Filed 7/25/22 P. v. Neal CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE,
Plaintiff and Respondent, C091309
v. (Super. Ct. No. 19CF02781)
DAVID LEE NEAL,
ON TRANSFER
Defendant and Appellant.
A jury found defendant David Lee Neal guilty of attempted second degree
robbery, assault with a firearm, and possession of a firearm by a felon, in relation to an
attempted robbery at a mini mart in Oroville, California. The trial court sentenced
defendant to an indeterminate term of life with a minimum term of 25 years, plus six
years in state prison under the three strikes law.
On appeal, defendant argued that the trial court erred in (1) admitting evidence of
a prior uncharged robbery and attempted robbery of convenience stores to prove identity
and common design or plan, (2) admitting testimony by defendant’s parole officer that
defendant was the person shown in a surveillance video, and (3) summarily denying
1
defendant’s request for mental health diversion under Penal Code section 1001.36.1 This
court rejected the first two claims on the merits but conditionally reversed the judgment
and directed the trial court to consider defendant’s eligibility for diversion under
section 1001.36.
Defendant filed a petition for review asserting, among other things, that he was
entitled to resentencing under the newly-enacted Senate Bill No. 567 (2021-2022 Reg.
Sess.). The California Supreme Court granted review and transferred the matter to us
with directions to vacate this court’s decision and reconsider the cause in light of the new
legislation.
Having vacated our prior opinion and considered the parties’ supplemental briefs,
we conclude (1) the trial court did not abuse its discretion in admitting the uncharged
crimes evidence, (2) the testimony of defendant’s parole officer was properly admitted,
(3) we will conditionally reverse the judgment and direct the trial court to consider
defendant’s eligibility for diversion under section 1001.36, and (4) if the trial court
determines that defendant does not meet the criteria under section 1001.36 or if defendant
does not successfully complete diversion, the trial court shall resentence the defendant on
count 3 under section 1170, as amended by Senate Bill No. 567, and reinstate the
remainder of the sentence.
BACKGROUND
R.R. was working behind the counter at a mini mart in Oroville, California on
April 13, 2019, when a man wearing sunglasses, a baseball cap and a hooded camouflage
sweatshirt, with the hood pulled up over the baseball cap, came into the store. The man
got a can of pineapple juice from the cooler and stood in line behind a customer. The
man walked up to R.R. after the customer left and asked for cigarettes. When R.R. rang
1 Undesignated statutory references are to the Penal Code.
2
up the items and turned to get the cigarettes, the man pulled out a black or brown
handgun, pointed it at R.R.’s face, and demanded money. R.R. was about to comply
when he heard the gun click. He put his hand up and moved away from the man. The
man hit R.R. on the side of his head with the gun. The two struggled and the man
eventually ran out of the store. No money was taken.
R.R. saw the man go to a black or brown car parked on the street. The man got in
the backseat, behind the driver, and the car drove away. The time stamp on store
surveillance videos showed that the suspect entered the store at 8:26:24 a.m. and left the
store at 8:27:53 a.m.
Kristen B. saw two men scuffling at the door of the mini mart as her car was
stopped on the street. One of the men ran to a black Volkswagen Jetta with faded paint
and got into the backseat on the driver’s side. Kristen identified a black Jetta previously
registered to defendant as the type of car she saw the man enter.
A fingerprint obtained from the pineapple juice can left at the mini mart did not
match defendant or R.R. DNA analysis in relation to the can was inconclusive.
The prosecutor played surveillance videos from the mini mart at the trial. Oroville
Police Department Sergeant John Sanzone, who investigated the attempted robbery,
testified, based on the surveillance videos, that the suspect wore a hooded , Realtree-brand
camouflage sweatshirt. The suspect had tattoos on his neck and on the knuckles of his
right and left hand.
As part of his investigation, Sergeant Sanzone received a report about a man who
tried to cash a check at a casino four days before the mini mart attempted robbery. That
man was defendant. Surveillance videos from the casino showed defendant wearing the
same camouflage sweatshirt as the suspect from the mini mart attempted robbery. The
man in the casino videos left the casino in a black Volkswagen Jetta with the license plate
No. 4UIJ349. It was determined through investigation that the Jetta was registered to
defendant. The paint on the roof and hood of the car was faded. Sergeant Sanzone
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testified that the man in the casino surveillance videos had the same tattoos as the suspect
in the mini mart surveillance videos.
