Summary
In People v. Daniel (Oct. 31, 2019, D074433) [nonpub. opn.], this court affirmed Daniel's conviction for attempted murder (§§ 664, 187, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)) in connection with a stabbing incident that occurred in November 2015.
Summary of this case from People v. DanielOpinion
D074433
10-31-2019
THE PEOPLE, Plaintiff and Respondent, v. CHRISTINA DANIEL, Defendant and Appellant.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana R. Butler, and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS284541) APPEAL from a judgment of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed in part; reversed in part and remanded for conditional resentencing. Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana R. Butler, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Christina Daniel stabbed her sister's boyfriend, Antonio, multiple times with a knife. After rejecting Daniel's mistaken identity defense, a jury convicted her of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), and assault with a deadly weapon (§ 245, subd. (a)(1)) with attendant enhancements. The court sentenced her to a total prison term of 27 years consisting of, in part, a five-year enhancement for her prior serious felony conviction.
Undesignated statutory references are to the Penal Code.
Daniel appeals, contending the trial court: (1) violated her right to confrontation by admitting Antonio's statement to a police officer identifying her as the assailant; (2) erred by denying defense motions to (a) take judicial notice of physical data about her and her sister, Linda, and (b) show photographs of Linda during opening statement and closing argument; and (3) abused its discretion by denying her Romero motion to strike her prior strike conviction. She also asserts that we should: (1) remand this matter based on newly enacted Senate Bill No. 1393 so that the trial court may decide whether to exercise its discretion to strike the five-year sentence enhancement imposed for her prior serious felony (§ 667, subd. (a)); (2) conditionally reverse the judgment and remand with directions to determine whether she is eligible for a pretrial mental health diversion program (§ 1001.36); and (3) remand to allow the trial court to determine her ability to pay certain fines, assessments and a fee, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
People v. Superior Court (Romero) (1996) 13 Cal.4th 440.
We remand this matter so that the trial court may decide whether to exercise its discretion to strike the five-year enhancement for the prior serious felony. We reject Daniel's remaining claims of error.
FACTUAL BACKGROUND
A. The Incident
Daniel has two sisters, Gloria and Linda. Gloria lived with Antonio and they had a child together. In November 2015, the police received a 911 call from Antonio stating that after arguing with Gloria, she "called her family over" and "the sister and some other guy" had attacked him. Responding to the call, Officer Calixto saw a bleeding Antonio sitting in a chair and a woman exiting the house. As Officer Calixto approached, he asked, "What is going on? What happened?" Antonio replied that "Christina Daniel" had stabbed him. Officer Calixto broadcast this information over the police radio. Antonio then refused to answer any more questions stating, "I am hurt. I'm not answering questions." He sustained stab wounds to his scalp, chest, back and finger. B. The Investigation
On the day of the incident, a neighbor saw a woman and man arrive at Antonio's home. The couple met Gloria and all three rushed to the back of the home. A short time later, the neighbor saw the same three people run to the front of the home and then leave in separate cars. The neighbor did not see the woman's face, but described her as a skinny Hispanic with dark hair in a bun and between 20 to 30 years old.
Antonio's niece, who lived in the front part of Antonio's home, heard banging and screaming the day of the incident. She heard Antonio say "Gloria, tell them to stop. I didn't hurt your sister. Tell them to stop." She saw Gloria leave the house with a man and a woman. The woman was carrying a bloody knife. She did not see the woman's face, but described her as Hispanic, with a medium build and normal weight and had black hair in a bun.
After the stabbing incident, Gloria and Antonio married. During the course of the investigation, Antonio checked himself into a mental hospital. An investigator from the district attorney's (DA) office believed that Antonio had been subjected to witness intimidation. Although Antonio appeared at several pre-trial hearings, he later disappeared and the DA investigator could not locate him. Antonio did not testify at trial and Gloria invoked her Fifth Amendment right not to testify.
The DA investigator reviewed recorded jail telephone conversations between Daniel and Linda. During one conversation Linda informed Daniel that "he's not gonna do it" and is in a mental hospital. Daniel later stated that "if he doesn't show up, that means I get let go, fool." Linda responded, "Ain't nobody will say nothing . . . as long as they see me in that . . . courtroom . . . . As long as we go to court hearing, ain't nothing gonna happen." Daniel replied "[I]f he goes to that courtroom and starts telling on me, it's a wrap, fool. But if he doesn't say nothing at all, they have to dismiss my case because I have a right to confront my accuser."
