Opinion
A166570
07-29-2024
THE PEOPLE, Plaintiff and Respondent, v. BLAKE ADAM ROBLES, Defendant and Appellant.
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 21CR002631
STEWART, P.J.
Blake Adam Robles appeals from convictions of resisting an executive officer and battery upon an officer arising from an incident in which he closed the door of his residence on the hand of the officer. He contends there was insufficient evidence that the officer was acting in lawful performance of his duties; the trial court gave erroneous jury instructions on this issue; the trial court abused its discretion in admitting evidence of prior uncharged acts; the trial court abused its discretion in denying a request for pretrial mental health diversion; and post-trial amendments to the mental health diversion statute require that the case be remanded for reconsideration of the issue under current law. We find no merit in his claims and affirm the judgment.
BACKGROUND
I.
Factual Background
A. Prosecution's Case
1. The December 7, 2021 Offenses
In December 2021, Robles was staying with Celeste Palco, who lived in a duplex located behind Holly LaPorta's house. On the afternoon of December 7, after arriving home at about 3:30 p.m., LaPorta heard a man yelling outside her house. She went out to look and saw Robles screaming at a white car in the alley that leads from her house to the duplex behind it. Robles was speaking to the driver of the white car and seemed very agitated and upset, while Palco seemed to be trying to calm the situation down. The white car sped off "pretty quickly."
LaPorta told Robles to stop screaming and he yelled at her, using "colorful language" including" 'get back in your house, you fucking bitch.'" Palco continued trying to get Robles to calm down and he yelled at her, taking a "threatening stance" with his "chest up against hers" and yelling in an "extremely angry" manner. LaPorta was concerned for Palco's safety and her own. She again asked Robles to stop yelling and he took a few steps toward her, yelling," 'Shut the fuck up, you cunt. Get back in your house.' "
LaPorta went inside and called 911. She told the dispatcher there was a man in her alley screaming at her and her neighbor and she did not feel comfortable. Before the police arrived, LaPorta heard the door to Palco's unit slam. Officer Adam Barrera responded and La Porta explained her concerns and directed him to the back unit. She could not see Palco's door from inside her house, but she could hear the officer "giving . . . commands" in a "calm and direct" tone.
Officer Barrera testified that he was dispatched at about 4:13 p.m., in response to a call from a neighbor saying that "a man was yelling at a woman" and that "the neighbor . . . was concerned for her safety." Barrera responded in full uniform and driving a marked patrol car. LaPorta, who was outside when he arrived, told him that she saw Robles "screaming violently in her neighbor's face" and when LaPorta told him to be quiet he responded," 'Go inside, you fucking cunt.'" LaPorta felt unsafe and said she was scared for her well-being and for her neighbor.
Barrera testified that at this point his main concern was to speak with both parties and make sure no one was hurt. He testified, "A lot of times, it's just an argument, it's not a big deal, but, unfortunately, with domestic disputes, we have to go the extra mile to make sure that both parties are safe and there's no abuse or anything like that going on." He explained that the initial report was a disturbance of the peace, but based on what LaPorta told him about "screaming violently in her face, you start to think about-you start to expand to think that maybe there's a domestic violence situation going on." Barrera had training in domestic violence, which he testified can range from disturbance of the peace to homicide. He decided to contact Palco "to make sure that she was okay and that there was nothing else going on."
Barrera rang the doorbell of Palco's unit and she opened the front door partway. Barrera noticed that her eyes were "red and teary-eyed like she had been crying" and it appeared she might be upset. He told her he wanted to talk to her and Robles "just to figure out what was going on." Because he could not see Robles but could hear him "yelling in the background," Barrera asked for Robles to come out. Barrera testified that "it's policy that when you deal with domestic violence situations that you speak with both parties separate. It's very common for a person that's potentially being the victim of domestic abuse to not want to talk to police if that abuser is nearby. [¶] So, initially, my goal was to have [Robles] come out, separate them, let me talk to them to figure out what's going on so I can, you know, determine if something is going on, or, you know, tell them to calm down the argument." Barrera knew Robles from prior calls and was referring to him by his first name in an attempt to "deescalate the situation and kind of be a little more familiar and friendly."
At some point, Robles came into Barrera's view and Barrera called out, asking him to" 'come chat.'" Robles's demeanor was aggressive. He stood beside Palco with his hands in his pockets and, when Barrera told him to take his hands out, Robles yelled" 'Eff you,' or something like that. [¶] 'I'm in my house.'" Seeing that Robles and Palco were not going to talk with him and Robles was agitated, Barrera requested backup. Trying to keep things from escalating, he told Robles and Palco he was just trying to talk to them and said "something to the effect of, 'Hey, man. This is going to amp up more than we want it to.'" Barrera suspected there might be a "domestic violence situation or possibility of it" and was concerned about Palco's well-being.
Barrera, who was standing outside the door, asked Palco to come outside. Robles stepped away, out of Barrera's sight. As Barrera "negotiat[ed]" with Palco, trying to get her to come outside, she "kept looking towards wherever [Robles] was inside, or she was looking towards the inside of the building." "[A]ll of a sudden, [Robles] comes back into frame and he starts to shut the door." Barrera reached out with his right foot and hand to "grab the door"; his foot missed and his hand "[caught] the door to keep the door open."
Barrera testified that his objective was to make sure he did not lose sight of Palco and lose "access to make sure she was okay." He explained: "So because at this point I'm now-you know, investigating a domestic-type situation, her safety is paramount. Making sure that she-I had access to her to make sure that, hey, I can ask her if she's okay. [¶] Because, essentially, when I was talking to her, she was-she gave me no answer. She kept looking towards Blake before saying anything, and then saying 'I'm fine.' [¶] So, at that point, I could tell that by her body language, the fact that she was crying, there was more going on. You know, in my mind, I have to make sure she's safe, and if the door closes and locks, I still have an obligation to make sure she's safe. But if the door closes and locks, we have a whole different situation where we-if she needs help, we can't give it to her without more tactical disadvantage or, you know, we don't know if he has weapons inside. I had to make sure that I got to her to keep her potentially safe."
Robles slammed the door. Barrera's right hand was "from the outside at the door jam[b]," holding onto the door. He used his other hand to upgrade his call for cover because his hand was getting "smashed in the door," the situation was escalating and he was going to need additional officers "to help both separate the parties and figure out what was going on." Barrera felt consistent pressure on his hand for several seconds but also felt several stronger pushes on the door. He could hear Palco asking Robles to stop and Robles yelling, and a recording from Barrera's body camera documents Robles saying, "You're putting your hand [¶] . . . [¶] and preventing me [¶] . . . [¶] from closing my door. [¶] . . . [¶] Why are you stopping me from [¶] . . . [¶] closing my door." Barrera then heard Palco say she would come outside, the door opened and she came outside.
As Barrera tried to walk Palco out, Robles came out and stood at the door landing. Barrera told him to go inside, and Robles said," 'No. You told me to come outside[,]'" and "[s]ome curse words." Robles's demeanor was "aggressive"; he was cursing at Barrera, repeatedly saying Barrera was going to shoot him and said he "hoped [Barrera] died." Barrera tried to walk Palco further away from the unit both for officer safety and, because Robles was following them, to separate her from Robles so he could talk to her. As Barrera tried to talk with Palco, Robles yelled, "You better get in the fucking house." At this point, another officer arrived and, Barrera testified, "we were going to address [Robles] and detain him." Robles was arrested outside the house for resisting arrest. Barrera had a small laceration on the top of his knuckle and his hand was sore for a few days.
Barrera acknowledged on cross examination that he saw no injuries on Palco and Palco did not ask for his help, said she was "good" and was "just sitting and talking with" Robles, and did not want to talk to Barrera. When Robles reached in his pockets, Barrera put his hand on his gun but did not draw it. Barrera acknowledged that he was the alleged victim in the case. He disagreed with defense counsel's suggestion that there was "no emergency for you to enter the house," stating, "I would describe a potential domestic assault as an emergency."
Christine Brumback testified that on the afternoon of December 7, 2021, she was in her friend's white car, showing the friend the house she had grown up in. As they were talking in the car, "all of a sudden, there was a man and [he] said, 'Get the'-blank, blank-'out of here,' blah, blah, blah. He was talking to a lady. And he just went off." She identified Robles as the man. As Brumback's friend tried to explain why they were there, Robles was saying threatening things like, "I'll put you down, bitch if you don't get the fuck out of here.'" Brumback testified that when they pulled up and saw Robles and the woman talking, "you could tell they were upset." As soon as Brumback and her friend drove away, they agreed they should call the police; Brumback testified that she was "fearful for the lady that was out there" talking to Robles. As they got to the end of the alley, they contacted a sheriff's officer who happened to be driving past.
2. Prior Offenses
Earlier that day, at 1:09 p.m., Napa City Police Officer Jose Velasquez was dispatched to a reported assault and, on arrival, was flagged down by Robles. Robles was initially cooperative but after medical attention was summoned to assess him, he got into a verbal argument with the paramedics, his demeanor changed to "angry, hostile" and he left the scene. Velasquez was concerned and went to check on Robles again. Robles was hostile, making statements including "I don't like cops," "I don't fuckin' trust you. You're a pig. You got a fuckin' badge on your chest and I don't fuckin' trust pigs.... I'm a fuckin' gangster. I come from a family of fuckin' killers." Robles was drinking. The incident ended with him crying, apologizing and wanting to shake the officer's hand.
The parties stipulated that on December 14, 2016, Napa County Deputy Sheriff Aimee Powers lawfully searched and arrested Robles. Powers testified that Robles initially refused to get out of the vehicle he was in and only did so after several requests, then as she searched him, he told her several times that he was "going to get violent" with her. She thought he was going to "try to fight" her and called for backup. Throughout the drive to jail, Robles was yelling in the back of the car that he "just wanted to kill people and blow things up" and "slamming his head."
