Opinion
F076882
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT MINCH, Defendant and Appellant.
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF165836A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Tiffany Organ-Bowles, Judge. Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Robert Minch (defendant) of petty theft, attempted robbery, and exhibiting a deadly weapon with the intent to resist arrest. In a separate bench trial, defendant was found to have suffered a prior strike and a serious felony conviction. On appeal, defendant challenges the prior conviction finding and the jury's verdict on the charge of exhibiting a deadly weapon.
Defendant alleges insufficient evidence and instructional error. In a supplemental claim, he argues for retroactive application of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), which gave trial courts discretion to strike or dismiss the five-year enhancement prescribed by Penal Code section 667 for prior serious felony convictions. (All further statutory references are to the Penal Code.) Defendant also argues for retroactive application of section 1001.36, which authorizes "pretrial diversion" in certain cases involving mentally disordered offenders. We conditionally reverse the judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On October 5, 2016, defendant entered a store and moved toward one of the cash registers. Based on defendant's gait and odd "mumbling," it appeared to the cashier that he was drunk. Defendant reached over the counter and began pressing buttons on the cash register. After failing to open the till, defendant pulled out a knife and began "swinging it slowly." Next, he picked up some merchandise and exited the store. A supervisory employee followed him outside and called 911 to report the incident.
Sheriff's deputies confronted defendant outside of the store. Defendant extended his arm and pointed the blade of his knife at them. He ignored repeated commands to drop the knife, resulting in a standoff lasting several minutes. Defendant paced back and forth, occasionally pausing to drink from a "liquor bottle," and taunted the deputies with profane language and gestures.
Defendant alternated between pointing his knife at the deputies and running its blade across his wrists and neck. When the deputies drew their firearms, defendant told them to kill him. One of the deputies eventually snuck up behind defendant and incapacitated him with a Taser. While taking defendant into custody, the deputies observed minor lacerations on his wrists and neck.
Based on his interactions with the store supervisor, defendant was charged with second degree robbery (§§ 211, 212.5; count 1). He was also charged with attempted second degree robbery based on his interactions with the cashier (count 2). In count 3, defendant was charged with drawing or exhibiting a deadly weapon (the knife) with the intent to resist or prevent an arrest or detention (§ 417.8). For enhancement purposes, counts 1 and 2 alleged personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)). Defendant was further alleged to have suffered a prior strike and a serious felony conviction (§§ 667, subds. (a)(1), (b)-(i), 1170.12).
In December 2016, defendant was declared incompetent to stand trial. In May 2017, his competence was found to have been restored. The case went to trial in October 2017.
The People's case consisted of testimony by the cashier and three deputies involved in defendant's arrest. The jury was shown a video of the events inside the store, as well as photographs of the knife. The defense rested without presenting evidence. Defense counsel argued that voluntary intoxication had negated the required mental state for the charged crimes. In addition, since the supervisor did not testify, defense counsel argued the force or fear element of robbery was not proven.
The jury had difficulty following the instructions for completing the verdict forms. On count 1, it acquitted defendant of robbery and found him guilty of petty theft (§ 488) as a lesser included offense. However, the jury also returned a true finding on the weapon enhancement allegation. Because petty theft is a misdemeanor (see §§ 17, subd. (a), 490), and the enhancement applies only "in the commission of a felony or attempted felony" (§ 12022, subd. (b)(1)), the trial court disregarded the finding as a "legal nullity."
On count 2, the jury found defendant guilty of attempted robbery but neglected to make a finding on the weapon enhancement allegation. After being sent back to complete the blank verdict form, the jury found the allegation true but inexplicably proceeded to also fill out the form for the lesser included offense of attempted petty theft. The trial court provided the jury with "corrective tape" and instructed it to deliberate further and clearly indicate whether it had found defendant guilty of the charged or lesser included offense. The jury "whited ... out" its verdict of attempted petty theft, thus indicating it had found defendant guilty of attempted robbery, but it also "whited ... out" its finding on the weapon enhancement. In other words, after two attempts to remedy the original problem, the verdict form for the enhancement allegation was still blank. Instead of sending the jury back a third time, the trial court accepted the blank form and later deemed the allegation to have been found not true by operation of law. (Cf. People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440 ["When no words are used and the trier of fact fails to make a finding the effect is the same as a finding of 'not true'"], citing People v. Eppinger (1895) 109 Cal. 294.)
