People v. Orellana CA5

Filed 1/18/23 P. v. Orellana CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F082699
Plaintiff and Respondent,
(Merced Super. Ct.
v. No. 20CR-04944)

RAUL SHAWN ORELLANA, JR.,
OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Merced County. Steven K.
Slocum, Judge.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and
Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
Appellant and defendant Raul Shawn Orellana was convicted after a jury trial of
second degree robbery (Pen. Code, § 211),1 and sentenced to an aggregate second strike
term of seven years in prison, based on the court’s imposition of the midterm.
On appeal, defendant contends the matter must be remanded for resentencing
because of the subsequent enactment of Assembly Bill No. 124 (2021–2022 Reg. Sess.)
that amended section 1170 to make the lower term the presumptive sentence if the
defendant experienced “psychological, physical, or childhood trauma, including, but not
limited to, abuse, neglect, exploitation, or sexual violence” that was “a contributing factor
in the commission of the offense.” (§ 1170, subd. (b)(6)(A).) Defendant asserts that
evidence of his history of mental illness and drug use, introduced at the sentencing
hearing in support of various defense motions, supports the application of this revised
statute. He further contends the court improperly imposed a restitution fine and fees
without determining his ability to pay, and defense counsel was prejudicially ineffective
for failing to object to those amounts. We affirm.
FACTS
On August 20, 2020, Roberto Estacio (Estacio) was the manager at a Dollar Tree
store in Merced. He had been a manager for the Dollar Tree stores for seven years and
was working at the store’s newest location that day. There were two other employees in
the store.
Estacio testified that a man, later identified as defendant, entered the store and
walked toward the freezers in the back. He saw defendant take a “Twix” ice cream bar
from the freezer and started to put it in his backpack.

1 All further statutory citations are to the Penal Code unless otherwise indicated.

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 Estacio was about 20 to 25 feet away from defendant and told him to stop and
leave the item. Defendant replied that he “wasn’t going to drop shit.” Defendant pushed
the item into his backpack and walked out of the store.
Estacio followed defendant outside the store and testified that he was about 12 feet
behind him. Estacio told defendant numerous times to drop the item, or he would call the
police. Defendant kept walking, and Estacio continued to follow him.
Defendant Swings a Knife
As defendant walked through the parking lot, Estacio told him to drop whatever he
had, and Estacio would not call the police. Estacio testified that he regularly gave all
shoplifters the chance to drop or hand over stolen items to avoid calling the police, and
others had done so before.
Estacio testified that he was about 10 to 12 feet behind defendant, and defendant
“swung his backpack around, unzipped it, and pulled out a knife. And he said that he was
going to slice me up if I called the cops. And he started swinging the knife in the air and
out loud saying things, but I couldn’t understand what he was saying.”
Estacio testified that defendant swung the knife in his direction. He “felt
threatened because he pulled out a knife on me,” and believed defendant “was going to
come after me with the knife. Because he was walking towards me and he was yelling
things, swinging the knife. So I was kind of scared for my life.”
Estacio testified that defendant’s demeanor was like he was on drugs because “he
was going all wild, blurting out loud, just, like, gibber and going all crazy, swinging the
knife around, and just yelling out,” and there were times Estacio could not understand
him. “He was just yelling across the parking lot, swinging the knife. You couldn’t
understand what he was saying, but he was yelling.”
After defendant swung the knife, Estacio “started stepping back, walking
backwards. And then I kind of, like, jogged back up towards the door” of the store.
Estacio went into the store and called 911 and stayed inside the front door.

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 Estacio testified that three other thefts had already occurred at the store that same
day and shoplifting frequently happened there. However, he was not confusing any of
the prior thefts with defendant’s incident. Estacio acknowledged that at the preliminary
hearing, he testified that thefts happened a lot at the store, and he was kind of used to it,
but “[t]hey don’t pull out knives, but they do cuss us out and yell things at us,” and this
was the first time someone pulled out a knife.
Estacio also acknowledged that at the preliminary hearing, he testified that he told
the police that the other two store employees were scared, and they all felt threatened
because of the incident.2
Estacio testified that there were security cameras inside the store but not outside.
The police never collected the videos from the interior cameras, and he was not asked to
preserve them.
The 911 Call
The recording of Estacio’s call to 911 was played for the jury. Estacio told the
operator that he was calling from Dollar Tree, “and I just had a shoplifter pull out a big
old knife and try to swing it at me, took off running,” and he took the item with him.
Estacio described the suspect as a Hispanic male, wearing a white shirt and red basketball
shorts. Estacio said the suspect was walking through the parking lot “flashing his knife in
his hand, swinging it around and stuff.”
Officer Benavidez’s Body Camera Video
Merced Police Officer Benavidez responded to the dispatch of a possible robbery
with a knife at the store.
Officer Benavidez saw defendant on the street, about 100 yards away from Dollar
Tree. Defendant was wearing a white shirt and red basketball shorts and matched the
suspect’s description.

2 The other two employees were not interviewed by the police and did not testify
at trial.

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 Officer Benavidez was wearing a body camera during his investigation; it
recorded his conversation and arrest of defendant, and the video was played for the jury.
According to the video, Officer Benavidez asked defendant for his last name.
Defendant had problems saying and spelling his name. Defendant was finally able to
spell his last name and gave his birthdate.
Defendant had a black backpack, and it contained a Twix ice cream bar, an
assortment of frozen ice creams or popsicles, and a large kitchen knife with a seven-inch
blade.
Officer Benavidez took defendant back to the store, and Estacio positively
identified him as the suspect. Benavidez testified that he showed Estacio the contents of
defendant’s backpack. Estacio identified the Twix ice cream bar as the item that
defendant took from Dollar Tree. Estacio told Benavidez that he did not want it back.
Estacio advised Benavidez that other items in the backpack were not taken from his store.
Officer Benavidez testified that during his interaction with defendant, he was
jittery, visibly sweating, and talking a lot, and it was possible he was under the influence
of drugs. Benavidez did not have to get defendant medically cleared when he took him
into custody.
Estacio’s Statement to Officer Benavidez
Officer Benavidez testified that Estacio gave a statement about what happened.
According to the video from Benavidez’s body camera, Estacio told Benavidez that he
heard the sound of someone taking something from the freezer. Estacio told defendant to
drop the item before he called the police. “And he took off his backpack. I thought he
was going to drop it …. And he pulled out a big ol’ knife, kitchen knife and started
flexing going all like this sideways. And then I just walked back” to the store and called
911.
Also on the video, Officer Benavidez asked Estacio, “He actually went like this?”
Estacio replied: “Yeah, he went like this with his … , and then I started walking back. I

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usually just show them the phone and they just drop the stuff and take off but … he
pulled a knife on me. He pulled his backpack out, unzipped, pulled out the knife. And
then I was on the phone with 911 telling [the operator] what he looked like and he was
flashing it the whole time. I told [the operator] on the phone, he was just twirling his
knife.”
At trial, Officer Benavidez testified that Estacio said that he did not catch up with
defendant until he got to the door. Estacio said that he followed defendant outside the
store, into the parking lot, and repeatedly yelled at him “across the parking lot” to drop
the merchandise, and he would not call the police. Estacio said that defendant turned
around, put down his backpack, and reached into it. Estacio thought defendant was going
to produce the ice cream bar, but instead defendant “took out a large kitchen knife.”
Estacio said that defendant waived the knife in the air and in his direction. Estacio said
that once he saw the knife, he went back to the store and called 911. While he was
calling 911 from inside the store, defendant was still in the parking lot twirling the knife
in his hand.3
On cross-examination, Officer Benavidez testified that Estacio never said
defendant was 10 to 12 feet away when he took out the knife, that defendant threatened to
slice or cut Estacio, that he was scared or afraid of defendant during the incident, or that
anything was said between them. Benavidez further testified, however, that he asked
Estacio “open ended questions,” and he never asked Estacio how he felt during the
incident, if he felt threatened by defendant, if they talked, or if defendant made any
specific statements to him.