B. Defense
Palco testified that on the afternoon of December 7, 2021, she and Robles were breaking up. They were talking outside her house and Robles was crying, "very loud and emotional," but Palco denied that Robles's demeanor was "aggressive and amped up." A white car pulled up and stopped in the alley, the occupants staring at Palco and Robles. When she asked if there was a problem, they said they were looking at the house because they used to live there and Palco said it was not a good time and asked them to leave. They refused. Robles came up behind Palco and loudly told them to leave, yelling and cussing at them. At this point, LaPorta came out, yelling that she did not like how Robles was treating Palco and she was calling the police. Palco told her not to worry, the police were not needed. Robles, yelling and cussing, told LaPorta to "get the eff back in her house" and "called her a bitch" and LaPorta yelled back at Robles. Palco testified that she had known LaPorta for 20 years and had had problems with her "constantly"; LaPorta had called the police on Palco and her son and had called the landlord many times, and "the landlord ha[d] threatened to kick us out because she just doesn't like us." Palco testified that Robles did not "chest-bump" her.
Palco and Robles went into Palco's house and were sitting on the sofa when the police knocked. Palco was crying because Robles was leaving her. She did not want or need the police at her house and did not give the officer permission to enter. She testified that when Robles started to close the door, he was behind the door and could not see the officer. Palco, who was standing at the opening of the door, saw the officer's hand as the door started to close but Robles could not see it, and Palco screamed at both of them to stop. She saw the door hit the officer's hand and thought he got his foot inside also. She testified that Robles was pushing on the door and did not know why it was not closing, and she was sure that Robles did not tell the officer anything like," 'You're preventing me from closing my door.' "
II.
Procedural Background
An information filed on December 28, 2021 charged Robles with one felony count of resisting an executive officer (Pen. Code, § 69) (count one) and two misdemeanor counts, battery on an officer (§ 243, subd (b)) (count two) and resisting an officer (§ 148, subd. (a)(1)) (count three). It was alleged that Robles had suffered two prior strike convictions (§ 667, subds. (b)-(i)), his prior performance on probation was poor (Cal. Rules of Court, rule 4.421, subd. (b)(5)), he had served a prior prison term (id., rule 4.421, subd. (b)(3)) and his prior convictions were numerous or of increasing seriousness (id., rule 4.421, subd. (b)(2)).
All further statutory references are to the Penal Code unless otherwise indicated.
On July 27, 2022, a jury found Robles guilty of felony resisting an executive officer and misdemeanor battery on an officer. The trial court dismissed the misdemeanor resisting an officer count on its own motion. Robles admitted the two prior strike convictions and the aggravating factor that he had served a prior prison term. After a court trial, the court found the other alleged aggravating factors true.
Robles subsequently filed a motion to strike the prior convictions (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, which the trial court denied. The court sentenced Robles to a total prison term of four years on count 1 (the middle term of two years, doubled pursuant to section 667, subdivision (e)(2)(C)); denied probation on count 2, the misdemeanor; and imposed fines and fees.
Robles filed a timely notice of appeal.
DISCUSSION
I.
There Was Sufficient Evidence That Barrera Was Acting in Lawful Performance of His Duties.
The offenses Robles was convicted of, resisting an executive officer by use of force or violence (§ 69) and battery on a peace officer (§ 243, subd. (b)), each require the prosecution to prove that the officer was acting lawfully at the time the offense was committed. (In re Manuel G. (1997) 16 Cal.4th 805, 815 ["a defendant cannot be convicted of an offense against a peace officer' "engaged in . . . the performance of . . . [his or her] duties"' unless the officer was acting lawfully at the time the offense against the officer was committed"].) Robles argues Barrera was not acting lawfully because the officer had no right to cross the threshold of the home absent probable cause to believe a felony had been committed or an emergency justifying an exception to the warrant requirement. He contends there was insufficient evidence of either of these conditions because, although Barrera maintained he was acting to ensure Palco's safety, he had no more than a "hunch or sneaking suspicion" of domestic violence and there is no right to detain someone inside their home to investigate the possibility of crime.
Section 69, subdivision (a), defines the offense, as applicable here, as "knowingly resist[ing], by the use of force or violence, the [executive] officer, in the performance of his or her duty." Section 243, subdivision (b), as applicable here, makes it a misdemeanor to commit a battery "against the person of a peace officer . . . engaged in the performance of their duties."
A. Governing Principles
1. Substantial Evidence Review
In reviewing a claim of insufficiency of the evidence," 'we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]'" (People v. Manibusan (2013) 58 Cal.4th 40, 87, quoting People v. Zamudio (2008) 43 Cal.4th 327, 357.)"' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]" ([People v. Bean (1988) 46 Cal.3d 919,] 932-933.)'" (People v. Cravens (2012) 53 Cal.4th 500, 508, quoting People v. Stanley (1995) 10 Cal.4th 764, 792-793.)" 'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict. [Citation.]'" (Manibusan, at p. 87, quoting Zamudio, at p. 357.)
2. Fourth Amendment Standards "Both the federal and state Constitutions prohibit unreasonable searches and seizures. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13.) 'In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards.' (People v. Troyer (2011) 51 Cal.4th 599, 605 (Troyer).) . . . '[T]he "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed."' (Payton v. New York (1980) 445 U.S. 573, 585; see People v. Schmitz (2012) 55 Cal.4th 909, 919 [Schmitz].) '[I]t is a cardinal principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions."' (Mincey v. Arizona (1978) 437 U.S. 385, 390; see Riley [v. California (2014) 573 U.S. 373], 382.) 'The burden is on the People to establish an exception applies.' ([People v.] Macabeo [(2016) 1 Cal.5th 1206,] 1213.)" (People v. Ovieda (2019) 7 Cal.5th 1034, 1041.)
"' "[T]he ultimate touchstone of the Fourth Amendment is 'reasonableness.'" '" (People v. Ovieda, supra, 7 Cal.5th at p. 1041, quoting Riley v. California, supra, 573 U.S. at p. 381.)" 'When faced with . . . diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.'" (Schmitz, supra, 55 Cal.4th at p. 921, quoting Illinois v. McArthur (2001) 531 U.S. 326, 330.) "Whether a search is reasonable within the meaning of the Fourth Amendment depends on the' "totality of the circumstances."' (Samson [v. California (2006)] 547 U.S. [843,] 848; see Ohio v. Robinette (1996) 519 U.S. 33, 39.) This test includes an assessment of the degree to which a search promotes legitimate governmental interests, balanced against the degree to which it intrudes upon an individual's privacy. (Samson, supra, at p. 848; [Wyoming v.] Houghton [(1999)] 526 U.S. [295,] 300.)" (Schmitz, at p. 921.)
Robles argues that Barrera had no authority "to cross the threshold of the home to affect a warrantless arrest" absent probable cause to believe a felony had been committed and exigent circumstances, neither of which were shown by the evidence. This framing of the contention is inapt, as there is no claim or evidence that Barrera entered the residence in order to arrest Robles and he was in fact arrested outside. His point is that Barrera lacked authority to enter the residence to investigate whether domestic violence was occurring: Since warrantless arrests or detentions" 'within the home are proscribed unless exigent circumstances exist[,]'" "the exception to the warrant requirement for investigative detentions for the purpose of investigating possible criminal activity, approved in Terry v. Ohio (1968) 392 U.S. 1, 'does not apply to in-home searches and seizures.' (U.S. v. Struckman (9th Cir. 2010) 603 F.3d 731, 738 (Struckman).)" (People Lujano (2014) 229 Cal.App.4th 175, 182-183 (Lujano).)
Robles cites a number of cases holding that even a slight intrusion into a home without a warrant-such as a foot blocking the door from closing or an arm reaching in-is an entry for purposes of the Fourth Amendment. (E.g., Parish v. Lansdale (Ariz.Dist.Ct. 2019) 2019 U.S.Dist. LEXIS 169868, at p. *120 [officer's foot on threshold blocking door from closing constitutes entry]; Siedentop v. State (Alaska Ct.App. 2014) 337 P.3d 1, 2 ["officer's act of placing a foot across the threshold of a home constitutes an entry for Fourth Amendment purposes"]; Mitchell v. Shearrer (8th Cir. 2013) 729 F.3d 1070, 1072-1073, 1076-1077 [officer placed foot in doorway when defendant began closing it, then reached in to grab defendant when he refused to come outside]; Dalcour v. City of Lakewood (10th Cir. 2012) 492 Fed.Appx. 924, 932-933 ["Physical entry of a home, even if only with one foot on the threshold, is an entry of the home for constitutional purposes"]; State v. Maland (Idaho 2004) 140 Idaho 817 [103 P.3d 430, 435] [officer "inserted her foot into the threshold far enough to prevent [defendant] from closing his front door"].) The People do not disagree that there was an entry for Fourth Amendment purposes but argue that Barrera's minimal intrusion was justified by the circumstances.
Robles discusses these cases only in his reply brief, in response to the People's reference to a "minimal" intrusion.
Specifically, the People argue Barrera's conduct was lawful under the emergency aid exception to the warrant requirement, pursuant to which" 'law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.'" (Troyer, supra, 51 Cal.4th at p. 602, quoting Brigham City v. Stuart (2006) 547 U.S. 398, 403.) Brigham City held that "police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury." (Id. at p. 400.) "[T]he exception 'requires only "an objectively reasonable basis for believing" [citation], that "a person within [the house] is in need of immediate aid."' ([Michigan v. Fisher (2009) 558 U.S. 45, 47].) 'We are to approach the Fourth Amendment . . . with at least some measure of pragmatism. If there is a grave public need for the police to take preventive action, the Constitution may impose limits, but it will not bar the way.' (Mora v. City of Gaithersburg (4th Cir.2008) 519 F.3d 216, 222.)" (Troyer, at pp. 605-606.) The circumstances" '" 'must be measured by the facts known to the officers'" '" (id. at p. 605) and not by a hindsight determination whether there was in fact an emergency (Fisher, at p. 49 [error to replace "objective inquiry into appearances" with "hindsight determination that there was in fact no emergency"])." '[T]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties.'" (Fisher, at p. 49, quoting Brigham City, at p. 406.)
Robles's opening brief argues the entry was not justified under the "community caretaking" exception to the warrant requirement. (See Caniglia v. Strom (2021) 593 U.S. 194, 196 [acknowledgement of police officers'" 'community caretaking functions'" in Cady v. Dombrowski (1973) 413 U.S. 433 did not create doctrine justifying warrantless searches and seizures in the home].) The People agree that this doctrine is inapplicable here.