The record suggests the trial judge did not realize the enhancement verdict had been whited out until after the jury had been polled and excused.
The jury had no apparent issues with the verdict form for count 3, as there was no option to convict defendant of a lesser offense and no enhancement allegations. He was found guilty of "exhibiting a deadly weapon, to wit, a knife, to resist arrest in violation of Section 417.8."
In a bifurcated bench trial, the People introduced a section 969b packet containing certified records of defendant's criminal history, including an abstract of judgment for Riverside Superior Court case No. RIF102123. The People also proffered a certified copy of defendant's "rap sheet" from the California Law Enforcement Telecommunication System (CLETS). The evidence showed defendant had suffered a felony conviction in 2005 for committing arson in violation of section 451, subdivision (c). Accordingly, the recidivism allegations were found to be true.
In December 2017, the trial court ordered a diagnostic evaluation of defendant's mental health pursuant to section 1203.03. In January 2018, the trial court sentenced defendant to an aggregate prison term of 14 years 4 months. The sentence was calculated using the upper term of four years for count 3, which was doubled because of the prior strike, plus 16 months on count 2 and five years for the prior serious felony conviction. A concurrent sentence was imposed for the count 1 conviction of petty theft. Defendant filed a notice of appeal on the date of sentencing.
DISCUSSION
I. Sufficiency of the Evidence
Defendant alleges there is insufficient evidence to support the jury's verdict on count 3 and the trial court's finding of a qualifying conviction under section 667. "On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt." (People v. Boyer (2006) 38 Cal.4th 412, 479.) We view the record in the light most favorable to the judgment and assume the existence of all facts the trier of fact could have reasonably deduced from the evidence. (People v. Mendez (2019) 7 Cal.5th 680, 702.)
A. Count 3
"Section 417.8 prohibits the drawing or exhibiting of a deadly weapon with the intent to resist or prevent the arrest or detention of oneself or another by a peace officer." (People v. Simons (1996) 42 Cal.App.4th 1100, 1106 (Simons).) Defendant concedes he "did exhibit the knife," and he "does not challenge the sufficiency of the evidence with regard to his intent to resist arrest." Although he phrases his argument differently, defendant claims the knife did not qualify as a deadly weapon.
In Simons, the appellant was convicted of violating section 417.8 based on his use of a screwdriver. A police officer had testified to these facts: "'He would flail his hands, show the screwdriver, [and] if we were to approach he would bring the screwdriver forward toward us.'" (Simons, supra, 42 Cal.App.4th at p. 1106.) On appeal, the appellant argued section 417.8 did not apply to objects such a screwdrivers. (Simons, at p. 1105.)
The Simons opinion notes "the long-held distinction between weapons that are inherently deadly or dangerous and those that are deadly or dangerous based only on the facts of the particular occasion in question." (Simons, supra, 42 Cal.App.4th at p. 1106.) The opinion goes on to quote People v. Graham (1969) 71 Cal.2d 303 at pages 327-328, which recites a passage from People v. Raleigh (1932) 128 Cal.App. 105, at pages 108-109:
"'"There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are 'dangerous or deadly' to others in the ordinary use for which they are designed, may be said as a matter of law to be 'dangerous or deadly weapons.' This is true as the ordinary use for which they are designed establishes their character as such. The instrumentalities falling into the second class, such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not 'dangerous or deadly' to others in the ordinary use for which they are designed, may not be said as a matter of law to be 'dangerous or deadly weapons.' When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a 'dangerous or deadly' manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a 'dangerous or deadly weapon' may be thus established, at least for the purposes of that occasion."'" (Simons, supra, at pp. 1106-1107, italics added.)
