People v. Pineda CA2/7

Filed 11/17/21 P. v. Pineda CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B309607

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA107280)
v.

GEORGE PINEDA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard M. Goul, Judge. Reversed in part,
affirmed in part, and remanded with directions.
Nicholas Seymour, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and David E. Madeo and Theresa A.
Patterson, Deputy Attorneys General for Plaintiff and
Respondent.
 INTRODUCTION

George Pineda appeals from the judgment entered after a
jury found him guilty on three counts of arson and three counts of
child abuse under circumstances likely to produce great bodily
harm or death. He contends that the jury improperly convicted
him on three counts of arson based on a single act of setting fire
to a house, that the trial court erred in denying his request for
pretrial mental health diversion under Penal Code section
1001.36,1 and that the court miscalculated his presentence
custody credits.
The People concede and we agree with the first and third of
Pineda’s contentions. We disagree with the second. Therefore,
we reverse Pineda’s convictions on the three counts of arson,
remand for the People to elect the count on which they want to
proceed and for the trial court to reinstate the conviction on that
count, and direct the trial court to correct Pineda’s presentence
custody credits. Otherwise, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Pineda Sets a House on Fire
Pineda lived on the ground floor of a two-story house that
had two bedrooms upstairs: one occupied by Pineda’s father and
stepmother, the other by Maritza Ruiz and her three children,
Sarai (15 years old), Steven (13 years old), and Genesis (11 years
old). One afternoon in August 2017 Ruiz and her children were
in their bedroom when they heard Pineda yelling at his
stepmother, who was also in the house. Ruiz and her children

1 Statutory references are to the Penal Code.

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came out of the bedroom and saw Pineda coming up the stairs
with a red gas can and a pickaxe. Having poured gasoline on the
stairs, Pineda poured more at the top of the stairs and in his
father and stepmother’s bedroom, then started a fire. It quickly
spread and became “one big flame.”
With the stairs engulfed in flames, Ruiz and her children
retreated to their bedroom. Ruiz told her children she would
climb over a railing in the hallway and jump down to the first
floor. She told them to follow and she would catch them. Ruiz
climbed over the railing in the hallway and jumped to the first
floor. In their fear and confusion, however, the children did not
follow. Smoke filled the bedroom, and all three lost
consciousness.
The children were rescued by emergency personnel and
others who braved the fire and smoke to find the children and
carry them out of the house. The children were taken to the
emergency room, where Steven and Genesis were put into a
medically induced coma and intubated. Steven had burns on 30
to 40 percent of his body, was unconscious for more than a month,
received skin grafts, and eventually had part of his colon
removed. Genesis had burns on 18 percent of her body, remained
in the hospital for a month, and also received skin grafts. Sarai
had burns on two to three percent of her body and remained in
the hospital for five days.
In the evening after the fire, police officers arrested Pineda
at his mother’s house. He had burns on his hands and traces of
accelerant on his hands and shoes. He admitted starting the fire
and said it was an attempt to kill himself.

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 B. A Jury Convicts Pineda of Arson and Child Abuse,
and the Trial Court Sentences Him
The People charged Pineda with five counts of attempted
willful, deliberate, and premeditated murder (§§ 187, subd. (a),
664; counts 1 through 5), two counts of arson causing great bodily
injury (§ 451, subd. (a); counts 6 and 7), one count of arson of an
inhabited structure or property (§ 451, subd. (b); count 8), and
three counts of child abuse under circumstances likely to produce
great bodily harm or death (§ 273a, subd. (a); counts 9 through
11). In connection with the three counts of arson, the People
alleged as aggravating factors that Pineda caused great bodily
injury to more than one victim in a single violation of section 451
(§ 451.1, subd. (a)(3)) and that the arson was caused by use of a
device designed to accelerate the fire or delay ignition (§ 451.1,
subd. (a)(5)). In connection with the three counts of child abuse,
the People alleged Pineda personally inflicted great bodily injury
within the meaning of section 12022.7, subdivision (a).
Pineda represented himself at the jury trial. He testified
that on the morning of the fire he woke up depressed, “just like
any other day,” that he had a history of drug use and suicide
attempts, that he was later “diagnosed with bipolar disorder,”
and that he set fire to the house in an attempt to kill himself.
The jury found Pineda not guilty of attempted murder, but
convicted him on all other counts. The jury also found true the
allegations of aggravating factors on the arson counts and the
allegation Pineda personally inflicted great bodily injury in
committing the offenses charged in the child abuse counts. After
the jury returned its verdict, Pineda requested and was
appointed counsel. He then requested (through counsel) pretrial