B. Analysis
Robles argues the emergency aid exception is inapplicable here because there was no evidence Palco had been injured, there had been no report of physical violence or request for assistance, and Barrera's mere suspicion that Palco might be a victim of domestic violence was insufficient to justify his warrantless entry. Robles emphasizes that Barrera did not have probable cause to believe anyone was in imminent danger and only wanted to investigate the possibility that a domestic violence situation existed. In these circumstances, he maintains, he had a right to "forcibly resist" the officer's entry into his home.
Barrera was responding to a reported disturbance of the peace in which Robles was reportedly "screaming violently in [Palco's] face." When Palco opened the door to Barrera's knock, her eyes were "red and teary-eyed like she had been crying" and she appeared to be upset. Barrera could hear Robles "yelling in the background" and when Robles came into view, his demeanor was "aggressive." As Barrera tried to convince Palco to come outside, she repeatedly looked back inside, apparently toward Robles. Barrera had significant training relating to domestic violence and knew it could involve anything from disturbance of the peace with no injury to very serious injury, and that it was "very common" for a victim of domestic violence "to not want to talk to police if [the] abuser is nearby."
These circumstances created"' "an objectively reasonable basis for believing" [citation] that "a person within [the house] [was] in need of immediate aid." '" (Troyer, supra, 51 Cal.4th at p. 605.) People v. Higgins (1994) 26 Cal.App.4th 247 held that exigent circumstances justified warrantless entry into a residence by police officers responding to an anonymous report of a domestic disturbance involving "a man shoving a woman around." (Id. at p. 249.) Upon arrival, the officers saw a man inside the house and heard a shout, and the woman who answered the door to their knock was breathing heavily, appeared frightened, fidgety and nervous and had "a 'little red mark' under one eye that one of the officers believed, based on experience, had been caused by being struck in the face. (Ibid.) The woman said she was alright, the mark was a birthmark, and the call may have been prompted by the noise from her having fallen down the stairs. (Id. at p. 250.) She said she was alone and tried to "edge the officers away from the open door." (Ibid.) Based on her demeanor, the officer believed she was lying; he knew she was not alone, knew "battered women commonly deny being abused," believed she was the victim of a felony battery and might be under threat of further violence; and thought others might have been in peril inside. (Ibid.) The officers "entered the residence to 'make sure everything [was] all right.'" (Ibid.)
Higgins rejected the defendant's arguments that there were no exigent circumstances because the injuries the officer saw were "relatively slight" and the woman said she was not hurt. (Higgins, supra, 26 Cal.App.4th at pp. 251, 255.) In finding the officers' actions objectively reasonable, Higgins noted another court's determination that exigent circumstances existed where police responding to" 'a "family fight-domestic violence" call'" entered the residence "simply upon seeing the alleged victim . . . at a table inside," with no evidence the victim was hurt or in imminent danger." (Id. at p. 252, quoting State v. Greene (Ariz. 1989) 162 Ariz. 341 [784 P.2d 257, 259].)" 'These calls commonly involve dangerous situations in which the possibility for physical harm or damage escalates rapidly. The immediate presence of the officer is essential'" and delay" 'could lead to the occurrence of otherwise preventable violence.'" (Higgins, at p. 252, quoting State v. Greene, 784 P.2d at p. 259.)
We recognize that Higgins and State v. Greene both involved reports of domestic violence while the call in the present case reported only a disturbance of the peace. As Barrera explained, however, the details he received when he spoke with LaPorta included a description of Robles "violently yelling in [Palco's] face" and LaPorta reported that she was afraid for her own and Palco's safety. Palco's appearance and demeanor when she answered the door-upset, teary-eyed and apparently looking toward Robles (who was yelling and appeared "aggressive" to Barrera)-could reasonably be seen as indicating the potential for imminent physical violence, especially to an officer trained in domestic violence. While Palco's assertions that she was fine were part of the circumstances Barrera had to consider, he was not required to accept them as true in light of the facts suggesting domestic violence and his knowledge of abuse victims' frequent refusal to acknowledge abuse in their abuser's presence. (See Higgins, supra, 26 Cal.App.4th at p. 253 [entry reasonable based on suspected domestic violence victim's appearance and demeanor despite her saying she was alright]; State v. Raines (Wash.App. 1989) 55 Wash.App. 459 [778 P.2d 538, 542] [basis for officers to reasonably believe situation remained volatile despite suspected domestic violence victim's insistence there was no problem].)
Contrary to Robles's argument, it is significant that Barrera entered the residence only to the point of putting his hand on the door to keep it from closing. Barrera explained that he sought to prevent the door from closing so he could maintain sight of Palco to be sure she was not being harmed. As we have said, the totality of the circumstances test by which we determine the reasonableness of a search "includes an assessment of the degree to which a search promotes legitimate governmental interests, balanced against the degree to which it intrudes upon an individual's privacy." (Schmitz, supra, 55 Cal.4th at p. 921.) Here, the governmental interest in protecting a potential victim of domestic violence was sufficient to outweigh the minimal intrusion of Barrera's hand into the residence.
The Legislature has expressed particular concern for victims of domestic violence. For example, as the Higgins court noted (Higgins, supra, 26 Cal.App.4th at p. 250, fn. 2), section 273.5 makes it a felony for any person to willfully inflict corporal injury resulting in a physical injury, "whether of a minor or serious nature," upon a victim who is the offender's current or former spouse or cohabitant, the mother or father of the offender's child, or with whom the offender has or has had an engagement or dating relationship. (§ 273.5, subd. (a), (b), (d).)" 'Unlike other felonies, e.g., aggravated battery (§ 243, subd. (d)) which require serious or great bodily injury, "the Legislature has clothed persons . . . in intimate relationships with greater protection by requiring less harm to be inflicted before [section 273.5 is violated]." [Citation.]'" (Higgins, at p. 250, fn. 2, quoting People v. Wilkins (1993) 14 Cal.App.4th 761, 771(Wilkins).) Section 836 requires a peace officer responding to a domestic violence call to "make a good faith effort to inform the victim of his or her right to make a citizen's arrest, unless the peace officer makes an arrest for a violation of paragraph (1) of subdivision (e) of section 243 or 273.5."
Robles points to the court's comment in People v. Ormonde (2006) 143 Cal.App.4th 282, 295, that "to say that the warrantless entry into defendant's home in this case was justified because of a police officer's past experiences with domestic violence arrests would be tantamount to creating a domestic violence exception to the warrant requirement. This we cannot do." In Ormonde, police responded to the location of the victim of a reported domestic violence incident and were re-directed to a different location where the suspect was supposed to be. (Id. at p. 286.) At the second location, after contacting a person outside, later identified as the suspect, the police entered the residence to determine whether others were present who might present a danger to the officers, a concern based on past experience with the unpredictability and potential dangerousness of domestic violence calls. (Id. at pp. 286-287.) Ormonde rejected the People's argument that exigent circumstances justified the entry because the officers knew the victim was not at the premises, she had said the violence occurred in a car parked in the driveway, not inside the residence, and the officers articulated no reason to believe other victims or suspects were inside. (Id. at pp. 291-292.) In the present case, by contrast, Palco was inside the residence with Robles and Barrera was attempting to prevent losing sight of her and "access to make sure she was okay."
Robles argues that People v. Cedeno (1963) 218 Cal.App.2d 213 "demonstrates the insufficiency of the evidence that the officer was acting lawfully when he reached into the home." In Cedeno, officers pushed open the door to the defendant's hotel room and entered after he opened the door in response to their knock and then tried to push it closed when the police identified themselves. (Id. at p. 217.) The officers were acting on information provided by an informant whose reliability was not established and therefore did not provide probable cause for an entry or search. (Id. at pp. 219, 221.) Explaining that the officers did not have the consent to enter the hotel room, Cedeno stated that the defendant's "effort in pushing the door closed is a clear indication that he did not wish the officers to enter or to search his room. In the absence of a warrant or probable cause for such a search, defendant had a right to forcibly resist an officer's assertion of authority to enter his home or search it or his person." (Id. at p. 227.)
Robles argues that "[a]ssuming [he] was even aware of the officer's hand, that is exactly what happened here" and "[l]ike in Cedeno, this resistance was well within his rights as the officer had no authority to enter the home." Cedeno does not appear to have been followed for the principle Robles relies on; to the contrary, Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 330, "disagree[d] with Cedeno's bold statement of law which is bereft of any legally sufficient authority." The applicable rule is that "[e]ven if a detention [is] unlawful, a person may not use force or violence to resist it unless the police officer effectuated the unlawful detention by excessive, i.e., unreasonable, force. (People v. Curtis (1969) 70 Cal.2d 347, 357, disapproved on another point in People v. Gonzalez [(1990)] 51 Cal.3d [1179,] 1222; People v. White (1980) 101 Cal.App.3d 161, 166.)" (In re Joseph F. (2000) 85 Cal.App.4th 975, 989.) In any event, Cedeno is also distinguishable from the present case in that the "forcible resistance" in Cedeno was of a different nature than what occurred here. The force used by the defendant in Cedeno was pushing on one side of the door to close it while the officers pushed against the other side of the door to open it. (People v. Cedeno, supra, 218 Cal.App.2d at p. 227.) Here, Robles slammed the door on Barrera's hand and repeatedly pushed more strongly on the door despite knowing (as reflected on the recording from Barrera's body camera) that the officer's hand remained caught between the door and doorframe.
Sufficient evidence supported the determination that Barrera was acting in lawful performance of his duties.
II.
Robles's Claims of Instructional Error Are Barred by the Doctrines of Invited Error and Forfeiture.
Robles contends the trial court failed to give appropriate jury instructions on how to determine whether Barrera's act of reaching into Robles's residence to stop the door from closing was lawful. He maintains the court first erred in failing to give any instruction on warrantless entry into the home, then answered incorrectly when the jury asked a question on this issue. Robles argues the court had a sua sponte duty to instruct, as stated in CALCRIM No. 2670, that "[i]n order for an officer to enter a home to arrest someone without a warrant [and without consent]," the officer "must have probable cause to believe that the person to be arrested committed a crime and is in the home" and "[e]xigent circumstances require the officer to enter the home without a warrant."