R.R. testified that defendant looked like the person in the mini mart surveillance
videos. Defendant’s parole officer Robert Stevenson identified defendant as the person
shown in a still photograph of the suspect in the mini mart attempted robbery.
Sutter County Sheriff’s Department Deputy Charles Green and Marysville Police
Department Officer Gregory Parks testified about prior crimes committed by defendant.
Deputy Green testified that defendant confessed to committing a robbery at a Sutter Food
and Gas Market in Sutter County and an attempted robbery at a Quick Stop in Marysville
on May 23, 2011. Defendant committed those crimes by himself. He went into the
stores, grabbed an item like gum, walked up to the counter, got the clerks to open the
cash drawer, and pointed a handgun in their faces.
Officer Parks investigated the attempted robbery at the Quick Stop in Marysville.
He viewed surveillance video taken at the Quick Stop and saw the following: a man
walking around the store before approaching and speaking to the clerk; the clerk turning
to grab cigarettes behind him; and the suspect producing a handgun as the clerk turned
around. There was a scuffle between the suspect and the clerk. The suspect manipulated
the handgun with his left hand, expending an unspent round onto the counter, and
ultimately ran out of the store. Officer Parks identified defendant as the Quick Stop
suspect from his review of store surveillance video.
Defendant testified at trial. He admitted that he committed and was convicted of
attempted robbery and robbery for the 2011 crimes. Defendant also admitted he was the
person shown in the casino surveillance videos. But he denied that he was the person in
the surveillance videos from the mini mart. He said he was at his cousin’s house the
morning of April 13, 2019.
The jury convicted defendant of attempted second degree robbery (§§ 211, 664,
subd. (a) -- count 1), assault with a firearm (§ 245, subd. (a)(2) -- count 2), and
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possession of a firearm by a felon (§ 29800, subd. (a)(1) -- count 3). Upon defendant’s
request for a bifurcated proceeding and waiver of a jury trial on the enhancement
allegations, the trial court found true the allegations that defendant personally used a
firearm within the meaning of sections 12022.53, subdivision (b) and 12022.5,
subdivision (a). The trial court also found true the allegations that defendant had prior
convictions for robbery and attempted robbery, which were serious felonies and strike
offenses, and served a prior prison term. The trial court denied defendant’s motion to
dismiss the prior strike convictions pursuant to section 1385 and People v. Superior
Court (Romero) (1996) 13 Cal.4th 497. It imposed an indeterminate term of life with a
minimum term of 25 years on the count 1 conviction, plus six years in prison for the
count 3 conviction. It imposed but stayed sentence on the count 2 conviction pursuant to
section 654. It exercised its discretion to dismiss the firearm use enhancements pursuant
to section 1385 and dismissed the prior prison term enhancement pursuant to Proposition
136.
DISCUSSION
I
Defendant contends the trial court erred in admitting evidence that he previously
committed a robbery and attempted robbery at convenience stores to prove identity and
common design or plan.
A
The People moved in limine to introduce evidence that, among other things,
defendant committed an armed robbery in Sutter County and an attempted robbery
in Marysville on May 23, 2011. The evidence was offered under Evidence Code
section 1101, subdivision (b) to show intent, knowledge and identity. The People argued
the prior crimes shared facts in common with the mini mart attempted robbery in that in
each case, defendant entered the store without a mask, placed a small item on the counter
and, when the clerk rang up the purchase, produced a handgun and demanded money.
5
Defendant’s trial counsel opposed the motion, arguing the jury could decide from
the surveillance videos whether defendant committed the mini mart attempted robbery,
and the uncharged crimes evidence was unduly prejudicial because the jury would likely
convict defendant based on his past conduct rather than evidence of the charged offenses.
The trial court held an Evidence Code section 402 hearing at which Deputy Green
and Officer Parks testified. Defendant confessed to Deputy Green that he stole a
handgun from a friend and used that handgun to attempt to rob a Quick Stop in
Marysville and to rob a Sutter Food and Gas Market in Sutter County on May 23, 2011.
