Opinion
E070740
02-14-2020
THE PEOPLE, Plaintiff and Respondent, v. BRIAN JEFFREY BROWN, Defendant and Appellant.
Susan L. Ferguson, 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, and Steve Oetting, Eric A. Swenson and Anthony Da Silva, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB17002824) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed as modified. Susan L. Ferguson, 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, and Steve Oetting, Eric A. Swenson and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Brian Jeffrey Brown, was convicted by a jury of one count of residential burglary. (Pen. Code, § 459.) In a bifurcated proceeding, the trial court found true special allegations that defendant had served three prior prison terms subject to one-year sentence enhancements pursuant to Penal Code section 667.5, subdivision (b). Plaintiff was sentenced to the upper term of six years for the underlying burglary conviction and an additional one year for each of his three prior prison terms, for a total of nine years in state prison. The trial court imposed a $300 restitution fund fine (Pen. Code, § 1202.4, subd. (b)); actual restitution in the amount of $80 (Pen. Code, § 1202.4, subd. (f)); a $300 parole revocation restitution fine, which was suspended pending the successful completion of parole (Pen. Code, § 1202.45); a $40 court operations assessment fee (Pen. Code, § 1465.8); and a $30 criminal conviction assessment fee (Gov. Code, § 70373).
Unless otherwise noted, all undesignated statutory references are to the Penal Code.
Defendant appeals, arguing that: (1) the matter should be remanded to allow the court to exercise its discretion to order pretrial mental health diversion pursuant to the recently enacted section 1001.36; (2) the trial court's finding that defendant suffered three prior prison terms subject to sentencing enhancements pursuant to section 667.5, subdivision (b), was not supported by sufficient evidence; and (3) his due process rights were violated when the trial court imposed monetary fines and assessments without conducting an ability to pay hearing. We find the record does not provide grounds for a conditional remand pursuant to section 1001.36, the sentencing enhancement convictions under section 667.5, subdivision (b), should be stricken pursuant to recent amendments to that statute, and defendant has not shown prejudice arising out of any failure to conduct an ability to pay hearing. Accordingly, we modify the judgment to strike defendant's three one-year sentencing enhancements and, as modified, affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
A. Facts and Charges
On July 21, 2017, R.W. returned home to find the gate of his chain link fence and front door to his home open. He entered his home and discovered defendant inside. When R.W. verbally confronted defendant, defendant exited the home and walked away without speaking. R.W. called the police, reported that an intruder had been inside his home, provided a description of defendant, and reported that a box cutter, ceramic turtle figurine, and cash were missing. Shortly thereafter, defendant was identified by a patrol officer nearby. The officer observed defendant drop a box cutter from his hand and, after detaining defendant, discovered a ceramic turtle figurine and cash in defendant's possession. Defendant was arrested and subsequently identified by R.W.
On October 17, 2017, the People filed a first amended information which charged defendant with one count of residential burglary. (§ 459.) The amended information further alleged that defendant had suffered four prior prison convictions pursuant to section 667.5, subdivision (b). B. Pretrial Evaluation
Prior to trial, the trial court ordered that defendant be evaluated by a clinical psychologist to determine defendant's competence to stand trial and provide a diagnosis of any condition defendant may have. The clinical psychologist was specifically asked to evaluate whether there was evidence that defendant suffers from a mental disorder. The psychologist was further asked whether there were any signs that defendant should be further evaluated by a psychiatrist. In a confidential report provided to the trial court, the People, and defendant's counsel, the clinical psychologist concluded that defendant suffered from a personality disorder, but not a psychological disorder. After a hearing on the matter, the trial court declared no doubt that defendant was competent to stand trial. C. Trial and Verdict
Subsequent to his arrest, defendant agreed to participate in a recorded interview with police. His recorded interview was played for the jury. In the recording, defendant described entering R.W.'s home after he knocked, called out his name, and heard no answer. Defendant indicated that he became curious and began looking at pictures and papers in R.W.'s home. He admitted picking up the ceramic turtle figurine in R.W.'s home, and stated that it was because "that's, that's the mark. The turtle is the mark. [¶] . . . [¶] I needed to pick up the turtle." When asked how he entered R.W.'s home, defendant stated that he knocked, turned the door handle, and discovered it unlocked. When asked why he specifically chose to enter R.W.'s home, defendant stated he was drawn by the red and white sign on R.W.'s front door that said "knock before you enter" and that the sign "pull[ed]," "entrance[d]," or "lure[d]" him. Defendant further stated that he took the ceramic turtle because it reminded him of other things he had seen in the past and believed were "good stuff."
