Opinion
F078270
03-29-2021
THE PEOPLE, Plaintiff and Respondent, v. NICOLE GUESS, Defendant and Appellant.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF169742A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
For setting fire to a vacant lot in Bakersfield, defendant Nicole Guess was convicted by jury of one count of arson of forest land (Pen. Code, § 451, subd. (c).) In a bifurcated proceeding the trial court also found true that defendant had suffered a prior serious felony conviction within the meaning of the "Three Strikes law" (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d); Three Strikes law), within the meaning of 667, subdivision (a), and that she had suffered a prior conviction for arson within the meaning of section 451.1, subdivision (a)(1).
All further statutory references are to the Penal Code unless indicated otherwise.
The court sentenced defendant to an aggregate term of 17 years as follows: on count 1 for arson, the court imposed the middle term of four years (§ 451, subd. (c)), doubled to eight years under the Three Strikes law, plus the middle term of four years for the arson enhancement (§ 451.1, subd. (a)(1)), and an additional five years for the prior serious felony enhancement (§ 667, subd. (a)). The court also imposed a $40 court operations assessment (§ 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), and a $300 restitution fine (§ 1202.4, subd. (b)).
The court also sentenced defendant on her trailing probation violation in Kern Superior Court case No. RF007462A. In that case, the court similarly imposed a $40 court operations assessment (§ 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), and a $300 restitution fine (§ 1202.4, subd. (b)). The abstract of judgment combines the assessments imposed for this case and for case No. RF007462A.
Defendant argues the case should be remanded so the trial court may consider her eligibility for mental health diversion (see People v. Frahs (2020) 9 Cal.5th 618, 626 (Frahs)); alternatively, she contends that if she forfeited the issue by failing to raise it below, her trial counsel rendered ineffective assistance. She also seeks remand so the court may consider striking the five-year prior serious felony enhancement pursuant to the change in law under Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2, pp. 1-6 (Senate Bill 1393 or Sen. Bill 1393)), and for the court to strike and stay her fines and fees under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) due to her inability to pay.
We conclude the issue of mental health diversion under section 1001.36 has been forfeited as no request for mental health diversion was presented to the trial court despite that the new law was in effect before defendant was tried or sentenced. We also conclude it cannot be established from this record on direct appeal that trial counsel rendered ineffective assistance in failing to seek mental health diversion on defendant's behalf. We agree, however, the case must be remanded so the court may consider whether to exercise its discretion pursuant to Senate Bill 1393. Due to remand for resentencing, defendant's Duenas argument is moot and we do not reach it.
FACTUAL SUMMARY
On September 18, 2017, Daniel Mesa was driving past a vacant lot and saw a woman, later identified as defendant, lighting fires. He yelled at her to stop from his car, and when he drove by again about five minutes later, he saw two fires in the lot and saw defendant attempting to light an additional fire near the back fence of the lot. Mesa called 911.
Jason May, an arson investigator, and Victor Mabry, Captain of the Bakersfield Fire Department, were dispatched to the scene. When they arrived at the scene, May saw multiple fires in a vacant lot that was filled with dried grass. A woman standing in the lot with her back to May was surrounded by fire. He saw she had something in her hand. After she was questioned and searched, two cigarette lighters were removed from her left jacket pocket.
Mabry saw two spots in the lot actively burning when he and May arrived. He saw a female, later identified as defendant, at the south end of the lot, which was burning, and she was spreading the fire with what appeared to be a rolled up piece of newspaper. A fire engine arrived shortly after Mabry and May came to the scene to put out the fire. After the fires were extinguished, Mabry was able to examine the location and determined the fires were intentionally set.
Defendant was charged with one count of arson on October 12, 2017, along with an allegation that she had suffered a prior strike conviction pursuant to the Three Strikes law and a prior serious felony conviction within the meaning of section 667, subdivision (a). A few days prior to trial, the court granted the prosecutor's motion to amend the information to add an enhancement allegation under section 451.1, subdivision (a)(1).
Section 451.1, subdivision (a)(1), provides that "any person who is convicted of a felony violation of Section 451 shall be punished by a three-, four-, or five-year enhancement if ... [¶] (1) The defendant has been previously convicted of a felony violation of Section 451 or 452."
On December 6, 2017, defense counsel declared a doubt about defendant's competence to stand trial. A court-appointed evaluator recommended defendant be declared incompetent to stand trial. The trial court deemed defendant incompetent and criminal proceedings were suspended. In June 2018, the Medical Director of Napa State Hospital certified defendant was mentally competent to stand trial. On July 13, 2018, the trial court found defendant competent and reinstated criminal proceedings.
