Opinion
E070303
07-31-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTINA SIERRA, Defendant and Appellant.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Matthew Mulford and Steve T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1600659) OPINION APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Conditionally reversed with directions. Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Matthew Mulford and Steve T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
On November 27, 2017, in a plea to the court, defendant and appellant Christina Sierra pleaded guilty to the "sheet" as charged and admitted all the enhancement allegations in exchange for a maximum term of nine years in state prison. Specifically, defendant pleaded guilty to causing great bodily injury while driving under the influence (Veh. Code, § 23153, subd. (e); count 1); driving a motor vehicle without a license (Veh. Code, § 12500, subd. (a); count 2); and felony child abuse (Pen. Code, § 273a, subd. (a); count 3). She also admitted that in the commission of count 1, she personally inflicted great bodily injury (§ 12022.7, subds. (a) & (b)). Defendant further admitted that she had suffered one prior prison term (§ 667.5, subd. (b)). Following a sentencing hearing on February 2, 2018, the trial court sentenced defendant to nine years in state prison with 173 days of credit for time served. On April 10, 2018, defendant filed an appeal.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends section 1001.36 applies retroactively and that the judgment must be conditionally reversed and remanded with directions to the trial court to determine whether she is eligible for a pretrial mental health diversion program under section 1001.36. The People assert that the appeal must be dismissed because defendant failed to obtain a certificate of probable cause, but that in any event, section 1001.36 does not apply retroactively. Alternatively, the People argue that defendant failed to show she is eligible for a pretrial mental health diversion program.
We conclude that defendant may raise the retroactivity issue despite the absence of a certificate of probable cause, and that section 1001.36 applies retroactively. Accordingly, we conditionally reverse the judgment and remand the matter to the trial court with directions to conduct a mental health diversion eligibility hearing pursuant to section 1001.36, enacted effective June 27, 2018. (Stats. 2018, ch. 34, § 24 (Assem. Bill No. 1810).) If the court finds the statutory criteria are met, it may grant diversion, and if defendant successfully completes diversion, the court shall dismiss the charges. (People v. Frahs (2020) 9 Cal.5th 618 (Frahs II) [section 1001.36 applies retroactively to all judgments not final when the statute was enacted effective June 27, 2018]; People v. Weaver (2019) 36 Cal.App.5th 1103, 1117, 1121-1122 (Weaver) [same], review granted Oct. 9, 2019, S257049; People v. Hughes (2019) 39 Cal.App.5th 886, 894-895 [same], review granted Nov. 26, 2019, S258541; cf. People v. Craine (2019) 35 Cal.App.5th 744, 749, 754, 760 (Craine) [section 1001.36 applies only prospectively], review granted Sept. 11, 2019, S256671.) If, however, the court determines that defendant is not eligible for mental health diversion pursuant to section 1001.36, or if defendant commits a new crime or does not successfully complete the diversion program, the judgment of conviction shall be reinstated and defendant must be resentenced.
The request for judicial notice filed by plaintiff and respondent on May 22, 2019, is hereby GRANTED.
On its own motion, the Supreme Court granted review of the Court of Appeal's decision in People v. Frahs (2018) 27 Cal.App.5th 784 on December 27, 2018, and denied depublication of Frahs pending review. The Supreme Court also granted review of Craine, supra, 35 Cal.App.5th 744 on September 11, 2019. On June 18, 2020, the Supreme Court affirmed the judgment of the Court of Appeal in Frahs and disapproved People v. Lipsett (2020) 45 Cal.App.5th 569, review granted May 13, 2020, S261323; People v. Khan (2019) 41 Cal.App.5th 460, review granted January 29, 2020, S259498; and Craine, supra, 35 Cal.App.5th 744. (Frahs II, supra, 9 Cal.5th at p. 631, fn. 2.)
In supplemental briefing, defendant asserts that, following the enactment of Senate Bill No. 136, we must strike the prior prison term enhancement. We agree and shall strike the prior prison term enhancement.
