Opinion
E072185
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. GARY ANDREW COOPER, Defendant and Appellant.
Siri Shetty, 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, Arlene A. Sevidal, Andrew S. Mestman and Randall D. Einhorn, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV17003112) OPINION APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno and Katrina West, Judges. Conditionally reversed with directions. Siri Shetty, 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, Arlene A. Sevidal, Andrew S. Mestman and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Gary Andrew Cooper of two counts of animal cruelty (Pen. Code, § 597, subd. (a)) and found that he had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The record suggests he suffered from a traumatic brain injury at the time he committed the offenses. On appeal, defendant contends the case should be conditionally reversed for the trial court to consider his eligibility for mental health diversion pursuant to section 1001.36. The People disagree, but assert the abstract of judgment should be corrected to reflect defendant was sentenced pursuant to the three strikes law. We conditionally reverse the judgment with directions for further proceedings under section 1001.36.
All further statutory references are to the Penal Code unless otherwise stated.
I. FACTS AND PROCEDURAL HISTORY
A. Facts and Charges.
During the evening of August 8, 2017, defendant punched and kicked his girlfriend's blind pit bull outside their home. A neighbor filmed defendant's actions and called the police. Police and an animal control officer responded, and defendant was arrested.
On August 31, 2017, the People filed an information, which charged defendant with two counts of felony cruelty to an animal and alleged he suffered two prior strike convictions. On November 15, 2017, a jury convicted defendant of both charges and found both prior strike allegations to be true.
B. Presentencing Evaluation.
Prior to defendant's sentencing, the Legislature enacted Assembly Bill No. 1810 (2017-2018 Reg. Sess.), which provides the option of mental health diversion under newly added sections 1001.35 and 1001.36, which became effective in June 2018. (Stats. 2017, ch. 34, § 24.) Based on section 1001.36, defense counsel requested defendant be considered for mental health diversion. Counsel submitted a forensic neuropsychological evaluation of defendant performed by Dominique Kinney, Ph.D., on December 28, 2018. According to his medical history, on March 4, 2016, defendant was shot in the head in a drive-by shooting and sustained traumatic brain injury. He also suffers from chronic posttraumatic stress disorder, cognitive impairment, and intermittent seizures secondary to his brain injury. His conditions require comprehensive mental health treatment. After evaluating defendant, Dr. Kinney opined that defendant meets the statutory requirements for diversion because he suffers from a mental health condition, his mental disorder played a significant role in the commission of the charged offenses, he would respond to mental health treatment, he is willing to consent to diversion and comply with treatment as a condition of diversion, and he does not pose an unreasonable risk of danger to public safety. (§ 1001.36, subd. (b)(1)(A)-(F).)
On January 25, 2019, the Honorable R. Glenn Yabuno denied defendant's request for mental health diversion on the grounds he "is statutorily ineligible for diversion" as a result of his prior strike convictions. On February 8, 2019, the Honorable Katrina West sentenced defendant to state prison for a total term of five years four months.
II. DISCUSSION
A. Section 1001.36 Is Retroactively Applicable.
Effective June 27, 2018, the Legislature created a pretrial diversion program for defendants with qualifying mental disorders. (§§ 1001.35, 1001.36; People v. Frahs (June 18, 2020, S252220) ___ Cal.5th ___ [2020 Cal. Lexis 3736, at pp. *5-*6] (Frahs).) "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 (Weaver), review granted Oct. 9, 2019, S257049.) It affords the trial court discretion to postpone prosecution, either temporarily or permanently, to allow a defendant to undergo mental health treatment if the defendant meets six enumerated requirements. (Id. at p. 1115.) Section 1001.36 applies retroactively to all defendants whose convictions are not yet final on appeal. (Frahs, at pp. *14-*17.)
B. Remand Is Required.
To the extent section 1001.36 applies retroactively, the People contend remand would be a futile act because (1) defendant "is ineligible for diversion due to his prior strikes," and (2) according to the trial court's (Judge West) comments at sentencing, the court found that he "poses a serious danger to society." We disagree.
While the three strikes law prohibits diversion for defendants found to have a prior strike conviction (§ 667, subd. (c)(4)), our conditional reversal restores the case "to its procedural posture before the jury verdict for purposes of evaluating defendant's eligibility for pretrial mental health diversion. [Citation.] At that point, defendant faced a mere allegation of a prior serious felony conviction, which is not enough to prohibit a suspended sentence or diversion." (Frahs, supra, ___ Cal.5th ___ [2020 Cal. Lexis 3736, at p. *34].) Here, although defendant's priors have technically been "adjudicated" in the trial court, his case is not yet final on appeal. Thus, the trial court is instructed to retroactively consider whether defendant is eligible for diversion under the provisions of section 1001.36, as though the statute existed at the time defendant was initially charged.
Regarding the trial court's (Judge West) comments during sentencing, a court's evaluation of defendant's dangerousness in connection with a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 "presents a different question from its consideration of mental health diversion. [Here, the court] made no findings as to whether, during or after inpatient or outpatient mental health treatment, [defendant] would 'pose an unreasonable risk of danger to public safety' as defined under section 1001.36, subdivision (b)(1)(F)." (Burns, supra, 38 Cal.App.5th at p. 789.) Rather, the court (Judge Yabuno) denied defendant's section 1001.36 request on the grounds he "is statutorily ineligible for diversion" as a result of his prior strike convictions.
"The defendant has engaged in violent conduct that indicates he is a serious danger to society." --------
C. The Abstract of Judgment Requires Correction.
Defendant was sentenced to prison pursuant to sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). However, the abstract of judgment does not have the applicable box in section No. 4 checked to provide "[d]efendant sentenced . . . [¶] . . . [ ] per PC 667(b)(i) or PC 1170.12 (strike prior)." If the trial court reinstates the original judgment, we direct the court to issue an amended abstract of judgment that reflects defendant was sentenced pursuant to the three strikes law.
III. DISPOSITION
The judgment is conditionally reversed, and the matter is remanded to the trial court to hold a hearing under section 1001.36 to determine whether defendant is eligible for diversion under the statute. If so, and if he performs satisfactorily in diversion, the court shall dismiss the charges. (§ 1001.36, subd. (e).) However, if the court does not grant diversion or if defendant does not satisfactorily complete the diversion (§ 1001.36, subd. (d)), the court shall reinstate the original judgment, correct the abstract of judgment, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MENETREZ
J.