Trial began on September 12, 2018, and a jury found defendant guilty of arson. In a bifurcated proceeding, the trial court found the strike, prior serious felony, and prior arson conviction to be true.
At the sentencing hearing on October 12, 2018, the court considered defendant's written motion to dismiss her strike prior and the prior arson enhancement pursuant to section 1385. Defense counsel also asked the court to consider defendant's mental health condition as a factor in mitigation.
The trial court explained it had reviewed the last report where defendant was referred back from the state hospital, and the court observed Mabry had testified at the preliminary examination hearing that when he had questioned defendant at the scene of the fire, she had said she was Lucifer several times. Based on that, the court found there was a mental health condition that affected defendant's culpability and it represented a circumstance in mitigation.
With respect to defendant's motion to strike or dismiss the prior strike or the arson enhancement, the court denied the motion. On count 1, for arson, the court imposed the middle term of four years, doubled under the Three Strikes law, additionally imposed the middle term of four years for the arson enhancement (§ 451.1, subd. (a)(1)), and imposed five years for the prior serious felony (§ 667, subd. (a)) for an aggregate prison term of 17 years.
DISCUSSION
I. Mental Health Diversion
Defendant seeks remand for an eligibility hearing for mental health diversion under section 1001.36 which she did not pursue below.
On June 27, 2018, before defendant's trial and sentencing, Assembly Bill No. 1810 was signed into law, which added section 1001.36 to the Penal Code, allowing a trial court to grant diversion to those suffering from mental illnesses. Section 1001.36 was immediately effective. (Stats. 2018, ch. 34, §§ 24, pp. 34-37.)
"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.'" (Frahs, supra, 9 Cal.5th at p. 626.)
"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 mental health 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).)
Frahs held that section 1001.36 applies retroactively to cases in which the judgment is not yet final. (Frahs, supra, 9 Cal.5th at pp. 630-637 & fn. 2.) In cases where section 1001.36 was enacted after the defendant's conviction, a conditional limited remand for a diversion eligibility hearing is warranted when the record "affirmatively discloses that the defendant appears to meet at least the first threshold eligibility requirement for mental health diversion—the defendant suffers from a qualifying mental disorder [citation]." (Frahs, supra, at p. 640.) As section 1001.36 was enacted before defendant's trial date, the question of retroactivity is not relevant.
B. Forfeiture
In general, "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 [citation] ...." (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 defendant is the one who must raise the issue of diversion. (§ 1001.36, subd. (b)(1)(A) ["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."].)
Defendant concedes there was no mention of mental health diversion or its application to defendant at the time of sentencing. The new section 1001.36 had been in effect for months before the October 12, 2018, sentencing, and defendant has not shown the statute imposes a sua sponte duty on the trial court to raise the issue of mental health diversion absent a request from either party; thus, it was defendant's obligation to raise the issue. The failure to do so forfeited the issue on appeal. We address defendant's alternative claim that if she is deemed to have forfeited the issue, her trial counsel rendered ineffective assistance.
C. Ineffective Assistance of Counsel
A defendant claiming ineffective assistance of counsel must satisfy a two-part test requiring first a showing of counsel's deficient performance and then resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) In demonstrating a counsel's deficient performance, the defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Id. at p. 688.) On the prejudice prong, the defendant is required to establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
There are practical constraints that make it more difficult to address ineffective assistance claims on direct appeal as opposed to a habeas corpus proceeding. (People v. Mickel (2016) 2 Cal.5th 181, 198.) First, "[t]he record on appeal may not explain why counsel chose to act as he or she did. Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel's actions or failure to take certain actions were objectively unreasonable." (Ibid.)
Second, in evaluating trial counsel's actions, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ...." (Strickland, supra, 466 U.S. at p. 689; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. (Strickland, supra, at p. 689.) "The constitutional standard of performance by counsel is 'reasonableness,' viewed from counsel's perspective at the time of his challenged act or omission." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1243-1244, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.) This burden has been described as "'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had '"'no rational tactical purpose'"' for an action or omission." (People v. Mickel, supra, 2 Cal.5th at p. 198.)
The record is silent about whether defense counsel was unaware of section 1001.36 once it was enacted, and there is nothing that explains why defense counsel did not pursue diversion on defendant's behalf. While defendant argues no tactical reason could excuse counsel's omission to seek mental health diversion, we disagree.
