Opinion
E071761
10-07-2020
THE PEOPLE, Plaintiff and Respondent, v. RIGOBERTO ALBOR, Defendant and Appellant.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Stephanie H. Chow and Genevieve Herbert, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1203368) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed as modified. Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Stephanie H. Chow and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
In July 2012, defendant and appellant Rigoberto Albor met with Rudy D. on a street in Moreno Valley to sell him methamphetamine. Rudy and defendant argued over the amount of drugs, and during this argument, defendant pulled out a gun and shot Rudy in the chest. Defendant was convicted in a first trial of dissuading a witness from testifying and being a felon addicted to narcotics in possession of a firearm. In a second trial, the jury found him guilty of the attempted, premeditated and deliberate murder of Rudy along with two enhancements involving the use of a firearm causing great bodily injury, one of which was pursuant to Penal Code section 12022.53, subdivision (d).
We refer to some witnesses by their first names for clarity due to shared last names and/or to preserve their anonymity (Cal. Rules of Court, rule 8.90(b)). No disrespect is intended
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed his first appeal and this court filed an unpublished opinion on November 27, 2017. The California Supreme Court granted review, transferred the matter back to this court with directions to vacate our decision and reconsider the cause in light of a recent amendment to section 12022.53, which permits the trial court to strike a firearm enhancement that was previously mandatorily imposed.
We issued a new unpublished opinion on April 20, 2018, People v. Rigoberto Albor, E064672 (Opinion), reversing defendant's conviction of dissuading a witness, and ordering that the sentence on one of the enhancements should have been stayed. We vacated defendant's sentence and remanded for the trial court to resentence defendant in light of the amendment to section 12022.53. On remand, the trial court refused to strike the section 12022.53, subdivision (d), enhancement and resentenced defendant.
In this appeal, defendant does not contend the trial court abused its discretion when it refused to strike his section 12022.53, subdivision (d), enhancement. Instead he argues for the first time he is entitled to remand for the trial court to consider mental health diversion pursuant to section 1001.36, which was added by Assembly Bill No. 1810 effective June 27, 2018. In addition, defendant has filed a supplemental brief contending that his five one-year prison priors for which he was sentenced pursuant to section 667.5, subdivision (b), must be stricken based on recently enacted Senate Bill No. 136.
FACTUAL AND PROCEDURAL HISTORY
We only provide a brief summary of the factual and procedural history as the facts giving rise to the charges are not pertinent to the claims raised on appeal. We will provide additional facts, post, as necessary. The factual and procedural background are drawn from the Opinion and resentencing proceedings.
A. FACTUAL HISTORY
On July 1, 2012, Christina L. and defendant had been at a shop owned by their friend A.R. and stayed up all night taking methamphetamine. The next day, defendant, Christina and A.R. drove to Moreno Valley and parked the truck they were in on War Admiral Street. Rudy and another person drove up and parked near them. Rudy and defendant met inside the truck and exchanged drugs for money. They exited the truck and a heated conversation ensued between them; Rudy was upset about the amount of drugs defendant had given him. At that point, defendant pulled out a gun and shot Rudy in the chest, but he survived. Defendant and the others drove away in the truck and defendant said, "I think I shot that fool in the neck." Defendant made a phone call to his brother while he was in jail awaiting trial. He told his brother to contact Rudy about how he should testify in court.
B. PROCEDURAL HISTORY
Defendant was found guilty in two separate trials of attempted premeditated, deliberate and willful murder. (§§ 664, 187, subd. (a); count 1). In addition, for count 1, he was found to have personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). In count 2, defendant was found guilty of being a felon addicted to drugs in possession of a firearm (§ 29800, subd. (a)(1)); and in count 3, he was found guilty of preventing or dissuading a witness from attending and giving testimony at a trial (§ 136.1, subd. (a)(1)). Defendant admitted he had suffered five prior convictions for which he served prison terms (§ 667.5, subd. (b)).
Defendant was originally sentenced to two years on count 3, three years on count 2, and five one-year sentences for the prior convictions. On count 1, he was sentenced to 7 years to life, 25 years to life for the section 12022.53, subdivision (d), enhancement and 3 years for the 12022.7 enhancement. After our first opinion, the California Supreme Court issued an order filed on February 14, 2018, S246334, returning the matter to this court with directions to vacate our decision and reconsider it in light of the changes to section 12022.53. In the Opinion, we vacated defendant's sentence. We reversed defendant's conviction on count 3, ordered that the sentence be stayed on the 12022.7 enhancement and remanded the matter for the trial court to exercise its discretion whether to strike the section 12022.53, subdivision (d), firearm enhancement.