Defendant committed the 2011 crimes alone but there were other occupants in the vehicle
with him. He did not cover his face during the robberies. As for the Quick Stop
attempted robbery, he pretended to buy gum so that the clerk would open the cash drawer
and then pointed a gun at the clerk’s face and demanded money. Officer Parks identified
defendant as the person shown in a still photograph from the Quick Stop surveillance
video.
Citing People v. Roldan (2005) 35 Cal.4th 646 (Roldan), disapproved on another
ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, the trial court ruled that
evidence of the 2011 crimes shared sufficient and distinctive marks with the charged
offenses and was relevant on the issues of identity and common design and plan. With
respect to the Sutter County robbery, the trial court said defendant did not wear a mask,
used a black handgun, pointed the gun at the clerk’s face, and robbed a food mart, a
similar target to the mini mart. With regard to the Quick Stop attempted robbery, the trial
court said defendant wore a hoodie and attempted to rob a similar target as the mini mart.
The trial court concluded that the probative value of the 2011 crimes substantially
outweighed the risk of prejudicial effect.
B
Evidence of a defendant’s character or character trait is generally inadmissible to
prove his or her conduct on a specified occasion. (Evid. Code, § 1101, subd. (a): People
6
v. Leon (2015) 61 Cal.4th 569, 597 (Leon).) However, evidence that the defendant
committed a crime, civil wrong or other act, other than the charged offense (hereafter
uncharged act), may be admitted when relevant to prove a material fact at issue in the
case -- such as identity or a common plan or design -- and not to prove the defendant’s
predisposition to commit the act. (Evid. Code, § 1101, subd. (b); People v. Fayed (2020)
9 Cal.5th 147, 191.) The admissibility of uncharged act evidence depends on whether the
uncharged act is relevant to prove a fact at issue and whether its admission would be
unduly prejudicial, confusing or time-consuming. (People v. Sanchez (2016) 63 Cal.4th
411, 452; Leon, at pp. 597-598.)
Uncharged act evidence is relevant when it is sufficiently similar to the charged
crime to support a rational inference of identity, common design or other material fact.
(Leon, supra, 61 Cal.4th at p. 598; People v. Ewoldt (1994) 7 Cal.4th 380, 401-402
(Ewoldt), superseded by statute as stated in People v. Robertson (2012) 208 Cal.App.4th
965, 991.) To be admissible to prove a common design or plan, there must be “ ‘a
concurrence of common features that the various acts are naturally to be explained as
caused by a general plan of which they are the individual manifestations.’ ” (Ewoldt, at
p. 402.) “[T]he common features must indicate the existence of a plan rather than a series
of similar spontaneous acts, but the plan thus revealed need not be distinctive or
unusual.” (Id. at p. 403.) It need only support the inference that the defendant used that
plan in committing the charged offense. (Ibid.)
A greater degree “of similarity is required for evidence of uncharged misconduct
to be relevant to prove identity. For identity to be established, the uncharged misconduct
and the charged offense must share common features that are sufficiently distinctive so as
to support the inference that the same person committed both acts. [Citation.] ‘The
pattern and characteristics of the crimes must be so unusual and distinctive as to be like a
signature.’ ” (Ewoldt, supra, 7 Cal.4th at p. 403.) But the “common features need not be
unique or nearly unique; ‘features of substantial but lesser distinctiveness may yield a
7
distinctive combination when considered together.’ ” (Leon, supra, 61 Cal.4th at p. 598.)
We review the trial court’s admission of evidence under Evidence Code section 1101,
subdivision (b) for abuse of discretion. (People v. Thompson (2016) 1 Cal.5th 1043,
1114.)
In Roldan, supra, 35 Cal.4th 646, evidence that the defendant previously
participated in a swap meet robbery had a tendency to prove the identity of the persons
who committed a subsequent swap meet robbery. (Id. at p. 706) The California Supreme
Court concluded that the targets of both robberies were unusual venues for a robbery and
the charged and uncharged acts were committed in a distinctive manner. (Ibid.) “One
robber grabbed the cash, not merchandise, while a second stood behind him with an Uzi
or machine gun partially obscured by clothing. The third member of the group waited in
a car to facilitate a rapid departure.” (Ibid.)