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mental health diversion under section 1001.36, which the trial
court denied.
The court sentenced Pineda to an aggregate prison term of
20 years: on count 6 (arson causing great bodily injury), the
upper term of nine years, plus five years for the enhancement
under section 451.1, subdivision (a); on count 7 (arson causing
great bodily injury), a consecutive term of 28 months, plus 16
months for the enhancement under section 451.1, subdivision (a);
and on count 10 (child abuse of Sarai under circumstances likely
to produce great bodily harm or death), a consecutive term of 16
months, plus 12 months for the enhancement under section
12022.7, subdivision (a). The court stated: “And on counts eight,
nine, and 11, the remaining counts of which he was convicted,
sentence is stayed.” Pineda timely appealed.

DISCUSSION

A. The Jury Improperly Convicted Pineda on Three
Counts of Arson
Pineda contends, the People concede, and we agree the jury
improperly convicted him on three counts of arson—two under
section 451, subdivision (a), and one under section 451,
subdivision (b)—for the single act of setting fire to the house. In
People v. Shiga (2019) 34 Cal.App.5th 466 we held that section
451 criminalizes a single offense of simple arson, that
subdivisions (a) through (e) of that section set forth different
ways of committing that offense, and that therefore the
defendant in that case could not be convicted under multiple
subdivisions of section 451 based on “a single actus reus” of
setting fire to a building. (Shiga, at pp. 476-481; see People v.

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Vidana (2016) 1 Cal.5th 632, 650 [section 954 “‘authorizes
multiple convictions for different or distinct offenses, but does not
permit multiple convictions for a different statement of the same
offense when it is based on the same act or course of conduct’”].)
Pineda can be convicted on only one count under section 451 for
his one act of setting fire to the house.
We therefore reverse Pineda’s convictions on the three
counts of arson and remand for the People to elect the count on
which they wish to proceed and for the trial court to reinstate the
conviction on that count. (See People v. Shiga, supra,
34 Cal.App.5th at p. 481 [reversing the defendant’s arson
convictions on separate counts under section 451 and remanding
for the People to elect the count on which to proceed and directing
the trial court to reinstate the conviction on that count].) As the
People request and Pineda does not dispute, the trial court may
then reconsider its discretionary sentencing choices on all
remaining convictions. (See People v. McInnis (2021)
63 Cal.App.5th 853, 866 [“when a defendant has an aggregate
sentence and a count is reversed on appeal, the trial court may
reconsider its prior sentencing choices”]; People v. Burbine (2003)
106 Cal.App.4th 1250, 1258 [“trial courts are, and should be,
afforded discretion by rule and statute to reconsider an entire
sentencing structure in multicount cases where a portion of the
original verdict and resulting sentence has been vacated by a
higher court”]; see also People v. Buycks (2018) 5 Cal.5th 857, 893
[“when part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate,
so the trial court can exercise its sentencing discretion in light of
the changed circumstances’”].) In addition, the trial court
(contrary to how the court proceeded on counts eight, nine, and

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11) must impose a sentence on each count on which Pineda
remains convicted, though the court, as appropriate, may stay
execution of any such sentence. (See People v. Alford (2010)
180 Cal.App.4th 1463, 1472 [“the correct procedure is to impose
sentence on each count and stay execution of sentence as
necessary”].)