3
At trial, Estacio testified that he told Officer Benavidez what happened, that
defendant swung a knife in his direction, and defendant either said he was going to
“slice” or “cut” him up. Estacio told Benavidez he felt threatened when defendant
waived the knife.

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 Officer Benavidez testified that Estacio showed him the location where he was
standing compared to where defendant was standing in the parking lot when he pulled out
the knife. Benavidez paced the distance between the two spots, it was approximately 22
to 23 of his own paces and estimated that was about 50 feet. Benavidez did not collect
any video evidence from the store.
Estacio’s Statements to the Defense Investigator
At trial, Estacio confirmed he spoke a defense investigator, told him what
happened, and showed him where they were standing in the parking lot when defendant
pulled the knife. Estacio did not recall being served with a subpoena by the investigator.
Estacio testified that he told the investigator when defendant was still inside the
store, defendant said, “ ‘No way, I’m out of here,’ ” as he walked down the aisle with the
stolen item. Upon further questioning, Estacio clarified that defendant made two
statements as he walked out of the store.

“When he was going down the aisle, I came down the aisle and I told him
to stop or leave the stuff. [¶] [Defendant] said, ‘No way. I’m out of here.’
And he moved his hand. And then he kept walking, and he passed through
customers. When he said he’s not leaving shit, he swung the front door
wide open.”
Estacio testified that he also told the investigator that when they were outside,
defendant was mumbling, he could not understand what defendant was saying, and it
appeared he was on “heavy drugs.” Estacio denied telling the investigator that the closest
defendant got to him was 25 feet.
Defense Evidence
Donavan Sizemore (Sizemore), a retired police officer, was the defense’s
investigator. He interviewed Estacio on August 28, 2020, and personally served him with
a subpoena for the store’s video surveillance tape. Sizemore did not make a video or
audio recording of Estacio’s statements during their interview.

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 Sizemore testified that he asked Estacio to tell him what happened and only asked
a few clarifying questions. According to Sizemore, Estacio said when defendant was
walking out of the store, Estacio told him to stop and return the merchandise. Defendant
responded, “ ‘No way. I’m out of here.’ ” Estacio said defendant was mumbling things
and waving the knife in the air, he did not understand him, and thought he was on drugs.
Estacio said that when defendant walked toward him with the knife, he returned to the
store and called 911.
Estacio did not say that defendant told him, “ ‘No way. I’m not dropping shit.’ ”
Estacio did not say that defendant threatened to cut him with the knife, or he felt
threatened when defendant pulled the knife, and Sizemore did not ask these questions.
Estacio said defendant was approximately 25 feet away from him when he pulled out the
knife. He did not say the distance was 10 to 12 feet.
Estacio showed Sizemore where they were standing when defendant pulled out the
knife and began waving it in the air. Sizemore testified that he measured the distance
between the two locations, and it was approximately 50 feet.
Defendant’s Trial Testimony
Defendant initially testified that he did not remember anything that happened on
the day of the incident, except that he fought with his girlfriend and stayed on the streets
the previous night. Defendant then testified that he remembered “grabbing the ice
cream” but “the other stuff with the taunting with the knife and stuff, yeah, I didn’t do
that. I was just paranoid that day.” Defendant felt uncomfortable because he did not
have his gun with him, but he had his knife, and “I pulled a knife out, but it was not
intentional to do that to anybody.”
Defendant testified that he did not enter the store with the intent to rob, steal
anything, or scare anyone, and did not walk toward anyone with a knife. Defendant
claimed that he forgot to pay for the Twix ice cream bar but also claimed he had an EBT

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card when he went into the store, he lost it, and left without paying. He saw the police
outside the store, but figured he was “free to go” since the bar only cost $2.
Defendant testified he had the knife for “protection” because “tweakers” were
everywhere. He found the knife and it did not belong to him. “Otherwise, you have
robbery charges just for ice cream.… I did not intend at all to use that against nobody. I
didn’t even mean no harm to anybody.”
Defendant was “coming down off drugs” at the time of the incident and “about to
get high.” He was “paranoid” because there were a lot of people with knives on the
street, and the police were nearby. Defendant did not remember much about what
happened, but “I know what they’re saying isn’t true.” Defendant said he misspelled his
name to the arresting officer because he intended “to change my name because I’ve had a
lot [of] incidents with that name,” and tried to avoid “gang banging.” Defendant
admitted he had a prior felony conviction for moral turpitude in 2010.
On further questioning, defendant said he grabbed two ice cream bars from the
store. He remembered that someone called the police, but he was sure that he did not say
anything when he was inside the store. Defendant admitted that when he went outside,
he turned around “with the knife because … I felt uncomfortable,” and there were a lot of
people around, and the police were across the street. “As soon as they get close to you,
you’ll die if they shoot you. You get a knife, and you can die.”
PROCEDURAL BACKGROUND
On August 24, 2020, the complaint was filed that charged defendant with second
degree robbery.
First Competency Finding
On September 3, 2020, defense counsel declared a doubt as to defendant’s
competency to stand trial, and the court suspended criminal proceedings pursuant to
section 1368 and appointed Dr. Zimmerman to examine him.

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 On October 1, 2020, the parties submitted the matter on the expert’s report, and
the court found defendant was competent to stand trial and reinstated criminal
proceedings.
Information
On October 21, 2020, an information was filed in the Superior Court of Merced
County charging defendant with count 1, second degree robbery (§ 211), with
enhancements for personal use of a deadly or dangerous weapon, a knife, in the
commission of the offense (§ 12022, subd. (b)(1)), and that he had one prior strike
conviction and one prior serious felony enhancement (§ 667, subd. (a)(1)) based on his
conviction for violating section 246, shooting at an inhabited dwelling, in March 2010.
Pretrial Motion to Dismiss Prior Strike Conviction
On November 24, 2020, defendant filed a pretrial motion to dismiss his prior
strike conviction pursuant to section 1385 and People v. Superior Court (Romero) (1996)
13 Cal.4th 497 (Romero). Defendant’s motion argued he was 30 years old, his prior
strike conviction was over 10 years old, his current offense involved drugs, and he had a
long history and problem with drugs. The motion stated defendant quit school when he
was in the 11th grade because he was “ ‘kicked out of the house,’ ” and had “a family
history of substance abuse disorder.” He reported a history of hospitalizations and
medication for bipolar disorder and methamphetamine use disorder. Defendant requested
probation and placement in a residential treatment facility for both his drug and mental
health issues.
As a supporting exhibit to his motion, defendant filed Dr. Zimmerman’s section
1368 report, dated September 28, 2020, that stated defendant reported he had “a history
of hospitalizations and medications for a bipolar disorder” and severe use of
methamphetamine. Dr. Zimmerman found defendant was competent to stand trial, he
was not competent to represent himself, and he would likely benefit from psychotropic
medication, but it was not needed for his competency to stand trial. Dr. Zimmerman also

