Filed 6/1/21 P. v. Martin CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Modoc)
----
THE PEOPLE, C089235
Plaintiff and Respondent, (Super. Ct. No. F18074)
v.
JOEL DOUGLAS MARTIN,
Defendant and Appellant.
A jury found defendant Joel Douglas Martin guilty of numerous crimes including
three counts of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a))1 and
making criminal threats (§ 422, subd. (a)). The trial court subsequently found true a prior
strike allegation, as well as two prior prison term allegations, and denied defendant’s
petition for mental health diversion. The trial court sentenced defendant to an aggregate
term of eight years in state prison.
1 Undesignated statutory references are to the Penal Code.
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On appeal, defendant contends the three convictions for inflicting corporal injury
on a spouse should be consolidated into a single conviction. We disagree. Defendant
further contends the trial court erred in denying his petition for mental health diversion.
Pursuant to the recent Supreme Court decision, People v. Frahs (2020) 9 Cal.5th 618
(Frahs), we will conditionally reverse the judgment and remand the matter to the trial
court for an eligibility determination under section 1001.36
I. BACKGROUND
On February 1, 2018, defendant was angry with his wife, S.M. He accused her of
cheating on him. He punched S.M. in the chest and repeatedly punched her in the face.
Defendant also “banged” S.M.’s head against the windows of their home and choked her
until she was unconscious. Defendant dragged S.M. outside and threw her out of their
home, causing her to fall on the front porch. Then he locked her outside along with her
two minor children.
S.M.’s 10-year-old daughter saw her mom’s lip was “fat” and “bleeding.” She
also saw “hand marks” on S.M.’s neck and a bruise on her right arm. A neighborhood
child saw the assault and called to his parents; his dad called the police. That child later
testified to seeing defendant use a chokehold on S.M. that night, holding her with his left
hand while repeatedly punching her with his right. His dad would later testify to
witnessing defendant and S.M. argue before and seeing defendant lock S.M. and the
children out of the home. He had also seen S.M. previously with a black eye and bruises
on her arm.
When Police Officer Ken Barnes arrived, he saw S.M.’s mouth was swollen, she
was crying, and appeared to be shaken. There was blood inside her mouth and dried
blood on her lips. Officer Barnes saw redness and bruising on the left side of S.M.’s
neck, and a bruise on each of S.M.’s arms. S.M. told Officer Barnes there was a painful
lump on the back of her head, which she said defendant caused when he slammed her
head into a table. Several days later, when Police Sergeant Russell Turner interviewed
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S.M, he saw bruises on each of S.M.’s arms, a small cut on her lower lip, two scratches
on the outside of her left ankle, and bruising on the left side of her neck.
On March 29, 2018, the People charged defendant with multiple crimes including
two counts of domestic violence resulting in injury, occurring on or about February 1,
2018, and another count of domestic violence resulting in injury, occurring on or about
January 30, 2018. Defendant pled not guilty and on September 26, 2018, jury trial began.
Following the admission of evidence and in closing, the People identified for the
jury four distinct injuries on S.M., from which the jury could find defendant guilty on
three counts of domestic violence resulting in injury: the lump on the back of S.M.’s
head, S.M.’s fat and bloody lip, the bruises on her arms, and the red marks on her neck.
The jury would have to “pick which one to attribute to each count,” and they were given
a unanimity instruction.
On September 28, 2018, the jury found defendant guilty as charged.
Two months later, the trial court found true the enhancement allegations and defendant
petitioned the trial court for pretrial diversion pursuant to section 1001.36. The trial court
found defendant had “made a prima facie showing that in fact he has a diagnosis that—a
recent diagnosis of a qualifying mental health condition.” The court, however, did not
believe defendant was entitled to pretrial diversion after a jury trial. The court also was
not certain the person who diagnosed defendant was a licensed psychiatrist, as required
by section 1001.36. The trial court nevertheless deferred ruling on the issue.
At a subsequent hearing, the trial court ruled section 1001.36 diversion was
limited to petitions filed before trial. Defendant’s petition, coming after the jury reached
its verdict, was too late. The court also found defendant was “unamenable to treatment
by means of mental health diversion,” and on those bases denied his petition.
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II. DISCUSSION
A. Multiple Convictions
Defendant contends his multiple convictions for inflicting corporal injury on a
spouse should be consolidated into a single conviction. We disagree.
“An accusatory pleading may charge two or more different offenses connected
together in their commission, or different statements of the same offense or two or more
different offenses of the same class of crimes or offenses, under separate counts.”
