Opinion
A153587 A156363
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. RONALD LEE FREEMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. Nos. CR195473A & CR196215A)
Defendant Ronald Freeman appeals from convictions of felony stalking and related offenses. He argues that he is entitled to a remand for the trial court to consider his eligibility for mental health diversion under Penal Code section 1001.36, which was enacted after his jury trial. He also argues that the court erred in declining to appoint counsel for him for a resentencing hearing and that the abstract of judgment must be modified. We agree that Freeman is entitled to a conditional remand for the trial court to consider his eligibility for mental health diversion, but we otherwise reject his claims.
All further statutory references are to the Penal Code unless otherwise indicated.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
This appeal arises out of a sentence imposed as a result of two cases brought because Freeman was stalking and harassing a former spouse. The first case (CR195473A) was initiated after Freeman ignored a civil restraining order issued against him. He was charged with a felony count of stalking while under a restraining order, a misdemeanor count of harassing communications, and 13 misdemeanor counts of disobeying a domestic-relations court order. A criminal protective order was also issued against him. In January 2016, he pleaded guilty to the stalking count with a Cruz/Vargas waiver in return for dismissal of the other charges.
The stalking count was brought under section 646.9, subdivision (b), the harassing-communications count was brought under section 653m, subdivision (b), and the counts of disobeying a domestic-relations court order were brought under section 273.6, subdivision (a). In connection with the stalking count, it was also alleged under section 667.5, subdivision (b), that Freeman had six prior prison terms.
Together, People v. Cruz (1988) 44 Cal.3d 1247 and People v. Vargas (1990) 223 Cal.App.3d 1107 allow a plea agreement under which the defendant agrees to an initial sentence but is released pending the judgment's pronouncement. If the defendant complies with certain terms (such as avoiding additional arrests and appearing at future hearings), a shorter sentence will be imposed when the judgment is pronounced. (Cruz, at p. 1254, fn. 5; Vargas, at p. 1113.)
The following month, the second case (CR196215A) was brought after a video camera captured Freeman in the carport of his former spouse, looking through her car. He was charged with another felony count of stalking while under a restraining order, two more misdemeanor counts of harassing communications, one count of felony eavesdropping, and four misdemeanor counts of violating a protective order. It was also alleged under section 12022.1, subdivision (b), that Freeman committed the stalking offense while released from custody and awaiting final judgment. At a trial in April 2017, a jury convicted Freeman of all counts and found true that he committed the second stalking offense while released from custody.
The eavesdropping count was brought under section 632, subdivision (a), and the counts of violating a protective order were brought under section 166, subdivision (c).
The trial court sentenced Freeman in both cases by imposing an aggregate prison term of seven years and four months, consecutive to a one-year jail term. The prison sentence was composed of a four-year term for the stalking conviction in the second case, a consecutive two-year term for the allegation that Freeman committed the stalking offense while released from custody, a consecutive eight-month term for eavesdropping, and a consecutive eight-month term for the stalking conviction in the first case. Judgment was entered on December 21, 2017, and Freeman appealed (A153587).
In October 2018, while the appeal was pending, the California Department of Corrections and Rehabilitation (CDCR) notified the trial court that the subordinate term for the stalking conviction in the first case should have been a year instead of eight months. As a result, another sentencing hearing was held on November 26, 2018, and the court increased Freeman's aggregate prison term to seven years and eight months. Freeman again appealed (A156363), and we consolidated the two appeals.
II.
DISCUSSION
A. Freeman Is Entitled to a Remand for the Trial Court to Determine His Eligibility for Mental Health Diversion.
Freeman first claims he is entitled to a remand for the trial court to consider his eligibility for mental health diversion under section 1001.36. Although this law went into effect after Freeman's plea in his first case (CR195473A) and conviction in his second case (CR196215A), he claims he is entitled to the law's benefits because the judgments in the two cases are not final. The Attorney General disagrees, but we conclude that Freeman has the better argument.
The parties did not brief, and we therefore do not decide, whether Freeman needed a certificate of probable cause to challenge the plea entered in his first case. A certificate is required to appeal after a plea unless the appeal is based on "[g]rounds that arose after entry of the plea [that] do not affect the plea's validity." (Cal. Rules of Court, rule 8.304(b)(4); see id., rule 8.304(b)(1).) Here, while Freeman seeks to avoid the plea (by seeking to be placed in a pretrial diversion program), he appears to recognize that his plea will remain unaltered if he is not granted diversion or does not successfully complete a diversion program.