II
FACTUAL BACKGROUND
The factual background is taken from the preliminary hearing, which defendant stipulated provided the factual basis for her plea.
On August 11, 2015, while driving a minivan, defendant veered off to the right and collided with a parked truck. Defendant's 15-year-old daughter was asleep in the back seat of the minivan and did not suffer any injuries. Francisco R., who was standing near the front of the truck, was hit in the accident. Francisco was rendered unconscious and had severe trauma injury to his left leg. Francisco suffered a broken left leg, a blood clot in his right shoulder, and two blood clots in his brain, which required surgeries and physical therapy.
A responding officer concluded that defendant was under the influence of narcotics at the time of the accident. Defendant admitted that she had taken methadone and clonazepam. She also failed field sobriety tests. Furthermore, defendant tested positive for morphine, benzodiazepine, and codeine. Based on the amount of each drug and the combination of drugs, a forensic pathologist and toxicologist concluded that defendant's ability to drive was impaired, as was her ability to maintain a straight lane and depth perception.
III
DISCUSSION
A. Lack of Certificate of Probable Cause
The People argue that defendant's appeal should be dismissed because she did not obtain a certificate of probable cause. We disagree that a certificate is required here.
Section 1237.5 provides that "[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere," except where defendant has obtained from the trial court a certificate of probable cause. Despite this broad language, the Supreme Court has held there are some exceptions. The Supreme Court instructs that "'courts must look to the substance of the appeal: "the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made." [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]'" (People v. Buttram (2003) 30 Cal.4th 773, 781-782 (Buttram); accord, People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).) "The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea." (Buttram, at p. 785.)
"'When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.' [Citations.]" (Panizzon, supra, 13 Cal.4th at p. 80.) Ordinarily, "a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself" (id. at p. 79) and "thus requires a certificate of probable cause. [Citation.]" (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton).)
However, the Supreme Court has "made clear that where the terms of the plea agreement leave issues open for resolution by litigation, appellate claims arising within the scope of that litigation do not attack the validity of the plea, and thus do not require a certificate of probable cause." (Buttram, supra, 30 Cal.4th at p. 783; People v. Mendez (1999) 19 Cal.4th 1084, 1088 [certificate issues encompass matters that attack the validity of the plea, and generally do not include matters occurring after entry of the plea such as a determination of the degree of the crime or the penalty to be imposed].) Thus, postplea claims, including sentencing issues, that do not challenge the validity of the plea do not need to meet the certificate requirement. (See People v. Cuevas (2008) 44 Cal.4th 374, 379 (Cuevas); Buttram, at pp. 777, 790-791 [absent contrary provisions in the plea agreement, no certificate required to challenge court's discretionary selection of particular sentence within agreed-upon range]; Mendez, at p. 1088.) "In other words, the question is whether defendant 'seeks only to raise [an] issue[ ] reserved by the plea agreement, and as to which he did not expressly waive the right to appeal.' [Citations.]" (Cuevas, at p. 381.) For example, in Buttram, the Supreme Court held that the defendant's agreement to a maximum possible sentence did not require him to obtain a certificate of probable cause to argue on appeal that the trial court abused its discretion in deciding to impose the maximum. (Buttram, at pp. 776-777.)
Here, defendant pleaded guilty to the sheet with a maximum sentence of nine years. Her sentence was to be determined by the trial court at a later date. Defendant's plea was thus an open plea to the court, not a negotiated agreement with the People in exchange for a stipulated sentence. "An open plea is one under which the defendant is not offered any promises. [Citation.] In other words, the defendant 'plead[s] unconditionally, admitting all charges and exposing himself to the maximum possible sentence if the court later chose to impose it.'" (Cuevas, supra, 44 Cal.4th at p. 381, fn. 4, quoting Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1055-1056.) Defendant's appeal is not inconsistent with any implicit promise that she made in connection with her sentencing. Defendant neither made nor received any promises. She did not obtain any agreement on a maximum sentence, which would have implied an "understanding and belief that in its absence the trial court might lawfully have imposed a greater sentence." (Shelton, supra, 37 Cal.4th at p. 768.) Nor did she receive the benefit of any reduced maximum sentence by avoiding some of the counts with which she was charged. (See Cuevas, at pp. 383-384.)