Relying on the above principles, the Simons court concluded "[t]he evidence clearly demonstrated that the screwdriver was capable of being used as a deadly weapon and that [the appellant] intended to use it as such if the circumstances required." (Simons, supra, 42 Cal.App.4th at p. 1107.) "Moreover, the evidence demonstrated that [he] not only intended to use the screwdriver as a weapon but actually did use it as a weapon." (Id. at p. 1111.) The "use" determination was based on the appellant's "repeated gesturing with the screwdriver, coupled with his statements to police." (Ibid.)
The Simons court rejected the claim "that section 417.8 can apply only to the exhibition of inherently dangerous or deadly weapons because ordinarily innocuous items require some dangerous or deadly use in order to transform them into dangerous or deadly weapons." (Simons, supra, 42 Cal.App.4th at p. 1107.) The appellant had argued "any such use would constitute an assault with a dangerous or deadly weapon on a peace officer in violation of section 245, subdivision (c), thereby subsuming all violations of section 417.8." (Ibid.) In the present matter, defendant adds a new twist to the latter argument. He essentially contends that if the object in question is not an inherently deadly weapon, liability under section 417.8 requires conduct rising to the level of aggravated assault within the meaning of section 245, subdivision (a).
Defendant relies on the following portion of CALCRIM No. 982, which was given to the jury below: "A deadly weapon is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. Great bodily injury means significant or substantial physical injury...." (Italics added.) Focusing on the italicized language, defendant argues that "[w]alking towards a person with a knife and not making any contact is not 'likely to inflict great bodily injury.'" Since "there was no evidence that [he] used the knife in a manner likely to create great bodily injury or death," defendant contends there is insufficient proof of a section 417.8 violation.
Pattern jury instructions "are not themselves the law, and are not authority to establish legal propositions or precedent." (People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7.) "At most, when they are accurate, ... they restate the law." (Ibid.) The language in CALCRIM No. 982 upon which defendant relies comes from People v. Aguilar (1997) 16 Cal.4th 1023 (Aguilar), wherein the California Supreme Court defined the term deadly weapon "[a]s used in section 245, subdivision (a)(1)." (Id. at p. 1028.)
"A similar definition of 'deadly weapon' long predated Aguilar." (People v. Perez (2018) 4 Cal.5th 1055, 1065, citing People v. Leyba (1887) 74 Cal. 407, 408 and People v. Fuqua (1881) 58 Cal. 245, 247 ["A deadly weapon is one likely to produce death or great bodily injury"].) In Aguilar, the high court endorsed a series of appellate court holdings tracing back to People v. Russell (1943) 59 Cal.App.2d 660, each of which concerned the elements of assault with a deadly weapon. (See Aguilar, supra, at pp. 1028-1029; In re Jose R. (1982) 137 Cal.App.3d 269, 275-276; People v. White (1963) 212 Cal.App.2d 464, 465; Russell, supra, at pp. 662, 665.) The Aguilar opinion does not address the elements of section 417.8.
In People v. Pruett (1997) 57 Cal.App.4th 77 (Pruett), Division Four of the First Appellate District held "the term 'deadly weapon,' as used in section 417.8, is not necessarily a technical one, requiring definition." (Id. at p. 86.) "[If] the instrument employed is one which lay people could readily determine to be capable of causing death, no special definition of 'deadly' is required. Because the use of such an instrument with the intent to resist arrest or detention necessarily encompasses its use or intended use as a weapon, no definition of 'weapon' or 'deadly weapon' is required." (Ibid.)
The appellant in Pruett had pulled a folding knife out of his pocket while ignoring the commands of a police officer. (Pruett, supra, 57 Cal.App.4th at pp. 80-81.) The opinion recognizes that "[u]nder some circumstances, the question of whether or not an object used by a defendant is capable of causing death may well be tied to the manner in which it is used." (Id. at p. 85.) However, "[n]early all knives have sharp edges and points which are designed to cut things, and knives can be—and all too often are—employed to cut—and kill—people. Jurors can certainly employ common sense and experience to determine whether or not such a knife is a 'deadly' instrument." (Id. at p. 86.)