Section 1001.36 was enacted as a budget trailer bill on June 27, 2018, and it took effect immediately. (Stats. 2018, ch. 34, §§ 24, 37.) It authorizes trial courts to grant pretrial diversion to defendants with mental disorders, and it directs courts to dismiss charges against participants who successfully complete mental health treatment. (§ 1001.36, subds. (a), (c), & (e).) Under the law, a court may grant diversion if the following criteria are met: (1) The defendant must suffer from a qualifying mental disorder; (2) the mental disorder must have been a significant factor in the commission of the charged offense; (3) in the opinion of a qualified medical expert, the symptoms of the mental disorder motivating the defendant's 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 treatment as a condition of diversion; and (6) if treated in the community, the defendant will not pose an unreasonable risk of danger to public safety, defined as an unreasonable risk that the petitioner will commit a new violent felony. (§§ 1001.36, subd. (b)(1)(A)-(F), 1170.18, subd. (c).)
Freeman is entitled to be considered for diversion under the statute because his cases are not final. Although laws are generally presumed to apply prospectively, this presumption can be overcome as " 'the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication.' " (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara).) Thus, to determine whether a law applies retroactively, courts look to legislative intent. (Ibid.) Under In re Estrada (1965) 63 Cal.2d 740 (Estrada), courts generally presume the Legislature intended statutes reducing criminal punishment to apply to defendants in nonfinal cases. (Id. at p. 745.) Estrada's presumption that laws reducing criminal punishment apply to defendants whose cases are not final " 'rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' " (Lara, at p. 308.)
The Courts of Appeal are split on whether section 1001.36 contains sufficient "contrary indications" so as to upend Estrada's presumption that an ameliorative law applies to defendants whose cases are not final. At least four courts have concluded in published cases that it does not, entitling such defendants to a diversion eligibility hearing. (See People v. Hughes (2019) 39 Cal.App.5th 886, 896, review granted Nov. 26, 2019, S258541; People v. Burns (2019) 38 Cal.App.5th 776, 789, review granted Oct. 30, 2019, S257738 (Burns); People v. Weaver (2019) 36 Cal.App.5th 1103, 1120-1122, review granted Oct. 9, 2019, S257049; People v. Frahs (2018) 27 Cal.App.5th 784, 791, review granted Dec. 27, 2018, S252220 (Frahs).) And at least three courts have reached the opposite conclusion. (See People v. Lipsett (Feb. 21, 2020, H045282) ___ Cal.App.5th ___; People v. Torres (2019) 39 Cal.App.5th 849, 855, review denied Dec. 11, 2019, S258491; People v. Craine (2019) 35 Cal.App.5th 744, 760, review granted Sept. 11, 2019, S256671.) We need not recount in detail the thoughtful analyses of these decisions, since the Supreme Court has granted review and will resolve the conflict.
Until the Supreme Court does, however, we agree with the courts that have concluded that the statute applies to defendants whose cases are not final. In reaching our conclusion, we are primarily guided by the Supreme Court's holding and analysis in Lara, which considered the retroactive effect of Proposition 57. In relevant part, Proposition 57 changed then-existing law to make juvenile courts, not prosecutors, responsible for determining whether juveniles charged with criminal offenses should be prosecuted as adults. (See Lara, supra, 4 Cal.5th at p. 303.) Lara concluded that Proposition 57 applies to offenders whose judgments are not final, even if they were already tried as adults. (Lara, at pp. 303-304.) Under Lara, an appellate court must conditionally remand any case in which a juvenile was tried as an adult before Proposition 57 passed to enable the juvenile court to consider whether the juvenile should have been so tried. (See Frahs, supra, 27 Cal.App.5th at p. 791.) Given Lara's holding that Proposition 57 applies to already-tried juvenile offenders with nonfinal judgments, we see no reason why section 1001.36 should not be deemed to apply to already-tried adult offenders with nonfinal judgments. While the language of the two laws differs, section 1001.36 is no clearer than Proposition 57 in evincing a legislative intent to alter Estrada's presumption of retroactivity.
