Opinion
D075234
04-14-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES EVANS BUNAS, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. SCD272661, SCD264352) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Reversed and remanded with directions. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
In SCD272661, James Bunas pled guilty to corporal injury of a spouse (Pen. Code, § 273.5, subd. (a)), making a criminal threat (§ 422), and felony child abuse (§ 273a, subd. (a)). With respect to the corporal injury offense, Bunas admitted personally using a deadly or dangerous weapon (§ 12022, subd. (b)(1)) and inflicting great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). Bunas also admitted, with respect to the criminal threat offense, that he used a deadly weapon (§ 1192.7, subd. (c)(23)). Finally, Bunas admitted having suffered a strike prior (§§ 667, subds. (b)-(i), 1170.12) and a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)).
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
In June 2018, the trial court sentenced Bunas to 15 years and 4 months in SCD272661. In addition, because Bunas had been on probation in a separate case (SCD264352) at the time of his commission of the offenses in SCD272661, the court revoked probation in SCD264352 and imposed a sentence of 20 months in prison in that case, to be served consecutively to the sentence imposed in SCD272661, for a total aggregate sentence of 17 years.
In November 2018, the trial court recalled the case for resentencing. At resentencing, the court imposed an aggregate sentence of 15 years and 8 months in this case, SCD272661. With respect to SCD264352, the court stated, "It was a concurrent. It's not consecutive, and it doesn't have to be touched at all because it didn't add anything to this sentence."
The record indicates that the trial court recalled the case for resentencing pursuant to a request from the Department of Corrections and Rehabilitation. The request does not appear in the clerk's transcript on appeal.
On appeal, Bunas requests that the matter be remanded for a hearing at which the trial court may exercise its discretion to grant mental health diversion (§ 1001.36), in light of a retroactive change in the law. Bunas also argues that, in any event, he is entitled to a new sentencing hearing given the lack of clarity in the record with respect to the total aggregate sentence that the court intended to impose in the two cases.
We conclude that the judgment and the underlying convictions must be conditionally reversed and the matter remanded to the trial court with directions to conduct a mental health diversion eligibility hearing under section 1001.36. If the trial court determines that Bunas is ineligible for diversion, or, if the court places Bunas on diversion but he does not successfully complete diversion, then the court shall reinstate Bunas's convictions and resentence him.
In using the term "convictions" throughout this opinion, we intend to refer to Bunas's plea of guilty to the underlying charges, as well as his admissions to the enhancement allegations and the strike and serious felony allegations.
II.
FACTUAL BACKGROUND
In light of Bunas's guilty plea, there was no trial in this case. Our factual background is drawn from the plea colloquy.
Bunas inflicted corporal injury that could have resulted in a traumatic condition to the victim, who was his domestic partner. During his infliction of this injury, Bunas personally used a dangerous and deadly weapon, i.e., a knife, and personally inflicted great bodily injury. Bunas also threatened the victim in a way that caused her sustained fear, and he intended to instill fear in the victim. In addition, Bunas put a child who was in his custody in harm's way. Bunas also previously suffered a conviction that was both a serious felony prior and a strike prior.
III.
DISCUSSION
A. Bunas is entitled to have the trial court consider placing him on mental health diversion under a newly-enacted statute that went into effect before the judgment in his case became final
Bunas contends that, due to a change in the law, he is entitled to a conditional reversal and a remand to allow the trial court to determine whether to place him on mental health diversion under newly-enacted section 1001.36. That statute authorizes trial courts to permit qualifying defendants to participate in pretrial diversion and to receive mental health treatment in lieu of prosecution. (§ 1001.36, subd. (c).)
1. Background regarding pretrial diversion
Sections 1001.35 and 1001.36 authorize pretrial diversion for defendants with mental disorders. " '[P]retrial diversion' means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment . . . ." (§ 1001.36, subd. (c).) A court may grant pretrial diversion under section 1001.36 if the court finds that: (1) the defendant suffers from an identified mental disorder; (2) the mental disorder played a significant role in the commission of the charged offense; (3) the defendant's symptoms will respond to treatment; (4) the defendant consents to diversion and the defendant waives his or her speedy trial rights; (5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if the defendant is treated in the community. (§ 1001.36, subd. (b)(1).)
Sections 1001.35 and 1001.36 were initially adopted in 2018 and became effective on June 27, 2018. (Stats. 2018, ch. 34, § 24, eff. June 27, 2018.) Section 1001.36 was subsequently amended by way of a second statute, also adopted in 2018. (Stats. 2018, ch. 1005, § 1, eff. Jan. 1, 2019.)