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found defendant was not a danger to himself or others as a result of his bipolar disorder,
but “his known history suggests that he could represent a danger to others when under the
influence of methamphetamine or other controlled substances.”
Defendant also attached the transcript from the plea hearing for his prior strike
conviction for shooting at an inhabited dwelling in March 2010, where he was placed on
felony probation for three years. At that 2010 plea hearing, defense counsel stated that
defendant’s cousin had an altercation with someone, defendant drove his cousin by a
house, and the cousin shot at the house. Defendant buried the gun but gave it to officers
when they arrived at his house. Defendant said that he did not know his cousin was
going to shoot at the house. Defense counsel stated that defendant’s family was present
at the plea hearing, and they intended to support him.
Denial of Pretrial Motion
On December 9, 2020, the court denied defendant’s pretrial motion to dismiss the
prior strike conviction and made the following findings.

“In light of the circumstances surrounding the present offense and
considering the prior strike and the particulars of the defendant’s
background, character, and prospects, I do not find that the defendant falls
outside of the spirit of the three strikes scheme. [¶] I have considered the
facts surrounding the current alleged offense, the defendant’s past criminal
record, the defendant’s background, character, and prospects going
forward. I’ve also considered whether there are factors in mitigation or
factors in aggravation. And I find that the defendant does not fall outside
the spirit of the three strikes scheme. So the invitation to strike the strike is
denied.”
Second Competency Finding
On January 5, 2021, defense counsel again declared a doubt as to defendant’s
competency. The court suspended criminal proceedings and appointed Dr. Neufeld.
On February 3, 2021, the parties submitted the matter on the report, and the court
found defendant was competent and reinstated criminal proceedings.

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Jury Trial and Verdict
On March 23, 2021, the court heard and denied defendant’s motion to dismiss his
appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, and defendant’s
jury trial began.
On March 26, 2021, defendant was convicted of second degree robbery and the
personal use enhancement was found true. The court reviewed the prosecution’s
documentary evidence and found the prior conviction allegations true.
SENTENCING MOTIONS
After defendant was convicted, both parties filed sentencing motions.
Defendant’s Motion
On April 21, 2021, defendant, who was 31 years old, filed a sentencing motion
and raised several issues.
Diversion
First, defendant’s motion sought an expert evaluation in order for the court to
place him on mental health diversion pursuant to section 1001.36, based on the
competency reports from both Dr. Zimmerman and Dr. Neufeld that he was diagnosed
with bipolar disorder and methamphetamine use disorder.4 Defendant argued that he
could be placed on “postconviction” diversion based on the holding in People v. Curry
(2021) 62 Cal.App.5th 314, review granted July 14, 2021, S267394 (Curry). Defendant
acknowledged a contrary conclusion was reached in People v. Braden (2021)
63 Cal.App.5th 330, review granted July 14, 2021, S268925 (Braden), that held a
defendant is ineligible if he failed to request diversion before trial began.5

4 While defendant’s motion cited to Dr. Neufeld’s report, he did not attach a copy
of that confidential report to the motion.
5 Defendant has not challenged the court’s denial of “presentencing” diversion on
appeal. As background, we note that section 1001.36 defines “pretrial diversion” as “the
postponement of prosecution … at any point in the judicial process from the point at

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 Section 1385
Next, defendant asked the court to reconsider his pretrial motion to dismiss the
prior strike conviction pursuant to section 1385 and Romero, so he could be placed on
probation and attend a residential treatment program.
Probation – Unusual Circumstances
Defendant acknowledged he was presumptively ineligible for probation if the
court did not dismiss the prior strike conviction but argued there were unusual
circumstances because he was diagnosed with bipolar disorder when he was 16 years old,
and he suffered from both bipolar disorder and methamphetamine use disorder. He
further argued that the instant crime did not involve “actual violence,” he did not get
close to Estacio with the knife, Estacio followed him, and he was paranoid at the time of
the incident. He argued that he thought he had an EBT card to pay for the ice cream bar,
the offense would not have occurred but for his bipolar and methamphetamine use
disorders, he had not committed any prior violent crimes, and he had been accepted into a
residential treatment program.

which the accused is charged until adjudication, to allow the defendant to undergo mental
health treatment.” (§ 1001.36, subd. (c), italics added.)
The statute does not define the phrase “until adjudication,” and that phrase has
received three different interpretations. In Curry, supra, 62 Cal.App.5th at p. 321, upon
which defendant relied, the court held section 1001.36 “contemplates mental health
diversion until entry of the judgment of conviction.” In Braden, supra, 63 Cal.App.5th at
p. 333, upon which the sentencing court ultimately relied to deny relief, it was held that a
defendant is ineligible for diversion once his trial begins. In People v. Graham (2021) 64
Cal.App.5th 827, 833, review granted September 1, 2021, S269509, the court held a
motion for pretrial diversion is timely only if made prior to the jury’s guilty verdict.
The California Supreme Court granted review in these three cases, deferred
briefing in Curry and Graham pending the resolution of the petition for review in Braden
and ordered briefing in Braden to address the latest point at which a defendant’s request
for mental health diversion is timely under section 1001.36. As of February 2022,
briefing was completed in Braden, but oral argument has not been set.

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 Supporting Exhibits
Defendant’s sentencing motion was supported by letters from his family and
friends about his mental health issues – that when he took his medication and was sober,
his symptoms were under control, he did well, and he was employed. He moved into his
own place but started using drugs again and became homeless because of his mental
health and drug problems.
Defendant’s sister wrote that court-ordered rehabilitation and counseling would
help his mental health and drug problems and “possibly help him resolve some past
trauma he has never dealt with for example in 2013 when he was randomly stabbed at a
liquor store and almost died” when he was in the wrong place at the wrong time. A
former roommate wrote that defendant was stabbed in March 2013, when he went to the
store to buy cigarettes, and defendant was always suspicious of his surroundings since
that time.
A friend wrote that defendant was the oldest of five siblings, it was not easy for
him when his parents separated when he was a teenager, and he lived with his father for
15 years. He then returned to his mother, and then he was distant, cold, and “broken.”
He was not the same.
Another friend wrote that when defendant was a young child, he was “a typical
happy kid with all of the appropriate laughs, smiles, and harmless mischief that goes with
it. As a teenager, he gradually became more withdrawn and rarely displayed feelings,”
and was “ ‘flat’ ” and “ ‘detached.’ ”
Defendant’s mother wrote that he had struggled with mental illness and drug
problems since he was 13 years old, he was diagnosed as bipolar when he was 15 years
old, and she never got him help. “His father & I had a volatile relationship with domestic
violence involved. His father didn’t believe the doctors so he believed marijuana would
help [defendant]. He began to use other drugs by 16 yrs. I called police to have him
locked up for a [section 5150 hold] I believe. I thought he was going to commit suicide