At the sentencing hearing, the trial court noted, "The plea form indicates a maximum of 9 years. Actually, I think the correct maximum is 10 years, 10 months, but I am going to consider the 9 years as a maximum sentence given the waiver."
Defendant did not obtain any negotiated benefit from her plea that would constrain her ability to challenge her sentence. She did not enter into any plea agreement that would preclude her from challenging the legal basis for the sentence that she received. Defendant's attack on the lawfulness of her sentence therefore does not challenge the validity of her plea. Therefore, defendant does not need a certificate of probable cause to pursue this appeal, and this court is not precluded from reaching its merit.
By pleading guilty, defendant might have obtained some benefit at sentencing from her decision to accept responsibility rather than going to trial and from the mistake made in the plea form indicating the maximum term was nine years. But that benefit, if any, resulted only from her decision to plead, not from any plea agreement.
Moreover, recently in People v. Stamps (2020) 9 Cal.5th 685 (Stamps), the California Supreme Court concluded that a certificate of probable cause was not required for a defendant to seek relief on appeal based on a change in the law that benefited a defendant because the defendant was seeking retroactive application of a subsequently enacted ameliorative provision. (Id. at pp. 695-696.) The court also noted the defendant's "appellate claim does not constitute an attack on the validity of his plea because the claim does not challenge his plea as defective when made." (Ibid.)
The court explained: "These cases [Panizzon, Shelton, Cuevas, Mendez] teach that when the parties reach an agreement in the context of existing law, a claim that seeks to avoid a term of the agreement, as made, is an attack on the plea itself. They do not, however, address the nature of a challenge based, not upon existing law, but on a subsequent change in the law. Defendant's appellate claim here relies on the principle that 'the general rule in California is that plea agreements are deemed to incorporate the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy.' (Doe v. Harris (2013) 57 Cal.4th 64, 71.) 'That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them' (id. at p. 66), and '[i]t follows . . . that requiring the parties' compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement' (id. at p. 73). (See Harris v. Superior Court (2016) 1 Cal.5th 984, 990-991 [ ].)" (Stamps, supra, 9 Cal. 5th at pp. 695-696; see People v. Baldivia (2018) 28 Cal.App.5th 1071 (Baldivia); People v. Hurlic (2018) 25 Cal.App.5th 50 [concluding that Senate Bill No. 620 applies to defendants who were sentenced pursuant to negotiated pleas and a certificate of probable cause is not required to raise issue on appeal].)
Here, as explained, defendant entered into an open plea with a maximum possible sentence, not a negotiated plea agreement with a stipulated sentence. As such, under these circumstances, a certificate of probable cause is not required. Furthermore, defendant does not seek resentencing of a stipulated sentence but instead seeks retroactive application of a pretrial diversion statute. The only published case that has addressed circumstances similar to those in this case is Baldivia, supra, 28 Cal.App.5th 1071, in which the defendant sought retroactive application of both a sentencing statute and Proposition 57, which amended the law to require a fitness hearing in juvenile court for a juvenile accused of committing a crime before that juvenile may be tried as an adult. We find the reasoning of Baldivia to be most applicable to this case and persuasive.
In Baldivia, the defendant, a juvenile, entered into a plea agreement (with a stipulated sentence) in an adult criminal proceeding that had been initiated without a juvenile court fitness hearing. In accordance with the agreement, he pleaded no contest to several counts and enhancement allegations, including a firearm enhancement allegation under section 12022.53. (Baldivia, supra, 28 Cal.App.5th at pp. 1073-1074.) He filed a notice of appeal and did not obtain a certificate of probable cause. (Ibid.) While his appeal was pending, Proposition 57 was passed and the Legislature enacted Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended section 12022.53 to grant trial courts discretion to strike firearm enhancements. (Id. at pp. 1075 [Proposition 57], 1076-1077 [Senate Bill No. 620].)
