shower before going
to school. Rick refused to give defendant permission to enter the
house, explaining it was not his house (it was their mother’s) and
reminding defendant he would “assault everybody” whenever he
came over. Defendant then began arguing with Rick, and Rick
repeatedly told defendant he should get counseling or enter a
treatment program to address his substance abuse and mental
health issues. Defendant eventually hung up on Rick.
When defendant called Rick back, Rick again
surreptitiously recorded their conversation. Defendant told Rick
he was “so mad” and “really want[ed] that house to burn down.”
Defendant elaborated, using even more vivid language: “I got a
Molotov cocktail right here. I’ve got a lighter in my hand, Ricky.
And—and I—I got a great big old 40-ounce bottle full of gas, and
I’m going to burn your house down, man.” Rick responded by
telling defendant “we really care about you” and “[w]e want you
to go to counseling.”
Defendant, however, was far from done. Over the next ten-
plus minutes, he repeatedly threatened Rick and the other
occupants of the house, stating at one point: “I hate you so much
that I could really trap with you [sic] motherfuckers in there
right now and burn that house down. That’s how I’m feeling
right now. You know what I mean? But you want to talk to me
about a fucking [counseling] program? [¶] . . . [¶] I’m tired of this
motherfucking shit. I’m tired. You think I’m going to—the next
time I go to jail, I just want you motherfuckers to know, yeah, I
deserve that. So whatever life sentence I get or whoever die[s],
whatever happen[s], man, you all—you all brought this shit on
yourself, man, you know? [¶] . . . [¶] “I want you dead, man. I
3
want your mama dead and your fucking daughter, man, and I’m
going to kill you motherfuckers . . . . I’m going to show you
motherfuckers what real hate is, you know. [¶] . . . [¶] I don’t
want to beg. I don’t want to—you know what, fuck being, I don’t
even want to fucking be alive. You know what I mean?”
Throughout this portion of defendant’s tirade, Rick did not
respond to defendant’s threats other than to reiterate defendant
should enroll in a counseling program and to extol the virtues of
such a program, e.g., that a residential program would provide
defendant with food and an opportunity for Bible study.
The phone conversation continued. Defendant told Rick he
was standing on the roof of the house and could “light all the
exits on fire and you motherfuckers won’t even be able to get out.”
Defendant asked Rick, “Do you hear me on the roof, Ricky?” Rick
responded, “Nope,” and followed up with, “Hey Jamie, the
program is going to be great for you.” Defendant’s retort was to
tell Rick his “car is on fire already”; in fact, it wasn’t.
Defendant asked to speak to his mother, and she told
defendant he should go to school and go to counseling. After
defendant continued to protest being kept out of the house and
told Rick he “lit your house on fire,” Rick responded, “Jamie, this
is terrorism.” Defendant said he didn’t care and told Rick maybe
he (defendant) could eat in jail; Rick responded that he thought
“it would be better in a program.” The conversation ended when
Rick indicated he was going to get off the phone and would see
defendant after his “little program”; defendant replied, “you have
a nice day.”
Sometime after the call between defendant and Rick ended,
Rick called 911. Rick told the 911 operator his mother asked him
to call because defendant had come to the house and damaged a
4
door while trying to break in. Rick’s mother, who also spoke to
the 911 operator during the call, explained defendant broke the
door frame but couldn’t get the door all the way open. In
response to the operator’s questions, Rick said defendant was still
trying to get in the house and seemed like he was on drugs. At
the end of the call, the operator told Rick and his mother to call
back if anything else happened, and the recording ends with
Rick’s mother saying, “I smell um, I smell.”
Rick called 911 again approximately ten minutes later. He
told the operator he thought defendant “just poured gasoline all
over, [and] he’s trying to burn the house down.” The operator
asked, “And you said he put gas all over the house?” Rick
responded, “Y[eah], we have a tape of the thing. And he did it.