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because of his erratic behavior…. I didn’t know how to help [him]. His father was a
drug dealer.”
Defendant’s mother wrote that she remarried, and defendant got along with his
stepfather, who was a police officer, but defendant’s biological father “convinced him
and put pressure on [him]” to stay away from them. Defendant’s father was a bad
influence and abandoned him when the father also became an addict. Defendant became
homeless in 2008, she found him in a mental health facility in Oklahoma in 2016, and he
became stable while on medication.
Defendant’s stepfather wrote that defendant had drug and mental health problems,
and they had to keep him away from the other children. When defendant returned to the
area, he was a completely different person on medication; they helped him. He did well,
and he had a job and his own place. He went through some stress and started using drugs
again, and he now needed a residential treatment program.
The Prosecution’s Opposition
On April 22, 2021, the prosecution filed opposition and argued the court should
not dismiss the prior strike conviction because of defendant’s criminal history – he had
several misdemeanors, the level of his crimes was increasing with an escalation of
violence, and he had two prior violations of probation. He failed to previously take
advantage of opportunities to address his drug and mental health issues, there was no
evidence he would do so this time, and he posed a risk of danger to the public.
The People also opposed finding any unusual circumstances to grant probation,
disagreed with defendant’s summary of the facts of the instant case, and argued the
evidence showed he used the knife to instill fear in Estacio and complete the robbery.
Defendant’s prior strike conviction also involved a violent crime since he was the driver
when his cousin shot at an occupied dwelling.

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 SENTENCING HEARINGS
The court held sentencing hearings on April 2 and 23, 2021, and considered
defendant’s motions for “presentencing” diversion, probation, and imposition of the
lower term.
Motion for “Presentencing” Diversion
On April 2, 2021, the court convened the sentencing hearing. Defense counsel
requested appointment of an expert to examine defendant in support of his motion for
“presentencing” mental health diversion under section 1001.36. The court replied that
section 1001.36 defined pretrial diversion as being available prior to adjudication, and
defendant’s motion was not timely. Defense counsel argued that the motion was timely
under Curry, supra, 62 Cal.App.5th 314.
The prosecutor stated defendant was ineligible for diversion after conviction, and
the court already denied his motion to dismiss the prior strike conviction, and he was
going to be sentenced to prison. Defense counsel said he would renew the section 1385
motion. The court continued the sentencing hearing to consider Curry and the diversion
issue.
The Court’s Ruling
On April 23, 2021, the court reconvened the sentencing hearing and stated that it
had reviewed both Curry, supra, 62 Cal.App.5th 314 and Braden, supra, 63 Cal.App.5th
330, and acknowledged there was a split of authority about whether section 1001.36
permitted postconviction diversion. The court agreed with Braden, that the plain
language of the statute only permitted pretrial diversion and denied defendant’s motion
for presentencing diversion.
However, the court decided to make further findings in case the California
Supreme Court decided that Curry was correctly decided, and presentencing diversion
was statutorily permitted. The court conducted a prima facie hearing on whether
defendant would be statutorily eligible for diversion, and found defendant was not

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eligible under the requirements of section 1001.36 based on the documentary exhibits
submitted by defendant.

“The Court has considered the facts of this case, the defendant’s
demeanor while testifying, the facts as briefly outlined in the plea transcript
from defendant’s prior strike conviction, Probation’s recommendation,
records from Griffin Memorial Hospital in Oklahoma, and also that the
defendant was treated for schizoaffective disorder for a month and
discharged in September 2016 from that facility, and also records that the
defendant had support from the Department of Rehabilitation and GBHC
Senior Health from 2017 to 2019.

“I have also considered the defendant’s sentencing memorandum. I
read all of the letters in support of [defendant] from family members and
his family friends. From these letters, it is clear that the defendant had
strong support, and he was briefly successful while in treatment for his
mental health issues. Then the defendant went off his medication and
began using drugs again. In one letter, it indicates that the defendant
walked away from the Merced Rescue Mission program. The common
thread throughout the letters is that the defendant is well mannered,
productive, and law abiding when he is taking anti-psychotic medication
and is sober. When he stops taking his medication and … when he relapses
into drug use, the defendant’s personality shifts, and his own family
becomes fearful of the defendant.”
The court stated defendant would be statutorily eligible for diversion if it found he
would not pose “an unreasonable risk of danger to public safety” if treated in the
community, within the meaning of section 1001.36, subdivision (b)(1)(F), and that meant
there was not an unreasonable risk defendant would commit a new violent felony.
The court found defendant would pose an unreasonable risk of danger to the
public because he “already received the community treatment that’s now being requested.
After becoming stabilized on medication and receiving medical support in both in-state
and out-of-state hospitals, the defendant relapsed and eventually committed a violent
felony offense with a deadly weapon.”
The court also considered defendant’s prior conviction for shooting at an inhabited
dwelling in 2010, that occurred when he “drove his cousin to a home where the

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defendant’s cousin fired a gun at an inhabited dwelling,” he was placed on probation
because of his youthful age, and the gang enhancements were dismissed in that case.

“I have a genuine concern for the safety of the public based on the
defendant’s mental health issues, the defendant’s severe methamphetamine
addiction, his prior criminal conduct, and his conduct in this case. [¶] Here
the defendant testified that he had previously been in possession of a
firearm prior to the robbery. Fortunately, he was not in possession of that
gun on the occasion when he committed the robbery. [¶] … [¶]

“Prior to the robbery, the defendant also had decided to arm himself
with a large kitchen knife.

“There’s no – in this Court’s opinion, there’s no question that the
defendant needs drug treatment and mental health treatment. But if he’s
treated in the community, there’s an unreasonable risk that the defendant
will stop treatment, relapse, and present an unreasonable risk of committing
a homicide.

“The defendant has been given treatment in the community for his
mental health issues in the past, and he committed the present violent
offenses following that treatment. So the Court’s opinion is that the
defendant should receive mental health treatment but in a locked facility
setting.”6
The court, thus, found it would not place defendant on diversion even if such a
postconviction motion was statutorily cognizable.
Request to Dismiss the Prior Strike Conviction
The court next addressed defendant’s renewed request to dismiss the prior strike
conviction for shooting at an inhabited dwelling in 2010.
Defense counsel stated that defendant was 19 years old when he committed the
prior strike conviction, and the case was resolved when he was 20 years old. Counsel
stated the prior conviction was not violent because defendant said he did not know what
his cousin was going to do, he helped the police find the weapon, and these factors were

6 Defense counsel objected and claimed defendant’s testimony about a gun was
stricken. The court disagreed, and the record shows that it was not stricken.