On appeal the defendant argued, among other things, that Proposition 57 should be applied retroactively to his case. The People conceded that Proposition 57 applied retroactively to defendant and did not address the absence of a certificate of probable cause. (Baldivia, supra, 28 Cal.App.5th at p. 1076.) After asking for briefing, the Sixth District Court of Appeal addressed "whether the Proposition 57 and firearm enhancement contentions could be raised in defendant's appeal from the judgment in the absence of a certificate of probable cause in light of defendant's agreed-term plea agreement." (Ibid.) Relying upon the California Supreme Court's decisions in Doe v. Harris (2013) 57 Cal.4th 64 (Doe) and Harris v. Superior Court (2016) 1 Cal.5th 984 (Harris), the Baldivia court concluded that both issues could be raised. (Baldivia, at pp. 1076-1079.)
The appellate court explained: "'[T]he general rule in California is that the plea agreement will be "'deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. . . .'" [Citation.] That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them.'. . . '[T]he parties to a plea agreement—an agreement unquestionably infused with a substantial public interest and subject to the plenary control of the state—are deemed to know and understand that the state, again subject to the limitations imposed by the federal and state Constitutions, may enact laws that will affect the consequences attending the conviction entered upon the plea.'" (Baldivia, supra, 28 Cal.App.5th at pp. 1077-1078, quoting Doe, supra, 57 Cal.4th at pp. 66, 70.)
The Baldivia court then observed that in Harris, the Supreme Court applied Doe to a plea agreement that had been entered into before the enactment of Proposition 47, which permitted courts to resentence prior felony convictions as misdemeanors. The Baldivia court explained that "[t]he issue before the California Supreme Court was whether application of Proposition 47 to Harris would permit the prosecution to withdraw from the plea agreement and reinstate the original charges. [Citation.] The court viewed the question as 'whether the electorate intended the change to apply to the parties to this plea agreement.' [Citation.] Because Proposition 47 explicitly applied to convictions obtained by plea, the court found that the electorate had intended for the change to apply to plea agreements." (Baldivia, supra, 28 Cal.App.5th at p. 1078, citing Harris, supra, 1 Cal.5th at pp. 989, 991.)
The Baldivia court concluded that, "[u]nder Doe and Harris, a plea agreement is deemed to incorporate subsequent changes in the law so long as those changes were intended by the Legislature or the electorate to apply to such a plea agreement." (Baldivia, supra, 28 Cal.App.5th at p. 1078.) Although the court noted that "[i]n Doe and Harris, the changes in the law were expressly intended to apply retroactively" (Baldivia, at p. 1078), it observed that the Supreme Court found in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 that Proposition 57 implicitly incorporated an "inference of retroactivity" into the newly enacted law (Baldivia, at p. 1079). Thus, the court concluded: "If the electorate or the Legislature expressly or implicitly contemplated that a change in the law related to the consequences of criminal offenses would apply retroactively to all nonfinal cases, those changes logically must apply to preexisting plea agreements, since most criminal cases are resolved by plea agreements. It follows that defendant's appellate contentions were not an attack on the validity of his plea and did not require a certificate of probable cause." (Ibid.)
During oral argument, the People were adamant that a certificate of probable cause is required in this case because if defendant is successful on remand then the plea would be "eviscerated," and the criminal conviction would be undone. Although the open plea may be invalidated if defendant is found to be eligible for mental health diversion, we agree with the Stamps, Baldivia, and Hurlic line of cases that, absent language in the plea agreement incorporating only the law in existence at the time of execution, a certificate of probable cause is not required for a defendant to seek the benefit of a retroactive ameliorative law on appeal if his or her conviction is not yet final. We have found nothing in the record showing defendant's plea agreement contains a term incorporating only the law in existence at the time of execution and decline to infer such a provision on appeal.