Defendant was resentenced on November 20, 2018. Defendant's counsel argued that the trial court should strike the section 12022.53, subdivision (d), firearm enhancement because the evidence of premeditation was not strong, and defendant was using methamphetamine before the crime. The People responded that defendant had an extensive criminal record, including 14 felonies, and he served five prior prison terms. There were no factors in mitigation. Defendant's counsel responded that the majority of defendant's prior convictions were drug and theft felonies. Defendant's counsel argued that defendant was a methamphetamine addict and heavy drug user for a long period of time.
The trial court noted that defendant had violated his parole or probation 13 times, showing he did not take advantage of the prior chances he was given. The trial court also commented that there was "no question the drug use was involved over a period of time." The trial court acknowledged that defendant's prior convictions did not involve violence. The trial court found no factors in mitigation, numerous aggravating factors, and that defendant had a criminal history dating back to 1995. The trial court refused to strike the section 12022.53, subdivision (d), enhancement.
Defendant was resentenced to the determinate term of three years on count 2, plus five years for the section 667.5, subdivision (b), prior convictions. On count 1, he received an indeterminate sentence of 7 years to life, plus 25 years to life on the section 12022.53, subdivision (d), enhancement. Defendant received a total sentence of 32 years to life plus 8 years.
DISCUSSION
A. DIVERSION PURSUANT TO SECTION 1001.36
Defendant contends that section 1001.36, which became effective on June 27, 2018, should be applied retroactively to his case and remand to the trial court is necessary in order for the trial court to determine if he is entitled to diversion while receiving mental health treatment. He insists that he suffers from a substance abuse disorder qualifying him for diversion. The People contend section 1001.36 should not be applied retroactively to this case; defendant forfeited the claim by failing to raise it during resentencing; and, even if section 1001.36 could be applied to defendant, he does not qualify for diversion.
On June 27, 2018, several months prior to defendant's resentencing, Assembly Bill No. 1810 was signed into law which added section 1001.36 to the Penal Code allowing for a trial court to grant diversion to those suffering from mental illnesses. (Stats. 2018, ch. 34, §§ 24, 37.)
Section 1001.36 has twice been amended since 2018, one amendment effective January 1, 2019, and one effective January 1, 2020. (Stats. 2018, ch. 1005 (S.B. 215), § 1; Stats. 2019, ch. 497 (A.B. 991), § 203.) Since defendant was resentenced on November 20, 2018, we will refer to the initial section 1001.36, which was effective June 27, 2018, to December 31, 2018. Moreover, the amendments to section 1001.36 eliminating some crimes from diversion, including murder, do not appear to apply to attempted murder. --------
"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 . . . .' [Citation.] 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.' " (People v. Frahs (2020) 9 Cal.5th 618, 626 (Frahs).)
"As originally enacted, section 1001.36 provided that a trial court may grant pretrial diversion if it finds all of the following: (1) the defendant suffers from a qualifying mental disorder; (2) the disorder played a significant role in the commission of the charged offense; (3) the defendant's symptoms will respond to mental health treatment; (4) the defendant consents to diversion and waives his or her speedy trial right; (5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. [Citation.] Section 1001.36 was subsequently amended by Senate Bill No. 215 (2017-2018 Reg. Sess.) (Senate Bill 215) to specify that defendants charged with certain crimes, such as murder and rape, are ineligible for diversion." (Frahs, supra, 9 Cal.5th at pp. 626-627.) If the trial court grants pretrial diversion, the defendant may be referred to inpatient or outpatient mental health treatment for no more than two years and ultimately dismissal of the charges if the defendant has performed "satisfactorily" on diversion. (§ 1001.36, subds. (c)(1)(B), (c)(3) & (e).)
The diagnosed mental disorders listed in section 1001.36 are schizophrenia, bipolar disorder and posttraumatic stress disorder, but is not limited to these disorders as long as the disorder is listed in the latest Diagnostic and Statistical Manual of Mental Disorders (DSM). (§ 1001.36, subd. (b)(1)(A).) DSM-5 includes "substance-related and addictive disorders" including "substance use disorders" involving the use of methamphetamine. (DSM-5 at pp. 481-485.)
The California Supreme Court has concluded that section 1001.36 applies retroactively to persons who were convicted and sentenced prior to the time that section 1001.36 went into effect if the judgment is not final on appeal. (Frahs, supra, 9 Cal.5th at pp. 630-634.)
1. FORFEITURE
Defendant was resentenced almost five months after the effective date of section 1001.36. Despite defendant's counsel arguing to the trial court that it should strike the section 12022.53, subdivision (d), firearm enhancement for reasons including that he was high on methamphetamine at the time he shot Rudy, counsel made no argument that defendant should be considered for diversion pursuant to section 1001.36. The People contend that defendant has forfeited his claim on appeal.