18.
considered when he was placed on probation in that case. Counsel stated defendant’s
performance on probation was successful until it was terminated, and he was not sent to
prison.
Counsel argued defendant had never been sent to prison, he had misdemeanor
offenses after the prior strike conviction, and there was no significant increase in
violence. Counsel further argued there was no physical confrontation or actual violence
in this case, and there was conflicting evidence about how close defendant got to Estacio
with the knife. Defendant’s inconsistent trial testimony was the result of his bipolar
disorder, and he had been accepted into a residential treatment program.
The prosecutor replied that the instant offense was a violent crime because
defendant pulled a knife and instilled fear in the store manager, who simply asked him to
drop the stolen merchandise. The prosecutor further argued defendant already had the
opportunity to move forward when he was placed on probation after the prior strike
conviction in 2010, and he repeatedly failed to do so.
The Court’s Ruling
The court acknowledged defendant was placed on probation for the prior strike
conviction in 2010, but he violated probation by brandishing a knife. Defense counsel
disputed whether that happened. The court reviewed the records, and stated that in
January 2012, while still on felony probation, defendant was convicted of the new
offense of brandishing and again placed on probation.
The court declined to dismiss the prior strike conviction based on the facts of the
current offense, defendant’s criminal record, the similarity between the current crime and
his past violent crime, and his background and prospects. The court also considered
mitigating factors and found defendant did not fall outside the spirit of the “Three
Strikes” law.

19.
Probation and Unusual Circumstances
The court stated that defendant was presumptively ineligible for probation because
of the prior strike conviction. Defense counsel stated there were unusual circumstances
to grant probation. The court stated that “unusual circumstances” could only be
considered if the prior strike conviction was dismissed but allowed counsel to make a
record on the issue.
Defense counsel argued it was “undisputed” that defendant was under the
influence of methamphetamine when he committed this offense, and the section 1368
reports stated he suffered from mental illness.7 Defendant was homeless, under the
influence, and paranoid, and he took out the knife to protect himself but did not intend to
use it. He did not commit any violent acts, and he was afraid because he did not know
who Estacio was and why he was being yelled at.
Defense counsel further stated this case would be defendant’s first prison
commitment, and a prison term would be cruel and unusual under the circumstances
because it would exacerbate his mental health problems and make it harder for him to get
treatment. Counsel concluded:

“… I hope it’s not taken as any kind of disrespect. But what I have seen
over the course of my time here in Merced County by the judges, when
somebody first becomes a judge in their first few years – and I am not
meaning any disrespect there seems to be a tendency to really give
maximum sentences and … in showing … the public that the Court can be
tough on crime and will sentence to the maximum if given the opportunity.
Those judges, as they get older and have spent around 20 years as a judge, I
think they realize the error in their previous ways.”

7There was no evidence that defendant was evaluated or tested for being under the
influence of either alcohol or a controlled substance when he was arrested in this case.
Officer Benavidez testified that he did not have to get defendant medically cleared when
he was taken into custody.

20.
 The Court’s Ruling
The court stated that under section 1170.12, defendant was ineligible for probation
because he had one prior serious felony conviction. The court agreed defendant needed
treatment, but the question was whether it should be in the community or a locked
facility. The court continued:

“He’s been convicted of shooting at an occupied home. While on
probation for that, he brandished a knife. And now he’s been convicted of
using a knife during a robbery. And I don’t think he is a person who is
suitable for treatment in the community for those reasons.”
The court stated that the California Department of Corrections and Rehabilitation
(CDCR) could treat an inmate with a mental illness, and it intended to direct that CDCR
provide treatment for defendant’s bipolar disorder.
Length of Prison Term
The court’s tentative sentencing decision was to impose an aggregate term of
seven years based on the midterm of three years, doubled to six years as the second strike
sentence, plus one year for the personal use enhancement. It intended to strike the five-
year term for the prior serious felony enhancement. The court invited arguments about
the length of defendant’s prison term and the aggravating and mitigating factors.
Defense counsel argued that since the court denied probation, the “fairest term
would be the lowest term possible and striking the so-called nickel prior enhancement
and giving him four years, at most six years, mid term doubled,” and a longer term would
ignore his clear mental illness problems.
The prosecutor stated that a prison term was appropriate, and defendant could
receive treatment there.
The Court’s Imposition of Sentence
The court again stated that probation was denied because defendant was statutorily
ineligible. The court found one mitigating factor, that the value of the property taken
insignificant.

21.
 The court stated that the aggravating factors were that defendant engaged in
violent conduct that indicated a serious danger to society, his prior convictions as an adult
were of increasing seriousness, he was previously an aider and abetting to a shooting, his
prior performance on probation was unsatisfactory, he was convicted of brandishing a
weapon while on felony probation, he was on probation when he committed this robbery,
and he personally committed the robbery and personally used a weapon in the
commission of the robbery.
The court imposed the midterm of three years in prison for count 1, “[i]n
balancing the factors and based on the facts of this case,” and doubled the term to six
years as the second strike sentence, plus one year for the personal use enhancement, for
an aggregate term of seven years. The court exercised its discretion to dismiss the five-
year prior serious felony enhancement because the conviction was more than 10 years
old, and it would be inappropriate to impose the enhancement in this case.
The court further stated: “I will note on the Minutes that the [CDCR] evaluate and
treat defendant for a diagnosed bipolar disorder.”
The court imposed a restitution fine of $2,100 (§ 1202.4, subd. (b)) and found
“this amount is commensurate with the seriousness of the crime charged.” The court
suspended the parole revocation find in the same amount (§ 1202.45) and reserved victim
restitution; it also imposed the court facilities assessment of $30 (Gov. Code, § 70373),
and the court operations assessment of $40 fee (§ 1465.8). Defense counsel did not
object to the fines and fees.
On April 23, 2021, defendant filed a timely notice of appeal.
DISCUSSION
I. Remand for Resentencing is Not Required
Defendant contends the matter must be remanded for resentencing because
Assembly Bill No. 124 (2021–2022 Reg. Sess.) was enacted after his April 2021
sentencing hearing and amended section 1170 to make the lower term the presumptive

22.
sentence if the defendant experienced “psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or sexual violence” that was “a
contributing factor in the commission of the offense.” (Stats. 2021, ch. 731, § 1.1;
§ 1170, subd. (b)(6)(A).) Defendant asserts evidence of his history of mental illness and
drug use, introduced at the sentencing hearing, constituted evidence of “childhood
trauma’ required by this statute.
As will be explained, defense counsel fully developed these issues at the
sentencing hearing, the court repeatedly denied defendant’s sentencing motions,
including imposition of the lower term, and remand is not required.
A. Assembly Bill No. 124
Effective January 1, 2022, Senate Bill No. 567 (2021–2022 Reg. Sess.) amended
section 1170, subdivision (b) to make the middle term the presumptive sentence, unless
the greater term is justified by aggravating circumstances that were stipulated to or found
true beyond a reasonable doubt. (§ 1170, subds. (b)(1), (b)(2); Stats. 2021, ch. 731,
§ 1.3.)
Also effective on January 1, 2022, Assembly Bill No. 124 (2021–2022 Reg. Sess.)
further amended section 1170 to add subdivision (b)(6)(A), that states in relevant part:

“Notwithstanding paragraph (1), and unless the court finds that the
aggravating circumstances outweigh the mitigating circumstances [so] that
imposition of the lower term would be contrary to the interests of
justice, the court shall order imposition of the lower term if any of the
following was a contributing factor in the commission of the offense: [¶]
(A) The person has experienced psychological, physical, or childhood
trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence.” (Stats. 2021, ch. 731, § 1.3, italics added; People v. Banner
(2022) 77 Cal.App.5th 226, 239 (Banner).)
Assembly Bill No. 124 made the lower term “presumptively appropriate under
specified circumstances, including where the defendant’s experience of psychological or
physical trauma was a ‘contributing factor’ to the defendant’s commission of the offense.

