Opinion
D074852
09-18-2019
THE PEOPLE, Plaintiff and Respondent, v. THOMAS MARTIN GONZALES, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta, and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. SCD277465) APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta, and Kristine A. Gutierrez, Deputy Attorneys General for Plaintiff and Respondent.
In July 2019, Thomas Martin Gonzales was charged with four counts of assault by means likely to produce great bodily injury (counts 1, 3-5; Pen. Code, § 245, subd. (a)(4)) and one count of battery with serious bodily injury (count 2; § 243, subd. (d)). A jury convicted him on counts 1, 2, and 5, convicted him on the lesser included offense of simple assault in count 4 (§ 240), and acquitted him on count 3. The trial court sentenced him to five years in state prison, but suspended execution of the sentence pending successful completion of formal probation.
Statutory references are to the Penal Code.
Gonzales now requests remand to allow the trial court to consider the availability of pretrial mental health diversion pursuant to section 1001.36. We conclude Gonzales forfeited his claim regarding diversion, but even if he had not, there is no evidence in the record that he suffers from a qualifying mental disorder or that the mental disorder was a "significant factor in the commission of the charged offense." (See § 1001.36, subd. (b)(1)(A) & (B).) Accordingly, we affirm.
FACTS
A. Count 4 (Simple Assault) and Count 5 (Assault by Means Likely to Produce Great Bodily Injury) on R. Beadleson and C. Cousins
Gonzales, R. Beadleson, and C. Cousins were homeless. In June 2018, Cousins was in front of a grocery store with friends when Gonzales approached on a bicycle. Gonzales told Cousins to stop laughing at him and began repeatedly punching Cousins in the head. Cousins slouched over, and Gonzales kicked him in the head. When Beadleson tried to stop Gonzales, Gonzales told him to mind his own business and punched him as well.
Cousins had two black eyes. He reported the incident when he was later approached by an investigating officer.
B. Count 1 (Assault by Means Likely to Produce Great Bodily Injury) and Count 2 (Battery with Serious Bodily Injury) on J. Cross
J. Cross was also homeless. One day in June 2018, he awoke to someone repeatedly striking his head. It was Gonzales, who told Cross to give a message to a friend to "stop running his fucking mouth." Gonzales then "took off." Dazed, Cross went to a nearby gas station for assistance. When he saw his reflection in the window, he could see that a portion of his ear had been partially severed. Paramedics responded. An ambulance transported Cross to the hospital for treatment. Cross testified a bloody bike padlock and chain were found near where he was beaten.
Days later, Cross saw Gonzales at the same gas station and called 911. Police responded, and an investigating detective interviewed both Cross and Gonzales. Further investigation led the detective to contact Cousins, Beadleson, and other witnesses.
C. Trial and Sentencing
At trial, the victims and additional witnesses offered their accounts of the charged incidents. Cross testified that he had known Gonzales for five years and considered him to be a friend, even after the incident. He described Gonzales as "a good guy" with "a big heart," but stated that in the six months prior to the incident, Gonzales's attitude had changed in a negative way, "like he just got in a really depressed mode." Another witness testified that Gonzales only became aggressive when drinking alcohol.
The investigating detective recalled speaking with Gonzales. She stated, "My initial encounter with him was that he seemed harmless, he seemed very cooperative, very calm, didn't have an attitude, he wasn't coming across as uncooperative in any way. [¶] But what changed was once we started talking about specific details pertaining to him feeling disrespected it would be he still was cooperative, he still seemed almost kind of like a gentle teddy bear of an individual. His demeanor didn't change, but the words that came out of his mouth didn't match his demeanor, because the words that came out of his mouth were alarming."
At a pretrial hearing, the detective testified that Gonzales admitted to an incident of assault and told her "he thought that people were speaking ill of him and that it was a respect issue . . . . He told [her] that maybe he should have had some brass knuckles. It would have been more effective."
A friend who had known Gonzales for a few years testified as a character witness and described him as someone who "will give you the shirt off his back," "a good guy," and "not a bully." In closing arguments, defense counsel argued that the witnesses against Gonzales were not credible or were exaggerating. Counsel urged the jury to find Gonzales not guilty, or guilty only of lesser included offenses.