A lesser degree of similarity is required for evidence of uncharged acts to be
relevant to prove a common design or plan. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.) In
People v. Myers (2014) 227 Cal.App.4th 1219 (Myers), evidence that the defendant
committed a prior robbery of a donut shop was admissible to show a common design or
plan in a case where he was charged with the robbery of a motel. (Id. at pp. 1224-1226.)
In both robberies, the defendant entered the business, asked about price, gestured as if he
had a gun in his waistband or jacket, and demanded money from the cash register. (Ibid.)
The appellate court found that the offenses were sufficiently similar to support an
inference that the defendant engaged in a common design or plan. (Id. at p. 1225.)
Here, the trial court did not abuse its discretion in ruling that the 2011 crimes were
sufficiently similar to the mini mart attempted robbery to support a rational inference that
defendant employed the same design or plan in committing the offenses. As the trial
court found, defendant targeted similar businesses in the charged and uncharged crimes.
Defendant used a handgun in the robberies. Acting alone, he entered the stores without a
mask and pretended to purchase a small item. He pointed a gun at the clerk’s faces when
8
the clerks opened the cash drawers. As in the Quick Stop attempted robbery, defendant
walked around the mini mart, approached and spoke with the clerk, produced a gun when
the clerk turned to get cigarettes, assaulted the clerk, and ran away.
In addition, the probative value of the uncharged act evidence must not be
substantially outweighed by the probability that it will necessitate undue consumption of
time or create a substantial danger of undue prejudice, confusion of the issues, or
misleading of the jury. (People v. Kipp (1998) 18 Cal.4th 349, 371; People v. Walker
(2006) 139 Cal.App.4th 782, 796; Evid. Code, § 352.) We review a ruling made under
Evidence Code section 352 for abuse of discretion. (People v. Foster (2010) 50 Cal.4th
1301, 1328 (Foster).)
Considering the common features noted above, evidence of the uncharged crimes
had a substantial tendency to demonstrate that defendant committed the mini mart
robbery according to a design or plan in common with the 2011 crimes. In addition,
evidence of the 2011 crimes and the mini mart attempted robbery came from independent
sources, enhancing the probative value of the uncharged act evidence. (Ewoldt, supra,
7 Cal.4th at pp. 404-405.) Further, the risk of prejudice was decreased because defendant
had been convicted of the 2011 crimes. (People v. Balcom (1994) 7 Cal.4th 414, 427
(Balcom).) The testimony about the uncharged crimes by Deputy Green and Sergeant
Parks did not consume significant time. (Leon, supra, 61 Cal.4th at p. 599.) Moreover,
the circumstances of the 2011 crimes were no more inflammatory than those of the
charged offenses. (Ewoldt, at p. 405.) Finally, the trial court instructed the jury pursuant
to CALCRIM No. 375 on the limited use of the uncharged act evidence, minimizing the
potential for improper use and making juror confusion unlikely. (Leon, at pp. 599-600,
Foster, supra, 50 Cal.4th at p. 1332.) Considering all of the relevant factors, the trial
court did not abuse its discretion in admitting evidence of the uncharged 2011 crimes.
Defendant nevertheless argues the trial court erred in admitting the uncharged act
evidence to show a common plan because the fact that an attempted robbery occurred at
9
the mini mart was never in dispute. But “[a] defendant’s plea of not guilty puts the
elements of the crime in issue for purposes of Evidence Code section 1101, ‘unless the
defendant has taken some action to narrow the prosecution’s burden of proof.’ ” (Myers,
supra, 227 Cal.App.4th at p. 1225; see Balcom, supra, 7 Cal.4th at pp. 422-423.)
Although the closing argument by defendant’s trial counsel focused on the issue of
identity, there was no concession or agreement that an attempted robbery had been
committed at the mini mart on April 13, 2019.
Nevertheless, even if it was error to admit evidence of the 2011 crimes, it was not
reasonably probable that defendant would have obtained a more favorable result absent
the error. (People v. Williams (2017) 7 Cal.App.5th 644, 678; People v. Felix (1993)
14 Cal.App.4th 997, 1007-1008 [applying People v. Watson (1956) 46 Cal.2d 818 test].)
R.R. testified that defendant looked like the person in the mini mart surveillance videos.