And he burst the door down trying to get in.” Rick then said, “It
really smells like gas, or something in here. But we can’t go out
because he’s out there. Yea[h], he’s coming back and forth across
the street from the neighbors house, they’re also . . . felons.” The
911 operator told Rick that the police were being sent to his
location and the fire department was also being notified.
Rick told responding police officers that defendant broke
the door and tried to get in the house. One of the officers
examined the house’s side door and found the jamb had been
cracked in a way consistent with someone hitting or kicking the
door. During their inspection of the property, the officers could
smell gasoline when standing in the area of the home’s side door
and front door, and a piece of carpet in front of one of the
doorways later tested positive for the presence of gasoline. The
responding officers took defendant into custody and found a
lighter in his front pocket during a search of his person.
5
B
Before trial, the People offered defendant a plea deal.
Under the terms of the proposed agreement, the prosecution
would recommend a six-year prison sentence if defendant pled
guilty or no contest to the criminal threats charge. Defendant
rejected that deal but thereafter agreed to an even more
favorable agreement, which the then-presiding trial judge
initially approved, that would result in a probationary sentence
(by striking both of his prior convictions for serious or violent
felonies under the Three Strikes law), with a requirement that
defendant enroll in a one-year, live-in “dual diagnosis” program.1
After defendant expressed what the trial court understood as
some reticence about whether he had a drug problem, however,
the trial court withdrew its approval of the plea agreement and
set the case for trial instead.
Before trial began, defendant placed several phone calls
from jail to his mother and Rick. Defendant repeatedly asked
Rick to refuse to show up as a witness at trial and to tell the
district attorney to drop the case. In one of the calls, defendant
asked Rick to “recant this statement” and “help me try to dismiss
this case” because the prosecution was “trying to give me life!”
Incredulous, Rick told defendant “they” (the prosecution) were
1
A dual-diagnosis treatment program simultaneously treats
mental health and substance abuse issues. (See, e.g., In re
Matthew C. (2017) 9 Cal.App.5th 1090, 1099.) When discussing
the program, defendant asked the court to allow him to use
medical marijuana while participating. The court responded:
“I’m telling you that while—if you’re taking bipolar medication,
unless the program says that medical marijuana is part of your
regimen, I can’t allow it, just so you know.”
6
just trying to get defendant to go to treatment. Defendant told
Rick he was wrong and explained the prosecution was not
offering treatment but was “trying to give me 25-life.”
When it later came time for trial, the prosecution called
Rick as a witness and elements of his testimony varied in
significant respects from what he testified to at the preliminary
hearing. Rick explained he and his mother refused to let
defendant in the house on the day he was arrested because they
were practicing “tough love” and wanted him to “hit bottom” so he
would get treatment for his psychological and drug issues. Rick
also testified defendant’s behavior on the day in question was not
unprecedented; defendant had acted the same way and made
threats similar to those he made on February 26 “countless”
times, especially when he had not eaten or taken his medication.
Rick said he “[did]n’t pay attention” to the threats, which were a
“normal occurrence” that defendant “constantly” made, “like a
broken record.” Rick explained he falsely claimed to have been in
fear because he believed that was what he needed to say to get
the prosecution to compel defendant to participate in treatment
for his drug and mental health problems.
The jury found defendant guilty of making criminal threats
but not guilty of attempted arson. The jury further found
defendant had sustained three prior serious or violent felony
convictions in 1992, one for voluntary manslaughter and two for
assault with a deadly weapon (both of which were sustained in
the same criminal proceeding). The trial court sentenced
defendant to a prison term of 35 years to life: 25 years to life for
the criminal threats conviction, pursuant to the Three Strikes
7
law (Penal Code sections 667, subdivisions (b)-(i) and 1170.12),2
plus two consecutive five-year terms under section 667,
subdivision (a)(1) for the qualifying prior serious felony
convictions. We later reversed the criminal threats conviction for
instructional error and the People accepted a reduction of the
conviction to attempted criminal threats. The trial court, at
resentencing in January 2018, made no change in defendant’s 35
years to life sentence.