B. Pineda Has Not Shown the Trial Court Erred in
Denying His Request for Pretrial Mental Health
Diversion, and Any Error Was Harmless

1. Relevant Proceedings
In December 2020 counsel for Pineda filed a sentencing
memorandum that requested pretrial mental health diversion
under section 1001.36 or, in the alternative, consideration of
Pineda’s mental illness as a mitigating circumstance at
sentencing. Attached to the memorandum was a December 2018
report by Dr. Raphael Morris, based on his pretrial psychiatric
evaluation of Pineda. Dr. Morris acknowledged Pineda’s “long-
standing substance abuse problem,” diagnosed him with bipolar
disorder and methamphetamine dependence, and stated Pineda’s
“prominent symptom” at the time of his offense was paranoia. He
stated his opinion that delusions resulting from “an underlying
mood disorder” drove Pineda to his actions on that occasion and
that his “disorders interfered with his capacity to appreciate the
nature of his actions during the instant offense.”
The sentencing memorandum also included a report from
Dr. Armando de Armas, a psychologist who interviewed Pineda in
October 2020, specifically to assist the trial court in evaluating
Pineda’s eligibility for pretrial diversion under section 1001.36.

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Having diagnosed Pineda with “Major Depressive Disorder,
Severe” and “Stimulant Use Disorder—Amphetamine-Type
Substance, Severe,” Dr. de Armas addressed the other eligibility
criteria set forth in section 1001.36, including as follows:
“2. Was the mental disorder a significant factor in the
commission of the offenses . . . ? Yes.
“[¶] . . .
“4. Do you believe that Mr. Pineda’s symptoms of the
mental disorder motivating the criminal behavior would respond
to mental health treatment? Yes, with two caveats, that he
maintain sobriety and consistently adhere to psychiatric
treatment including therapy and psychotropic medications.
“[¶] . . .
“6. Is Mr. Pineda willing to comply with treatment as a
condition of diversion? While Mr. Pineda voiced a commitment to
complying with treatment, his history reflects inconsistent
treatment compliance. Though Mr. Pineda may desire to comply
with treatment, he likely lacks the internal fortitude to resist
relapse into substance abuse should methamphetamine again
become available to him when he is in a depressed mood.
“7. Does Mr. Pineda not pose an unreasonable risk of
danger to public safety if treated in the community? Does pose a
risk. Mr. Pineda’s behavior during periods of untreated
depression and while using methamphetamines has been
unpredictable and volatile. During these episodes, he has
attempted suicide and started a fire in his parents’ home. While
he ostensibly was not attempting homicide, victims in the home
were injured and could have died as a result of his actions.
Similarly, when Mr. Pineda walks into traffic in a suicide

8
attempt, drivers could be injured or killed when attempting to
avoid driving into him.
“It is my opinion, treatment in a secure facility would be
appropriate until Mr. Pineda’s symptoms have been sufficiently
stabilized.”
At the sentencing hearing, counsel for Pineda, when invited
to address the request for pretrial diversion under section
1001.36, stated: “Your Honor, the only thing I would add from
what was reflected in the paperwork is Mr. Pineda is going to be
managed by a mental health social worker right now, and that is
in the unit which indicates there are people with mental
illnesses. And I did speak to the social worker. She’s indicating
that there is a way to put him in the placement department. To
have treatment they have to have an appropriate facility which
would ensure that the community is protected and give him the
services that he needs. And that’s it.”
The trial court stated: “There are two essential issues.
Number one is whether he is technically eligible for mental
health diversion, and the second issue is whether this court
determines, given the facts of this case and the background of the
defendant and the facts at trial and the nature of the charges,
whether he is suitable for such diversion.” The court asked the
prosecutor if she wished to make any arguments “regarding
suitability or eligibility.”
The prosecutor answered that she was “unclear” whether
Pineda was “eligible for mental health diversion,” but that she
“would say he [was] not suitable for mental health diversion.”
She argued, among other things, that the manner in which
Pineda represented himself at trial “shows that he does not suffer
from a mental health illness” and that “all of [Pineda’s] conduct