Kristen B.’s description of the getaway car matched defendant’s car. Officer Stevenson,
who had about 13 prior contacts with defendant, identified defendant as the suspect in the
still photograph from the mini mart surveillance videos. Defendant admitted he was the
person in the casino videos. The casino videos showed that days before the mini mart
attempted robbery, defendant wore the same distinctive camouflage sweatshirt worn by
the perpetrator of the mini mart attempted robbery. Sergeant Sanzone testified that
defendant had the same tattoos as the suspect shown in the mini mart surveillance videos.
The prosecutor played the mini mart and casino videos at the trial, and the jury could
compare defendant to the persons depicted in those videos. Although defendant denied
he was the person shown in the mini mart surveillance videos, his credibility was
impeached. He denied that he had facial hair when he visited the casino days before the
mini mart attempted robbery, but the casino’s surveillance video showed otherwise.
Defendant could not explain why the perpetrator of the mini mart attempted robbery wore
a similar camouflage sweatshirt as defendant when he visited the casino days before the
charged crimes. And as we have explained, the trial court instructed the jury on the
10
limited use of the uncharged act evidence. It instructed that the jury could not conclude
from evidence of the prior crimes that defendant had a bad character or was disposed to
commit crime. It told the jury that the uncharged act evidence was not sufficient by itself
to prove that defendant was guilty of the charged offenses. We presume the jury
understood and followed the trial court’s instructions. (People v. Davidson (2013)
221 Cal.App.4th 966, 973.) Defendant fails to show a violation of his federal
constitutional rights, requiring the application of the Chapman v. California (1967)
386 U.S. 18 [17 L.Ed.2d 705] harmless error test. (Foster, supra, 50 Cal.4th at p. 1335.)
Because the uncharged act evidence was admissible to prove a common design or
plan, we need not decide whether it was error for the trial court to also admit the evidence
for the purpose of proving identity. (Foster, supra, 50 Cal.4th at p. 1329, Myers, supra,
227 Cal.App.4th at p. 1225.) Nevertheless, defendant claims the CALCRIM No. 375
instruction [evidence of uncharged offenses to prove identity, intent, common plan, etc.]
invited the jury to rely on a lower level of commonality to make a finding on identity.
But as explained, compelling evidence established that defendant committed the mini
mart attempted robbery. It is not reasonably probable that a result more favorable to
defendant would have been reached in the absence of the reference in the CALCRIM
No. 375 instruction to identity. (Foster, at pp. 1332-1333.)
II
Defendant next argues the trial court erred in permitting Officer Stevenson to offer
his opinion that defendant was the person shown in a surveillance video. Defendant
claims the opinion went to the ultimate fact in the case and invaded the purview of the
jury.
A
Defendant moved in limine to exclude testimony by Sergeant Sanzone, Officer
Stevenson, and defendant’s mother that the person depicted in a photograph or video was
11
defendant. Defendant argued the jury could determine whether defendant was the person
in a surveillance video without lay testimony identifying defendant.
The trial court ruled that Officer Stevenson could give his opinion that a person
depicted in a photograph or video was defendant because the officer was familiar with
defendant at the time of the charged offenses. The trial court acknowledged that
defendant’s appearance at the time of trial was somewhat different than at the time of the
charged crimes. The judge who presided over the trial also presided over the preliminary
hearing, and at the preliminary hearing, Officer Stevenson had testified that defendant’s
appearance at the time of the mini mart attempted robbery was different from his
appearance at the preliminary hearing. In particular, the hair on defendant’s face and
head had changed. Sergeant Sanzone testified at the trial that defendant had added
teardrop tattoos to the left side of his face after the charged crimes. The trial court found
under Evidence Code section 352 that the probative value of the lay opinion testimony
outweighed the prejudicial effect. It also ruled that defendant’s mother could testify
about the identity of the person shown in the surveillance videos.