23.
(§ 1170, subd. (b)(6)(A).) Where the presumption applies, the trial court may impose a
higher sentence if it finds ‘the aggravating circumstances outweigh the mitigating
circumstances [so] that imposition of the lower term would be contrary to the interests of
justice.’ (§ 1170, subd. (b)(6).) Even where the presumption does not apply because
there is no evidence that the circumstances listed in paragraph (6) are present, the trial
court retains discretion to impose the lower term. (§ 1170, subd. (b)(7).)” (People v.
Gerson (2022) 80 Cal.App.5th 1067, 1095.)
The parties herein agree that Assembly Bill No. 124 is ameliorative legislation that
applies retroactively to judgments that were not final at the time the statutory
amendments went into effect. (Banner, supra, 77 Cal.App.5th at p. 240; People v.
Gerson, supra, 80 Cal.App.5th at p. 1095; People v. Garcia (2022) 76 Cal.App.5th 887,
901.)
B. The Parties’ Arguments
The parties disagree about whether the instant case must be remanded for the court
to determine whether defendant suffered a qualifying “trauma” that was a contributing
factor to the commission of the robbery and would raise the presumption for the lower
term under the provisions of section 1170, subdivision (b)(6)(A).
Defendant contends remand for imposition of the lower term is required because
of the enactment of Assembly Bill No. 124, and the record does not clearly indicate the
court would not have exercised the “greater discretion conferred by AB 124” since the
lower term would have been the presumptive sentence because of his “significant
childhood trauma.”
In making this argument, defendant argues the documentary exhibits that he
introduced in support of his sentencing motions “detailed the traumatic events in his
childhood that could well have been deemed mitigating circumstances” and constituted
“psychological, physical, or childhood trauma” under section 1170,

24.
subdivision (b)(6)(A).8 Defendant asserts these exhibits showed he had “a very difficult
childhood” because he was using marijuana by the time he was 13 years old, and his
mother wrote that he ‘didn’t experience a normal childhood,’ and his father, ‘introduced
[defendant], at a young age, to the drug world.’ ” Defendant further asserts these
exhibits, particularly his mother’s letter, showed he had mental health problems at an
early age, he struggled with mental illness and drug use since he was 13 years old, he was
diagnosed with bipolar disorder when he was 15 years old, he never received any
treatment because his parents had a “volatile relationship,” and instead used drugs based
on the influence of his biological father. Defendant further argues that it “appears” he
was having “an acute psychotic episode combined with drug use” when he committed the
robbery in this case.9

8 While defendant relies on Assembly Bill No. 124, we note that it is not
independently operative. “During the 2021–2022 legislative term, three bills proposing
changes to section 1170 in a variety of ways were introduced. They were Assembly Bill
No. 124 (Stats. 2021, ch. 695, § 5), Assembly Bill No. 1540 (2021–2022 Reg. Sess.)
(Stats. 2021, ch. 719, § 2), and Senate Bill No. 567 (2021–2022 Reg. Sess.) (Stats. 2021,
ch. 731, § 1.3). All three bills were passed by the Legislature in September 2021 and
approved by the Governor and filed with the Secretary of State on October 8, 2021.
Senate Bill No. 567 (2021–2022 Reg. Sess.) bears the highest chapter number and is
presumed to be the last of the three approved by the Governor. (Gov. Code, § 9510.) As
such, Senate Bill No. 567 (2021–2022 Reg. Sess.) prevails over Assembly Bill No. 124.
(Gov. Code, § 9605, subd. (b).) To the extent there are conflicts between the three bills,
Senate Bill No. 567 (2021–2022 Reg. Sess.) takes precedence. (In re Thierry S. (1977)
19 Cal.3d 727, 738–739 .…) As to subdivision (b)(6)(A) of section 1170, however, the
substantive language in Assembly Bill No. 124, Senate Bill No. 1540 (2021–2022 Reg.
Sess.), and Senate Bill No. 567 (2021–2022 Reg. Sess.) are not in conflict.” (Banner,
supra, 77 Cal.App.5th at p. 243, fn. 2 (conc. & dis. opn. of Detjen, J.); People v. Flores
(2022) 73 Cal.App.5th 1032, 1038; People v. Jones (2022) 79 Cal.App.5th 37, 45, fn.
11.)
9 As previously noted, there is no evidence that defendant was evaluated for being
under the influence or tested positive for drug or alcohol use at the time of his arrest.
Officer Benavidez testified that he did not have to get defendant medically cleared when
he took him into custody.

25.
 The People assert that defendant’s mental health and drug problems do not qualify
as “psychological, physical, and childhood trauma” as defined in section 1170,
subdivision (b)(6)(A).
C. Banner
Defendant’s arguments are based on Banner, supra, 77 Cal.App.5th 226, where
the defendant was convicted of two counts of attempted robbery. Banner held the trial
court did not have a sua sponte duty to consider whether the defendant was eligible for
mental health diversion under section 1001.36, even though the court stated it had
reviewed “ ‘several hundred pages’ of ‘mental health records’ ” (id. at p. 233) and
believed he had mental health issues, but concluded that the manner he was able to
commit the crime indicated his mental health issues were “ ‘somewhat in abeyance at the
time….’ ” (Ibid.) Banner rejected the defendant’s alternate argument that counsel was
prejudicially ineffective for failing to make a diversion motion because his attorney “did
in fact offer mental health as a mitigating factor. The record was rife with information
relating to [the defendant’s] mental health. The court simply disagreed it was a
significant factor in this crime.” (Id. at p. 239, fn. omitted.)
As relevant to the instant case, Banner also addressed the defendant’s separate
argument that the matter had to be remanded for resentencing because of the subsequent
enactment of Assembly Bill No. 124, and that evidence of his mental illness constituted
“trauma” as defined by the amended version of section 1170, subdivision (b)(6)(A).
(Banner, supra, 77 Cal.App.5th at p. 240.) A majority of this court agreed with the
defendant and held remand was required:

“[P]sychological trauma based on mental illness may be a circumstance
qualifying for the lower term presumption in section 1170, subdivision
(b)(6). To be clear, we do not hold mental illness alone qualifies for the
lower term presumption. Psychological trauma must attend the illness, and
that trauma must contribute to the crime under section 1170,
subdivision (b)(6).” (Id. at p. 241.)

26.
 The People argued remand was not required since the trial court had considered
defendant’s evidence about his mental illness when it denied his motion for diversion.
Banner disagreed and held the trial court’s ruling on the diversion motion under
section 1001.36 was based on a different standard than that required by section 1170,
subdivision (b)(6)(A):

“Under section 1001.36 mental health diversion, both conviction and
imprisonment are entirely avoided. Under section 1170, subdivision (b)(6),
neither conviction nor imprisonment are avoided, but instead there is a
rebuttable presumption favoring a lower term prison sentence. A standard
resulting in neither conviction nor imprisonment is properly more onerous
than a standard that potentially mitigates a prison sentence.