Here, in defendant's case, the jury saw photographs of the object used in the underlying incident. The images showed a double-edged folding knife with a five-inch handle and a four-inch blade. By "double-edged" we mean the blade had a pointed tip and was sharp on both sides. The fact the knife was sharp and not dull is inferable from the fact that it caused lacerations on defendant's skin after he ran the blade across his wrists and neck.
The parties did not designate the photographs (People's exhibit Nos. 2 and 3) for inclusion in the record on appeal. Those exhibits were transmitted at our request. (Cal. Rules of Court, rules 8.224(d) [transmission of exhibits] and 8.320(e) [exhibits admitted in evidence are deemed part of the record in a criminal appeal].) People's exhibit No. 3 shows the open knife displayed next to a ruler.
Construing the record in the light most favorable to the judgment, and having viewed the photographs ourselves, we are certain any rational juror could have easily concluded—beyond a reasonable doubt—the knife "was capable of being used as a deadly weapon and that defendant intended to use it as such if the circumstances required." (Simons, supra, 42 Cal.App.4th at p. 1107.) Inherent in those conclusions is a finding that if the knife were to be used as a weapon against another person, it would likely cause death or great bodily injury. Furthermore, as defendant concedes, the trial testimony permitted the jury to find he exhibited the knife with the intent to resist arrest or prevent a detention. No additional evidence was required to prove the charged violation of section 417.8.
Defendant conflates the actus reus of assault with a deadly weapon (§ 245, subd. (a)) with the actus reus of section 417.8, but section 417.8 merely requires drawing or exhibiting a deadly weapon. The crux of defendant's argument was rejected in Simons: "[T]he circumstantial evidence required to transform an innocuous object into a deadly weapon is not necessarily as substantial as evidence that proves an assault with that weapon. The former requires only that the object be capable of deadly use and that the defendant intends to so use it if need be. Assault with a deadly weapon requires 'an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.'" (Simons, supra, 42 Cal.App.4th at p. 1107.)
In his reply brief, defendant argues the dispositive authority is In re B.M. (2018) 6 Cal.5th 528. However, the issue there was the sufficiency of evidence supporting a juvenile adjudication for assault with a deadly weapon (§ 245, subd. (a)) based on the minor's act of striking her sister in the legs with a butter knife. (In re B.M., supra, at pp. 530-531.) The case reaffirms the holding of Aguilar and emphasizes "the defendant must have used the object in a manner not only capable of producing but also likely to produce death or great bodily injury." (B.M., at p. 530.) There is no mention of section 417.8 anywhere in the opinion.
There are fundamental differences between the offenses codified by sections 417.8 and 245, subdivision (a). As discussed, the former requires the drawing or exhibiting of a deadly weapon. Section 245 requires the commission of an assault, i.e., an attempted battery. (People v. Colantuono (1994) 7 Cal.4th 206, 214.) "'The gravamen of the crime defined by ... section 245 is the likelihood that the force applied or attempted to be applied will result in great bodily injury.'" (Id. at p. 217.) Thus, as noted in Justice Chin's concurring opinion in In re B.M., the phrase "'"likely to produce death or great bodily injury"'" was "adopted by [the California Supreme Court in Aguilar] to define what constitutes a 'deadly weapon' for purposes of ... section 245, subdivision (a)(1)." (In re B.M., supra, 6 Cal.5th at p. 539.) We do not read In re B.M. as prohibiting a section 417.8 conviction under the facts and circumstances of this case.
In his reply brief, defendant argues Simons and Pruett were wrongly decided and suggests both cases were overruled by In re B.M. We do not agree. First, defendant's briefing misstates the factual background of Pruett and glosses over its legal analysis. Second, there is no direct or indirect analysis of Pruett in In re B.M.; the case is not cited.