Certainly defendant's mental health issues were well known to counsel, as defendant's trial counsel requested that the court consider defendant's mental health at sentencing as a factor in mitigation. Nevertheless, defense counsel could have chosen not to request diversion for a variety of reasons. Specifically, counsel could have discussed the matter with defendant, and she may have refused to consent to diversion, or refused to waive her rights to a speedy trial had diversion been discussed between counsel and defendant before the September 2018 trial, or defendant could have refused to comply with mental health treatment. (§ 1001.36, subd. (b)(1)(D) & (E).) The record contains no information one way or the other. As there are legitimate reasons why defense counsel may have chosen not to pursue a mental health diversion eligibility hearing on defendant's behalf, we cannot conclude defense counsel's performance was objectively unreasonable.
II. Senate Bill 1393
Defendant's prison sentence includes a five-year enhancement pursuant to section 667, subdivision (a), based on a prior serious felony conviction. In September 2018, Senate Bill 1393 was signed into law. The legislation amended sections 667, subdivision (a)(1), and 1385, subdivision (b), and vested trial courts with discretion they did not formerly have to dismiss or strike a prior serious felony conviction for sentencing purposes. The new law became effective January 1, 2019.
Senate Bill 1393 applies retroactively to nonfinal judgments. (People v. Stamps (2020) 9 Cal.5th 685, 699.) Defendant seeks remand so the court may consider exercising its discretion to strike her prior serious felony conviction. The People argue remand is unnecessary and would constitute a futile act given the record.
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that 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. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Bell (2020) 47 Cal.App.5th 153, 199 [remand unnecessary where record clearly indicates court would not have stricken prior serious felony enhancement if it had the discretion afforded under Sen. Bill 1393]; People v. Jones (2019) 32 Cal.App.5th 267, 274 [same]; People v. Johnson (2019) 32 Cal.App.5th 26, 69; People v. Almanza (2018) 24 Cal.App.5th 1104, 1109-1111; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082; People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428.)
The court denied defendant's Romero motion as to her prior strike and the arson enhancement. In refusing to strike the arson enhancement, the court recognized "there is an additional five years for the suffering of that [arson] conviction under [section] 667[, subdivision] (a) alone, but I don't think that the interest of justice would demand this Court to strike or even impose something lesser on the arson enhancements ...."
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero), the court held that under section 1385 a trial court may strike or vacate an allegation or finding under the Three Strikes law that the defendant has previously been convicted of a serious and/or violent felony.
The denial of defendant's Romero motion as it pertained to the enhancement under the Three Strikes law indicates only a finding that no extraordinary circumstances warranted departure from that statute. (See People v. Carmony (2004) 33 Cal.4th 367, 376 [whether to strike or vacate prior serious felony pursuant to § 1385, subd. (a), court must consider whether the defendant may be deemed outside the spirit of the Three Strikes law sentencing scheme].) As for the arson enhancement, while the court chose not to strike it either, the court imposed only middle terms for the arson enhancement and the arson conviction.
Although the original punishment may suggest a different outcome is unlikely, we will grant defendant's request as we decline to guess how the trial court might exercise its discretion on remand. (See People v. Almanza, supra, 24 Cal.App.5th at pp. 1110-1111 ["speculation about what a trial court might do on remand is not 'clearly indicated' by considering only the original sentence"].) We express no opinion whether the trial court should exercise its discretion under Senate Bill 1393.
III. Dueñas
The trial court imposed a $300 restitution fine under section 1202.4, subdivision (b)(1), and the court also imposed a corresponding parole revocation fine (§ 1202.45) in the same amount, which was suspended, a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code, § 70373). Relying on Dueñas, supra, 30 Cal.App.5th 1157, which was issued while this appeal was pending, defendant contends her fees and fines should be stayed or stricken based on her inability to pay.
Given the need to remand for a resentencing hearing to allow the court to determine whether to exercise its discretion pursuant to the change in law under Senate Bill 1393, we conclude it is unnecessary to reach defendant's Dueñas arguments; they are moot and we do not consider them.
DISPOSITION
This matter is remanded for resentencing proceedings consistent with this opinion. At the resentencing, the trial court shall determine whether to exercise its discretion to strike or reimpose the five-year prior serious felony conviction enhancement. In all other respects, the judgment is affirmed.
MEEHAN, J. WE CONCUR: POOCHIGIAN, Acting P.J. DETJEN, J.