“Because the respective statutory standards are different, the trial
court’s conclusion [the defendant’s] mental illness was not a significant
factor in the crime does not subsume a finding it was a
lesser contributing factor. Hypothetically, a court could find psychological
trauma induced by mental illness a contributing factor in a crime
notwithstanding the fact the person was lucid at the time of the crime.
[Citation.]

“We recognize the trial court did not formally find [the defendant’s]
mental illness a factor in mitigation at the sentencing hearing. The
California Rules of Court list ‘suffering from a mental or physical condition
that significantly reduced culpability for the crime’ as a mitigating factor.
[Citation.] The Supreme Court has made clear mental illness may underlay
a crime without also significantly reducing culpability. [Citation.]
Accordingly, not finding mental illness a mitigating factor under the
California Rules of Court does not preclude a separate finding
psychological trauma is a contributing factor to the crime under section
1170, subdivision (b)(6).

“In a similar vein, we generally expect arguments developing mental
illness as mitigation to appear in the record in one form or another. Classic
examples include plea negotiations, trial proceedings, and sentencing
hearings. We believe, however, neither [the defendant] nor the court had a
meaningful incentive to assess whether mental illness was a limited but
nonetheless ‘contributing factor’ in the crime.” (Banner, supra, 77
Cal.App.5th at pp. 241–242, first italics in original, latter italics added, fn.
omitted.)

27.
 Justice Detjen’s dissent in Banner stated there was no evidence the defendant fell
within the class of persons defined by section 1170, subdivision (b)(6)(A) because of his
history of mental illness, and declined to add “a group of persons – in this case,
defendants who have a mental illness, but no evidence of psychological trauma – to the
class of persons designated by the Legislation to benefit” from Assembly Bill No. 124’s
sentencing amendment. (Banner, supra, 77 Cal.App.5th at pp. 244, 246 (conc. & dis.
opn. of Detjen, J.).)

“The plain language of the amended statute provides no support for the
majority’s conclusion. [¶] The statute does not list mental illness in the
identified class of persons. It lists: ‘[P]sychological … trauma, including,
… abuse,’ ‘psychological … trauma, including, … neglect,’ ‘psychological
... trauma, including, ... exploitation,’ and ‘psychological … trauma,
including, … sexual violence.’ [Citation.] It does not read, psychological
trauma, including mental illness. If it did, the statute would list mental
illness among the conditions that constitute psychological trauma. The
majority recognizes this when they state they ‘do not hold mental illness
alone qualifies for the lower term presumption.’ [Citation.]

“The majority then concludes that ‘psychological trauma stemming
from mental illness’ [citation], and ‘psychological trauma based on mental
illness’ [citation], and ‘[p]sychological trauma [that] attend[s] [mental]
illness’ [citation], requires remand for resentencing under section 1170,
subdivision (b)(6)(A) opining that ‘it strains credulity to conclude mental
illness cannot result in psychological trauma.’ [Citation.] [¶] I do not
disagree that psychological trauma can ‘stem[ ] from,’ be ‘based on,’ or
‘attend’ mental illness. The problem is there is no evidence in the record of
psychological trauma.” (Id. at pp. 244–245.)
The dissent further found that by remanding for resentencing under Assembly Bill
No. 124 “when there is evidence of mental illness, but no evidence of psychological
trauma, because there may be psychological trauma, the majority broadens the class of
persons beyond those listed in the plain language of the statute,” and the majority’s
construction “swallows the rule and leads to absurd results.” (Banner, supra,
77 Cal.App.5th at p. 246 (conc. & dis. opn. of Detjen, J.).)

28.
 “Given [the majority’s] construction, it would follow that: a defendant with
a prior prison term should have his or her case remanded for resentencing
because psychological trauma could well ‘stem[] from’ such an experience;
or, when evidence in the trial court indicated a defendant took medication
for back pain, the case should be remanded for resentencing as physical
trauma may ‘attend’ such pain; or, when evidence suggests a defendant
suffered the loss of a parent in childhood, remand for resentencing should
occur as childhood trauma may be ‘based on’ such an event.” (Ibid.)
D. Analysis
Defendant asserts the record in this case is similar to that reviewed in Banner and
establishes that he suffered from mental health and drug problems both as a child and an
adult that constituted psychological or childhood trauma that significantly contributed to
his commission of the robbery in this case.
“ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant’s record.’ [Citation.] In such circumstances, [our
Supreme Court has] held that the appropriate remedy is to remand for resentencing unless
the record ‘clearly indicate[s]’ that the trial court would have reached the same
conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez
(2014) 58 Cal.4th 1354, 1391.)
Defendant was sentenced in April 2021, before section 1170,
subdivision (b)(6)(A) became effective and, as a result, the court imposed the midterm
without considering the newly enacted statutory presumption potentially available under
the revised statute. In contrast to Banner, however, the entirety of the record shows that
both defense counsel and the court had “a meaningful incentive to assess whether mental
illness was a limited but nonetheless ‘contributing factor’ in the crime.” (Banner, supra,
77 Cal.App.5th at p. 242.) The court considered the same evidence that defendant now
relies on as allegedly showing “psychological” or “childhood trauma” under

29.
section 1170, subdivision (b)(6)(A) and rejected all of defendant’s sentencing motions for
leniency.
We find that in contrast to Banner, remand is not required in this case. First, the
record contains no evidence that defendant suffered from any “childhood trauma” aside
from the diagnosis of his bipolar disorder, or that such “trauma” was a contributing factor
in the commission of the robbery. While his exhibits stated that he was diagnosed with
bipolar disorder and used drugs as a teen, and referred to his parents’ difficult
relationship, none of these exhibits described “childhood trauma” that was a contributing
factor to his commission of the robbery.
Second, even assuming that Banner correctly held that “psychological” or
“childhood” trauma may be based on mental illness and constitute a qualifying
circumstance under section 1170, subdivision (b)(6)(A), this case is distinguishable from
Banner because defendant fully developed the record as to his history of mental illness
and drug use, and the court expressly addressed and rejected these arguments when it
denied his numerous motions for leniency and imposed the midterm.
As set forth above, defendant’s pretrial request to dismiss his prior strike
conviction was based entirely on his history of drug abuse and mental health problems
and supported by Dr. Zimmerman’s competency report. At the sentencing hearing, the
court fully considered defendant’s lengthy sentencing motion and counsel’s numerous
arguments for “presentencing” diversion, his renewed request to dismiss the prior strike
conviction so he could be place on probation, his claim there were unusual circumstances
so he could still qualify for probation, and for imposition of the lower term. All of
defendant’s arguments were based on the extensive exhibits filed in support of his
sentencing statement, consisting of the letters from his family and friends setting forth his
history of mental health problems and drug use. These exhibits also constitute the basis
for defendant’s appellate arguments that his mental health and drug problems constituted
trauma that was a contributing factor to his commission of the robbery