The Simons opinion was authored by Justice Corrigan when she was an Associate Justice at Division Three of the First Appellate District. (Simons, supra, 42 Cal.App.4th at p. 1104.) Justice Chin was then the Presiding Justice of the same court, and he concurred in the Simons opinion. (Id. at p. 1112.) The majority opinion in In re B.M. references Simons in a "cf." citation, which is a signal used to indicate indirect support for a stated proposition, and again in a discussion distinguishing cases cited by the Attorney General. (In re B.M., supra, 6 Cal.5th at pp. 535, 538.) Justice Chin wrote a concurring opinion in In re B.M., and Justice Corrigan joined in the concurring opinion. (Id. at pp. 539-540.) If the California Supreme Court had intended to overrule Simons or Pruett, such an intent would be clearly indicated. "It is axiomatic, of course, that a decision does not stand for a proposition not considered by the court." (People v. Harris (1989) 47 Cal.3d 1047, 1071.)
B. Prior Conviction Finding
Defendant argues the evidence of his prior strike and serious felony conviction was unreliable. He raises two points. First, although the section 969b packet included fingerprints "from other cases," there was "no fingerprint evidence showing that the fingerprints of the person who suffered the conviction in case No. [RIF102123] was [him.]" Second, although the packet contained his photograph, the photograph was "not associated with any case in particular." Defendant's assertions of error are not supported by any statutes or case law, so the issue warrants little discussion. (See People v. Saez (2015) 237 Cal.App.4th 1177, 1191 [rejecting a similar claim regarding fingerprints and photographs: "He provides no authority for this position ... and we are aware of none"].)
"'When the accused challenges a prior conviction, the state bears the burden of proving it beyond a reasonable doubt. [Citations.]' [Citation.] The state may meet this burden, however, by introducing into evidence several types of evidence: certified copies of prison records [citations]; certified copies of court minute orders or of the abstract of judgment [citation]; or certified copies of writings in the custody of a public entity. [Citations.]" (People v. Brucker (1983) 148 Cal.App.3d 230, 241.) The evidence in this case included a certified section 969b packet, which contained the abstract of judgment, and a certified CLETS printout. Both forms of evidence are admissible and may constitute substantial evidence of the truth of a prior conviction allegation. (§ 969b; People v. Miles (2008) 43 Cal.4th 1074, 1082-1083; People v. Martinez (2000) 22 Cal.4th 106, 116, 119, 134.)
The abstract of judgment for the 2005 arson conviction listed defendant's full name (Robert Shane Minch), and the relevant information was corroborated by the CLETS printout. "It has long ... been the rule in California, in the absence of countervailing evidence, that identity of person may be presumed, or inferred, from identity of name." (People v. Mendoza (1986) 183 Cal.App.3d 390, 401.) Defendant does not identify any countervailing evidence. His relatively uncommon surname further supports the trial court's findings. (See People v. Sarnblad (1972) 26 Cal.App.3d 801, 805-806 ["Although photographic or fingerprint evidence may be utilized to prove priors," it is unnecessary when "the name is sufficiently uncommon"]; accord, People v. Saez, supra, 237 Cal.App.4th at p. 1191.) We thus reject the claim of insufficient evidence.
II. Instructional Error
Defendant alleges prejudicial error based on the following italicized language in the CALCRIM No. 982 instruction given to the jury: "A deadly weapon is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." (Italics added.) As confirmed in People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), it is improper to instruct a jury with this language if the object in question is not inherently deadly. (Id. at pp. 6, 8.) The reason is because jurors could be misled to believe they have the option of deciding whether the object is "inherently deadly," based on their lay understanding of the term, when as a matter of law it is not. (Id. at p. 8.)
"Because a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons." (Aledamat, supra, 8 Cal.5th at p. 6.) The People concede an instructional error occurred. The only issue is whether defendant suffered prejudice.