If the trial court grants pretrial diversion, "[t]he defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources" for "no longer than two years." (§ 1001.36, subds. (c)(1)(B), (c)(3).) If 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." (Id., subd. (e).)
2. Retroactive application of the pretrial diversion statutes
Courts generally presume that laws apply prospectively. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara).) However, the Legislature may explicitly or implicitly enact laws that apply retroactively. (Ibid.) To determine whether a law applies retroactively, we must determine the Legislature's intent in enacting the law. (Ibid.)
" 'When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.' " (Lara, supra, 4 Cal.5th at p. 307, quoting In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) " 'The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. ' [Citations.]" (Lara, supra, at p. 308.)
We conclude that the Estrada rule applies to section 1001.36 because section 1001.36 makes an ameliorative change to the law in that it has the effect of potentially lessening the punishment for an offense by providing a defendant the possibility of being placed on diversion and the dismissal of criminal charges upon successful completion of a diversion program. (See, e.g., People v. Frahs (2018) 27 Cal.App.5th 784, 791 (Frahs), review granted Dec. 27, 2018, S252220.) In addition, a determination that section 1001.36 should be applied retroactively is consistent with the statute's stated purpose, which is to promote "[i]ncreased diversion of individuals with mental disorders to mitigate the individuals' entry and reentry into the criminal justice system while protecting public safety." (§ 1001.35, subd. (a).)
There is nothing in the statutory language that indicates that the Legislature did not intend to extend the potential benefits of section 1001.36 as broadly as possible, including to all defendants whose judgments are not final. Although the statute refers to " 'pretrial diversion,' " which is defined to mean the postponement of prosecution at any point during the judicial proceeding, from accusation to adjudication (§ 1001.36, subd. (c), italics added), we do not interpret the reference to "pretrial diversion" as being a clear statement that the Legislature intended that the statute apply only prospectively. (See People v. Dehoyos (2018) 4 Cal.5th 594, 600 [" '[A]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date' [citations], unless the enacting body 'clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent' "].) Rather, as the Frahs court explained, "The fact that mental health diversion is available only up until the time that a defendant's case is 'adjudicated' is simply how this particular diversion program is ordinarily designed to operate. Indeed, the fact that a juvenile transfer hearing under Proposition 57 ordinarily occurs prior to the attachment of jeopardy, did not prevent the Supreme Court in Lara, supra, 4 Cal.5th 299, from finding that such a hearing must be made available to all defendants whose convictions are not yet final on appeal." (Frahs, supra, 27 Cal.App.5th at p. 791; but see, e.g., People v. Craine (2019) 35 Cal.App.5th 744, 756 (Craine) [disagreeing with Frahs and concluding that the fact that "pretrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced," constitutes "a clear indication the Legislature did not intend for section 1001.36 to be applied retroactively"].)
Further, none of the other provisions from the text of section 1001.36, provisions of related statutes, or statements in the legislative history that the People reference in their brief, evince a clear Legislative intent to override the Estrada inference of retroactive application. In particular, we reject the People's argument that indications that the Legislature was motivated in part by fiscal considerations in enacting the mental health diversion statutes amounts to a clear indication of legislative intent sufficient to overcome the normal application of Estrada for the reasons that this court explained in People v. Burns (2019) 38 Cal.App.5th 776, 788 (Burns), review granted Oct. 30, 2019, S257738.
The fact that the Supreme Court decided Lara before the Legislature enacted section 1001.36 provides further support for our conclusion that the Legislature intended section 1001.36 to apply retroactively; the Legislature is deemed to have been aware of the Lara decision (see People v. Overstreet (1986) 42 Cal.3d 891, 897). If the Legislature had intended for the courts to apply section 1001.36 in a manner different from the statute addressed in Lara, we would have expected the Legislature to have expressed this intent clearly and directly, rather than obscurely and indirectly. (See In re Pedro T. (1994) 8 Cal.4th 1041, 1049 [to counter the Estrada rule, the Legislature must "demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it"].)