As a general rule, "a party may forfeit [the] right to present a claim of error to the appellate court if he did not do enough to 'prevent []' or 'correct[]' the claimed error in the trial court." (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) "[C]ounsel is charged with understanding, advocating and clarifying permissible sentencing choices at the hearing." (People v. Scott (1994) 9 Cal.4th 331, 353.) The onus is placed on the defendant to raise the issue of diversion. Section 1001.36, subdivision (b)(1)(A) provides, "Evidence of the defendant's mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert."
Here, defendant was sentenced on November 20, 2018, almost five months after the effective date of section 1001.36. It is disingenuous for defendant to argue that defendant's counsel was not, or should not have been aware, of the passage of this important change in the law. It was incumbent upon defendant's counsel, if he believed that defendant suffered from a mental disorder, to present such evidence to the trial court.
Defendant asks this court to ignore the forfeiture rule because of the recent change in the law. The California Supreme Court has found, " ' "[W]e have excused a failure to object where to require defense counsel to raise an objection 'would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule of evidence would be changed on appeal.' " ' " (People v. Edwards (2013) 57 Cal.4th 658, 705.) "In determining whether the significance of a change in the law excuses counsel's failure to object at trial, we consider the 'state of the law as it would have appeared to competent and knowledgeable counsel at the time of trial.' " (People v. Black (2007) 41 Cal.4th 799, 811, overruled on other grounds by Cunningham v. California (2007) 546 U.S. 270.) Here, the law had been enacted five months prior to defendant's resentencing and the language of section 1001.36 was clear.
We conclude defendant's failure to raise the issue of diversion at the resentencing hearing forfeits the issue on appeal. We will address defendant's claim that, if he is found to have forfeited the issue, he received ineffective assistance of counsel.
2. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant claims he received ineffective assistance of counsel because there is no possible tactical reason for defense counsel failing to request an order for diversion in this case. Remand for the trial court to conduct a diversion hearing is required. The People contend that defendant's counsel conceivably had a tactical reason for failing to raise diversion, and that the issue is more appropriately resolved in a habeas proceeding.
To prevail on an ineffective assistance of counsel claim, defendant must establish trial counsel's representation fell below professional standards of reasonableness and must affirmatively establish prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) "Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
"In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926; see also People v. Earp (1999) 20 Cal.4th 826, 896.) " 'It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009; see also People v. Gray (2005) 37 Cal.4th 168, 207; People v. Hinds (2003) 108 Cal.App.4th 897, 901.)
The record from the resentencing sheds no light on why defense counsel did not pursue diversion on defendant's behalf. Defendant contends that based on counsel's failure to raise the issue below, it is "obvious" that defendant's counsel was unaware of the new law. Further, there could be no reasonable explanation for failing to request diversion as it was clear that he suffered from a qualifying mental illness. However, the silent record does not make it "obvious" that his counsel was unaware of the law or there was simply no reason for failing to object.
It is equally "obvious" that defense counsel did not seek diversion because he was aware of information that defendant did not meet one or more of the requirements for pretrial diversion, or that he was unwilling to consent to the treatment required by section 1001.36
Moreover, although there was evidence of defendant's substance abuse, the record before this court does not contain conclusive evidence of a mental health disorder. Before both trials, defendant's competency to stand trial was never questioned. There was no evidence offered at either trial that defendant suffered from a mental illness. There are no psychological evaluations in the record. In the probation report, it was noted that defendant was a "heavy user" of amphetamine but had never been treated for substance abuse. There was no statement about a mental disorder based on substance abuse in the probation report.
It is equally conceivable that defense counsel had knowledge of section 1001.36, but also was aware that defendant did not suffer from a mental disorder and that diversion was not appropriately raised
Based on the appellate record, the reason defense counsel did not raise that defendant was entitled to diversion pursuant to section 1001.36 is not clear on the record, and we conclude there is a possible reasonable explanation for trial counsel's failure to raise the issue in the trial court. As noted, reversal on appeal for ineffective assistance is proper "only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai, supra, 57 Cal.4th at p. 1009.) These circumstances do not appear in this appeal. As such, we cannot provide relief on appeal.
Although the record is silent as to the reason defendant's counsel failed to seek pretrial diversion, and defendant is not entitled to relief on appeal, it does not foreclose the possibility of defendant filing a habeas petition. "An appeal is 'limited to the four corners of the [underlying] record on appeal." (People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1.) However, a habeas corpus petition can extend to matters outside the record. (Ibid.) This issue is more properly addressed in a habeas corpus proceeding because the record is silent as to the reason defendant's counsel failed to raise the issue of diversion. We reject the claim on direct appeal.
B. STRIKE THE SECTION 667.5, SUBDIVISION (B), PRIORS
Defendant further contends that his five one-year prior prison terms imposed against him pursuant to section 667.5, subdivision (b), must be stricken pursuant to the amendment to section 667.5, subdivision (b) by Senate Bill No. 136 effective January 1, 2020. The People concede the issue.