Defendant did not specify what name he called out and did not explain how he would know the names of any individuals living within the home.
Over objection, the trial court permitted defense counsel to ask the interviewing officer whether defendant's behavior or responses seemed odd. In response, the interviewing officer testified that some of the statements seemed odd, but that overall defendant's behavior was cooperative. No other evidence or testimony regarding defendant's mental state was presented at trial.
In closing argument, defense counsel raised the possibility of an unspecified mental health issue to argue that defendant lacked the requisite intent for the offense charged. The trial court sustained an objection to this argument noting that there had been no evidence presented of any mental health issues. Defendant was convicted by a jury on count 1. D. Trial on Special Allegations and Sentencing
The special allegations regarding defendant's prior prison terms were tried without a jury in a bifurcated proceeding. After granting an oral request to amend the information, the allegations ultimately tried involved prior prison terms served for an August 24, 2000, conviction for a violation of Penal Code section 290, bearing case No. FVA013828; a January 24, 2008, conviction for a violation of Vehicle Code section 10851, subdivision (a), bearing case No. FVA701083; and a February 7, 2012, conviction for a violation of Penal Code section 290, subdivision (b), bearing case No. FSB1100219.
Both parties identify the conviction in case No. FVA013828 as an "October 6, 2000," conviction and the conviction in case No. FVA70183 as a "January 31, 2008," conviction. While these reflect the dates alleged in the originally filed first amended information, the People subsequently moved to amend the allegations by interlineation to reflect the correct dates of conviction. We refer to the convictions by the dates as amended.
The People introduced certified copies of the conviction and abstract of judgment for defendant's August 24, 2000, conviction. The People also submitted a certified California Law Enforcement Telecommunication System (CLETS) report, more commonly known as a "rap sheet." The CLETS report indicated that following his 2000 conviction, defendant was taken into custody on parole violations on at least eight different occasions, with the last parole violation dated April 20, 2006. Following the April 2006 parole violation, the CLETS report indicated defendant was convicted of a new, unrelated felony offense. Each of the parole violation entries noted "Custody: CDC" and "VIOLATION OF PAROLE - TO FINISH TERM." The People further introduced certified copies of defendant's conviction and abstract of judgment for the January 24, 2008, and February 7, 2012, convictions. Finally, the CLETS report noted defendant was committed to Patton State Hospital on two occasions in 2013, incarcerated in county jail pursuant to section 1170, subdivision (h), in January 2014, and convicted of another felony in October 2015.
As noted in the reply brief, the October 2015 conviction was subsequently reversed on appeal.
The trial court found true the alleged prior prison terms and the allegation that defendant failed to remain free from prison for a period of at least five years following these terms of imprisonment. Defendant was sentenced to the upper term of six years for the residential burglary conviction and an additional three years for the prison priors. Additionally, the trial court imposed a $300 restitution fund fine (Pen. Code, § 1202.4, subd. (b)); actual restitution in the amount of $80 (Pen. Code, § 1202.4, subd. (f)); a $300 parole revocation restitution fine, which was suspended pending successful completion of parole (Pen. Code, § 1202.45); a $40 court operations assessment fee (Pen. Code, § 1465.8); and a $30 criminal conviction assessment fee (Gov. Code, § 70373). The trial court did not conduct a hearing to determine defendant's ability to pay.
III. DISCUSSION
A. Conditional Remand Is Not Required Under Section 1001 .36
Defendant argues the matter should be remanded for the trial court to evaluate his eligibility for pretrial mental health diversion pursuant to the recently enacted section 1001.36, which went into effect after defendant's conviction and sentencing but before his conviction was final. In response, the People argue that section 1001.36 is not retroactively applicable or, alternatively, that remand is not necessary because it would be futile. We conclude that section 1001.36 is retroactively applicable, but that remand is not necessary because the record does not affirmatively disclose any potential basis for application of the statute.
1. Section 1001.36 Is Retroactively Applicable
"Section 1001.36 creates a 'pretrial diversion' program for certain defendants who suffer from a diagnosed and qualifying mental disorder." (People v. Weaver (2019) 36 Cal.App.5th 1103, 1114, review granted Oct. 9, 2019, S257049.) It affords the trial court discretion to postpone prosecution, either temporarily or permanently, to allow the defendant to undergo mental health treatment if the defendant meets six enumerated requirements. (Id. at p. 1115.)