Nor are we persuaded by the People's confusing argument that the fact that the Legislature did not make the September 2018 amendments to the mental health diversion statutes (Stats. 2018, ch. 1005, § 1, eff. Jan. 1, 2019) immediately effective by way of urgency legislation demonstrates that the Legislature intended for the initial diversion statute (Stats. 2018, ch. 34, § 24, eff. June 27, 2018) to apply only prospectively. As the People note, the September 2018 amendments amended section 1001.36 to make defendants who are charged with certain offenses, including murder and rape, ineligible for mental health diversion. (See § 1001.36, subd. (b)(1)(F), (2)(A) & (C).) The People argue, "Had the Legislature believed that the original enactment was retroactive for all cases not yet final on appeal, presumably it would have taken urgent action in order to avoid allowing convicted murderers and rapists with nonfinal judgments to avoid conviction in the interim" since "[i]t would have been absurd for the Legislature to amend the statute so shortly after enacting the provision but allow a loophole for all those who were awaiting appeal at the end of 2018."
In our view, the Legislature's decision to make the September 2018 amendments to the diversion statute effective on January 1, 2019 falls far short of demonstrating that the Legislature intended for its initial June 2018 enactment to apply only prospectively. This is particularly true given the short time period between the two enactments, as well as the fact that the Legislature could have reasonably concluded that courts would reject claims of retroactive application of the diversion statute made by those disqualified by the September 2018 amendments. (See People v. Cawkwell (2019) 34 Cal.App.5th 1048, 1050, review granted Aug. 14, 2019, S256113.)
We therefore conclude that section 1001.36 applies retroactively to Bunas's case, which was not final at the time section 1001.36 became effective.
We recognize that there is a split of authority concerning the retroactivity of section 1001.36 and that the issue is currently pending at the California Supreme Court. (Compare, e.g., People v. Hughes (2019) 39 Cal.App.5th 886, 896, review granted Nov. 26, 2019, S258541; Burns, supra, 38 Cal.App.5th at p. 789, review granted Oct. 30, 2019, S257738; and People v. Weaver (2019) 36 Cal.App.5th 1103, 1120-1122, review granted Oct. 9, 2019, S257049 [following Frahs] with People v. Torres (2019) 39 Cal.App.5th 849, 855 and People v. Khan (2019) 41 Cal.App.5th 460, 493, review granted Jan. 29, 2020, S259498 [following Craine]). For the reasons stated in the text, we follow Frahs and await guidance from the Supreme Court.
3. Bunas is entitled to a conditional reversal and remand for the trial court to consider whether to place him on diversion under section 1001 .36
In Frahs, the court concluded that a conditional reversal and remand with directions for the trial court to consider whether to place the defendant on diversion under section 1001.36 is appropriate when the "the record affirmatively discloses that [the defendant] appears to meet at least one of the threshold requirements." (Frahs, supra, 27 Cal.App.5th at p. 791.)
In early June 2018, prior to his initial sentencing, Bunas filed a statement in mitigation in which he indicated that he had undergone a psychological evaluation with Dr. Clark Clipson in November 2017. Dr. Clipson diagnosed Bunas as suffering from a series of mental health disorders including posttraumatic stress disorder, major depressive disorder, alcohol and opioid use disorder, and avoidant personality disorder with borderline features. Dr. Clipson stated that Bunas "requires treatment for both a substance use disorder and his psychiatric disorders." Dr. Clipson also recommended "psychotherapy," and "ongoing psychiatric treatment with appropriate medication."
Section 1001.36, subdivision (b)(1)(A) lists "post-traumatic stress disorder," as among the qualifying mental disorders under the statute.
Dr. Clipson also stated that Bunas had "experienced an unusually high number of adverse childhood events."
Thus, there are statements in the record indicating that Bunas might suffer from an identified mental disorder, and that Bunas might have symptoms that will respond to treatment. (§ 1001.36, subd. (b)(1).) Accordingly, we conclude that the record indicates that it is possible that Bunas meets at least one of the threshold requirements for granting diversion, and that a conditional reversal and remand under Frahs is therefore appropriate.
The People do not contend otherwise.
4. The People's contention that Bunas is ineligible for diversion is unpersuasive
The People contend that, even if this court concludes that section 1001.36 applies retroactively, Bunas is "disqualified" from being placed on diversion because he admitted having suffered a strike prior, and section 667, subdivision (c)(4) prohibits granting diversion to defendants who have a strike prior. Similarly, the People contend that Bunas is ineligible for diversion because he was statutorily ineligible for probation, both because of his strike prior and because he was on probation at the time he committed the charged offenses. (See §§ 667, subd. (c)(2), 1203, subd. (k).)