(§ 954.) Further, “the defendant may be convicted of any number of the offenses
charged.” (Ibid.) Multiple convictions are allowed for crimes that do not monetize and
aggregate harm or damage; “a defendant may be convicted of multiple crimes—even if
the crimes are part of the same impulse, intention or plan—as long as each conviction
reflects a completed criminal act.” (People v. Kirvin (2014) 231 Cal.App.4th 1507,
1518.)
Thus, “a defendant [can] properly be charged with and convicted of multiple
counts of spousal abuse based on acts occurring during a single event where the victim
suffered multiple injuries caused by distinct applications of force, because the crime is
complete upon the willful and direct application of physical force upon the victim
resulting in injury.” (People v. Kopp (2019) 38 Cal.App.5th 47, 62-63, citing People v.
Johnson (2007) 150 Cal.App.4th 1467, 1474-1477.)
Here, defendant was charged with, and convicted on, three counts of domestic
violence resulting in injury to his wife. At trial, the People presented evidence of four
separate injuries sustained by S.M. as a result of defendant’s abuse. Each of these
injuries demonstrated a completed act of domestic violence resulting in injury because
they were caused by a direct application of physical force upon S.M. by defendant. (See
People v. Johnson, supra, 150 Cal.App.4th at pp. 1474-1477.) As such, each can be
charged as a separate offense and defendant can be convicted of each offense. (Ibid.)
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Defendant’s argument on appeal is that the decision in People v. Johnson is flawed
and the crime of domestic violence resulting in injury is a continuing crime, which can
only be charged as a single offense no matter how many injuries result. We are not
persuaded. Accordingly, we find no error.
B. Section 1001.36
Defendant contends the trial court erred by denying as untimely his request for
mental health diversion under section 1001.36. The People concede defendant is entitled
to a conditional reversal of judgment and remand to the trial court for a determination of
defendant’s eligibility for mental health diversion under section 1001.36.
Effective June 27, 2018, section 1001.36 authorizes pretrial diversion in lieu of
criminal prosecution for defendants with qualifying mental disorders, “including, but not
limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic
stress disorder.” (§ 1001.36, subd. (b)(1)(A).) “ ‘[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 it finds: (1) the
defendant suffers from an identified mental disorder; (2) the mental disorder was a
significant factor in the commission of the charged offense; (3) 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; and (6) the
defendant will not pose an unreasonable risk of danger to public safety if treated in the
community. (§ 1001.36, subd. (b).)
If the trial court grants diversion, the defendant will undergo mental health
treatment by an approved mental health program that will provide regular reports of the
defendant’s progress. Criminal proceedings may be diverted for “no longer than two
years.” (§ 1001.36, subd. (c)(1)(B), (c)(2), (c)(3).) If the defendant performs
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satisfactorily in 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” and “the
arrest upon which the diversion was based shall be deemed never to have occurred.”
(§ 1001.36, subd. (e).) Under certain circumstances, if the defendant commits additional
crimes or performs unsatisfactorily in diversion, the court may reinstate criminal
proceedings. (§ 1001.36, subd. (d).)
Here, the trial court denied defendant’s petition as untimely, finding mental health
diversion was not available post verdict. In a recent decision by this court, we concluded
section 1001.36 allows a defendant to “ask the trial court for mental health diversion until
sentencing and entry of judgment.” (People v. Curry (2021) 62 Cal.App.5th 314, 325.)
Thus, asking for mental health diversion following a jury’s verdict, but before sentencing
and entry of judgment, is not an untimely request. (Ibid.)
The court also indicated it would not grant the petition for diversion even if the
petition were filed prior to trial because defendant was “not amenable to treatment.”
Defendant contends, and respondent agrees, the trial court may not have had sufficient
information to determine defendant’s eligibility for mental health diversion at the time it
reached that conclusion. We agree.
On this record, we accept the People’s concession and will “conditionally reverse
the judgment with directions for the trial court to consider defendant’s eligibility for
mental health diversion under section 1001.36.” (People v. Curry, supra, 62 Cal.App.5th
at p. 327.) We express no opinion on whether defendant will be able to demonstrate
eligibility for mental health diversion under section 1001.36, or whether the trial court
should exercise its discretion to grant diversion if it finds defendant eligible.
III. DISPOSITION
The judgment is conditionally reversed and the matter remanded 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
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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.)
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
HOCH, J.
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