Defendant again appealed, arguing the trial court should
have granted his renewed Romero motion at resentencing and we
should remand to give the trial court the opportunity to strike the
section 667, subdivision (a)(1) prior serious felony conviction
enhancements pursuant to the intervening change in law
implemented by Senate Bill No. 1393 (2017-2018 Reg. Sess.),
which gave trial courts additional discretion to strike such
enhancements in the interests of justice. In February 2019, we
“remanded for the trial court to consider whether it wishes to
exercise its discretion to strike, under section 1385, one or both of
defendant’s section 667, subdivision (a)(1) enhancements” but
affirmed in all other respects.
C
On remand (the remand from which this appeal arises),
defendant asked the court to strike both of his serious prior
conviction enhancements pursuant to the discretionary authority
conferred by Senate Bill 1393 (and as unconstitutional cruel or
unusual punishment). Defendant argued the enhancements
2
Undesignated statutory references that follow are to the
Penal Code.
8
should be stricken because, among other things, they were
remote (27 years old) and because he suffers from “mental illness
issues.”
In addition to his request to strike the prior serious felony
conviction enhancements, defendant also moved the court “to
conduct a diversion eligibility hearing under . . . section 1001.36
to qualify [defendant] for mental health diversion.” Section
1001.36 had been enacted in June 2018 (Stats. 2018, ch. 34, §
24)—in the interregnum between defendant’s January 2018
resentencing and our February 2019 remand for consideration of
Senate Bill 1393 discretion. Defendant argued he was entitled to
retroactively seek relief under section 1001.36 because it was an
ameliorative statute presumed to apply to all cases not yet final.
In arguing his eligibility under the terms of section 1001.36,3
defendant reminded the court that Dr. Marvin Pietruszka, a
defense expert witness at trial, testified defendant suffered from
bi-polar and paranoid schizophrenia disorder. The defense also
emphasized the pre-trial plea deal a prior judge had approved
3
Section 1001.36 permits a trial court to grant mental
health-based pretrial diversion “if it finds all of the following: (1)
the defendant suffers from a qualifying mental disorder
[including, but not limited to, bipolar disorder and
schizophrenia]; (2) the disorder played a significant role in the
commission of the charged offense; (3) the defendant’s symptoms
will respond to mental health treatment; (4) the defendant
consents to diversion and waives his or her speedy trial right; (5)
the defendant agrees to comply with treatment; and (6) the
defendant will not pose an unreasonable risk of danger to public
safety if treated in the community.” (Frahs, supra, 9 Cal.5th at
626-627.)
9
(before later rescinding it) that called for a probationary sentence
with dual-diagnosis treatment.
The prosecution opposed both of defendant’s requests for
relief. As to the trial court’s discretionary authority to strike
defendant’s serious prior conviction enhancements, the
prosecution argued the court should not exercise its discretion
largely because of defendant’s long and violent criminal history
(including prior convictions for voluntary manslaughter, assault
with a deadly weapon, and multiple violations of probation and
parole). As to defendant’s request for retroactive section 1001.36
mental health diversion, the prosecution argued the statute
should not apply retroactively and, regardless, defendant could
make no showing he was eligible for relief under the criteria
specified in section 1001.36 even if it did apply retroactively. As
to the latter of these arguments, the prosecution specifically
contended defendant provided no evidence that any mental
illness from which he suffered played a significant role in the
offense of conviction and he posed an unreasonable risk of danger
to public safety in any event. In addition to these statute specific
arguments, the prosecution’s opposition could also be read to
argue the trial court should deny defendant’s request for section
1001.36 relief because it was outside the scope of our remittitur
(affirming in all respects other than considering Senate Bill 1393
relief) and the trial court therefore had no ability to grant it.