On October 8, 2019, Senate Bill No. 136 was signed into law and became effective on January 1, 2020. (Stats. 2019, ch. 590, § 1.) Senate Bill No. 136 modified section 667.5, subdivision (b), by eliminating one-year sentences for prior prison terms served unless the prior conviction involves a sexually violent offense. The statute applies to cases not yet final as of its effective date. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-343.) The five one-year prior prison terms imposed pursuant to section 667.5, subdivision (b) are stricken.
DISPOSITION
Defendant's judgment is modified to strike the five one-year enhancements imposed pursuant to section 667.5, subdivision (b). The clerk of the superior court is ordered to prepare a new abstract of judgment reflecting the striking of the section 667.5, subdivision (b), priors and forward it to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. I concur: RAMIREZ
P. J.
Slough, J., Concurring.
For me, this case boils down to the question whether there is a conceivable satisfactory explanation for defense counsel's failure to request a mental health diversion for his client under Penal Code section 1001.36 (Section 1001.36). I agree with the majority that there is a conceivable explanation. I write separately because I find some of their proposed explanations so unsatisfactory that I believe Albor can prove he received ineffective assistance of counsel simply by establishing they were his counsel's actual reasons for not seeking a diversion.
Section 1001.36 allows a defendant who "suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders" (DSM-V) to seek to postpone prosecution to allow for mental health treatment in lieu of punishment in the penal system. (People v. Frahs (2020) 9 Cal.5th 618, 626.) The trial court may grant diversion if, among other things, the defendant has a qualifying mental disorder which played a significant role in the commission of the charged offense. (Id. at pp. 626-627.) Albor at least arguably qualified because the record of conviction is replete with evidence of severe, long-term substance abuse and substance abuse disorder is a recognized category of mental disorders in DSM-V. Albor appears to exhibit several of the eleven DSM-V criteria that may indicate a substance abuse disorder. Moreover, he was convicted of offenses arising from a shooting that occurred when Albor was purchasing methamphetamine after a night of abusing the drug. The possibility that Albor would qualify for a diversion is obvious on those facts, which are undisputed.
Section 1001.36 is a new law and became effective five months before Albor's most recent sentencing hearing. His defense counsel didn't request a suitability hearing to determine whether he qualified for diversion. We don't know why, because no one raised the issue at all; the record is silent. It is of course conceivable that counsel was unaware of the new law or, without investigating, didn't realize a substance abuse disorder could be a mental disorder in the DSM-V. Such failures likely would make for a meritorious ineffective assistance of counsel claim. Since this is a direct appeal and the record is silent, we can't assume those things are true, but must instead ask whether there's another conceivable satisfactory explanation for the failure. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
I conclude, on this silent record, there are conceivable satisfactory explanations for counsel's failure to raise the issue. As far as we know, counsel did appropriately evaluate whether Albor qualified for diversion. Counsel may have obtained a psychological evaluation from a qualified mental health expert who refused to diagnose Albor with a substance abuse disorder. I believe this is the same point the majority make when they say—confusingly in my view—that "[i]t is equally 'obvious' that defense counsel did not seek diversion because he was aware of information that defendant did not meet one or more of the requirements for pretrial diversion." (Maj. opn., ante, at p. 11.) I believe they mean to say it's just as conceivable that counsel considered the issue carefully and decided pursuing a diversion was futile as it is conceivable that counsel had no idea the law offered Albor a remedy. To that extent, I agree with the majority opinion.
I believe the remainder of the majority's analysis is misguided. They point to the fact that no one had suggested defendant was incompetent to stand trial as potential support for counsel's decision. (Maj. opn., ante, at p. 12.) But that determination turns on whether Albor lacked the capacity to understand the trial proceedings against him or provide rational assistance to his attorney at trial. (Pen. Code, § 1368.) That's completely irrelevant to whether Albor's drug dependency was so thoroughgoing that it played a significant role in causing him to commit the offenses of conviction. The majority also suggest defense counsel may have been "aware that defendant did not suffer from a mental disorder and that diversion was not appropriately raised." (Maj. opn., ante, at p. 12.) Respectfully, that's not the sort of fact about which an attorney may simply be aware. There were enough red flags in this case that a competent attorney aware of Albor's drug use history and the newly passed Section 1001.36 would have sought help from a qualified mental health expert to determine whether he was, in fact, the sort of criminal defendant these diversions were designed to help.
At bottom, we don't yet know why counsel didn't try to obtain a diversion for Albor. There are conceivable satisfactory explanations for choosing not to seek a diversion. But if Albor can prove his attorney was ignorant of the law or that any of the explanations put forward by the majority were in fact defense counsel's reason for not seeking a diversion, then I believe he may have strong evidence to establish ineffective assistance of counsel when he files his nearly inevitable petition for writ of habeas corpus. We shall see.
SLOUGH
J.