Furthermore, as previously explained, the plea in this case was an open plea. "[W]here the parties agree to any sentence at or beneath an agreed-upon maximum, that 'agreement, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority' do not attack the validity of the plea and 'will be reviewable on appeal' without a certificate of probable cause." (Hurlic, supra, 25 Cal.App.5th at p. 56.) Moreover, dispensing with the certificate of probable cause requirement under the present circumstances would not run afoul with the underlying legislative purposes for requiring the certificate in the first place; i.e., to facilitate and encourage plea agreements and "'weed out frivolous or vexatious appeals.'" (Id. at pp. 57-58.)
Based on the foregoing, we conclude that defendant's contention that section 1001.36 retroactively applies to her is not an attack on the validity of her plea, and no certificate of probable cause is required.
B. Pretrial Diversion
Defendant contends that section 1001.36 applies retroactively to her case and the matter should be remanded for a mental health diversion hearing. The People assert that section 1001.36 does not apply retroactively, and that in any event, defendant did not make an adequate showing of eligibility under section 1001.36 to require a remand.
Generally, pretrial diversion suspends criminal proceedings for a prescribed time period, subject to specified conditions. (§§ 1000-1000.1 [drug offense diversion]; 1001.60-1001.62 [bad check diversion]; 1001.71 [parental diversion]; 1001.80 [military diversion]; 1001.81 [repeat theft offense diversion].) Criminal charges normally are dismissed if a defendant successfully completes a diversion program. (§§ 1001.9, 1001.33, 1001.55, 1001.74-1001.75.)
Effective June 27, 2018, the Legislature enacted section 1001.36, which authorizes pretrial diversion for qualifying defendants with mental health disorders. Section 1001.36 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 . . . ." (§ 1001.36, subd. (c).)
Section 1001.36 authorizes the trial court to grant pretrial mental health diversion if the following criteria are satisfied: (1) the trial court is satisfied, based on evidence from a qualified mental health expert, that the defendant suffers from a recognized mental disorder; (2) the trial court is satisfied the defendant's disorder played a significant role in the commission of the charged offense; (3) in the opinion of a qualified mental health expert, the defendant's mental health symptoms, which motivated criminal behavior, would respond to mental health treatment; (4) the defendant consents to diversion and waives his right to a speedy trial; (5) the defendant agrees to comply with treatment for the disorder as a condition of diversion; and (6) the trial court is satisfied the defendant "will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community." (§ 1001.36, subd. (b)(1)(A)-(F).)
The Legislature amended section 1001.36, effective January 1, 2019, to provide that a defendant "may not be placed into a diversion program" pursuant to section 1001.36 if the defendant is currently charged with murder, rape, or another specified crime. (§ 1001.36, subd. (b)(2); Stats. 2018, ch. 1005, § 1 (Sen. Bill No. 215).) Defendant's current charges and convictions are not one of these specified crimes. (§ 1001.36, subd. (b)(2).)
The Courts of Appeal were divided on the question of whether section 1001.36 applies retroactively to persons, like defendant, who were tried, convicted, and sentenced before section 1001.36 went into effect on June 27, 2018. (Cf. Frahs, supra, 27 Cal.App.5th at pp. 790-792 [§ 1001.36 applies retroactively] with Craine, supra, 35 Cal.App.5th at pp. 749, 754, 760 [§ 1001.36 applies only prospectively].)
However, recently, on June 18, 2020, the Supreme Court in Frahs affirmed the decision of the Court of Appeal, which concluded section 1001.36 applies retroactively to all persons whose judgments, like defendant's, were not final when section 1001.36 went into effect on June 27, 2018. (Frahs II, supra, 9 Cal.5th at pp. 626-631.) In affirming the decision of the Court of Appeal, the Supreme Court also disapproved Craine. (Frahs II, at p. 631, fn. 2.) The decision in Craine disagreed with the reasoning of Frahs and held that "section 1001.36 does not apply retroactively to defendants whose cases have progressed beyond trial, adjudication of guilt, and sentencing." (Craine, supra, 35 Cal.App.5th at p. 760.) Defendant's case had been adjudicated and she had been sentenced, but the judgment is not final on appeal.