After hearing argument from counsel at a hearing, the trial
court denied all relief sought by defendant and stated it would
not change the existing 35 years to life sentence. Addressing
defendant’s request for mental health diversion, the court
determined it had no jurisdiction to grant such relief because it
was beyond the scope of this court’s remittitur: “As to the mental
10
health diversion, they’re not asking the court to do any type of
hearing on mental health diversion.[4] [Defense counsel] has filed
voluminous documents and [it] was well-briefed by both sides . . .
. [¶] But the first issue is what’s the court’s authority, and the
court’s authority is limited by the scope o[f the] remittitur, and
the case law is pretty clear on that, that as a reviewing court, the
court has authority to—its jurisdiction is contained in the
remittitur. The rule requires a trial court to follow the terms of
the remittitur, and that’s jurisdictional in nature.” The court, of
course, found it did have jurisdiction to consider whether to strike
defendant’s prior serious felony conviction enhancements, and as
to those it declined to exercise its discretion in defendant’s favor
in light of his “long history of violence” and “numerous violations
of probation and parole.”
In elaborating on its reasons for declining to strike the
prior serious felony conviction enhancements, the court also made
reference back to defendant’s request for mental health diversion:
“[C]ounsel has asked the court to consider . . . defendant’s mental
illness in striking the two priors. So in this regard whether to
grant mental health diversion is beyond the scope of the
remittitur, but I am going to address that issue in relation to
striking the two [section] 667(a) priors. And there was a mental
defense presented at trial. The jury rejected it. I don’t believe
4
The defense had planned to call defendant’s brother to
testify at the hearing, but he did not attend. That may be what
the trial court was referring to in stating the defense was not
asking for “any type of hearing,” but it is not correct to say the
defense did not request a hearing to decide defendant’s eligibility
for mental health diversion—the defense (twice) made such a
request in the written motion it filed.
11
there is sufficient evidence to believe that . . . defendant’s mental
disorder played a significant role in the commission of this
offense. I don’t believe his mental condition had, again, a
significant role in the commission of the offense. [¶] And you
just have to look at the factual scenarios in this case.
[D]efendant knew what he was doing. He attempted to get his
family to lie. So, again, I don’t believe that that is a significant
factor.”5
II
As the Attorney General concedes, the trial court’s
rationale for denying defendant’s motion for retroactive mental
health diversion is legally incorrect. The court was appropriately
concerned with the scope of our remittitur, but the question of
whether defendant is entitled to seek relief pursuant to the
intervening enactment of section 1001.36 turns solely on whether
defendant’s conviction was final (in the legal sense) when the
statute was enacted. (Frahs, supra, 9 Cal.5th at 640 [“By
definition, a statute applies ‘retroactively’ to cases already past
the procedural point at which the new law ordinarily applies—
5
Later in the same hearing the court similarly remarked:
“Again, just as to—because there is that motion for mental health
diversion the court is not—is making its ruling regarding the
mental health regarding the five-year priors, mental health
diversion is not being asked by way of remittitur for the court to
address, but I have addressed that issue in regards to the
striking of the five-year priors, and I don’t believe the mental
health was a significant factor. And that’s part of the reason,
part of the reason why the court has declined to strike the five-
year priors along with those other reasons I’ve stated.”
12
here, cases that have already been adjudicated but are not yet
final on appeal. At the time section 1001.36 became effective,
defendant’s case was adjudicated but the judgment was not yet
final. Accordingly, he is entitled to the benefits of the statute’s
retroactive application”]; see also People v. McKenzie (2020) 9
Cal.5th 40, 45-46.) It was not, as defendant’s appeal of the trial
court’s Senate Bill 1393 determination itself proves. (People v.
Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1325 [“‘State
convictions are final “for purposes of retroactivity analysis when
the availability of direct appeal to the state courts has been
exhausted and the time for filing a petition for a writ of certiorari
has elapsed or a timely filed petition has been finally denied.”
[Citations]’”]; see also People v. Superior Court (Lara) (2018) 4
Cal.5th 299, 308.)