These arguments all fail for the fundamental reason that the remedy prescribed by Frahs is a conditional reversal of both the judgment and the convictions underlying the judgment, and a remand to permit the trial court to grant diversion and thereby avoid the imposition of a sentence. (Frahs, supra, 27 Cal.App.5th at p. 796.) Thus, if we were to grant Bunas relief under Frahs, our conditional reversal would have the effect of vacating Buenas's admission of a strike prior and he would not have incurred a Three Strikes sentence. As the Frahs court explained, in determining whether to grant diversion, the trial court must "treat the matter as though [Bunas] had moved for pretrial diversion after the charges had been filed, but prior to their adjudication." (Id. at p. 792, italics added; accord Burns, supra, 38 Cal.App.5th at p. 789 ["Conditional reversal thus restores the case to its procedural posture before the jury verdict for purposes of evaluating Burns's eligibility for pretrial mental health diversion" (italics added)].) Thus, Bunas's guilty plea and the trial court's sentence do not render him ineligible for pretrial diversion under section 1001.36. (See Burns, supra, at p. 789 [rejecting argument that remand under section 1001.36 "would be futile because the 'Three Strikes' law bars suspending a striker's sentence (§ 667, subd. (c)(2))" because "[t]he Frahs procedure conditionally reverses both the convictions and the sentence"].)
In Frahs, the defendant was sentenced pursuant to the Three Strikes law, and the court nevertheless conditionally reversed the judgment and remanded:
"If the trial court finds that Frahs suffers from a mental disorder, does not pose an unreasonable risk of danger to public safety, and otherwise meets the six statutory criteria (as nearly as possible given the postconviction procedural posture of this case), then the court may grant diversion. If Frahs successfully completes diversion, then the court shall dismiss the charges. However, if the court determines that Frahs does not meet the criteria under section 1001.36, or if Frahs does not successfully complete diversion, then his convictions and sentence shall be reinstated. The judgment shall include the prior 'strike' conviction, . . . ." (Frahs, supra, 27 Cal.App.5th at p. 792, italics added.)
Accordingly, we reject the People's contention that Bunas is ineligible for diversion. In remanding the case, we express no view as to whether the trial court should ultimately conclude that Bunas qualifies for diversion under section 1001.36 or, if he does qualify, whether the court should exercise its discretion to place Bunas on diversion. We conclude only that section 1001.36 applies retroactively, and that it is for the trial court to determine in the first instance whether the statute applies to Bunas and if so, whether to exercise its discretion to place Bunas on diversion under the statute. B. If the trial court declines to place Bunas on diversion after holding a mental diversion eligibility hearing under section 1001 .36, or if the court places Bunas on diversion but Bunas fails to successfully complete diversion, then the court shall reinstate Bunas's convictions and resentence him
Bunas claims that, in the event that the trial court does not grant him mental health diversion or the court grants diversion, but he fails to successfully complete it, the trial court should be ordered to resentence him. Bunas contends that a full resentencing is required given the lack of clarity with respect to the court's intended judgment.
1. Factual and procedural background
a. Bunas's initial sentence
On June 18, 2018, the trial court sentenced Bunas to 15 years and 4 months on SCD272661, calculated as follows: eight years for child abuse (§ 273a, subd. (a)) (count 5), plus two years for inflicting corporal injury (§ 273.5, subd. (a)) (count 2), plus 16 months for the criminal threat (§ 422 ) (count 4). With respect to the enhancements attached to count 2, the court imposed an additional one-year sentence for the weapon enhancement (§ 12022, subd. (b)(1)), plus three years for the great bodily injury enhancement (§ 12022.7, subd. (e)), both to be served consecutively.
The court also imposed a sentence of 20 months in SCD264352, and ordered that sentence to be served consecutively to the sentence imposed in SCD272661. Thus, the total aggregate sentence in both cases was 17 years.
b. The trial court's resentencing of Bunas
On September 25, 2018, the clerk of court set the matter for "re-sentence/sentence modification."
On November 15, 2018, the trial court recalled the case for resentencing. At the outset of the hearing, the court stated the following:
"When we did the math on this case, the Court, because I didn't major in math, unfortunately, I did the calculations wrong. We all agreed to what I think the sentence was, but since it went in the record incorrectly, we have to correct that now. And so let me go forward and make the corrections. And all counsel did meet on this."
The minute order from the November 15, 2018 resentencing states, "Case is on calendar for sentence modification . . . due to correspondence received from [Department of Corrections and Rehabilitation]." The correspondence referred to in the minute order is not in the clerk's transcript.
Although these comments could be taken to suggest that the November 15 hearing was conducted merely to correct a mathematical error contained in the sentence imposed in June 2018, it is clear, and undisputed, that the November 15, 2018 hearing constituted a full resentencing. Bunas and his counsel were present at the November 2018 hearing.