Because the Supreme Court in Frahs II has thoroughly analyzed this issue and concluded section 1001.36 applies retroactively, it is unnecessary to discuss the retroactivity issue any further. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [courts exercising inferior jurisdiction must accept the law as declared by courts exercising superior jurisdiction].) In sum, as articulated by the Supreme Court in Frahs II, the Legislature implicitly intended section 1001.36 to apply retroactively to all defendants whose judgments, like defendant's, were not final when section 1001.36 went into effect on June 27, 2018. (Frahs II, supra, 9 Cal.5th at pp. 26-637.)
Thus, we conditionally reverse the judgment and remand the matter for further proceedings in accordance with the procedures outlined by the Court of Appeal in Frahs, supra, 27 Cal.App.5th 784 and affirmed by the Supreme Court. (Frahs II, supra, 9 Cal.5th at pp. 637-640.) The Frahs court adopted a conditional reversal and remand procedure which requires the court to "conduct a mental health diversion eligibility hearing under the applicable provisions of section 1001.36." (Frahs, at p. 792.) "When conducting the eligibility hearing, the court shall, to the extent possible, treat the matter as though [the defendant] had moved for pretrial diversion after the charges had been filed, but prior to their adjudication." (Ibid.) In addition, as discussed in Frahs, section 1001.36 authorizes the trial court to grant pretrial mental health diversion if the six criteria under section 1001.36 are satisfied. (Frahs, at p. 789.)
Furthermore, "[i]f [the] trial court determines that a defendant meets the six requirements, then the court must also determine whether 'the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.' (§ 1001.36, subd. (c)(1)(A).) The court may then grant diversion and refer the defendant to an approved treatment program. (§ 1001.36, subd. (c)(1)(B).) Thereafter, the provider 'shall provide regular reports to the court, the defense, and the prosecutor on the defendant's progress in treatment.' (§ 1001.36, subd. (c)(2).) 'The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.' (§ 1001.36, subd. (c)(3).) [¶] If the defendant commits additional crimes, or otherwise performs unsatisfactorily in diversion, then the court may reinstate criminal proceedings. (§ 1001.36, subd. (d).) However, if the defendant performs 'satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings.' (§ 1001.36, subd. (e).)" (Frahs, supra, 27 Cal.App.5th at pp. 789-790.)
The People contend that, even if section 1001.36 applies retroactively, defendant's judgment should be affirmed because she has not shown she would be eligible for mental health diversion under section 1001.36. We conclude, to the contrary, that remand is necessary to allow a diversion eligibility hearing under section 1001.36.
We observe that nothing in the record indicates that remand for a section 1001.36 pretrial mental health diversion eligibility hearing will necessarily be futile. (Cf. People v. McVey (2018) 24 Cal.App.5th 405, 419.)
It is unclear from the record if the trial court would have granted diversion. While it is defendant's burden to show that all of the statutory criteria of section 1001.36 are met, which she has not shown here, she is entitled to a hearing in order to prove her eligibility. Remand is appropriate in this case because the record "'affirmatively discloses that [defendant] appears to meet at least one of the threshold requirements, namely, [s]he suffers from a diagnosed mental health disorder. (See § 1001.36, subd. (b)(1)(A).)'" (Weaver, supra, 36 Cal.App.5th at pp. 1121-1122; Frahs, supra, 27 Cal.App.5th at p. 791; accord, Frahs II, supra, 9 Cal.5th at pp. 640-641.) While the trial court stated that defendant needed to go to prison, such comments were made after her conviction; the determination of her competency would have been pretrial.
The Supreme Court in Frahs II noted: "Because this case does not present such an issue, we do not address the question of whether an appellate court may also decline a defendant's remand request when the record clearly indicates the trial court would have found the defendant 'pose[s] an unreasonable risk of danger to public safety' ([§ 1001.36], subd. (b)(1)(F)) and is therefore ineligible for diversion. Nor are we here addressing the separate question of whether the 2019 amendments, which rendered defendants charged with certain crimes categorically ineligible for diversion, apply retroactively. (Id., subd. (b)(2), added by Stats. 2018, ch. 1005, § 1.)." (Frahs II, supra, 9 Cal.5th at p. 640.)