The Attorney General accordingly argues for affirmance
only on what amounts to harmless error grounds, i.e., the claim
that a remand to decide defendant’s eligibility for section 1001.36
relief would be pointless because the trial court already found
any mental illness was not a significant factor in defendant’s
criminal threats offense and because the record already shows
(even absent a trial court finding to this effect) that he poses an
unreasonable risk of danger to public safety. As we go on to
explain, we are unpersuaded on both counts and shall therefore
order a conditional limited remand to decide defendant’s
eligibility for mental health diversion. Because the trial court’s
determination on remand might moot the question of whether its
Senate Bill 1393 ruling was an abuse of discretion—or, if not,
may still generate additional evidence that bears on that
question—we defer resolution of that question for a fourth
appeal, if such an appeal is filed.
13
A
Our Supreme Court’s Frahs decision, in addition to holding
that section 1001.36 applies retroactively to all non-final cases,
also states what a defendant seeking retroactive application of
the statute must show to obtain a conditional limited remand to
decide his or her eligibility for mental health diversion. Frahs
holds that where a defendant (like defendant in this case) was
tried and convicted before section 1001.36 became effective, the
defendant need not “show they would meet all threshold
eligibility requirements before the appellate court may remand
the case to the trial court—which decides in the first instance
whether a defendant is eligible for diversion . . . .” (Frahs, supra,
9 Cal.5th at 638.) Instead, according to our Supreme Court, “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 (§ 1001.36, subd. (b)(1)(A)).” (Frahs, supra, at
640.) The Court expressly reserved deciding, however, “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’” (ibid.) and the Court appeared to also leave open
the possibility that a conditional limited remand might not be
warranted if a trial court made “findings” that “conclusively
establish” the defendant is unsuitable for diversion (id. at 638-
639).
14
There is no dispute on appeal that defendant satisfies our
Supreme Court’s sole enumerated criterion for a conditional
limited remand and, indeed, there is ample evidence in the record
he suffers from bipolar disorder or schizophrenia, both of which
are qualifying mental disorders under section 1001.36,
subdivision (b)(1)(A). The Attorney General, however, argues it
would be pointless to remand the matter in light of the trial
court’s remarks about defendant’s asserted mental illness when
stating its reasons for declining to strike his prior serious felony
conviction enhancements. In the Attorney General’s words, when
“denying the motion to strike the five year priors, the court
expressly considered appellant’s mental health, as requested by
the defense, and specifically found there was insufficient evidence
appellant’s mental health played a significant role in the
commission of the offense.” We are not persuaded, for four
reasons.
First, it is not clear—to say the least—that the
observations the trial court made when determining defendant’s
mental health was not reason to strike the prior serious felony
conviction enhancements reliably translate to a determination
that defendant cannot show his asserted mental illness played a
significant role in the commission of his criminal threats offense.
True, the court did remark there was insufficient evidence to
believe defendant’s mental disorder played a significant role in
the commission of this offense, but the court at the same time
cautioned it was only addressing “that issue in relation to
striking the two [section] 667(a) priors.” Our Supreme Court has
explained section 1385’s concept of furtherance of justice must be
defined within the bounds of the statutory scheme at issue in the
particular case (People v. Williams (1998) 17 Cal.4th 148, 160-
15
161) and we therefore lack confidence the court would make the
precise same finding under the framework of section 1001.36 that
it took care to say it was not addressing.