The Courts of Appeal are currently divided over the question of whether section 1001.36 applies retroactively to cases not yet final on appeal. (Compare People v. Frahs (2018) 27 Cal.App.5th 784, review granted, Dec. 27, 2018, S252220 [§ 1001.36 applies retroactively], People v. Weaver, supra, 36 Cal.App.5th at p. 1121 [same], People v. Burns (2019) 38 Cal.App.5th 776 [same], & People v. Hughes (2019) 39 Cal.App.5th 886, review granted, Sept. 11, 2019, S258541 [same], with People v. Craine (2019) 35 Cal.App.5th 744, review granted Sept. 11, 2019, S256671 [§ 1001.36 applies only prospectively] & People v. Torres (2019) 39 Cal.App.5th 849 [same].)
Because these authorities have already thoroughly addressed the reasons for and against the retroactive versus prospective application of section 1001.36 and our Supreme Court will soon decide the question, we believe it is unnecessary to discuss the retroactivity issue in detail. We agree with the reasoning set forth in Frahs and conclude that the Legislature implicitly intended section 1001.36 to apply retroactively to all defendants whose judgments were not final when the statute went into effect. (People v. Frahs, supra, 27 Cal.App.5th at pp. 790-791.)
2. Remand Is Not Required in the Absence of Evidence Suggesting Defendant Is Within the Class of Persons Benefitted by Section 1001.36
Though we agree with Frahs that section 1001.36 provides an ameliorative benefit to a criminal defendant and should apply retroactively, we further conclude that remand is not required here because the record does not affirmatively show any indication that defendant might be within the class of persons benefitted by the statute.
As several Courts of Appeal have recognized, the ameliorative benefit afforded to a criminal defendant under section 1001.36 is not premised on the type of crime committed, but rather a specific class of persons identified in the statute. (See People v. Weaver, supra, 36 Cal.App.5th at p. 1117.) The potential ameliorative benefit under section 1001.36 only applies where: "(1) defendant has been diagnosed with a qualifying mental disorder; (2) the disorder was a significant factor in the commission of the charged offense; (3) defendant's symptoms will respond to treatment; (4) defendant consents to diversion and waives his or her speedy trial rights; (5) defendant agrees to comply with treatment; and (6) defendant will not pose an unreasonable risk of danger to public safety . . . ." (People v. Burns, supra, 38 Cal.App.5th at p. 785.)
Since the statute at issue applies only to a specific class of criminal defendants, we do not believe it is appropriate to grant a conditional remand simply because a defendant argues on appeal the statute might hypothetically apply. Instead, we believe a better reasoned approach is to grant a conditional remand only in those cases where the record provides some affirmative indication that the defendant falls within the class of persons subject to the statute. We note that even in Frahs, the Court of Appeal remanded the matter because "the record affirmatively disclose[d] that [defendant] appear[ed] to meet at least one of the threshold requirements (a diagnosed mental disorder)." (People v. Frahs, supra, 27 Cal.App.5th at p. 791; see People v. Weaver, supra, 36 Cal.App.5th at p. 1121 ["The Frahs court suggested that remand is appropriate when 'the record affirmatively discloses that [the defendant] appears to meet at least one of the threshold requirements' of section 1001.36, subdivision (b)(1)."].) A contrary rule would entitle every criminal defendant to a conditional remand simply by raising the hypothetical prospect of a mental disorder in the face of a silent record.
Nothing in the record before us suggests that defendant falls within the class of persons entitled to the benefit of section 1001.36. The threshold criteria for pretrial diversion under section 1001.36 requires that the defendant "suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders . . . excluding antisocial personality disorder, borderline personality disorder . . . ." (§ 1001.36, subd. (b)(1)(A).) Moreover, the disorder must have been recently diagnosed by a qualified mental health expert. (Ibid.)
Here, defendant presented no evidence at trial that would suggest he suffered from a mental disorder which would qualify for diversion. While defendant's competence to stand trial was apparently questioned at some point, the trial court ordered a psychological assessment, which resulted in no findings that defendant suffered from a psychological or psychiatric disorder. In fact, the confidential report expressed only the opinion that defendant displayed signs of a personality disorder, which are generally excluded from consideration as mental health disorders which would qualify for diversion. (§ 1001.36, subd. (b)(1)(A).)