The DA investigator also reviewed several letters written by Daniel that he believed contained references to Antonio. In one letter Daniel wrote "My case is all bad supposedly. I stabbed this fool Devil in the head and back, chest, arm, hand, everywhere, I guess. I don't know, dog. All sounds like nonsense to me. I could never." At the end of the paragraph Daniel placed a "smiley face with a winky eye." According to the investigator, Antonio used the nickname Devil. In a second letter, Daniel wrote " 'They said I stabbed some fool in the head and back on 11-27-15, just a bunch of bullshit. I'm just a girl.' " A "winky face" accompanied the statement.
DISCUSSION
A. Confrontation Clause
1. Additional Background
The People sought to admit Antonio's statements in his 911 call and his statements to the first responding officer under the hearsay exception for spontaneous statements under Evidence Code section 1240. The People argued that the statements were not testimonial and could be admitted without violating the confrontation clause. Daniel moved to exclude all of Antonio's statements, asserting that they violated the confrontation clause.
After reviewing the transcript of the 911 call, the trial court found that Antonio's statements qualified for the spontaneous statement exception to the hearsay rule and nothing in the 911 call implicated the confrontation clause. The court conducted an Evidence Code section 402 hearing with Officer Calixto to determine whether Antonio's statements to him should be admitted as spontaneous statements.
Officer Calixto initially testified that when he arrived he generally asked what happened and Antonio answered that Daniel had stabbed him. During cross-examination, defense counsel read the report of another responding officer who wrote that Antonio responded with Daniel's name after Officer Calixto had asked him " 'Who did it?' " Officer Calixto admitted asking this question, but later claimed that the officer who wrote the report may have "misinterpreted" what he said.
The court tentatively ruled that Antonio's statements to Officer Calixto were spontaneous statements under Evidence Code section 1240, and the statements were not testimonial because an ongoing emergency existed and the officer was gathering information for safety reasons. After hearing testimony from some of the officers who responded to the scene, the trial court found the testimony consistent with its earlier ruling that Antonio's statements to Officer Calixto were not testimonial and thus admissible.
2. Analysis
Daniel argues that the trial court erroneously admitted Antonio's hearsay statements to Officer Calixto identifying her as his assailant because they constituted testimonial hearsay and the declarant was unavailable for cross-examination. Relying on the written report of another responding officer, Daniel asserts that Officer Calixto's question—"Who did it?"—shows no emergency existed and that the officer's inquiry had moved into an investigative phase.
To ascertain if the confrontation clause is implicated, we must determine whether a statement offered against a criminal defendant is hearsay, whether the statement is admissible under a hearsay exception; and if so, whether the statement is testimonial. (People v. Blacksher (2011) 52 Cal.4th 769, 813 (Blacksher).)
An exception to the hearsay rule exists for spontaneous declarations, that is, statements that purport to describe or explain an act, condition, or event perceived by the declarant, made spontaneously while the declarant was under the stress of excitement caused by such perception. (People v. Lynch (2010) 50 Cal.4th 693, 751, overruled on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 636-638.) We review the admission of statements as spontaneous for abuse of discretion. (Ibid.) Here, Antonio's statements to Officer Calixto qualified as spontaneous statements under Evidence Code section 1240 because Antonio made them while under the immediate influence of the assault. Daniel does not challenge this conclusion, but instead argues that this determination did not make the statements admissible for confrontation clause purposes. Accordingly, we next examine whether the statements were nontestimonial.
The confrontation clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court held that admission of a "testimonial" hearsay statement by a declarant who does not appear for cross-examination at trial violates the confrontation clause unless the witness is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the witness. (Id. at pp. 59, 68.) This rule applies even if the statement is otherwise admissible under a hearsay exception. (Id. at pp. 50-51, 56 & fn. 7.) However, the confrontation clause does not bar admission of hearsay statements that are not testimonial. (Davis v. Washington (2006) 547 U.S. 813, 823-826.)