In Aledamat, the appellant had attacked a man with a box cutter while threatening to kill him. A jury convicted him of making criminal threats (§ 422) and assault with a deadly weapon in violation of section 245, subdivision (a). (Aledamat, supra, 8 Cal.5th at pp. 4-5.) The jury was instructed with CALCRIM No. 875, which contained the Aguilar definition of a deadly weapon (i.e., the same definition used in this case pursuant to CALCRIM No. 982). (Aledamat, supra, at p. 4.)
On appeal in Division Two of the Second Appellate District, the appellant complained of the "inherently deadly" language in the pattern instruction. The appellate court agreed with his argument, noting a box cutter is a type of knife that is "'designed to cut things and not people'" and cannot be classified as an inherently deadly weapon. (Aledamat, supra, 8 Cal.5th at p. 6.) Because the jury had been presented with two theories of guilt, one of which was legally invalid (i.e., "that the box cutter was inherently deadly"), the error was deemed prejudicial. (Id. at pp. 4-5.)
The California Supreme Court agreed with the appellate court's determination of error but concluded it had applied an unduly stringent test for prejudice. (Aledamat, supra, 8 Cal.5th at pp. 6-13.) The opinion holds "that alternative-theory error is subject to the more general Chapman harmless error test. The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt." (Id. at p. 13, referencing Chapman v. California (1967) 386 U.S. 18 (Chapman).) Applying the Chapman standard, the high court found the instructional error harmless and thus reversed the appellate court's decision. (Aledamat, supra, at pp 13-15.)
The Aledamat majority found the error harmless for a variety of reasons, but two factors are especially pertinent to our analysis. First, the deadly weapon element was essentially uncontested. (See Aledamat, supra, 8 Cal.5th at p. 14 ["Although defense counsel did not expressly concede that the box cutter was a deadly weapon, he did not contest the point"].) In this case, defendant's trial counsel focused on the charges of robbery and attempted robbery. The only argument made with regard to count 3 alleged defendant was "so drunk, so intoxicated" that he did not form the specific intent to resist arrest. Furthermore, as in Aledamat, contesting the deadly weapon element "would have been futile based on the record." (Ibid.)
Second, the jury undoubtedly would have concluded the object was a deadly weapon even without the erroneous "inherently deadly" language. Frankly, based on the photographs of the knife, the jury may have believed it was inherently deadly pursuant to its lay understanding of the term. But such a belief would necessarily mean it found the knife deadly "in the colloquial sense of the term—i.e., readily capable of inflicting deadly harm—and that defendant used it as a weapon." (Aledamat, supra, 8 Cal.5th at p. 15.)
We cannot envision a scenario in which the jury would have made a contrary finding but for the instructional error. "In this situation, where a reviewing court concludes beyond a reasonable doubt that the [misstated] element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless." (Neder v. United States (1999) 527 U.S. 1, 17.)
Defendant's prejudice analysis relies on the argument underpinning his sufficiency of the evidence claim. He contends the jury's verdict might have been different had it been properly instructed because the evidence showed he "did not use the knife in a manner likely to inflict great bodily injury." We have already rejected the premise of this argument as fallacious. For the reasons discussed, we conclude the error was nonprejudicial.
III. Senate Bill 1393
Senate Bill 1393, which took effect January 1, 2019, amended sections 667 and 1385. (Stats. 2018, ch. 1013, §§ 1, 2.) As a result, trial courts now have discretion under section 1385 to strike or dismiss the five-year sentencing enhancement prescribed by section 667 for prior serious felony convictions. The People concede Senate Bill 1393 applies retroactively to this case. We accept the concession as appropriate. (People v. Lopez (2020) 46 Cal.App.5th 505, 531.)
The parties dispute the propriety of further proceedings to allow the trial court to consider exercising its discretion to strike the five-year enhancement. The People argue a remand would be futile given the unlikelihood of any leniency. The argument is based on the trial court's imposition of the upper term for count 3 and its denial of a motion made pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 concerning defendant's prior strike.