Defendant's reliance on a previous commitment to Patton State Hospital is likewise unavailing. He was taken into mental health custody for a period of time in 2013, but the record equally demonstrates that he was never recommitted to mental health custody despite multiple subsequent arrests, convictions, and incarcerations. Such a record does not suggest a recent diagnosis of any mental health disorder, let alone allow an inference that an unspecified mental health disorder was a factor in the commission of an offense committed years later. Absent some affirmative disclosure in the record that defendant was recently diagnosed with a qualifying mental health disorder that may have contributed to the offense charged, there is no basis to infer that section 1001.36 applies and we decline to remand the matter on this ground. B. The Prison Prior Enhancement Should Be Stricken
In supplemental briefing, defendant argues that his three one-year sentencing enhancements should be stricken in light of recent amendments to section 667.5, subdivision (b), embodied in Senate Bill No. 136. The amendment became effective January 1, 2020, and precludes the imposition of one-year sentence enhancements for a prior prison term unless the prior offense was sexually violent in nature. (§ 667.5, subd. (b).) The People concede that the prior convictions underlying defendant's sentencing enhancements here would not qualify for an enhancement under the amended statute. Because the amendment is ameliorative in nature and defendant's conviction was not final at the time the amendment took effect, we agree that defendant's three one-year sentence enhancements pursuant to section 667.5, subdivision (b), should be stricken. (See People v. Garcia (2018) 28 CalApp5th 961, 973.) Further, because we strike all of defendant's one-year sentence enhancements on this ground, we need not address defendant's initial arguments that his sentence enhancements were not supported by sufficient evidence. C. Defendant Has Not Shown Prejudice Warranting Remand for an Ability to Pay Hearing
Finally, defendant argues that the imposition of monetary fines absent a determination of his ability to pay violated his due process rights pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, 1160. Here, the trial court imposed a $300 restitution fund fine pursuant to Penal Code section 1202.4, subdivision (b); actual restitution in the amount of $80 pursuant to Penal Code section 1202.4, subdivision (f); a $300 parole revocation restitution fine pursuant to Penal Code section 1202.45; a $40 court operations assessment fee pursuant to Penal Code section 1465.8; and a $30 criminal conviction assessment fee pursuant to Government Code section 70373. The court stayed the parole revocation restitution fine, resulting in a total monetary liability of only $370. Given that defendant was sentenced to a term of imprisonment where he will be entitled to earn prison wages, we find no prejudice warranting remand even if defendant was entitled to an ability to pay hearing pursuant to Dueñas.
Defendant's opening brief includes the award of victim restitution in the amount of $80 pursuant to section 1202.4, subdivision (f). However, victim restitution under this subdivision is not a fine subject to the reasoning in Dueñas. (People v. Evans (2019) 39 Cal.App.5th 771, 776-778.) Accordingly, we decline to include the victim restitution award as subject to defendant's challenge here.
In Dueñas, our colleagues in the Second District held that imposing assessments pursuant to Penal Code section 1465.8 and Government Code section 70373, as well as restitution fines under Penal Code section 1202.4, without first conducting a hearing to determine a defendant's ability to pay violates due process. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) We note that more recently, two published opinions have expressly disagreed with the conclusion reached in Dueñas. (See People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055.) We need not resolve this split in authority here because we find that, even assuming defendant had a due process right to an ability to pay hearing prior to imposition of any monetary fines and assessments, any such error was harmless and does not warrant reversal.
Error under Dueñas is not reversible per se, but instead subject to a harmless error analysis. (People v. Jones (2019) 36 Cal.App.5th 1028, 1034.) Since an alleged error under Dueñas involves a violation of due process, we consider whether the error was harmless beyond a reasonable doubt. (People v. Jones, supra, at p. 1034.; see Chapman v. California (1967) 386 U.S. 18, 24.) Here, the monetary assessments and fines imposed by the trial court total only $370. However, defendant was sentenced to a term of nine years in state prison, and his sentence remains significant even when the prison prior enhancements are disregarded. "[T]he trial court should not limit itself to considering only whether [a defendant] [has] the ability to pay at the time of the sentencing hearing. . . . [I]t is appropriate for the court to consider the wages that [a defendant] may earn in prison." (People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted, Nov. 13, 2019, S257844; People v. Jones, supra, at p. 1035.) It is also appropriate for the trial court to consider the defendant's ability "to earn money after his release from custody." (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) Given the length of defendant's prison sentence, we have no doubt that defendant will have the ability to pay the assessments and fines at issue here, which total only $370. The suggestion that defendant will be unable to pay even if given the opportunity to earn prison wages for years, even when the potential for an award of conduct credits is considered, has no merit and we conclude that any error under Dueñas was harmless.
IV. DISPOSITION
The judgment is modified to strike defendant's three one-year sentencing enhancements for prior prison terms pursuant to former section 667.5, subdivision (b), leaving defendant with a sentence of six years in state prison. The clerk of the court is directed to issue a new and corrected abstract of judgment to reflect the judgment as modified, and to forward a certified copy to the Department of Corrections and Rehabilitation reflecting the modifications.. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. RAPHAEL
J.