In Blacksher, supra, 52 Cal.4th 769, our Supreme Court examined Crawford and its progeny and set forth a six-factor test to determine whether the "primary purpose" of a hearsay statement offered against a criminal defendant was to create an out-of-court substitute for trial testimony. (Id. at p. 813.) These factors are: (1) objectively evaluating the circumstances of the encounter and the statements and actions of the individuals involved in the encounter; (2) whether the statements were made during an ongoing emergency or under circumstances that reasonably appeared to present an emergency, or were obtained for purposes other than for use by the prosecution at trial; (3) whether any actual or perceived emergency presented an ongoing threat to first responders or the public; (4) the declarant's medical condition; (5) whether the focus of the interrogation had shifted from addressing an ongoing emergency to obtaining evidence for trial; and (6) the informality of the statement and the circumstances under which it was obtained. (Id. at pp. 813-815.)
Applying these factors, we conclude that Antonio's statements to Officer Calixto were nontestimonial and that their admission did not violate Daniel's Sixth Amendment right to confrontation. Officer Calixto was one of two officers to first arrive in response to Antonio's 911 call. Officer Calixto saw a blood trail, then saw Antonio sitting in a chair, bent over with blood on his face and hands, holding a rag to his front area. As he approached Antonio the officer saw a woman exiting the house and did not know if she posed a threat. Officer Calixto did not know what had occurred and generally asked, "Hey, what's going on? What happened?" Antonio responded that Christina Daniel had stabbed him. Officer Calixto then asked, "Where is she?" After learning that the suspect had left, Officer Calixto "put that information on the radio [for] officer safety" thinking that an officer might see a woman with blood on her. Officer Calixto's "first priority" was safety, "If they were in a fight and the other person is still in the house or in the back or, you know, even worse condition. I don't know."
Officer Calixto initially stated that Antonio volunteered Daniel's name, but when confronted with another officer's written report, he admitted that Antonio gave him Daniel's name after he asked "Who did it?" We do not consider this discrepancy significant because initial inquiries often produce nontestimonial statements. (Michigan v. Bryant (2011) 562 U.S. 344, 377; see also People v. Brenn (2007) 152 Cal.App.4th 166, 178 [" 'Preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an "interrogation." ' "].)
Assuming Officer Calixto asked this follow-up question, Antonio spoke to the officer to address an ongoing emergency. It was objectively reasonable for Officer Calixto to obtain as much information as possible from the bleeding victim because the suspect, presumably still armed, remained at large and, therefore, posed an immediate threat to officers and the public. (See People v. Chism (2014) 58 Cal.4th 1266, 1289 [witness's statements to first responder describing suspects and relating events shortly after shooting were not testimonial; conversation took place outside store where shooting had just happened; reasonable for officer "to believe the suspects, one of whom presumably was still armed with a gun, remained at large and posed an immediate threat to officers responding to the shooting and to the public"]; People v. Romero (2008) 44 Cal.4th 386, 422 [statements by "agitated victim" of ax attack were not testimonial, as they "provided the police with information necessary for them to assess and deal with the situation, including taking steps to evaluate potential threats to others by the perpetrators, and to apprehend the perpetrators"; "same is true of the statements pertaining to identification"]; People v. Nelson (2010) 190 Cal.App.4th 1453, 1467 [shooting victim's description of events to officers answering 911 call and identification to firefighter of defendant as assailant were not testimonial; though shooting victim "was no longer in immediate danger from the shooter, there was still a possibility that the unidentified shooter could pose an immediate threat to other persons"].)
The totality of the circumstances show that Officer Calixto acted as a neutral first responder dealing with an emergency. At no time during the encounter at the scene did Antonio's statement evolve into a testimonial statement. We conclude that the trial court properly admitted Antonio's statements as spontaneous statements, the statements were not testimonial and thus their admission at trial did not violate Daniel's confrontation clause rights. B. Judicial Notice and Photographic Evidence
1. Additional Background
Before trial, defense counsel sought to use photographs of Daniel's sister, Linda, during his opening statement and closing argument. He claimed that Linda's photographs would be relevant to identification issues. Counsel also requested judicial notice of the dates of birth and physical characteristics (eye and hair color, height, and weight) of Linda and Daniel available on the San Diego County Sheriff "who's in jail" website. He claimed that Daniel and Linda looked similar and that a misidentification issue existed.