We are not persuaded by the People's argument. "Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. [Citation.] Without such a clear indication of a trial court's intent, remand is required when the trial court is unaware of its sentencing choices." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; accord, People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Since the trial court had no occasion to consider striking the enhancement, we can only guess how it would exercise its discretion on remand. The original punishment may suggest a different outcome is unlikely, but the record does not clearly indicate the trial court would not have imposed a different sentence in the first instance.
IV. Section 1001.36
Section 1001.36 was enacted approximately six months after defendant was sentenced. The statute authorizes, in lieu of criminal prosecution, a "pretrial diversion" procedure involving the placement of defendants into mental health treatment programs. The California Supreme Court recently held section 1001.36 applies retroactively to cases in which the judgment was not final when the law took effect. (People v. Frahs (June 18, 2020, S252220) ___ Cal.5th ___, ___ [2020 Cal. LEXIS 3736, *28].) Diversion is unavailable in certain types of cases, but none of those exceptions apply here. (See § 1001.36, subd. (b)(2).)
A trial court may grant pretrial diversion if it finds all of the following: (1) the defendant suffers from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders; (2) the disorder was a significant factor in the commission of the charged offense; (3) a medical expert has opined the symptoms motivating the criminal behavior would respond to mental health treatment; (4) the defendant consents to diversion and waives his or her right to a speedy trial; (5) the defendant agrees to comply with the prescribed treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. (§ 1001.36, subd. (b)(1)(A)-(F).)
"The maximum period of diversion is two years. (Id., subd. (c)(3).) If the defendant is subsequently charged with an additional crime, or otherwise performs unsatisfactorily in the assigned program, then the court may reinstate criminal proceedings. (Id., subd. (d).) 'If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings at the time of the initial diversion' and 'the arrest upon which the diversion was based shall be deemed never to have occurred.' (Id., subd. (e).)" (People v. Frahs, supra, ___ Cal.5th at p. ___ [2020 Cal. LEXIS 3736, *8].)
To obtain relief on appeal, a defendant need only make a prima facie showing of the first eligibility requirement, i.e., the record must indicate he or she suffers from a qualifying mental disorder. (People v. Frahs, supra, ___ Cal.5th at p. ___ [2020 Cal. LEXIS 3736, *35].) If the record affirmatively discloses such information, it is appropriate to conditionally reverse the judgment and order a "limited remand for the trial court to conduct a mental health diversion eligibility hearing." (Ibid.)
As noted, defendant was initially found incompetent to stand trial. Although his competence was later restored, documents from his pretrial and posttrial psychological evaluations show he has been diagnosed with various conditions identified in the Diagnostic and Statistical Manual of Mental Disorders (5th ed.). Therefore, the record contains sufficient evidence of a qualifying mental disorder for purposes of section 1001.36, subdivision (b)(1)(A) to warrant a conditional reversal and remand.
On remand, it will be defendant's burden to establish eligibility under all applicable provisions of section 1001.36. If the trial court finds the prerequisites are met, it may grant relief as authorized by the statute. If the trial court finds defendant ineligible and/or unsuitable for diversion, his conditionally reversed convictions and sentence shall be reinstated. (People v. Frahs, supra, ___ Cal.5th at pp. ___ [2020 Cal. LEXIS 3736, *36-*37].)
DISPOSITION
The judgment is conditionally reversed and the matter is remanded for further proceedings. On remand, the trial court shall determine whether to exercise its discretion to strike or dismiss the prior serious felony conviction enhancement. After making its determination, the trial court shall conduct a mental health diversion eligibility hearing pursuant to section 1001.36 and People v. Frahs, supra, ___ Cal.5th ___ .
If the trial court finds defendant meets the eligibility requirements of section 1001.36, the court may grant relief as provided in the statute. In the event defendant is found eligible and successfully completes a diversion program, the court shall dismiss the charges. However, if the court finds defendant does not meet the requirements of section 1001.36, or if he does not successfully complete the diversion program, then his convictions and sentence shall be reinstated. We express no views concerning whether defendant will be able to show eligibility on remand or whether the trial court should exercise its discretion to grant diversion if it finds him eligible.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.