As we will explain, defense counsel requested the jury instruction that was given and agreed to the court's proposed response to the jury's question. We agree with the People that any error with respect to CALCRIM No. 2670 was invited by the defense's request for the instruction and any error in the court's response to the jury's question was forfeited by the defense's agreement to the response.
A. Background
1. Instructions on the Charged Offenses
The jury was instructed that in order to prove Roble guilty on count 1, resisting an executive officer in performance of duty, the prosecution was required to prove that Robles "unlawfully used force or violence to resist an executive officer" and, when Robles acted, "the officer was performing his lawful duty," Robles "knew that person resisted was an executive officer," and Robles "knew the executive officer was performing his duty." (CALCRIM No. 2652.) The instruction specified that "[t]he duties of a peace officer include investigating and enforcing Penal Code violations, ensuring the safety of the public, and performing welfare checks."
The instructions on count 2, battery against a peace officer, directed that the prosecution was required to prove that Barrera "was a peace officer lawfully performing his duties as a peace officer," that Robles "willfully touched Adam Barrera in a harmful or offensive manner," and that when Robles acted, "he knew, or reasonably should have known, that Adam Barrera was a peace officer performing or attempting to perform his duties." (CALCRIM No. 945.) Again, this instruction specified that "[t]he duties of a peace officer include investigating and enforcing Penal Code violations, ensuring the safety of the public, and performing welfare checks."
2. CALCRIM No. 2670
CALCRIM No. 2670 is the pattern jury instruction describing lawful performance of duty by a peace officer. The instruction includes four sections, each addressing a different circumstance: "Unlawful Detention" (section A), "Unlawful Arrest" (section B), "Use of Force by a Peace Officer" (section C) and "Use of Force by a Person Being Arrested or Detained" (section D). Section B contains several subsections, one of which addresses "Entering home without warrant."
The other subsections of section B are "Arrest without warrant for most misdemeanors or infractions" and "Arrest without warrant for felony or misdemeanor not requiring commission in officer's presence." (CALCRIM No. 2670.)
Defense counsel requested that the jury be instructed with a version of CALCRIM No. 2670 that included the language found in section A, addressing unlawful detention, and parts of sections C and D, addressing use of force by an officer and by a person being arrested or detained. The instruction was given as requested, with minor modifications to clarify that it applied to all the counts with which Robles was charged and to delete a paragraph not relevant to the facts of this case, as follows:
As proposed by defense counsel, the instruction specifically referred to the charge of resisting, obstructing or delaying a peace officer and included a paragraph concerning photographing or recording a peace officer. Defense counsel agreed with the modifications.
"As to Counts 1, 2, and 3, the People have the burden of proving beyond a reasonable doubt that the officer was lawfully performing his duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of the particular charge. "A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force when making an otherwise lawful arrest or detention.
"A peace officer may legally detain someone if: 1) the specific facts known are apparent to the officer leading him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to a crime; and, 2), a reasonable officer who knew the same facts would have the same suspicion. Any other detention is unlawful.
"In deciding whether the detention was lawful, consider evidence of the officer's training and experience and all the circumstances known by the officer when he or she detained the person.
"Special rules control the use of force. A peace officer may use a reasonable force to arrest or detain someone to prevent escape, to overcome resistance, or in self-defense. If a person knows or reasonably should know that a peace officer is arresting or detaining him or her, that person must not use force or any weapon to resist an officer's use of reasonable force. However, you may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the defendant knew or reasonably should have known the officer was arresting him."
3. The Jury's Question
During deliberations, the jury asked the court, "Was Officer Barrera able to lawfully enter the residence with his hand?" When the court asked for the parties' comments, the prosecutor stated that "the objective answer is yes." Defense counsel disagreed, stating that he did not "see how there's any lawful basis for the officer to put his foot or his hand inside the threshold of someone's home without those three things: emergency, permission, or search warrant."
The court observed, "I think the issue is that, apparently, there was no [section] 1538[.5] run to make that determination. Had it been, then it would have been decided and either we wouldn't have been here at trial or we would have been here with that clear answer. [¶] So, at this time, I believe the answer is yes because there's been no determination saying otherwise." Defense counsel reiterated that the answer to whether the officer was able to lawfully enter the house with his hands "is clearly no" and stated, "I can't run a [section] 1538.5 on a [section] 69 or a [section] 148. The old law, I was able to, but the law has changed, and so I'm no longer allowed to do that. [¶] . . . [¶] You cannot do a motion to suppress on resisting arrest....There's nothing to suppress." Neither the court nor the prosecutor knew what law counsel was referring to and the prosecutor expressed disagreement with the point. Defense counsel indicated he would find authority but stated, "I would absolutely object to the Court to answer the question that the officer's allowed to do that....[A]n officer is not allowed to enter my home unless I want him there or there's an emergency or there's a warrant. That's just how it is, and a person's home is their castle."
When the court sought to confirm that counsel's proposal was "just to say 'no,'" defense counsel responded, "Yes. That is my proposal. Or to say, 'I can't answer that. I refer you to the instructions.' But not say 'yes.'" The prosecutor pointed out that during trial the court had sustained her relevance objection when defense counsel asked Barrera on cross examination whether he had a search warrant to enter the house but had been able to ask Barrera about whether there was an emergency and noted that "we can't expect the jurors to know all of that law," but the "objective truth is that he could put his hand right there."
Ultimately, the court proposed that it "refer [the jurors] to CALCRIM [No.] 2670, specifically both of those, 1 and 2, and say something like: If you believe Officer Barrera had specific facts known or apparent to him to lead him-X, Y, and Z, what it says here-and a reasonable officer who knew the same facts would have that same suspicion, then the answer is 'yes.' If you do not, the answer is 'no.' [¶] I don't know any other way to answer it, because that's really-it seems like what they're grappling with, was there enough for him to do that movement, putting his hand in the door, because he believed that something had happened, was happening, or was going to happen. And if they believe it was, then, yes, he lawfully did that. If they don't believe that, then it's a no."
Defense counsel asked, "Okay. So that's how the Court's going to write that out, then?" The court reiterated that this was its proposal and "[t]hat's why we are discussing it," and counsel asked the court to repeat the proposal once more. After the court did so, defense counsel stated, "I will stipulate to that, your Honor." The prosecutor agreed but suggested that the court add a "general statement of the law that there is not . . . a blanket requirement for a search or arrest warrant" because she believed this was what the jury was wondering about. Defense counsel objected that this was not the jury's question and the court declined the addition.
When the court suggested that it "attach [CALCRIM No.] 2670" to save having to write it out, the prosecutor noted that she liked the suggestion of pointing the jurors to the specific portion of the instruction that might help them and defense counsel added, "Or the Court can print it out and highlight that portion."
The court wrote the following response and showed it to counsel:
" 'Please refer to Jury Instruction [No.] 2670. See attached. If you believe Officer Barrera had specific facts known or apparent to him to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime, and a reasonable officer who knew the same facts would have the same suspicion, the answer is "yes." If you do not believe the foregoing, the answer is "no." '" The prosecutor stated, "Seems fine[,]" and defense counsel said, "Okay. Thank you, your Honor." The court's response was provided to the jury, which returned its verdicts shortly thereafter.
According to the court's minutes, discussion of the jury's question began at 1:51 p.m. By 2:31 p.m., the jury had reached its verdicts and the parties and jurors were back in the courtroom.
B. Analysis
1. Any Error in the Jury Instructions Was Invited by the Defense.
Robles argues that the trial court erred in failing to instruct the jury on the requirements for lawful entry into a home without a warrant. As he points out, portions of CALCRIM No. 2670 that were not given to the jury address "lawful warrantless entry into a home to effect an arrest or exigent circumstances." Robles contends the trial court had a sua sponte obligation to give these instructions.
The portions of CALCRIM No. 2670 Robles contends should have been given, which were not included in the version of CALCRIM No. 2670 requested by the defense, provide:
"In order for an officer to enter a home to arrest someone without a warrant [and without consent]: [¶] 1. The officer must have probable cause to believe that the person to be arrested committed a crime and is in the home; [¶] AND [¶] 2. Exigent circumstances require the officer to enter the home without a warrant.
"The term exigent circumstances describes an emergency situation that requires swift action to prevent (1) imminent danger to life or serious damage to property, or (2) the imminent escape of a suspect or destruction of evidence." (CALCRIM No. 2670, part B.)
The bench notes for CALCRIM No. 2670 advise that "[t]he court has a sua sponte duty to give this instruction if there is sufficient evidence that the officer was not lawfully performing his or her duties and lawful performance is an element of the offense. [Citation omitted.] [¶] Give section A if there is an issue as to whether the officer had a legal basis to detain someone. Give section B if there is an issue as to whether the officer had a legal basis to arrest someone. Give section C if there is an issue as to whether the officer used excessive force in arresting or detaining someone. If the issue is whether the officer used excessive force in some other duty, give section C with any necessary modifications." The bench notes further state, "Give the bracketed section about entering a home without a warrant if the arrest took place in a home. ([Wilkins], supra, 14 Cal.App.4th at p. 777.)"
In Wilkins, police officers responding to a reported domestic dispute were met outside by the victim, who was very upset, said the defendant had hit her in the face a few times, and asked the officers to go inside and arrest him. (Wilkins, supra, 14 Cal.App.4th at p. 767.) The officers knocked on the door, intending to enter and arrest the defendant for corporal injury to a spouse, and the defendant opened the door but refused to allow more than one officer to enter. (Id. at p. 768.) When one of the officers said they both needed to come in, the defendant attempted to close the door and the officer blocked it with his foot and hand, forced it open and reached for the defendant's wrist as the defendant backed away and yelled for the officers to get out. (Ibid.) The officers followed the defendant into the house and, after a physical struggle, managed to handcuff him. (Ibid.)
Wilkins held that the trial court had a sua sponte duty to instruct the jury on the requirement that a "nonconsensual entry into the house to make a warrantless arrest" be justified by exigent circumstances, although its failure to do so was not prejudicial on the facts of that case. (Wilkins, supra, 14 Cal.App.4th at pp. 777-778, 779-780.) Wilkins explained that "[i]n order for the officers to have effected a lawful nonconsensual entry into the house to make a warrantless arrest, they must not only have had reasonable cause to believe defendant had committed a felony but there must also have been exigent circumstances justifying the officers immediate entry without obtaining a warrant" and "lawfulness of the arrest is an element of a resisting arrest offense which normally must be submitted to the jury." (Id. at pp. 777-778.)