9
leading up to the arson and including after the arson shows that
he was completely aware of what he was doing and not suffering
from any sort of mental illness at the time.” She concluded: “All
of his conduct throughout this whole incident show[s] that he was
not suffering from a mental health illness, and I would argue he
is not suitable for mental health diversion.”
The trial court denied Pineda’s request for mental health
diversion. The court ruled: “The court has read and considered
it, and the court does make a determination based upon the facts
in the case, the rather remarkably good performance of
Mr. Pineda representing himself in trial and showing that at the
time of trial certainly he was in full—seemed to be in full
capacity and performed much better than lawyers this court has
seen in some trials, correctly getting the jury to come back not
guilty on the most serious charges, the multiple counts of
attempted murder. The event itself, as testified to and admitted
by the defendant in his testimony, was thought out, calculated, a
number of different individual decisions made along the way
which led to the inevitable setting of the fires and continued
setting of the fires and trying to stop anybody from getting out.
So the court disagrees, and the court does not believe—while the
court does believe he is eligible, the court does not believe he is
suitable for mental health diversion, and the court would be
proceeding with the standard sentencing on his case.”

2. Applicable Law
“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

10
process from the point at which the accused is charged until
adjudication, to allow the defendant to undergo mental health
treatment . . . .’ (§ 1001.36, subd. (c).) The stated purpose of the
diversion statute ‘is to promote all of the following: [¶]
(a) Increased diversion of individuals with mental disorders to
mitigate the individuals’ entry and reentry into the criminal
justice system while protecting public safety. [¶] (b) Allowing
local discretion and flexibility for counties in the development
and implementation of diversion for individuals with mental
disorders across a continuum of care settings. [¶] (c) Providing
diversion that meets the unique mental health treatment and
support needs of individuals with mental disorders.’ (§ 1001.35,
subds. (a)-(c).)” (People v. Frahs (2020) 9 Cal.5th 618, 626
(Frahs); see ibid. [“Section 1001.36 gives trial courts the
discretion to grant pretrial diversion for individuals suffering
from certain mental health disorders.”].)2
To be eligible for diversion under the statute, a defendant
must show he or she meets six minimum requirements: “(1) the
defendant suffers from a qualifying mental disorder; (2) the
mental disorder was a ‘significant factor’ in the commission of the
charged offense; (3) a qualified mental health expert opines the
defendant’s symptoms will respond to treatment; (4) the
defendant consents to diversion and waives his or her speedy
trial rights; (5) the defendant agrees to comply with the
treatment as a condition of diversion; and (6) ‘the defendant will
not pose an unreasonable risk of danger to public safety, as
defined in Section 1170.18, if treated in the community.’
(§ 1001.36, subd. (b)(1)(A)-(F).)” (People v. Moine (2021)

2 “Section 1001.36 . . . became effective on June 27, 2018.”
(People v. Oneal (2021) 64 Cal.App.5th 581, 587.)

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62 Cal.App.5th 440, 447-448; see § 1001.36, subd. (b)(3) [“[a]t any
stage of the proceedings, the court may require the defendant to
make a prima facie showing that the defendant will meet the
minimum requirements of eligibility for diversion”]; People v.
Williams (2021) 63 Cal.App.5th 990, 995 [“To be eligible for
diversion, the defendant must meet six statutory criteria.”].)
The trial court may also require the defendant to show “the
defendant and the offense are suitable for diversion.” (§ 1001.36,
subd. (b)(3); see Moore v. Superior Court (2020) 58 Cal.App.5th
561, 572 [“if the court is satisfied that the defendant meets the
six minimum eligibility requirements (§ 1001.36, subd. (b)(1)),
and that the defendant and the offense are suitable for diversion
(§ 1001.36, subd. (b)(3)), the court may divert the defendant into
an approved mental health treatment program . . . .”].)3 In