The trial court questioned defense counsel whether evidence existed showing that Linda was at the scene during the stabbing, stating "I have to have some evidence to support the fact that [Linda] may have been there that day and that's how [Antonio] misidentified her. But I just can't put in evidence that he identified somebody as Linda with no basis to support the fact that she may have been there that day." The court denied the requests without prejudice. The prosecutor told the court that at the time of the incident Daniel weighed about 140 pounds; by comparison, Linda weighed about 215 pounds nine months later. The judge viewed photographs of Linda. After evaluating the probative value of this evidence against whether it would be unduly prejudicial, the court indicated it would allow a photograph of Daniel taken a few days before the incident, but no photographs of Linda because not "a scintilla of evidence" existed suggesting Linda's presence at the crime scene.
2. Analysis
Daniel contends the trial court erred in refusing to take judicial notice of her physical characteristics compared to those of her sister Linda, and not allowing Linda's photographs into evidence. She asserts this evidence would have cast doubt on the accuracy and reliability of Antonio's statement identifying her as his attacker, claiming the court erred when analyzing the issue as one involving third party culpability. She argues that the errors denied her the constitutional right to present a full and complete defense.
A defendant's constitutional right to a fair trial includes the right to present all relevant evidence that is "of significant value" to the defense case. (People v. Cunningham (2001) 25 Cal.4th 926, 999.) Relevant evidence means evidence—including evidence relevant to credibility—that has any tendency to prove or disprove any disputed material fact. (People v. Boyette (2002) 29 Cal.4th 381, 428.) "Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) We review a trial court's evidentiary rulings for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.) Application of the ordinary rules of evidence does not impair a defendant's right to present a defense. (Boyette, at pp. 427-428.) Although completely excluding evidence of an accused's defense theoretically could infringe on the right to present a defense, excluding defense evidence on a minor or subsidiary point does not. (Ibid.)
The trial court analyzed Daniel's argument as an attempt to introduce evidence of third-party culpability. "[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt[ ] must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352." (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) We review the trial court's ruling on third party culpability evidence for abuse of discretion. (People v. Robinson (2005) 37 Cal.4th 592, 625.)
Here, the trial court properly excluded Linda's photographs and the data comparing her and Daniel's physical characteristics because there was no evidence linking Linda to the crime. (People v. DePriest (2007) 42 Cal.4th 1, 43 ["[T]hird party culpability evidence is relevant and admissible only if it succeeds in 'linking the third person to the actual perpetration of the crime' "].) Unable to overcome this barrier, Daniel suggests that the trial court failed to perceive that the evidence itself would have sufficiently linked Linda to the crime to allow admission of the evidence under third-party culpability case law. But she failed to support this assertion with citation to authority. To the contrary, "[e]vidence is irrelevant . . . if it leads only to speculative inferences." (People v. Morrison (2004) 34 Cal.4th 698, 711.) In the absence of any evidence that Linda was at the crime scene, presenting the jury with Linda's photographs and data regarding Linda's and Daniel's physical characteristics could have only created a speculative inference that Linda, not Daniel, committed the crime. However, the "exclusion of evidence that produces only speculative inferences is not an abuse of discretion." (People v. Babbitt (1988) 45 Cal.3d 660, 684 (Babbitt); People v. Kraft (2000) 23 Cal.4th 978, 1035 ["evidence leading only to speculative inferences is irrelevant"].)
Daniel suggests the trial court erred in treating the issue as one involving third-party culpability evidence because she proffered this evidence to challenge the accuracy and reliability of Antonio's identification of her and support a misidentification defense. She attempts to distinguish a misidentification defense from a third-party culpability defense, claiming that misidentification refers to two people who "so closely resemble[] each other such that they plausibly could have been mistaken for each other." This is a distinction without a difference. The significance of misidentification is based on the possibility that Linda was the real attacker. Indeed, Daniel's argument carried to its illogical conclusion would suggest that photos of people who "look like" the defendant would be routinely admissible to suggest that eyewitness identification testimony might be erroneous. Again, absent evidence that Linda was at the scene, the prospect of misidentification is pure speculation. (Babbitt, supra, 45 Cal.3d at p. 684.) C. Romero Motion
Daniel sought to dismiss her prior strike under Romero, supra, 13 Cal.4th 497 based on her difficult childhood. The court denied the request, citing Daniel's lengthy criminal record and the small amount of time she has been able to remain law-abiding while out of custody. Our review of the record convinces us that the trial court fully understood the scope of its discretion on the Romero motion and properly applied the relevant legal principles.