Robles argues Wilkins is controlling here. But, unlike Wilkins, where the officers intended to enter the home to arrest the defendant, in the present case there was no arrest inside the home and no evidence Barrera intended to arrest or detain Robles when he put his hand in the doorframe to stop it from closing. This is presumably why defense counsel did not include the portions of CALCRIM No. 2670 addressing unlawful arrest and warrantless entry into the home in the version of the instruction he requested.
Responding to the People's argument that the unlawful entry portion of CALCRIM No. 2670 was unnecessary because there was no unlawful arrest in the home, Robles emphasizes that "[t]he same proscription limiting warrantless arrests in the home has been extended to detentions that fall short of formal arrests" (Lujano, supra, 229 Cal.App.4th at p. 182, citing People v. Williams (1979) 93 Cal.App.3d 40, 57) and the Terry v. Ohio, supra, 392 U.S. 1 "exception to the warrant requirement for investigative detentions for the purpose of investigating possible criminal activity . . . 'does not apply to in-home searches and seizures.'" (Lujano, at pp. 182-183, quoting U.S. v. Struckman, supra, 603 F.3d at p. 738.) There is no evidence that at the time Robles slammed the door Barrera intended to detain Robles either.
Despite counsel's decision not to request the portions of CALCRIM No. 2670 addressing lawful entry into a home to arrest, Robles argues the trial court was required to give this part of the instruction sua sponte. Robles argues that Barrera's "show of force" in "reach[ing] across the threshold in order to prevent [Robles] from closing the door . . . was intended to prevent [Robles] from retreating into his home in order to detain him for further investigation. Such a detention is unlawful unless justified by exigent circumstances."
The record does not support Robles's characterization of Barrera's conduct. Robles slammed the door to terminate Barrera's contact with Palco, whom Barrera was trying to convince to come outside to speak with him. Barrera believed Palco's safety would be at risk if he lost the ability to communicate with and see her. Trial counsel did not argue that Barrera unlawfully entered the home in order to arrest or detain Robles. Rather, emphasizing CALCRIM No. 2670's explanation that a detention is unlawful unless "specific facts known or apparent to the officer lead him to suspect that the person to be detained has been, is, or is about to be involved in activity relating to a crime" and "a reasonable officer that knew the same facts would have the same suspicion," defense counsel argued that Barrera had received no report of criminal activity and saw no evidence of domestic violence, and "the moment that officer enters the home, that's when the detention becomes unlawful." In other words, the defense argument at trial was that Barrera's act of putting his hand in the doorway constituted a detention and the detention was unlawful because it was not supported by facts supplying the requisite suspicion of criminal activity.
Defense counsel's main argument was that Robles hurt Barrera's hand by accident, closing the door to end the encounter without realizing Barrera's hand was in the doorway. For example, in arguing the prosecution had not proven all the elements of a violation of section 69, defense counsel stated that Barrera had no right to put his hand in the door and "if you believe that he did do that without any permission, most importantly, then they have not proven their case beyond a reasonable doubt that [Robles] knew that the officer's hand was stuck in the door, or [Robles] closed it on him. And how would [Robles] even know that the officer's hand was there, again? And it also could just be an accident as well, because the officer never says, 'Please open the door. You're hurting my hand.' "
In any event, we agree with the People's contention that Robles invited any error with respect to CALCRIM No. 2670." 'The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a "conscious and deliberate tactical choice" to "request" the instruction.' (People v. Lucero (2000) 23 Cal.4th 692, 723, quoting People v. Wader (1993) 5 Cal.4th 610, 658.)" (People v. Weaver (2001) 26 Cal.4th 876, 970 [erroneous instruction deliberately requested by defense counsel]; People v. Catlin (2001) 26 Cal.4th 81, 150 [defense counsel proposed instruction omitting definition of express malice from standard instruction].)
Robles argues there is no evidence defense counsel made a conscious and deliberate tactical choice not to request the entire bracketed portion of the relevant instructions. But since CALCRIM No. 2670 contains various bracketed portions addressing situations that may or may not be relevant in a given case, counsel obviously made a choice as to which portions of the instruction to include. "In cases involving an action affirmatively taken by defense counsel, we have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule. (See People v. Catlin[, supra, ] 26 Cal.4th [at p.] 150; People v. Wader[, supra, ] 5 Cal.4th [at pp.] 657-658; People v. Hardy [1992] 2 Cal.4th [86,] 152.)" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 [counsel "did not merely acquiesce, but affirmatively joined in the challenge to Prospective Juror B., and thus cannot be heard to claim the court erred in excusing her"].) Here, defense counsel affirmatively proposed the version of CALCRIM No. 2670 that was given by the court. "[T]he record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice. A claim that the tactical choice was uninformed or otherwise incompetent must, like any such claim, be treated as one of ineffective assistance of counsel." (People v. Cooper (1991) 53 Cal.3d 771, 831.)
2. Any Error in the Response to the Jury's Question Was Forfeited.
Robles contends the trial court gave an incorrect answer to the jury's question whether Barrera was "able to lawfully enter the residence with his hand." The answer, as described above, referred to the instruction in CALCRIM No. 2670 on when a detention is lawful and told the jury that if it believed the requisite suspicion for a detention was established, Barrera's action was lawful. Robles maintains this response was incorrect because suspicion of criminal activity is insufficient to justify warrantless entry into a residence and the court should have informed the jury that the entry would be justified only if Barrera had probable cause to believe a felony had been committed and exigent circumstances existed.
As also described above, the parties and court discussed the jury's question and how it should be answered at some length. Although defense counsel disagreed with the prosecutor's suggestion that the answer was "yes" and asserted that an officer is not allowed to enter a home absent consent, emergency or a warrant, when the court pressed for defense counsel's proposed response, counsel stated that the court should say "no" or refer the jury to the instructions. The court proposed the response it ultimately gave, which referred to the portions of CALCRIM No. 2670 directing that a peace officer may legally detain someone if "[s]pecific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime" and "[a] reasonable officer who knew the same facts would have the same suspicion," and told the jury the officer's action was lawful if those conditions were met and was not lawful if they were not. After asking the court to repeat the proposed response, defense counsel stated he would stipulate to it. And when the court proposed attaching a copy of CALCRIM No. 2670 rather than writing it out, and the prosecutor advocated directing the jury to the "specific portion[] that might help them," as the court had suggested, defense counsel offered that "the Court can print it out and highlight that portion." Counsel reviewed the written response, the prosecutor said it "[s]eems fine" and defense counsel said, "Okay. Thank you, your Honor."
Defense counsel's agreement to the response forfeited this claim of error on appeal. (People v. Davis (2009) 46 Cal.4th 539, 616-617 [assent to use of definition from Black's Law Dictionary in response to jury question forfeited claim that definition was vague and ambiguous]; People v. Hughes (2002) 27 Cal.4th 287, 402 [counsel's agreement to court's response to jury question waived claim of error on appeal].)
III.
The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Uncharged Acts.
A. Background
The People moved in limine to admit evidence of three prior incidents of Robles resisting and threatening law enforcement officers pursuant to Evidence Code section 1101, subdivision (b) in order to prove motive, intent, lack of mistake/accident and common scheme or plan. Robles did not object to the first incident, which occurred earlier on the day of the charged offenses, but asked the court to exclude the other two, which occurred in 2016 and 2017, under Evidence Code section 352. The court granted the request to admit all three incidents, but the People ended up presenting evidence of only two. First, as described above, earlier on the day of the current offenses, when Officer Velasquez responded to a report of an incident in which Robles was assaulted, after getting into an argument with paramedics, Robles became hostile toward Velasquez and footage from the officer's body camera reflects him making statements including "I don't like cops," "I don't fuckin' trust you. You're a pig. You got a fuckin' badge on your chest and I don't fuckin' trust pigs.... I'm a fuckin' gangster. I come from a family of fuckin' killers." Robles was drinking. Second, on December 14, 2016, while Napa County Deputy Sheriff Aimee Powers was conducting a lawful search and arrest, Robles told her several times that he was "going to get violent" with her. During the drive to jail, Robles was yelling in the back of the car that he "just wanted to kill people and blow things up" and "slamming his head."
The written motion in limine included five incidents, but at the hearing the prosecutor limited the request for admission to three.
B. Analysis
Evidence Code section 1101, subdivision (a), with specified exceptions, prohibits admission of evidence of a person's character to prove his or her conduct on a specified occasion. Subdivision (b) of the statute, however, allows "admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."
" '[T]he admissibility of uncharged crimes depends upon three factors: (1) the materiality of the facts sought to be proved; (2) the tendency of the uncharged crimes to prove or disprove the material fact [i.e., probative value]; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence [i.e., prejudicial effect or other [Evidence Code] section 352 concern].' [Citations.]" (People v. Hendrix (2013) 214 Cal.App.4th 216, 238 (Hendrix).) We review the trial court's ruling for abuse of discretion. (People v. Pineda (2022) 13 Cal.5th 186, 222.) "A ruling subject to this standard of review 'will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' (People v. Rodriguez (1999) 20 Cal.4th 1, 910.)" (Ibid.)
Robles argues that the prior incidents were insufficiently similar to the charged offenses to be probative. He maintains that the material question was whether he intentionally pushed the door with knowledge that Barrera's hand was in the way, and the prior misconduct shed no light on whether he would intentionally make physical contact with an officer because it involved only verbal aggression toward the police.
Preliminarily, Robles ignores the fact that he declined to argue against admission of the incident earlier on December 7, 2021, the day of the charged offenses. After the prosecutor told the court she intended to present evidence of that incident and the ones from 2016 and 2017, when the court said, "let's talk about that first one," defense counsel stated, "I will submit, Your Honor." The court asked if counsel was submitting on the other two as well and defense counsel said, "I am not. I would ask a[n] [Evidence Code section] 352 analysis and to keep that out, Your Honor." Robles's failure to object to admission of the 2021 incident forfeited his claim of error with respect to that evidence. (People v. Thomas (2023) 14 Cal.5th 327, 369 [objection to admission of evidence of alleged threat to police officers insufficient to preserve Evidence Code section 1101 challenge to different evidence].) His only preserved claim of error is the admission of the 2016 incident, as the 2017 one was not put in evidence.