The appellate courts that have concluded section 1001.36's language is sufficiently clear to overturn Estrada's presumption have largely focused on the statute's references to pretrial diversion, as well as its provision authorizing diversion "from the point at which the accused is charged until adjudication." (§ 1001.36, subd. (c), italics added). But we agree with the courts that have construed these references as more aptly describing how the law is to operate generally, rather than as reflecting a legislative intent to preclude the application of the law to the relatively small class of defendants whose judgments are not final but whose trials took place before the statute was enacted. (See Burns, supra, 38 Cal.App.5th at p. 787; Frahs, supra, 27 Cal.App.5th at p. 791.) "Adjudication" can be reasonably interpreted to refer to the trial, but it can also be reasonably interpreted to refer to the final disposition of the case. Accordingly, we cannot say that the statute's text clearly indicates an intent for the law to apply only prospectively.
Because we do not interpret "adjudication" to refer exclusively to the trial, we reject the Attorney General's related argument that Freeman is procedurally barred under the statute from seeking mental health diversion because his case is "postadjudication."
The portion of Proposition 57 Lara addressed is similar to section 1001.36 in that it also includes timing and procedural references that do not track neatly to the circumstances of offenders whose cases are not final but who were tried before the law went into effect. Its objective of allowing courts to decide whether juvenile offenders should be tried as adults applies awkwardly in cases in which juveniles were already so tried. And, more specifically, it requires prosecutors to file motions to try juveniles in adult court "prior to the attachment of jeopardy." (Welf. & Inst. Code, § 707, former subd. (a)(1), now subd. (a)(1) & (2), as amended by Stats. 2018, ch. 1012, § 1.) This requirement cannot technically be satisfied in cases in which a trial has occurred since jeopardy attaches when the jury is sworn. (People v. Riggs (2008) 44 Cal.4th 248, 279, fn. 12.) Like the references to "pretrial" and "adjudication" in section 1001.36, the phrase "prior to the attachment of jeopardy" could be interpreted to suggest the law applies only to offenders whose cases have not yet proceeded beyond that procedural point. But the Supreme Court declined to so interpret Proposition 57, and we see no convincing reason to reach different conclusion about the analogous references in section 1001.36.
In addition to section 1001.36's unclear language, the timing of its enactment suggests the law applies retroactively to nonfinal cases. Lara was announced five months earlier, so the Legislature must have known about it when it enacted section 1001.36. (See People v. Overstreet (1986) 42 Cal.3d 891, 897.) Because of the textual similarities between section 1001.36 and Proposition 57, we can assume that if the Legislature intended that section 1001.36 be interpreted to apply prospectively only, it would have made that intention clearer. (See In re Pedro T. (1994) 8 Cal.4th 1041, 1049 [to counter Estrada presumption of retroactivity of ameliorative statutory changes, Legislature must "demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it"].)
The Attorney General argues that, even if the text of section 1001.36 does not evince a clear intent for the statute to apply prospectively only, we can find such an intent in the statute's legislative history and evolution. We are not persuaded. We agree with the Attorney General that the law was enacted in part to help reduce costs, and we can accept that a prospective-only application might save some costs in some ways. But applying the law to defendants with nonfinal judgments will save other costs, and these savings may be substantial. In any event, "[t]he question . . . is not the motivation for the legislation" but rather "the Legislature's intent concerning whether [the enactment] should apply prospectively only." (People v. Nasalga (1996) 12 Cal.4th 784, 795-796 [ameliorative amendment was retroactive even though its stated purpose was to address inflation].) We simply do not see how the Legislature's desire to save public funds supports a conclusion that the law was intended to apply prospectively only.
Allowing trial courts to grant mental health diversion for defendants who were given prison sentences, for example, will eliminate further incarceration costs whenever diversion is granted and successful. (See Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 215 as amended Aug. 23, 2018, pp. 2-3 [a purpose of mental health diversion is to "avoid unnecessary and unproductive costs of trial and incarceration," italics added].) --------
Nor are we convinced by the Attorney General's reliance on the Legislature's use of non-urgency legislation in amending section 1001.36 to exclude defendants charged with certain crimes, such as murder and rape. (See Stats. 2018, ch. 1005, § 1.) The Attorney General argues that if the statute was intended to apply retroactively, the Legislature "would have taken urgent action in order to avoid allowing convicted murderers and rapists with nonfinal judgments to avoid conviction in the interim." But even the Attorney General recognizes that, because the amendments did not go into effect until January 1, 2019, people charged with murder and rape were entitled to seek diversion during the six months between June 27, 2018 (the effective date of section 1001.36) and January 1, 2019 (the effective date of the amendments). In our view, it is a stretch to discern a legislative intent that the law have a prospective-only application on the basis that it would have been "absurd" for defendants with nonfinal convictions of these crimes to be eligible for diversion during the six-month period—even though people charged with the these crimes were unquestionably eligible during the same period. It is at least equally plausible the Legislature did not consider the matter urgent because it recognized that trial courts were unlikely to grant diversion to defendants convicted of these crimes.