30.
 The court heard extensive arguments on these contentions at the sentencing
hearing, carefully considered the evidence of defendant’s mental health history and drug
problems, and denied all of defendant’s sentencing motions, including whether the lower
term was appropriate in this case. While the court acknowledged defendant’s history of
mental health problems and drug abuse, it did not find that these issues played any type
of role in the commission of the robbery, and instead focused on defendant’s use of the
knife and that his offenses involved the escalating use of force.10
Finally, the court’s decision to impose the midterm negates the potential
application of section 1170, subdivision (b)(6)(A) to this case. As noted above,
section 1170, subdivision (b)(1) states that when a statute specifies three possible terms,
“the court shall, in its sound discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2).” Subdivision (b)(2) states
that the court may impose a sentence exceeding the middle term “only when there are
circumstances in aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true beyond a reasonable
doubt at trial….” (§ 1170, subd. (b)(2).)
While section 1170, subdivision (b)(6) states the new presumption regarding the
lower term at issue in this case, it also states the following prefatory language applicable
in this case:

“Notwithstanding paragraph (1), and unless the court finds that the
aggravating circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the interests of justice,

10The defense exhibits submitted in support of his sentencing motions referred to
an incident where defendant was stabbed in 2013, and that the incident resulted in
“trauma” and made his “suspicious” of his surroundings. Based on the representations
about defendant’s age in his sentencing statement, he would have been 23 years old in
2013. Defendant has not cited this incident in support of his current claims about section
1170, subdivision (b)(6)(A).

31.
 the court shall order imposition of the lower term is any of the following
was a contributing factor in the commission of the offense ….” (§ 1170,
subd. (b)(6).)
The court fully considered defense counsel’s arguments and reviewed the exhibits
about defendant’s mental health and drug problems. It found one mitigating factor, that
the value of the property taken was insignificant; and found multiple aggravating factors,
including that defendant was previously an aider and abettor to a shooting, he was
convicted of brandishing a weapon while on felony probation, and he personally
committed the robbery and personally used a weapon in the commission of the robbery.
Based on these findings, the court denied defendant’s request for the lower term and
imposed the midterm.11
The lower term need not be imposed when “the court finds that the aggravating
circumstances outweigh the mitigating circumstances [so] that imposition of the lower
term would be contrary to the interests of justice.” (§ 1170 subd. (b)(6).) The court’s
findings on aggravating and mitigating circumstances, and its denial of defendant’s
motion for the lower term and decision to impose the midterm, clearly indicate the court
would have reached the same conclusion to impose the midterm under the amended law
and remand is not required.

11 While the court did not impose the upper term, its findings on at least these
three aggravating circumstances satisfy section 1170, subdivision (b)(2) since defendant
admitted during his trial testimony that he had one prior conviction, the court found his
prior conviction for shooting at an inhabited dwelling constituted a prior strike, the
defense introduced the transcript of the plea hearing from that prior conviction, the court
referred to documentary evidence that he was convicted of brandishing while on
probation for that prior conviction, and the jury in this case found true the enhancement
that he personally used a deadly or dangerous weapon in the commission of the instant
robbery. (See, e.g., People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109–1110.)

32.
II. Imposition of the Fines and Fees
Defendant next contends the court improperly imposed the fines and fees in this
case without finding he had the ability to pay those amounts as set forth in People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).12
Defendant’s sentencing hearing was held in April 2021, over two years after
Dueñas was decided. Nevertheless, defendant did not object to the court’s imposition of
the restitution fine and the fees. Even before Dueñas, defendant had a statutory right to
object to the court’s imposition of the $2,100 restitution fine since it exceeded the
statutory minimum of $300, and he did not do so. (§ 1202.4, subds. (c), (d).)
Accordingly, defendant forfeited appellate review of his claim that the trial court erred
when it imposed the restitution fine without determining his ability to pay. In addition,
by failing to object to the $2,100 restitution fine, defendant left no doubt he would not
have challenged the court’s imposition of the much lower fee assessments, even if he
knew he had a right to do so under Dueñas. (People v. Montelongo (2020)
55 Cal.App.5th 1016; People v. Taylor (2019) 43 Cal.App.5th 390, 399–400; People v.
Gutierrez (2019) 35 Cal.App.5th 1027, 1033; People v. Smith (2020) 46 Cal.App.5th 375,
395; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1154.)
In the alternative, defendant argues his attorney was prejudicially ineffective for
failing to object to the fines and fees based on Dueñas, which held that “due process of
law requires the trial court to conduct an ability to pay hearing and ascertain a
defendant’s present ability to pay” before it imposes any fines or fees. (Dueñas, supra,
30 Cal.App.5th at p. 1164.)

12The California Supreme Court is currently considering whether trial courts must
consider a defendant’s ability to pay before imposing or executing fines, fees, and
assessments; and if so, which party bears the applicable burden of proof. (See People v.
Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)

33.
 We disagree with the holding in Dueñas. As explained in People v. Aviles (2019)
39 Cal.App.5th 1055 (Aviles), we believe Dueñas was wrongly decided and an Eighth
Amendment analysis is more appropriate to determine whether restitution fines, fees, and
assessments in a particular case are grossly disproportionate and thus excessive. (Aviles,
at pp. 1068–1072.) Under that standard, the fines and fees imposed in this case are not
grossly disproportionate to defendant’s level of culpability and thus not excessive under
the Eighth Amendment. (Id. at p. 1072.) As the court stated at the sentencing hearing, it
found the restitution fine of $2,100 was “commensurate with the seriousness of the crime
charged.”
Even if we agreed with Dueñas, defense counsel’s failure to object based on that
ruling was not prejudicial because defendant has the ability to pay the fines and fees over
the course of his prison sentence. (Aviles, supra, 39 Cal.App.5th at pp. 1075–1077.)
“ ‘ “Ability to pay does not necessarily require existing employment or cash on hand.”
[Citation.] “[I]n determining whether a defendant has the ability to pay a restitution fine,
the court is not limited to considering a defendant’s present ability but may consider a
defendant’s ability to pay in the future.” [Citation.] This include[s] the defendant’s
ability to obtain prison wages and to earn money after [her] release from custody.’ ”
(Id. at p. 1076.)
We can infer from the instant record that defendant has the ability to pay the
aggregate amount of fines and fees from probable future wages, including prison wages.
(Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090,
1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) In addition, there is
nothing in the record to show that defendant would be unable to satisfy the fine and fees
imposed by the court while serving his prison term, even if he fails to obtain a prison job.
While it may take defendant some time to pay the amounts imposed in this case, that
circumstance does not support his inability to make payments on these amounts from
either prison wages or monetary gifts from family and friends during his prison sentence.

34.
(See, e.g., People v. Potts (2019) 6 Cal.5th 1012, 1055–1057; People v. Lewis (2009)
46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)
We thus conclude that based on the record before this court, defendant has the
ability to pay the fines and fees, and counsel’s failure to object was not prejudicial.
DISPOSITION
The judgment is affirmed.

POOCHIGIAN, J.
WE CONCUR:

LEVY, Acting P. J.

DETJEN, J.

35.