Officer Stevenson testified at trial that on April 13, 2019, he received a
photograph of a suspect in a robbery that occurred in Oroville and identified the person in
the photograph as defendant. Defendant’s mother testified that the person shown in a still
photograph from the mini mart surveillance video was not defendant.
B
“A lay witness may offer opinion testimony if it is rationally based on the
witness’s perception and helpful to a clear understanding of the witness’s testimony.
[Citation.] ‘[T]he identity of a person is a proper subject of nonexpert opinion . . . .’ ”
(Leon, supra, 61 Cal.4th at p. 601; see People v. Mixon (1982) 129 Cal.App.3d 118, 127
(Mixon); People v. Perry (1976) 60 Cal.App.3d 608, 612 (Perry).) We review rulings on
the admission of lay opinion testimony for abuse of discretion. (Leon, at p. 600.)
12
In Leon, a detective who was very familiar with the defendant’s appearance from
contacts following the defendant’s arrest was allowed to testify that the person shown in a
surveillance video was the defendant. (Leon, supra, 61 Cal.4th at pp. 600-601.) The
California Supreme Court held that the trial court did not abuse its discretion in admitting
the lay opinion testimony because it was based on the detective’s personal knowledge
and the detective’s testimony aided the jury. (Id. at p. 601.) The Supreme Court noted
that the detective was familiar with the defendant’s appearance around the time of the
crimes, defendant had changed his appearance after the crimes, and because the
surveillance video was played for the jury the jurors could make up their own minds
whether the person shown was the defendant. (Ibid.)
Defendant does not dispute that Officer Stevenson had the requisite personal
knowledge of defendant’s appearance at the time of the charged crimes but contends it
was not established how Officer Stevenson’s lay opinion testimony could assist the jury.
We disagree. Although the person shown in the mini mart surveillance videos wore a
distinctive camouflage hooded sweatshirt, he also had a baseball cap on his head, the
hood of his sweatshirt was pulled over his baseball cap, and he wore sunglasses. R.R. did
not recognize the suspect, who was in the store less than two minutes. Defendant
changed his appearance after the charged crimes. Officer Stevenson’s testimony was
properly admitted under these circumstances. (Leon, supra, 61 Cal.4th at pp. 600-601;
Mixon, supra, 129 Cal.App.3d at pp. 129-132; Perry, supra, 60 Cal.App.3d. at p. 613.)
Officer Stevenson’s lay opinion testimony did not invade the province of the trier of fact,
as defendant contends. (Perry, at pp. 614-615.) Rather, it was admitted to aid the jury.
(Ibid.)
III
Defendant further contends the trial court erred in summarily denying his request,
made after the verdicts but before sentencing, for mental health diversion under section
1001.36. The Attorney General agrees the case should be remanded so the trial court can
13
conduct a mental health diversion eligibility hearing under People v. Frahs (2020)
9 Cal.5th 618 (Frahs).
The jury returned its verdicts on October 28, 2019. Defendant filed a motion for
mental health diversion pursuant to section 1001.36 on December 12, 2019, prior to
sentencing. The trial court noted section 1001.36 referred to pretrial diversion and
“pretrial” was defined as prior to adjudication. Defense counsel argued “adjudication”
referred to sentencing. But the trial court summarily denied the motion, stating there had
been a conviction following a jury trial.
“Section 1001.36 authorizes a pretrial diversion program for defendants with
qualifying mental disorders. The statute defines ‘ “pretrial diversion” ’ as ‘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. . . .’ ” (Frahs, supra, 9 Cal.5th
at p. 626.) A trial court may grant pretrial diversion if (1) it is satisfied that the defendant
has a mental disorder as identified in the most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder;
(2) it is satisfied that the defendant’s mental disorder was a significant factor in the
commission of the charged offense; (3) in 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 diversion and waives
his or her right to a speedy trial, unless he or she cannot consent or provide a waiver
because of a finding of mental incompetency; (5) the defendant agrees to comply with
treatment as a condition of diversion; and (6) the court is satisfied that the defendant will
not pose an unreasonable risk of danger to public safety. (§ 1001.36, subd. (b)(1).)
Certain crimes, none of which are applicable here, are excluded from section 1001.36.
(§ 1001.36, subd. (b)(2).)