The jury convicted Gonzales of assault by means likely to produce great bodily injury and battery with serious bodily injury for the incident involving Cross, assault by means likely to produce great bodily injury for the incident involving Cousins, and simple assault for the incident involving Beadleson.
In anticipation of sentencing, the probation officer prepared a report. In his interview with the probation officer, Gonzales denied any mental illness or significant substance abuse issues. The probation report acknowledges Gonzales's prior criminal history includes convictions involving narcotics possession, driving under the influence, and public intoxication, but indicates "[h]e has never been diagnosed with a psychological or medical problem" and "[h]e is not currently prescribed any medication."
Apparently in response to the probation officer's comment that he was free to provide a written statement to the court, Gonzales wrote a letter to the court. In the letter, Gonzales remarked it "was . . . interesting to watch everything unfold" at trial. He challenged certain evidence presented against him and accused the witnesses against him of committing perjury.
Defense counsel filed a statement in mitigation, arguing that Gonzales was suffering from a mental health or physical condition that significantly reduced his culpability for the crimes. The statement reported that Gonzales's "mental health history has not been confirmed, [but] it is clear from his behavior in court, the letter provided to probation for the Court and his statement to probation and the investigating detective in this case that he suffers from mental health conditions that did not result in a legal defense to these crimes."
Gonzales did not explain in his statement in mitigation what particular behavior or statements demonstrated mental illness. On appeal, he does not provide any further clarification, although he describes the letter as "rambl[ing] . . . in a manner suggesting a detachment from reality."
At sentencing, defense counsel argued that Gonzales would benefit from "substance abuse treatment/mental health treatment" and requested "probation supervision, especially if we were to do the specialized unit that specializes in individuals with mental health issues." The probation officer pointed out that Gonzales had denied any mental illness or significant substance abuse issues during the probation interview, and recommended the court obtain a psychological evaluation if "[the court] [was] at all considering probation." There is no indication in the record that a psychological evaluation was requested or obtained.
The court observed that "one theme" from witnesses' testimony at trial "was how the defendant was typically a nice person, but when he drank, he changed." The court went on to say, "And I agree, in addition to substance abuse, there likely is a mental health component." The trial court remarked that Gonzales has "the criminal history of somebody who has addiction and mental health and a transient lifestyle. Those types of convictions." However, the trial court observed from Gonzales's record a long period of nonviolence and nonfelony conduct.
The trial court sentenced Gonzales to five years in state prison, but suspended execution of the sentence pending successful completion of formal probation.
DISCUSSION
Gonzales's sole claim on appeal is that his case should be remanded for the trial court to determine whether to grant pretrial mental health diversion under section 1001.36, which sets forth a pretrial diversion program for certain defendants diagnosed with qualifying mental disorders. (§ 1001.36, subd. (a).) If a defendant meets the criteria specified in the statute, the trial court may postpone criminal proceedings to allow the defendant to undergo mental health treatment. (§ 1001.36, subds. (a), (c).) If the defendant performs satisfactorily in diversion, the trial court shall dismiss the criminal charges against the defendant that were the subject of the criminal proceedings at the time of the initial diversion. (§ 1001.36, subd. (e).)
Section 1001.36 was enacted and became effective on June 27, 2018, several days before charges were filed in this case and over three months prior to Gonzales's sentencing. (Stats. 2018, ch. 34, § 24.) Gonzales failed to request diversion in the trial court. Because Gonzales had the ability to request relief from the trial court, but failed to do so, he has forfeited any claim to relief under section 1001.36 on appeal. (See People v. Trujillo (2015) 60 Cal.4th 850, 856 [holding forfeiture rule applies in context of challenges to a fee order; forfeiture results from the failure to assert a right in the tribunal having jurisdiction to determine it]; People v. Carmony (2004) 33 Cal.4th 367, 375-376 [failure to seek dismissal pursuant to section 1385 forfeits right to raise issue for first time on appeal]; People v. Scott (1994) 9 Cal.4th 331, 353 [failure to object to discretionary sentencing choices forfeits challenges on appeal].)