3 Neither the statute nor the case law offers much guidance
on what “suitable for diversion” means or what considerations are
appropriate when determining suitability. One treatise suggests:
“[I]t seems clear the court can grant diversion if the minimum
standards are met, and, correspondingly, can refuse to grant
diversion even though the defendant meets the technical
requirements of the program. [¶] There may be times, because of
the defendant’s circumstances, where the interests of justice do
not support diversion of the case. . . . It may be that because of
the defendant’s level of disability there is no reasonably available
and suitable treatment program for the defendant. The
defendant’s treatment history may indicate the prospect of
successfully completing a program is quite poor. Conduct in prior
diversion programs may indicate the defendant is now
unsuitable. (See § 1001.36, subd. (h) [the court may consider past
performance on diversion in determining suitability].) The court
may consider whether the defendant and the community will be
better served by the regimen of mental health court. (See

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addition, section 1001.36, subdivision (c)(1)(A), provides that
pretrial diversion under the statute is subject to the following
requirement: “The court is satisfied that the recommended
inpatient or outpatient program of mental health treatment will
meet the specialized mental health treatment needs of the
defendant.” Thus, as the Supreme Court has summarized: “If
the defendant makes a prima facie showing that he or she meets
all of the threshold eligibility requirements and the defendant
and the offense are suitable for diversion, and the trial court is
satisfied that the recommended program of mental health
treatment will meet the specialized mental health treatment
needs of the defendant, then the court may grant pretrial
diversion.” (Frahs, supra, 9 Cal.5th p. 627.)
“If the trial court grants pretrial diversion and the
defendant performs ‘satisfactorily in diversion, at the end of the
period of diversion, the court shall dismiss the defendant’s
criminal charges that were the subject of the criminal
proceedings at the time of the initial diversion.’ (§ 1001.36,
subd. (e).) If the defendant does not perform satisfactorily in
diversion, becomes gravely disabled, or commits new crimes, the
court may reinstate criminal proceedings. (§ 1001.36, subd. (d).)”
(People v. Moine, supra, 62 Cal.App.5th at p. 448; accord, Frahs,
supra, 9 Cal.5th at p. 627.)

§ 1001.36, subd. (c)(1)(B) [the court may consider interests of the
community in selecting a program].) . . . In short, the court may
consider any factor relevant to whether the defendant is suitable
for diversion.” (Couzens et al., Sentencing California Crimes
(The Rutter Group Sept. 2021 supp.) § 7:21.)

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 3. Analysis
Pineda contends the trial court erred in denying his request
for pretrial mental health diversion because the court based that
ruling on its observations of Pineda’s behavior during trial. He
argues that the court’s denial “is best understood as relying on
the second” of the minimum eligibility factors—i.e., whether “‘the
defendant’s mental disorder was a significant factor in the
commission of the charged offense’”—and that the court “abused
its discretion in finding [Pineda] did not meet this factor because
it was based on findings not supported by substantial evidence.” 4
He argues the court’s observations of his behavior at trial were
not substantial evidence because the court was not qualified to
evaluate whether he suffered from a mental health disorder and,
in any event, his behavior at trial was irrelevant to a
determination of his psychiatric condition during the commission

4 Although “[t]he standard of review on appeal from a trial
court’s denial of mental health diversion is not settled” (People v.
Moine, supra, 62 Cal.App.5th at p. 448), courts have held that a
trial court’s “diversion eligibility determinations are reviewed for
an abuse of discretion” (Negron v. Superior Court (Oct. 26, 2021,
F083149) ___ Cal.App.5th ___, ___ [2021 WL 4963241, p. 5]).
(Compare Moine, at pp. 448-449 [reviewing for abuse of discretion
whether the defendant posed an unreasonable risk of danger to
public safety if treated in the community] with People v. Oneal,
supra, 64 Cal.App.5th at p. 592 [reviewing for substantial
evidence whether the defendant’s mental disorder was a
significant factor in the commission of the charged offense].)
“A court abuses its discretion when it makes an arbitrary or
capricious decision by applying the wrong legal standard
[citations], or bases its decision on express or implied factual
findings that are not supported by substantial evidence
[citation].” (Moine, at p. 449.)