" 'Evidence of uncharged crimes is admissible to prove identity, common plan, and intent "only if the charged and uncharged crimes are sufficiently similar to support a rational inference" on these issues.' (People v. Edwards (2013) 57 Cal.4th 658, 711.)" (People v. Chhoun (2021) 11 Cal.5th 1, 25.) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act ....' (2 Wigmore, [Evidence] (Chadbourn rev. ed. 1979) § 302, p. 241.) In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
As to Robles's contention that the 2016 incident was not sufficiently similar to be probative on the question whether he intentionally pushed the door with knowledge that Barrera's hand was in the way, Robles points to Hendrix, supra, 214 Cal.App.4th 216 as "perhaps most directly on point." He particularly emphasizes the court's statement that "to establish knowledge when that element is akin to absence of mistake, the uncharged events must be sufficiently similar to the circumstances of the charged offense to support the inference that what defendant learned from the prior experience provided the relevant knowledge in the current offense." (Hendrix, at p. 243.)
Hendrix involved a very specific issue of knowledge that has no analog in the present case. There, after a fight with a private security guard who pepper sprayed the defendant, he was chased by other security guards and police officers and used force against a police officer who attempted to detain him. (Hendrix, supra, 214 Cal.App.4th at p. 221.) When tried for resisting an executive officer by force, the defendant argued it had not been proven beyond a reasonable doubt that he knew the person he resisted was a police officer because, since he had been pepper sprayed, he was intoxicated and the lighting was not good, he might have confused the officer for a security guard. (Id. at pp. 221-222.) The trial court admitted evidence of two prior incidents in which the defendant violently resisted police officers attempting to detain him. (Id. at p. 222.) Hendrix explained that "[b]ecause the factual issue the jury was tasked to resolve here was whether defendant knew Officer Mosley was a police officer or whether defendant mistakenly thought Officer Mosley was another security guard, the admissibility of the uncharged offenses turns on whether the experiences defendant gained during those prior incidents prepared him to distinguish between security guards and the police." (Id. at p. 243.) They did not, because the prior offenses did not include any involvement of security personnel or need to distinguish them from police officers. (Id. at pp. 243-244.)
The questions surrounding Robles's knowledge and intent in the present case are of a distinctly different nature. Robles argues that nothing about the prior incidents provided him with knowledge that Barrera's fingers were in the door or even involved use of force against police officers. Evidence that Robles knew the officer's hand was being hurt by Roble's repeated forceful pushing on the door came from the circumstances described by the officer and the recording from his body camera, which documented Robles saying, "You're putting your hand [¶] . . . [¶] and preventing me [¶] . . . [¶] . . . from closing my door. [¶] . . . [¶] Why are you stopping me from [¶] . . . [¶] closing my door." The relevance of the 2016 incident was not the similarity of its specific circumstances-i.e., an officer at the door of the residence attempting to stop the door from being closed on him-but the similarity in Roble's expressed attitude toward his interaction with the officers. Robles argued in the present case that he was simply trying to close the door to end the encounter with Barrera, and closed the door on the officer's hand accidentally, not knowing the hand was in the doorway. Barrera testified that Robles was yelling at and acting aggressively toward him, and that when Robles slammed the door and then continued to push on it, he was continuing to yell and Palco was asking him to stop. The 2016 incident involved Robles telling the police officer who was searching and arresting him that he was "going to get violent" with her, then continuing to yell and slam his head as he was being transported to jail. The aggression reflected in the 2016 incident was relevant and probative of Roble's intent in the present incident.
Hendrix also differs from this case in that the limiting instruction intended to ensure evidence of uncharged offenses is not considered for improper purposes included language that made it "confusing" and prevented the reviewing court from presuming the jury understood and followed it (Hendrix, supra, 214 Cal.App.4th at pp. 247-248) and the prosecutor's argument referred to the defendant having acted in the same way after being arrested on two prior occasions-evidence that had no bearing on the relevant question (whether the defendant knew the person detaining him was a police officer), served only to "advanc[e] the notion that defendant has a propensity to act violently with the police" and, as to one of the prior incidents, had been excluded by the court. (Id. at pp. 250-251.)
In the present case, nothing in the record undermined the instructions that informed the jurors of the limited purposes for which they could consider evidence of Robles's conduct toward police officers earlier on the day of the offenses and in 2016. The jury was instructed that it could consider the 2016 offense "for the limited purpose of deciding whether the defendant had a motive to commit the offenses alleged in this case, or the defendant knew that he was dealing with a peace officer performing his duties when he allegedly acted in this case, or the defendant's alleged actions were not the result of mistake or accident, the defendant intended to resist the officer." The instruction continued, "Do not consider this evidence for any other purpose. Do not conclude from this evidence that the defendant had a bad character or is disposed to committing crimes. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all of the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove every charge beyond a reasonable doubt."
In argument, the prosecutor referred to the two prior incidents only briefly, in connection with Roble's "intention and his lack of mistake here." The prosecutor argued that Robles's yelling at Velasquez about "pigs" and expressions of distrust earlier on the day of the charged offenses "corroborates what Officer Barrera experienced" and "[c]orroborates [his] motive and his intent and makes it clear for you what [he] was trying to do." Turning to the 2016 incident, the prosecutor simply stated that while the officer was conducting a lawful search and arrest, Robles "told her he was going to get violent with her." Defense counsel subsequently emphasized the instruction directing the jury not to conclude from evidence of the 2016 incident that Robles" 'had a bad character or is disposed to commit crime'" and argued, "You can't say, 'Well, since he was rude to Deputy Powers six years ago, he's got to be guilty here.' "
Robles points to People v. King (2010) 183 Cal.App.4th 1281 (King), in which the court emphasized the" '" 'substantial prejudicial effect'" '" of uncharged offenses and concluded that a prior assault was not sufficiently similar to the charged assault to be admissible. (Id. at p. 1303.) The defendant, a school district police officer, was convicted of sexually assaulting a woman under the pretext of searching her during a traffic stop. (Id. at pp. 1286-1287.) A year before, as the officer assigned to a high school, the officer took a female student out of class and to his office in a remote area of the basement, where he asked her various questions about sex, including whether she "gave 'blowjobs under the table' "; made clear that he knew a great deal of information about her; asked her to show him the belly button ring he knew she had; and told her he"' "going to make [her] like [him]." '" (Id. at pp. 1296-1297.) The trial court admitted evidence of this prior incident for the limited purpose of showing the defendant's intent (Evid. Code, § 1101, subd. (b)). (King, at p. 1300.) Despite some similarities, King found the prior incident "too dissimilar from the charged offenses to be probative of [the defendant's] intent on the occasion involving" the victim in the current trial-notably, while the traffic stop victim was a stranger subjected to "physically assaultive sexual contact," the student had been the focus of the defendant's attention for some time and despite his "arguably threatening, sexually offensive and boorish behavior," the defendant had no physical contact with her. (Id. at pp. 1303, 1302.)
Robles argues the only similarity between the prior and charged incidents in the present case was that he was upset when encountering law enforcement, since the prior incident did not involve use of physical force. In both the 2016 and the charged incidents, Robles aggressively expressed animosity toward police officers, and in the 2016 one he threatened violence. The aggression reflected in the 2016 incident was similar to that reflected in the current offense and was probative for a reason that distinguishes the present case from King. As King explained," '[e]vidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. "In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it." [Citation.]' ([People v. Ewoldt, supra, 7 Cal.4th] at p. 394, fn. 2.)" (King, supra, 183 Cal.App.4th at p. 1301.) In King, "the acts in which [the defendant] was alleged to have engaged (touching [the victim's] breasts and vagina) were not conceded or assumed; they were contested." (Ibid.) In the present case, Robles does not contend he did not act aggressively or deny he repeatedly attempted to close the door despite realizing Barrera was trying to prevent him from doing so. The question is whether his closing the door on the officer's hand was accidental or an intentional act taken with knowledge that the officer's hand was in the way. Unlike King, intent was at issue here, and evidence of Robles's animosity toward police officers was relevant and probative.
Robles offers People v. Dryden (2021) 60 Cal.App.5th 1007 (Dryden) as another example of prior offenses too dissimilar to be properly admitted under Evidence Code section 1101. The defendant in Dryden was convicted of assault with a deadly weapon (a bamboo stick) after a late-night altercation with a group of young men in a parking lot. (Dryden, at pp. 1013-1015.) The defendant, who was homeless and intoxicated, claimed he acted in selfdefense. (Id. at p. 1015.) The trial court admitted evidence of two prior altercations in which the defendant had claimed self-defense. (Id. at p. 1019.) In 2007, the defendant injured his father by strangulation after forcing entry into his father's home, claimed self-defense, then later admitted there was no threat requiring self-defense. (Id. at p. 1019.) In 2012, while intoxicated, the defendant struck another homeless person with his cane at a bus stop, claimed self-defense and ultimately was acquitted. (Id. at pp. 1019, 1020, 1022.)
The Dryden court found the 2007 incident insufficiently similar to the charged offense: The only similarity was that both incidents involved an assault and claimed self-defense, but the 2007 conduct did not "increase the probability the defendant fabricated a self-defense claim several years later under entirely different circumstances-against a group of strangers in a public place." (Dryden, supra, 60 Cal.App.5th at pp. 1020-1021.) The trial court's decision to admit this evidence was an abuse of discretion because there was no "logical nexus between the prior offense and defendant's disputed mental state." (Id. at p. 1021.)
As to the 2012 incident, for which the defendant had been in custody until he was acquitted 19 days before the current offense, "[b]ased on [the] temporal proximity and the similarities between the events, a reasonable jury could infer that on both occasions defendant acted with a noninnocent mental state." (Dryden, supra, 60 Cal.App.5th at pp. 1022-1023.) But the court found the probative value of the 2012 incident outweighed by its prejudice. (Id. at p. 1023.) The prosecution discredited the defendant's 2012 claim of self-defense with testimony and photographs showing he used more force than was necessary to defend against any claimed aggression. (Ibid.) This evidence was highly prejudicial because focusing on the amount of force used in 2012 "would cause the jury to prejudge defendant on the basis of extraneous character-based factors" and the graphic photographs were inflammatory, creating a substantial danger of evoking an emotional bias against the defendant. (Ibid.) The probative value of the evidence did not substantially outweigh its prejudicial effect because, despite the similarities to the present offenses, the amount of force used in 2012 was not probative of whether the defendant had a reasonable belief in the need for self-defense in the current offense. (Ibid.)