Second, even if the court’s comments concerning
defendant’s mental health and the role it played or did not play
in his offense of conviction did translate to the mental health
diversion statutory scheme, we again lack confidence the court
had in mind the correct legal standard. Section 1001.36,
subdivision (b)(1)(B) states a defendant can be eligible for
diversion only if his or her “mental disorder was a significant
factor in the commission of the charged offense,” and the statute
further explains “[a] court may conclude that a defendant’s
mental disorder was a significant factor in the commission of the
charged offense if . . . the defendant’s mental disorder
substantially contributed to the defendant’s involvement in the
commission of the offense.” When the trial court stated it did not
believe defendant’s asserted mental illness played a significant
role in the offense, however, it immediately followed that
statement with the observation that defendant “knew what he
was doing. He attempted to get his family to lie.” This suggests
the court had in mind a M’Naghten-type standard rather than
the standard set by statute. (See generally People v. Skinner
(1985) 39 Cal.3d 765, 768 [“For over a century prior to the
decision in People v. Drew (1978) 22 Cal.3d 333[ ], California
courts framed this state’s definition of insanity, as a defense in
criminal cases, upon the two-pronged test adopted by the House
of Lords in M’Naghten’s Case (1843) 10 Clark & Fin. 200, 210 [8
Eng. Rep. 718, 722]: ‘[To] establish a defence on the ground of
insanity, it must be clearly proved that, at the time of the
committing the act, the party accused was labouring under such
16
a defect of reason, from disease of the mind, as not to know the
nature and quality of the act he was doing; or, if he did know it,
that he did not know he was doing what was wrong”].) The
probability of such a legal mistake again undermines the
Attorney General’s harmlessness argument.
With our third and fourth reasons, our discussion can be
more brief. The trial court was right to acknowledge there was
evidence of defendant’s mental illness presented at trial (both in
expert testimony and, to some degree, in the recorded phone calls
and the testimony from defendant’s brother). That is not to say
the court must find the evidence persuasive, but the significant
evidence presented, even when the precise question of mental
health diversion was not at issue, suggests the question of
whether defendant’s mental health played a significant role in
the offense is not an open-and-shut one. In addition, the pre-trial
plea negotiations reveal at least one superior court judge (not the
judge presiding during the hearing at issue in this appeal)
initially approved a probationary sentence with dual-diagnosis
treatment. That looks an awful lot like mental health diversion,
and it is some evidence a diversionary disposition is not entirely
beyond the pale.
With these reasons in mind, and considering the severe
sentence imposed for the criminal threats offense, we do not
believe a remand is pointless. The trial judge should have an
opportunity to consider whether mental health diversion is
appropriate and to state its reasons for its decision. We express
no view on whether such relief should be granted.
17
B
In addition to arguing a remand is pointless, the Attorney
General argues there is sufficient evidence for us to conclude the
trial court would find defendant “pose[s] an unreasonable risk of
danger to public safety, as defined in Section 1170.18, if treated
in the community.” (§ 1001.36, subd. (b)(1)(F); see also § 1170.18,
subd. (c) [“‘[U]nreasonable risk of danger to public safety’ means
an unreasonable risk that the petitioner will commit a new
violent felony within the meaning of” section 667, subdivision
(e)(2)(C)(iv); People v. Valencia (2017) 3 Cal.5th 347, 351 [“The
cited subdivision of section 667 identifies eight types of
particularly serious or violent felonies, known colloquially as
‘super strikes’”].)
Assuming for argument’s sake that we can consider
defendant’s dangerousness in the first instance (a question Frahs
left open), we still do not believe “the record clearly indicates the
trial court would have found the defendant ‘pose[s] an
unreasonable risk of danger to public safety.’” (Frahs, supra, 9
Cal.5th at 640.) The trial court did rely on defendant’s extensive
criminal record in declining to grant his Romero motion (a ruling
we affirmed), but the Romero inquiry is not the same as the
statutory inquiry, i.e., whether defendant poses an unreasonable
risk of committing a super strike crime if treated in the
community. Because the most violent aspects of defendant’s
prior criminal history are fairly remote, and because we have
little information in the current record about the options
available for treatment in the community, we cannot say it is
clear the trial court would find defendant currently poses an
unacceptable risk of committing a super strike crime.
18
DISPOSITION
The order denying defendant’s motion for retroactive
mental health diversion is conditionally reversed and the cause is
remanded to the trial court for further proceedings consistent
with this opinion. If, after a hearing, the trial court finds
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. If, however,
the court determines 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.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
19