Gonzales recognizes that a " ' "trial court is presumed to have been aware of and followed the applicable law." ' " (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.) Nonetheless, he claims the reason this issue was not raised was because the trial court and attorneys were "not yet aware of the law," and argues that the presumption should "yield to practical reality." Gonzales offers no authority as to why we should disregard this established precedent, and we decline to do so here.
There is a split of authority on the issue of whether the pretrial diversion statute applies retroactively to cases pending on appeal when the statute was enacted. (Compare People v. Frahs (2018) 27 Cal.App.5th 784, 788, review granted Dec. 27, 2018, S252220 (Frahs) [concluding section 1001.36 applies retroactively to cases in which judgment is not yet final]; with People v. Craine (2019) 35 Cal.App.5th 744, 756 [holding that pretrial diversion pursuant to section 1001.36 is not available after a defendant has been tried, found guilty, and sentenced].) We need not address this issue because we conclude the situation is different where, as here, the statute was already in effect when the defendant was charged. Even if we were to consider Gonzales's claim on its merits, as we discuss post, Gonzales is not entitled to remand based on this record.
Even without a finding of forfeiture, Gonzales cannot prevail because he has made an insufficient showing that he would be entitled to relief if remand were granted. The trial court has the discretion to grant pretrial diversion if the court finds: (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) in the opinion of a qualified medical expert, the defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment; (4) the defendant consents to diversion and waives his or her right to a speedy trial; (5) the defendant agrees to comply with treatment as a condition of diversion; and (6) the defendant will not pose "an unreasonable risk of danger to public safety," defined as an unreasonable risk that the defendant will commit a new violent felony specified by statute, if treated in the community. (§§ 1001.36, subd. (b)(1)(A)-(F), 1170.18, subd. (c).)
Here, Gonzales merely makes some generalized assertions—stating that substance abuse and addictive disorders are recognized mental health disorders and common problems among the homeless community—and suggests there is enough evidence in the record "that [Gonzales] may have had a qualifying mental health problem" to warrant remand. (Italics added.) We disagree that remand is appropriate based on this record.
There is no evidence indicating Gonzales was ever diagnosed with a mental disorder, or that a mental disorder was a significant factor in the commission of the charged offenses. Gonzales himself denied any history of mental illness and the probation officer uncovered no documented psychological history. Although one of the victims described Gonzales as "depressed," and another homeless individual stated Gonzales became aggressive when drinking alcohol, this non-expert testimony does not establish Gonzales suffers from a qualifying mental disorder under section 1001.36. The additional statements at the time of sentencing, discussed in more detail ante, are likewise insufficient to grant Gonzales's requested relief. Defense counsel acknowledged that Gonzales's "mental health history has not been confirmed," but then stated without support that it was "clear" he suffers from mental health conditions. And while the trial court noted that there "likely" was a "mental health component" at sentencing, it appears the trial court was merely commenting that the general types of crimes reflected in Gonzales's criminal history were consistent with "somebody who has addiction and mental health and a transient lifestyle." The court took no action in response to the probation officer's suggestion that the court obtain a psychological evaluation if it concluded it was necessary.
By contrast, in Frahs, where the Court of Appeal remanded for the trial court to consider pretrial mental health diversion on a showing of only one of the statutory criteria, there was evidence in the record indicating the defendant had been diagnosed with schizoaffective disorder, a combination of schizophrenia and bipolar disorder, and the defendant had been prescribed "various medications over the years to include 'antidepressants, mood stabilizers, and antipsychotics.' " (Frahs, supra, 27 Cal.App.5th at p. 788, review granted.)
In summary, we conclude Gonzales has not established he is entitled to relief pursuant to section 1001.36. He forfeited his claim that he is entitled to pretrial diversion based on a qualifying mental disorder, and remand is not warranted in any event because there is insufficient evidence that Gonzales suffers from a mental disorder or that a mental disorder was a significant factor in the commission of the charged offenses. (§ 1001.36, subd. (b)(1).)
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.