Here, while the prior incidents and charged offense did not involve identical circumstances, the similarity of Robles's aggression and animosity toward the law enforcement officers provided the "logical nexus" to disputed issues that was missing in Dryden and the evidence of the prior incidents was not inflammatory or likely to provoke an emotional bias against Robles. We find no abuse of discretion.
IV.
The Trial Did Not Abuse Its Discretion in Denying Diversion.
A. The Trial Court's Ruling Was Not an Abuse of Discretion.
1. Background
On February 1, 2022, Robles filed an application for pretrial mental health diversion pursuant to section 1001.36. The application stated that Robles suffered from bipolar disorder and post trauma disorder, among other diagnoses; that his mental disorder substantially contributed to his commission of his offenses and at the time he was not consistently adhering to his psychotropic medications and was self-medicating with alcohol and marijuana; that a licensed clinical social worker opined the symptoms motivating his criminal conduct would respond to treatment and he had a history of compliance with treatment; that Robles was willing to waive his right to a speedy trial and to comply with treatment as a condition of diversion; and that Robles did not pose an unreasonable risk to public safety.
Licensed clinical social worker Robin Merrill Payne reported that the symptoms motivating Robles's offense appeared to be responding to mental health treatment: He had been treated with mood-stabilizing psychotropic medication in custody and had returned to his "baseline mental status," and he had a long history of "being able to work full-time, complete college coursework, and maintain psychiatric stability in the community when he adheres to medication, is abstinent from drugs and alcohol, and has the support of mental health services to structure his life." Payne opined that Robles would not pose an unreasonable risk of danger to the public if treated in the community under supervision, pursuant to a recommended treatment plan.
The treatment plan Payne recommended called for substance abuse treatment in a residential program if Robles was eligible and otherwise "at least a structured outpatient" program, which could be provided through Napa County Alcohol and Drug Services or a private program. Robles would then need to engage in ongoing community support systems for recovery. He needed to reconnect with Napa County Mental Health to resume psychiatric treatment and take all prescribed medication. Payne noted that Robles had a history of doing well when given "external structure and monitoring (as by Probation and Parole in the past)" and would need to connect with Napa County Health and Human Services Agency to be assessed for case management services, residential or assisted independent living programs for housing and assistance with securing an income. Robles also needed to reconnect with "structured, pro-social activities such as work and/or schooling."
The People opposed Robles's application, arguing that Payne offered only a conclusory statement as to Robles's diagnoses that provided insufficient information about his symptoms, when he was diagnosed and by whom, and that there was insufficient evidence of a nexus between his disorders and his conduct. The People acknowledged that Robles participated in Mental Health Court from April 2018 through June 2020 and "eventually graduated from the program but had struggles on the way." Noting that Robles was at that time on felony probation and state parole, the People stated, "There is a very high level of supervision provided to a defendant in Mental Health Court. The People believe [Robles] will once again need this high level of supervision to potentially be successful, and that cannot be offered in mental health diversion." The People further argued that Robles's behavior in the present case, as well as his history of assaultive behavior toward law enforcement, arrests and convictions (including a 2009 felony violation of section 69, a 2016 violation of section 148, subdivision (a) and a 2017 felony violation of section 69) demonstrated he posed an unreasonable risk of danger to the public.
At the hearing on February 14, 2022, the court denied diversion with the following explanation:
"I am familiar with Mr. Robles. He was in Mental Health Court and overall did really well and graduated. [¶] And all that being said, I just don't think that when I review all of this, and I look at his background, that diversion is appropriate. It may well be that Mental Health Court or some other kind of higher-in my view higher level of treatment and care would be appropriate, not a diversionary program, as suggested in the motion. [¶] So I'm going to deny the motion for diversion at this point, and we'll see how the case evolves."
2. Governing Principles
"Section 1001.36 authorizes a pretrial diversion program for defendants with qualifying mental disorders. The statute defines' "pretrial diversion"' as 'the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment ....'" (People v. Frahs (2020) 9 Cal.5th 618, 626 (Frahs), quoting former § 1001.36, subd. (c) [now § 1001.36, subd. (f)(1)].)" '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).)' ([Frahs, at p.] 626.)" (People v. Brown (2024) 101 Cal.App.5th 113, 119 (Brown)).)
Section 1001.36 has been amended several times since its initial enactment.
"[T]he Legislature intended the mental health diversion program to apply as broadly as possible. (Frahs, supra, 9 Cal.5th at p. 632.) The court" 'must treat the matter as if the charges against the defendant have not yet been adjudicated; the court is not sentencing the defendant.' ([People v.] Qualkinbush [(2022) 79 Cal.App.5th 879,] 892, fn. 11.)" (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149 (Whitmill).) Thus, "[i]n determining a defendant's suitability for mental health diversion, a trial court may not rely on general sentencing objectives set forth in rule 4.410 of the California Rules of Court and must consider the primary purposes of the mental health diversion statute as set forth in section 1001.35." (Ibid., fn. omitted.)
Under the version of section 1001.36 in effect at the time the trial court ruled on Robles's motion in February 2022, a trial court had discretion to grant diversion if six criteria were met: 1) the court "is satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorder"; 2) "the court is satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense"; 3) in the opinion of a "qualified mental health expert," the defendant's "symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment"; 4) the defendant consents to diversion and waives the right to a speedy trial; 5) the defendant agrees to comply with treatment as a condition of diversion; and 6) the court "is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community." (Former § 1001.36, subd. (b)(1), Stats. 2019, ch. 497, § 203, eff. Jan. 1, 2020.)
In addition, the court had to be "satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant." (Former § 1001.36, subd. (c)(1)(A), Stats. 2019, ch. 497, § 203, eff. Jan. 1, 2020 [now § 1001.36, subd. (f)(1)(A)(i)]; People v. Gerson (2022) 80 Cal.App.5th 1067, 1079 (Gerson).) "Even if a defendant meets the six threshold eligibility requirements, 'a trial court may still exercise its discretion to deny mental health diversion if it finds that the defendant or the offense are not suitable for diversion.'" (Whitmill, supra, 86 Cal.App.5th at p. 1149, quoting People v. Qualkinbush, supra, 79 Cal.App.5th at p. 888.) "Ultimately, . . . diversion under section 1001.36 is discretionary, not mandatory, even if all the requirements are met." (Gerson, at p. 1080.)
The maximum duration of diversion for felony charges is two years. (§ 1001.36, subd. (1)(C)(i) [former § 1001.36, subd. (c)(3)].) Criminal proceedings may be reinstated if the defendant "is subsequently charged with an additional crime, or otherwise performs unsatisfactorily in the assigned program." (Frahs, supra, 9 Cal.5th at p. 627, citing former § 1001.36, subd. (d) [now § 1001.36, subd. (g)].)" 'If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings at the time of the initial diversion' and 'the arrest upon which the diversion was based shall be deemed never to have occurred.'" (Frahs, at p. 627, citing former § 1001.36, subd. (e) [now § 1001.36, subd. h].)
Under current law, the maximum diversion period for misdemeanor charges is one year. (§ 1001.36, subd. (f)(1)(C)(ii).)
"We review the trial court's factual findings as to the enumerated statutory criteria for substantial evidence. (Gerson, supra, 80 Cal.App.5th at p. 1079.) . . . We review the trial court's ultimate decision whether to grant the request, after considering its findings as to each of the relevant criteria, for abuse of discretion. (Id. at p. 1080.)" (Brown, supra, 101 Cal.App.5th at p. 121.)" '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.'" (Gerson, at p. 1080, quoting People v. Moine (2021) 62 Cal.App.5th 440, 449.)
3. Analysis
Robles argues the trial court abused its discretion as a matter of law because it incorrectly believed pretrial diversion could not be as structured as mental health court and thus failed to understand the scope of its discretion. Robles maintains that the options available to a court granting diversion include "refer[ring] the matter to mental health court for supervision" or ordering" a high level of supervision," and "something comparative to that offered in mental health court," and argues there was no evidence diversion supervision could not be as structured as mental health court.
The hearing on Robles's application for diversion was brief. After the court indicated it had reviewed the application and opposition, defense counsel submitted on his motion, noting that Payne's statements that Robles had a history of mental illness and would comply with whatever the court ordered for mental health diversion and asserting that Robles "can really essentially do pretty much everything that Mental Health Court fashions for the folks up in Mental Health Court. And Mr. Robles absolutely will do all those things." The prosecutor noted Robles's "long criminal record" and "specifically a long history of resisting officers," and otherwise submitted with the additional comment that the People were "definitely opposed" to diversion.
Neither the parties' pleadings nor the discussion at the hearing addressed specific details of the programs intended for Robles's diversion treatment. The individual treatment plan recommended by Payne listed four components-substance abuse treatment, psychiatry and medication, ongoing mental health and social services, and pro-social activities-and, for each, described Robles's needs and potential resources. For example, with regard to substance abuse treatment, Payne noted that Robles's "long history of substance use undermines his ability to address psychiatric concerns" and stated, "He would need to be assessed, and if eligible, complete residential substance abuse treatment. If not eligible for residential, he needs at least a structured outpatient treatment program to address his substance abuse issues. This could be through Napa County Alcohol and Drug Services (NCADS), or through a private substance use treatment program. He then needs to engage in ongoing community support systems for recovery, such as 12-Step programs, SMART Recovery, or Celebrate Recovery." In connection with psychiatry and medication, Payne stated that Robles needed to "reconnect with Napa County Mental Health (NCMH) to resume psychiatric treatment" and to take all psychotropic medications as prescribed. Payne noted Robles's history of doing well when given "external structure and monitoring (as by Probation and Parole in the past)" and stated he needed to connect with Napa County Health and Human Services Agency to be assessed for specified programs.