14
The trial court may require the defendant to make a prima facie showing that he or
she will meet the minimum requirements of eligibility for diversion and that the
defendant and the offense are suitable for diversion at any stage of the proceedings.
(§ 1001.36, subd. (b)(3).) “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).) The
maximum period of diversion is two years. (§ 1001.36, subd. (c)(3).) “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” and “the arrest upon which the diversion
was based shall be deemed never to have occurred.” (§ 1001.36, subd. (e).)
A defendant may request diversion until sentencing and entry of judgment.
(People v. Curry (2021) 62 Cal.App.5th 314, 321-325, review granted July 14, 2021,
S267394; but see People v. Braden (2021) 63 Cal.App.5th 330, 333-334, review granted
July 14, 2021, S268925.) A conditional limited remand for the trial court to conduct a
mental health diversion eligibility hearing under section 1001.36 is warranted when the
record affirmatively discloses that the defendant appears to meet at least the first
threshold eligibility requirement for mental health diversion, i.e., that the defendant had a
qualifying mental disorder. (Frahs, supra, 9 Cal.5th at p. 640.)
The record indicates that in 2010, defendant was diagnosed with bipolar disorder,
a qualifying mental disorder; that he was prescribed Valium; and that he participated in
counseling. (§ 1001.36, subd. (b)(1).) Based on this record and the Attorney General’s
agreement that a limited remanded is appropriate under Frahs, we will conditionally
reverse the judgment and direct the trial court to consider defendant’s eligibility for
diversion under section 1001.36.
15
IV
In supplemental briefing, defendant contends Senate Bill No. 567, which amended
section 1170, retroactively applies to his case and requires that he be resentenced on the
count 3 conviction for possession of a firearm by a felon (§ 29800, subd. (a)(1)).
Effective January 1, 2022, Senate Bill No. 567 changed a trial court’s sentencing
discretion under section 1170. Among other things, under the amended statute, when a
judgment of imprisonment is to be imposed and the statute specifies three possible terms,
the trial court must impose a term not exceeding the middle term unless there are
circumstances in aggravation of the crime that justify the imposition of a term exceeding
the middle term and the facts underlying those aggravating circumstances (1) have been
stipulated to by the defendant, (2) have been found true beyond a reasonable doubt at trial
by the jury or by the judge in a court trial, or (3) relate to the defendant’s prior
convictions and are based on a certified record of conviction. (§ 1170, subds. (b)(1),
(b)(2), (b)(3); Stats. 2021, ch. 731, Legis. Counsel’s Digest.)
The Attorney General agrees, and we do too, that the change in the law is
ameliorative and applies retroactively to defendant’s case. (People v. Lopez (2022)
78 Cal.App.5th 459, 465; People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
The trial court imposed an upper term sentence on count 3. It considered the
following facts in aggravation in selecting the upper term: (1) that the manner in which
the crime was committed indicated planning and sophistication, (2) that defendant’s prior
convictions were numerous, and (3) that defendant was on parole at the time of the
offense. In mitigation, the trial court noted that defendant did not have any prior
probation or parole violation. The trial court found that the circumstances in aggravation
outweighed the circumstances in mitigation. The parties agree defendant did not stipulate
to the facts underlying the circumstances in aggravation recited by the trial court and that
the facts were not found true beyond a reasonable doubt by the jury. In addition, the
record does not show that they were based on a certified record of conviction. The
16
Attorney General agrees the trial court should resentence defendant consistent with
amended section 1170 if resentencing becomes appropriate, i.e., if the trial court finds
defendant ineligible for mental health diversion or if defendant fails to successfully
complete it. We agree.
DISPOSITION
The judgment is conditionally reversed. The matter is remanded to the trial court
for an eligibility determination under section 1001.36. The trial court may grant
diversion if it finds that defendant meets the statutory criteria. If defendant successfully
completes diversion, the trial court shall dismiss the charges. However, if the trial court
determines that defendant does not meet the criteria under section 1001.36 or if defendant
does not successfully complete diversion, the trial court shall resentence defendant on
count 3 under section 1170, as amended by Senate Bill No. 567, and reinstate the
remainder of the sentence.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
HOCH, J.
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