In deciding whether to dismiss a prior conviction allegation under section 1385, a trial court must consider whether "in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the trial court's ruling on a motion to strike prior convictions under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) The defendant must show that the trial court's sentencing decision was "so irrational or arbitrary that no reasonable person could agree with it." (Ibid.) If the record demonstrates that the trial court reached an impartial decision in conformity with the spirit of the law after balancing the relevant facts, we will affirm the ruling " 'even if we might have ruled differently in the first instance.' " (Carmony, at p. 378.)
The three strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.) "The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) A career criminal must show "extraordinary" circumstances to fall outside the spirit of the three strikes law and the failure to strike a prior strike conviction will not constitute an abuse of discretion unless no reasonable minds could differ. (Carmony, at p. 378.)
Our review of these considerations shows the trial court did not abuse its discretion in denying Daniel's Romero motion. Before ruling on the motion, the court indicated its familiarity with Romero and its progeny. It recited Daniel's adult criminal history which started in 2004, at age 19, with convictions for grand theft and vehicle theft. In 2005 she pled guilty to possessing a controlled substance. Later that year she was convicted of being a felon in possession of a firearm. For all these offenses Daniel did poorly on probation with numerous probation revocations.
While in jail Daniel was charged with and later convicted of damaging jail property. In 2006, she suffered her strike prior conviction for carjacking. During this offense Daniel beat the victim and held a knife to the victim's neck. While incarcerated Daniel was charged in two separate incidents for battery on another inmate and resisting arrest. And while on parole, Daniel committed this offense, where she also used a knife. Finally, in April 2016 she fatally stabbed a woman in the neck, resulting in a jury conviction for second-degree murder.
Daniel described her childhood during a psychological evaluation as " 'horrific.' " She reported a transient lifestyle with drug addicted parents, being left in the care of strangers and sexual abuse. The trial court expressed concern regarding Daniel's reliability, however, stating "It is very hard to trust what she tells the Court or any psychological evaluator in this case. [¶] So I will take what has been said in the psychological evaluation, but I'll do it with a grain of salt or sand, because I just don't know how reliable the information that she provided to the psychologist. [¶] She may have had a horrible upbringing, but that does—a lot of people have horrible upbringings, and they don't react and kill people and take their cars and then try to kill people."
We agree with the trial court that Daniel's childhood does not legally excuse her pattern of criminality. Rather, Daniel's reported childhood issues appear tragic, but do not render the trial court's decision arbitrary nor capricious. The court could properly conclude that Daniel fell squarely within the ambit of the three strikes law, and it acted well within its discretion when it declined to dismiss her strike prior. D. Prior Serious Felony Enhancement
At the time of sentencing, the court was required under section 667, subdivision (a) to enhance the sentence imposed for conviction of a serious felony by five years for each qualifying prior serious felony conviction. On September 30, 2018, however, the Governor signed Senate Bill No. 1393, effective January 1, 2019, which amended section 1385, subdivision (b) to give a court discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Daniel contends, the People concede, and we agree, that Senate Bill No. 1393 applies retroactively to Daniel's judgment, which was not yet final as of January 1, 2019. (Garcia, at pp. 971-972.) But the People argue that a remand for resentencing is not necessary because the trial court's actions in denying Daniel's Romero motion and imposing consecutive sentences gives clear indication that the court would not strike Daniel's prior serious felony conviction enhancement on remand. Daniel contends these actions do not provide such a clear indication of how the court would have ruled as to make a remand futile. We agree with Daniel.
The trial court stated that it "[had] to impose" a five-year prison term enhancement under section 667, subdivision (a) based on Daniel's admission that she had a prior serious felony conviction. Where, as here, the record shows that the court imposed a sentence on the assumption that it lacked sentencing discretion, "remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Remand is not required, however, if the original sentencing record clearly shows that the trial court would not have stricken the previously mandatory enhancement. (Ibid.)