The trial court imposed a total aggregate sentence of 15 years and 8 months on SCD272661, calculated as follows: four years for the corporal injury (§ 273.5, subd. (a)) (count 2), with an additional year for using a weapon (§ 12022, subd. (b)(1)) and three years for causing great bodily injury (§ 12022.7, subd. (e)), both to be served consecutively. The court also imposed a consecutive term of two years and eight months for child abuse (§ 273a, subd. (a)) (count 5). In addition, the court imposed five years for the serious felony prior. Finally, the court imposed a concurrent sentence of four years on the criminal threat offense (§ 422) (count 4).
The trial court had not imposed a sentence on the serious felony prior at the initial sentencing hearing in June 2018.
The abstract of judgment incorrectly reflects a concurrent term of three years on this count.
After the court imposed the new sentence in SCD272661, the following colloquy occurred:
"[The prosecutor]: And, Your Honor, on the second case, the revocation case [SCD264352]. I believe then the Court on that one had a consecutive sentence, but I don't believe that had to be altered at all; is that right?
"THE COURT: It was a concurrent. It's not consecutive, and it doesn't have to be touched at all because it didn't add anything to this sentence." (Italics added.)
2. Application
It is clear from the record that, at the November 15, 2018 sentencing hearing, the trial court was under the misimpression that, in June 2018, it had ordered the sentence in SCD264352 to be served concurrently with the sentence in SCD272661 when, in fact, at the June 2018 sentencing, the court ordered the sentence in SCD264352 to be served consecutively to the sentence in SCD272661. The People concede that a remand is warranted given this "discrepancy." We agree. (See, e.g., People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 ["Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court"].)
The abstract of judgment reflects this discrepancy. Notwithstanding the court's statement at the November 2018 sentencing that term in SCD264352 was "concurrent," the abstract of judgment prepared in the wake of the November 2018 sentencing lists the sentence in SCD264352 as running "consecutive[ly]" to that imposed in SCD272661.
Further, we agree with Bunas that, in the event that the trial court does not grant him mental health diversion or the court grants diversion, but he fails to successfully complete it, a remand for a full resentencing is appropriate under the circumstances of this case. In People v. Roach (2016) 247 Cal.App.4th 178, 185, the Court of Appeal described the rule that applies when a principal term has been reversed on appeal and the matter remanded for resentencing. In that instance:
The People do not expressly disagree with Bunas's contention. However, the People state that this court "should remand the case so the court can clarify whether it meant to impose punishment for the [probation] violation concurrently or consecutively." For the reasons explained in the text, we conclude that a full resentencing is appropriate, rather than a hearing at which the trial court would be limited to clarifying whether it intended to impose a concurrent or consecutive sentence on the probation violation case. However, that resentencing need not occur unless the trial court does not place Bunas on diversion, or the court places Bunas on diversion but Bunas fails to successfully complete it. --------
" ' "[T]he trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial
court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components." ' " (Id. at p. 185.)
Similar considerations apply here. At the November 2018 hearing, the trial court imposed a sentence in SCD272661 that was four months longer than the sentence that it imposed in this case in June 2018. However, given that the court imposed this sentence while under a misimpression about a material fact concerning Bunas's aggregate sentence, we cannot be certain as to the aggregate sentence that the court intended to impose in both cases. If we were to restrict the trial court on remand to clarifying whether it intended that the sentence in the probation case SCD264352 run concurrently with, or instead, consecutively to the sentence imposed in SCD272661, we would be limiting the court to imposing an aggregate sentence that might not comport with the trial court's intended aggregate sentence in the two cases. We therefore conclude that the proper remedy is to allow for a full resentencing at which time the trial court may consider the full range of sentencing options available to it in both cases.
IV.
DISPOSITION
The judgment and the convictions are conditionally reversed. The matter is remanded to the trial court with directions to conduct a mental health diversion eligibility hearing under section 1001.36. If the court determines that Bunas qualifies for diversion, then the court may grant diversion. If Bunas successfully completes diversion, then the court shall dismiss the charges against him.
If the court determines that Bunas is ineligible for diversion or determines that Bunas is eligible for diversion but exercises its discretion to not place Bunas on diversion, or if the court places Bunas on diversion but he fails to successfully complete diversion, then the court shall reinstate Bunas's convictions. The court shall thereafter resentence Bunas in a manner consistent with our discussion in part III.B, ante. At the conclusion of any such resentencing, the court shall order the preparation of a corrected abstracted of judgment and shall forward the corrected abstract to the Department of Corrections and Rehabilitation.
AARON, J. WE CONCUR: McCONNELL, P. J. HALLER, J.