Nothing in the recommended treatment program or otherwise presented in Roble's application provided information on the degree of structure and supervision offered by programs for which Robles might be eligible. The People's opposition asserted that "[t]here is a very high level of supervision provided to a defendant in Mental Health Court" which "cannot be offered in mental health diversion." Robles argues that there was no evidence diversion supervision "could not be as structured as mental health court," but neither was there any evidence the supervision available through diversion could be as structured as in mental health court or could provide the "higher level of treatment and care" the court believed was necessary in light of its familiarity with Robles and his history.
Section 1001.36 required that the court be "satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant." (Former § 1001.36, subd. (c)(1)(A) [now § 1001.36, subd. (f)(1)(A)(i)]; Gerson, supra, 80 Cal.App.5th at p. 1079.) It was Robles's burden to show he was eligible and suitable for diversion. (Former § 1001.36, subd. (b)(3) [now § 1001.36, subd. (e)] ["At 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 and that the defendant and the offense are suitable for diversion"]; Evid. Code, § 500 ["Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting."]; Couzens, et al., Sentencing California Crimes (The Rutter Group (Aug. 2023 Update) § 7:21 ["Because the ability to participate in diversion is not a statutory right, but a matter of discretion with the court, the defendant bears the burdens of proof and persuasion regarding eligibility and suitability for diversion"].)
It was not the court's obligation to devise a treatment program that would correct deficiencies it found in what Robles proposed. Indeed, Robles expressly disclaims any argument that the trial court had an obligation to devise a treatment program. Rather, he argues that such a program "already existed and was acknowledged by the court," apparently meaning a referral to mental health court. He points out that section 1001.36, subdivision (f)(1)(A)(ii)), specifically provides for referrals to existing collaborative courts-"a referral may be made to a county mental health agency, existing collaborative courts"-and argues the court could have granted diversion and referred the matter to mental health court for supervision.
Robles's selective quote obscures the fact that the authorization he relies on is also a limitation on referrals to collaborative courts.
Section 1001.36, subdivision (f)(1)(A)(ii), provides, "The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services." (§ 1001.36, subd. (f)(1)A)(ii), italics added.) Robles's application for diversion and attached recommended treatment plan did not propose utilization of mental health court services.
Robles cites the current version of section 1001.36. The same language appeared in the version of the statute in effect at the time of the court's ruling as subdivision (c)(1)(B).
The trial court expressly acknowledged that Robles had "overall" done "really well and graduated" from Mental Health Court. Nevertheless, Robles committed the present offenses barely a year and a half after completing the Mental Health Court program, by which time he was not consistently adhering to his psychotropic medication and was "using alcohol and cannabis to self-medicate his psychiatric symptoms." In light of Robles's history, including repeated instances of forcible obstruction of and resistance to law enforcement officers, the court had ample reason to be concerned that the treatment Robles could receive in diversion would not be sufficient to meet his mental health needs.
Robles relies on Whitmill, supra, 86 Cal.App.5th 1138 in arguing the trial court abused its discretion by denying diversion based on" 'incorrect standards.'" The trial court in Whitmill denied diversion based on its conclusion that the defendant posed" 'an unreasonable risk of danger to public safety as defined in . . . section 1170.18'" because his" 'willingness to make a threat to kill accompanied by firing a gun into the air . . . demonstrates that he is likely to commit a super strike offense.'" (Whitmill, at p. 1147.) Additionally, the trial court found it would be unreasonable to expect the defendant to exercise the level of control over his behavior (i.e., abstain from substance abuse) necessary to mitigate the risk of danger, noting" 'what I have here is a defendant who had three years in the county jail suspended. And that's designed to create a strong disincentive to commit any new crime. That does not give me great confidence.'" (Id. at p. 1146.)
Whitmill reversed the denial of diversion for two reasons: There was no substantial evidence to support the trial court's findings that the defendant posed an unreasonable risk of committing a super strike if treated in the community and the trial court "imposed incorrect standards in denying diversion." (Whitmill, supra, 86 Cal.App.5th at p. 1156.) As to the latter, which is the portion of the holding Robles relies on, Whitmill viewed the trial court's comments quoted above as improperly adding to section 1001.36 a requirement that defendants "show they do not need to be additionally motivated." (Whitmill, at p. 1155.) Whitmill explained, "We find nothing in the diversion statute suggesting the Legislature intended to give courts discretion to deny diversion simply because diversion is or may be less motivating than probation or prison.... The trial court's conclusion that diversion is insufficiently motivating is simply a challenge to the underlying premise of diversion itself. The Legislature has concluded that diversion has sufficient safeguards when the defendant does not pose an unreasonable risk of danger to public safety and is otherwise eligible and suitable for diversion; courts cannot override that determination just because a grant of probation in the past has not 'motivated' defendants to overcome symptoms of mental illness which contribute to violations of the law." (Ibid.) In addition, Whitmill found that "the trial court's discussion of objectives to deter defendant from committing future offenses demonstrates it relied on general sentencing objectives set forth in rule 4.410 of the California Rules of Court," contrary to the principle that "in determining a defendant's suitability for mental health diversion, a trial court may not rely on general sentencing objectives . . . and must consider the primary purposes of the mental health diversion statute as set forth in section 1001.35." (Id. at p. 1156.)
The reliance on improper standards rejected in Whitmill consisted of the trial court exceeding the scope of the discretion granted by section 1001.36 by imposing additional requirements for mental health diversion beyond those specified by the Legislature. Nothing of this nature occurred here. Robles claims the trial court erroneously believed that diversion "would not involve structured supervision akin to that available in mental health court"-in essence, that the court did not understand the full range of options it had discretion to order. But this argument is premised on the court's discretion to make a referral to mental health court, which was not suggested as part of the recommended treatment plan, and, in response to the court's comments at the hearing, Robles did not suggest that the level of treatment the court felt necessary could be provided through diversion by such a referral or otherwise. That the trial court was not satisfied the recommended treatment plan in Robles's application for diversion was adequate does not establish the trial court was unaware it had discretion to order utilization of other resources, including potentially through mental health court. Far from "affirmatively disclos[ing] that the trial court misunderstood the scope of its discretion" (People v. Fuhrman (1997) 16 Cal.4th 930, 944 [trial court recognition of discretion to strike prior conviction allegation]; People v. Penoli (1996) 46 Cal.App.4th 298, 306 [trial court "refus[ed] to apply the relevant statute out of a categorical preference for its own policy analysis"]), as Robles claims, we see no indication in the record that trial court did not understand the scope of its discretion or considered improper factors in denying diversion.
Moreover, the court denied the request for diversion "at this time," saying "we'll see how this case evolves." Robles apparently made no further attempt to convince the court that programs available through diversion could provide a level of structure and supervision the court would find acceptable. We find no abuse of discretion.
B. Remand for Reconsideration Under Post-Trial Statutory Amendments Is Not Warranted.
Robles argues that he is entitled to retroactive application of amendments to section 1001.36 that became effective on January 1, 2023, while this appeal was pending. (Stats. 2022, ch. 735, § 1.) The People agree that the amendments apply retroactively to cases such as Robles's that are not yet final, and we agree. (People v. Doron (2023) 95 Cal.App.5th 1, 6-7; Frahs, supra, 9 Cal.5th at p. 624; People v. Estrada (1965) 63 Cal.2d 740, 746.) The People argue, however, that remand is unnecessary because the amendments do not affect the basis upon which the court denied Robles's application for diversion.
The amended section 1001.36 "change[d] the eligibility criteria so as to simplify and strengthen the law, broadening the availability of mental health diversion in appropriate cases." (People v. Doron, supra, 95 Cal.App.5th at p. 7.) The amendments recharacterized the first two requirements for mental health diversion ("that the defendant be diagnosed with a recognized mental illness and that the mental illness be a significant factor in the commission of the charged offense") "as eligibility criteria" and the remaining four requirements as factors the trial court must consider in determining whether the defendant is suitable for diversion. (Brown, supra, 101 Cal.App.5th at p. 120; § 1001.36, subds. (b) and (c).) The amended statute thus" 'requires trial court findings that the defendant is both eligible for diversion and suitable for the program'" according to specified criteria. (Brown, at p.120, quoting Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891 (Sarmiento.) Moreover, "[u]nder the amended statute, 'a defendant's eligibility no longer turns on findings to the court's "satisfaction."' ([Sarmiento, at p. 891].) Rather, a defendant is generally eligible for diversion if the defendant 'has been diagnosed' with a recognized mental disorder. (§ 1001.36, subd. (b); Sarmiento, at p. 891.) Beyond that, the amended statute creates a presumption that the defendant's diagnosed mental disorder was a significant factor in the commission of the charged crime, 'unless there is clear and convincing evidence that [the mental disorder] was not a motivating factor, causal factor, or contributing factor to the defendant's involvement in the alleged offense.' (§ 1001.36, subd. (b)(2).)" (Brown, at p. 120.)
The 2023 amendments did not alter section 1001.36's requirement that the court be "satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant." (§ 1001.36, subd. (f)(1)(A)(i).)" 'Assuming the defendant is both eligible and suitable, the trial court must also be satisfied "that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant." [Citations.]' (Sarmiento, supra, 98 Cal.App.5th at p. 892.) 'Finally, even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion.' (Ibid.) 'But this "residual" discretion must be exercised" 'consistent with the principles and purpose of the governing law.'"' (Ibid.)" (Brown, supra, 101 Cal.App.5th at p. 121.)
The trial court did not make express findings on the six criteria specified in former section 1001.36, subdivision (b). Rather, its only stated reason for denying the request for diversion was that Robles needed a "higher level of treatment and care" than could be provided through diversion. Because the amendments did not affect the court's reason for denying diversion, we agree with the People that remand is not appropriate.
When changes in the law while an appeal is pending give trial court's new or greater discretion to impose lighter punishment," '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. Flores (2020) 9 Cal.5th 371, 432, quoting People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) This is because defendants are entitled to"' "decisions made in the exercise of the 'informed discretion.'" (Flores, at p. 431.) Here, because the trial court's denial of diversion was not based on any of the factors affected by the amendments to section 1001.36, there is no reason the amendments would have affected its decision.
DISPOSITION
The judgment is affirmed.
We concur. RICHMAN, J., MILLER, J.