Here, the trial court's exercise of discretion at the original sentencing hearing is a possible indication of how it might rule on Daniel's request to strike the prior serious felony enhancement. These actions, however, do not foreclose the possibility that the trial court would have stricken Daniel's prior serious felony conviction for sentencing purposes if it had the discretion to do so. Accordingly, remand is appropriate in this case to allow the trial court to exercise its discretion to determine whether striking this enhancement is in the furtherance of justice. We express no opinion on how the trial court should exercise its discretion on remand. E. Mental Health Diversion
Effective June 27, 2018, the Legislature created a pretrial diversion program for defendants suffering from a qualifying mental disorder. (§ 1001.36, subds. (a) & (b)(1).) One of the purposes of the legislation was to promote "[i]ncreased diversion of individuals with mental disorders . . . while protecting public safety." (§ 1001.35, subd. (a).) " '[P]retrial diversion' means 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 . . . ." (§ 1001.36, subd. (c).) A trial court may grant pretrial diversion if all the following eligibility criteria are satisfied: (1) a qualified mental health expert has recently diagnosed the defendant with a qualifying mental disorder; (2) the "mental disorder was a significant factor in the commission of the charged offense"; (3) the defendant's symptoms will respond to treatment; (4) the defendant consents to diversion and waives his or her speedy trial rights; (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. (§ 1001.36, subd. (b)(1)(A)-(F).) On September 30, 2018, the Legislature amended section 1001.36, effective January 1, 2019, to eliminate a defendant's eligibility for diversion if the defendant is charged with certain offenses, including murder. (§ 1001.36, subd. (b)(2).)
We refer to section 1001.36 as originally enacted as "section 1001.36" and section 1001.36 as amended effective January 1, 2019 as "amended section 1001.36."
Daniel contends she is entitled to a diversion hearing under section 1001.36 because the Legislature intended the statute to apply to cases pending on appeal. The People disagree, arguing that the language of section 1001.36 demonstrates the Legislature intended the enactment to operate prospectively, foreclosing its application to cases such as this one in which there has already been a trial court adjudication. Even assuming the amendments to section 1001.36 are retroactive, the People contend that a remand is futile because the trial court correctly recognized that Daniel is a substantial danger to society and because the record fails to provide any evidence that she is eligible for mental health diversion.
Generally, amendments to the Penal Code are presumed to apply prospectively unless they state otherwise. (See § 3.) Nonetheless, the presumption against retroactivity does not apply when the Legislature reduces the punishment for criminal conduct. (In re Estrada (1965) 63 Cal.2d 740, 744-745.) Although courts have been divided on whether section 1001.36 applies retroactively to all nonfinal judgments, we recently concluded that it does. (People v. Burns (2019) 38 Cal.App.5th 776, 785.) We will accordingly apply it to this case.
Compare, People v. Frahs (2018) 27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220 [section 1001.36 retroactive], People v. Weaver (2019) 36 Cal.App.5th 1103, 1121, review granted Oct. 9, 2019, S257049 [same], and People v. Hughes (2019) 39 Cal.App.5th 886, 896 [same] with People v. Craine (2019) 35 Cal.App.5th 744, 749, review granted Sept. 11, 2019, S256671 [section 1001.36 not retroactive] and People v. Torres (2019) 39 Cal.App.5th 849, 855 [same].
This conclusion does not end our inquiry, however, because Daniel was convicted of second degree murder and sentenced in 2018 to 30 years to life plus six years in prison. Amended section 1001.36 provides that a defendant may not be placed into a diversion program if charged with certain specified crimes, including murder. (§ 1001.36, subd. (b)(2)(A), italics added.) Thus, Daniel is statutorily ineligible for mental health diversion because she was charged with murder.
Daniel suggests that applying amended section 1001.36 violates ex post facto and due process protections under the federal and state constitutions. The claim, made in passing and without citation to authority, is deemed forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.) In any event, we disagree that amended section 1001.36 violates the ex post facto clauses of the United States or California Constitutions. The federal and state ex post facto clauses (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9) prohibit legislation " 'which makes more burdensome the punishment for a crime, after its commission . . . .' " (Collins v. Youngblood (1990) 497 U.S. 37, 42; People v. McVickers (1992) 4 Cal.4th 81, 84.) The ex post facto prohibition is intended to ensure that individuals have " 'fair warning' about the effect of criminal statutes [and] 'restricts governmental power by restraining arbitrary and potentially vindictive legislation.' " (Landgraf v. USI Film Products (1994) 511 U.S. 244, 267.)
On June 21, 2019, concurrent with the filing of her reply brief, Daniel requested judicial notice of a portion of her opening brief in Court of Appeal case number D074317, challenging her murder conviction. Specifically, she requests judicial notice of her arguments addressing the retroactivity of sections 1001.35, 1001.36, and amended section 1001.36. But in light of our analysis of the issue, the information is irrelevant and on that basis we deny the request.