Based on our review of the record, remand for a diversion hearing under section 1001.36 is required here because we cannot conclude, on this record, that defendant is unable to demonstrate the eligibility factors listed in section 1001.36, subdivision (b)(1)(A)-(F). This court cannot make factual determinations in the first instance as to whether defendant has sufficiently demonstrated any of the eligibility factors for mental health diversion under section 1001.36. It is inappropriate for this court to speculate as to whether the trial court will find defendant eligible for mental health diversion. Remand is therefore necessary because we cannot say as, a matter of law, based on the record, that defendant would not be able to establish eligibility for mental health diversion under section 1001.36.
This court filed an order dated March 13, 2019, allowing the filing of redacted and unredacted briefs due to the sensitive information contained therein. Under the law, the trial court makes the necessary findings of nexus after reviewing and considering the all the relevant information. (§ 1001.36, subd. (b)(2).) We have reviewed all necessary information and, based on the March 13, 2019 order, those facts are not restated herein. --------
C. Senate Bill No. 136 and Prior Prison Term
In supplemental briefing, defendant asserts that, following the enactment of Senate Bill No. 136, the prior prison term enhancement must be struck because her prior prison term for a prior burglary conviction no longer qualifies as a predicate offense for the imposition of enhancements pursuant to section 667.5, subdivision (b). Defendant also asserts that the ameliorative benefits of Senate Bill No. 136 apply retroactively. The People did not file a supplemental respondent brief.
While this appeal was pending, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats 2019, ch. 590, § 1), effective January 1, 2020. At the time of defendant's sentencing, section 667.5, subdivision (b), required trial courts to impose a one-year sentence enhancement for each true finding on an allegation that the defendant had served a separate prior prison term unless the defendant had remained free of both felony convictions and prison or jail custody during a period of five years since the subject prior prison term. (§ 667.5, subd. (b).) Following the enactment of Senate Bill No. 136, only prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b), are subject to the one-year enhancement pursuant to Penal Code section 667.5, subdivision (b). (Stats 2019, ch. 590, § 1.)
"By eliminating section 667.5, subdivision (b) enhancements for all prior prison terms except those for sexually violent offenses, the Legislature clearly expressed its intent in Senate Bill No. 136 . . . to reduce or mitigate the punishment for prior prison terms for offenses other than sexually violent offenses. [Citation.]" (People v. Jennings (2019) 42 Cal.App.5th 664, 682.) Therefore, under the rule in In re Estrada (1965) 63 Cal.2d 740, "Senate Bill No. 136's . . . amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date." (Jennings, at p. 682.)
Defendant's case was still pending as of January 1, 2020. Therefore, she is entitled to the ameliorative benefit of Senate Bill No. 136's amendment to section 667.5, subdivision (b). Defendant's prior prison term was not for "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Stats 2019, ch. 590, § 1.) Because this prior prison term will no longer be a qualifying prior prison term for the imposition of enhancements pursuant to section 667.5, subdivision (b), as amended by Senate Bill No. 136, we shall strike the one-year prior prison term enhancement imposed.
IV
DISPOSITION
We modify the judgment to strike the one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b). In addition, the judgment is conditionally reversed. The matter is remanded to the trial court with directions to conduct a mental health diversion eligibility hearing pursuant to section 1001.36. If the court finds the statutory criteria are met, it may grant diversion, and if defendant successfully completes diversion, the court shall dismiss the charges.
If, however, the court determines that defendant is not eligible for mental health diversion pursuant to section 1001.36, or if defendant commits a new crime or does not successfully complete the diversion program, the judgment of conviction shall be reinstated, and defendant must be resentenced. Lastly, if defendant is resentenced, the court is directed to prepare a supplemental sentencing minute order together with an amended abstract of judgment deleting the section 667.5, subdivision (b) prior prison term enhancement and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. RAPHAEL
J.