14
of the charged offense. He also argues “the additional facts cited
by the trial court were contrary to the evidence at trial and the
jury’s findings and thus were not supported by substantial
evidence.”
Contrary to Pineda’s characterization of the trial court’s
ruling, however, the court did not find he was ineligible for
diversion under section 1001.36 for failure to meet the second (or
any other) minimum eligibility requirement. In fact, the court
found Pineda was eligible for diversion, but ruled he was not
suitable for it. Pineda does not address the latter finding, explain
how it was error, or even suggest it was error. Because that
finding was the basis for the court’s decision to deny his request
for pretrial diversion, Pineda has not demonstrated error. (See
People v. Cardenas (2015) 239 Cal.App.4th 220, 227 [“‘Perhaps
the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct, and it is the
appellant’s burden to affirmatively demonstrate error.’”].)
Moreover, even if the court erroneously concluded Pineda
was ineligible for diversion or unsuitable for diversion or both,
any such error was harmless because there remained an
additional unmet requirement: The court had to be satisfied “the
recommended inpatient or outpatient program of mental health
treatment” met Pineda’s specialized mental health treatment
needs. (See § 1001.36, subd. (c)(1)(A); Frahs, supra, 9 Cal.5th at
p. 627.) As the People point out, and Pineda does not dispute, no
program—inpatient or outpatient—was recommended here.
Much less was a program recommended that addressed Pineda’s
specialized needs, which at a minimum included, according to
Dr. de Armas, psychiatric therapy, psychotropic medication, and
(at least initially) a secure facility. Because the court could not

15
possibly be satisfied with a recommended mental health
treatment program that was not recommended, the result would
be the same in the absence of any error Pineda contends the court
committed. Therefore, any such error was harmless.5

C. The Trial Court Miscalculated Pineda’s Presentence
Custody Credits
Finally, Pineda contends, the People concede, and we agree
the trial court miscalculated Pineda’s presentence custody
credits. “A defendant is entitled to actual custody credit for ‘all
days of custody’ in county jail. [Citations.] Calculation of custody
credit begins on the day of arrest and continues through the day
of sentencing.” (People v. Denman (2013) 218 Cal.App.4th 800,
814; see § 2900.5, subd. (a).) In addition, “[a]bsent contrary
authority, ‘a defendant receives what are commonly known as
conduct credits toward his term of imprisonment for good
behavior and willingness to work during time served prior to
commencement of sentence.’” (People v. Philpot (2004)
122 Cal.App.4th 893, 907; see § 4019.) For a defendant convicted
of a felony offense listed in section 667.5, subdivision (c)—which
includes arson in violation of section 451, subdivisions (a)

5 “Generally, California appellate courts apply either one of
two standards for assessing harmless error: (1) the Chapman
[i.e., Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824,
17 L.Ed.2d 705] test (harmless beyond a reasonable doubt); and
(2) the Watson [i.e., People v. Watson (1956) 46 Cal.2d 818] test (a
reasonable probability the error was harmless). [Citations.] The
more stringent Chapman test applies in cases where federal
constitutional errors are made; the less stringent Watson test
applies in other cases.” (People v. Nicolas (2017) 8 Cal.App.5th
1165, 1179.) The result is the same here under either standard.

16
and (b)—conduct credits are “limited to 15 percent of [the
defendant’s] actual days in custody.” (People v. Brewer (2011)
192 Cal.App.4th 457, 462; see § 2933.1, subds. (a) & (c).)
Pineda was arrested on August 31, 2017 and sentenced on
December 4, 2020. He was therefore entitled to 1,192 days of
actual custody credit, but the trial court awarded him only 1,159
days of actual custody credit. Pineda was entitled to another 178
days (15 percent of 1,192) of conduct credits, for a total of 1,370
days of total presentence custody credits, whereas the trial court
awarded him only 1,333 days of presentence custody credits. We
direct the trial court to correct this error.

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 DISPOSITION

Pineda’s convictions on the three counts of arson are
reversed, and the trial court is directed to allow the People to
elect the count on which they wish to proceed. The trial court is
also directed to reinstate the conviction on the count the People
select, to resentence Pineda, to correct his presentence custody
credit, and to correct the abstract of judgment and send a
corrected copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.

SEGAL, J.

We concur:

PERLUSS, P. J.

IBARRA, J.*

* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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