Here, ex post facto concerns do not apply because Daniel was subject to the same punishment when she committed her offenses as she was after the Legislature narrowed the scope of defendants eligible for diversion. Thus, amended section 1001.36 does not violate the ex post facto clauses of the state or federal constitutions. (People v. Cawkwell (2019) 34 Cal.App.5th 1048, 1054, review granted Aug. 14, 2019, No. S256113.) F. Ability to Pay Fines, Assessments and Fee
The court imposed an $80 court operations assessment (§ 1465.8), a $60 criminal conviction assessment (Gov. Code, § 70373), a criminal justice administration fee of $154 (§ 29550), a $10,000 restitution fine (§ 1202.4, subd. (b), and a suspended $10,000 parole revocation fine (§ 1202.45) without considering Daniel's ability to pay.
While this appeal was pending, the Court of Appeal issued an opinion in Dueñas, supra, 30 Cal.App.5th 1157, holding that the trial court violated a defendant's right to due process under both the United States and California Constitutions by imposing court operations and facilities assessments pursuant to Government Code section 70373 and section 1465.8 without determining the defendant's ability to pay. (Dueñas, at p. 1168.) The court also concluded that imposing restitution fines pursuant to section 1202.4, subdivision (b) raises similar constitutional concerns, and therefore held that, while the trial court must impose the minimum restitution fine even if the defendant demonstrates an inability to pay, it must stay execution of the fine in such cases until it determines the defendant's ability to pay. (Dueñas, at p. 1172.)
Relying on Dueñas, Daniel requests that we stay the fines, assessments and fee because the court violated her due process rights by imposing them without first determining she had the present ability to pay to them. The People contend that Daniel bore the burden of proving an inability to pay and that she forfeited any argument regarding her ability to pay the fines, assessments, and fee by failing to raise this issue in the trial court. In this instance, we agree with the People.
The minimum fine for felony convictions is $300. (§ 1202.4, subd. (b)(1).) A trial court may consider inability to pay when "increasing the amount of the restitution fine in excess of the minimum fine . . . ." (§ 1202.4, subd. (c).) It is well established that a defendant forfeits a challenge to the trial court's imposition of a restitution fine above the statutory minimum for failing to consider his or her ability to pay if the defendant did not object in the trial court. (People v. Nelson (2011) 51 Cal.4th 198, 227 [alleged erroneous failure to consider ability to pay a $10,000 restitution fine forfeited by the failure to object]; People v. Avila (2009) 46 Cal.4th 680, 729 [forfeiture rule applies to claim that restitution fine amounted to an unauthorized sentence based on inability to pay].)
Here, unlike the defendant in Dueñas, supra, 30 Cal.App.5th 1157, who created an extensive record showing her inability to pay $220 in assessments and fines, Daniel did not object in the trial court claiming that she was unable to pay, even though the trial court ordered her to pay the maximum restitution fine. (Id. at pp. 1161-1163; People v. Castellano (2019) 33 Cal.App.5th 485, 490 ["Consistent with Dueñas, a defendant must in the first instance contest in the trial court his or her ability to pay. "].) Moreover, had Daniel objected to the amount of the restitution fine and requested an ability-to-pay hearing, she would have preserved her objection to the $294 imposed in assessments and fees. As we explained in People v. Gutierrez (2019) 35 Cal.App.5th 1027 (Gutierrez), "even before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law . . . expressly permitted such a challenge." (Id. at p. 1033; see also ibid. ["if Gutierrez chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees"]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 ["Given his failure to object to a $10,000 restitution fine based on inability to pay, Frandsen has not shown a basis to vacate assessments totaling $120 for inability to pay."].) Accordingly, we conclude that Daniel forfeited any ability to pay challenges to the fines, assessments and fee. (Gutierrez, at p. 1033.)
DISPOSITION
The matter is remanded to the trial court for the limited purpose of deciding whether to exercise its discretion to strike the five-year enhancement for Daniel's prior serious felony conviction. If the trial court decides to strike the enhancement, it shall resentence Daniel. If the trial court does not strike the enhancement, it shall reinstate the sentence. In all other respects, the judgment is affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.