Finally, the Attorney General argues that, even if section 1001.36 might apply to some already-convicted defendants with nonfinal judgments, it does not apply to Freeman because he failed to sufficiently establish his eligibility for mental health diversion. In Frahs, the court concluded that conditional reversal for the purpose of a hearing on a defendant's eligibility for diversion was appropriate where "the record affirmatively discloses that [the defendant] appears to meet at least one of the threshold requirements" of section 1001.36. (Frahs, supra, 27 Cal.App.5th at p. 791.) Freeman claims, as he did below, that he has post-traumatic stress disorder, a condition the statute expressly identifies as a qualifying mental disorder. (§ 1001.36, subd. (b)(1)(A).) Section 1001.36 did not exist when Freeman entered his plea in his first case or was convicted in his second case, so we simply cannot know if he could have provided the requisite diagnosis of a qualifying mental disorder. Nor is there anything in the record to support the conclusion that remand would be futile. (See Burns, supra, 38 Cal.App.5th at pp. 789-790.)
We therefore reverse the judgment with directions for the trial court to hold a hearing under section 1001.36 to determine whether to grant mental health diversion. (Frahs, supra, 27 Cal.App.5th at p. 792.) We express no opinion on the merits of any such determination.
B. The Trial Court Did Not Abuse Its Discretion in Declining to Appoint Counsel for Freeman for Resentencing.
Freeman next argues that the trial court wrongly denied his request to be appointed counsel for purposes of his resentencing in November 2018. We disagree.
1. Additional facts
A public defender was appointed for Freeman in the first case (CR195473A), and that attorney represented Freeman when he entered his negotiated plea. A public defender was also appointed for Freeman in his second case (CR196215A). In May 2016, a few months after being charged in the second case, Freeman unsuccessfully sought to have counsel replaced. The following month, Freeman sought to represent himself, and the trial court granted this request.
Freeman remained self-represented for the remaining time before, during, and after his April 2017 trial. From the time of the trial through the following October, the trial court repeatedly offered to consider appointing Freeman counsel. Freeman refused or equivocated on all of these offers, which caused the court in mid-October 2017 to tell him, "I will assume you wish to represent yourself until you tell me otherwise in no uncertain terms." In mid-November 2017, Freeman finally requested counsel, but only for purposes of sentencing. The court explained why it was denying the request:
"Mr. Freeman, you've been representing yourself for a number of months now, you've represented yourself pre-trial, during trial[,] and then post trial. You've had ample opportunity to think about your case, your defenses, your motion for new trial, and I have to believe that you also considered the possibility that in light of the jury convicting you on all counts that you might lose your motion for new trial, which would mean that you would be contemplating your possible sentence in this case. And you have had more [than] ample opportunity to consider arguments, if we were in fact to go down the road of sentencing,
and for you to now request counsel for the limited purpose of representing you at sentencing and you are making this request some seven business days before we would actually be proceeding to sentencing, assuming I denied your motion for new trial.
"I don't see that your request is timely. I don't see that you are entitled to an attorney for a specific portion of your case. You have been adamant about your ability to represent yourself, and you have been adamant about [that] even when asking for an attorney who you would accept as an attorney. And for you now to say that you want an attorney for the limited purpose of addressing the possibility of a sentence means that in this Court's mind you are delaying the proceedings, and I do not believe you have a constitutional right to do that at this late stage of the game, so I'm denying your request."
Later elaborating on its reasons, the trial court reiterated that Freeman had "been more than adequately defending [him]self throughout the[] entire proceedings." And it again mentioned its concern that Freeman might be seeking the appointment "for delay" or "to prolong the inevitable," saying that if the request were granted the court "would be falling into the same trap that [Freeman] led [it] into previously." The sentencing hearing was held on December 21, 2017, and the court again pointed out that Freeman had "repeatedly rejected attorneys . . . for appointment of counsel" and that it "fully expect[ed] that [Freeman] would end up rejecting whomever [the court] tried to appoint to represent" him.
In October 2018, the CDCR notified the trial court that Freeman's sentence had been miscalculated. Upon learning there would be a resentencing hearing, Freeman again asked for appointed counsel, specifically the same public defender whom he had earlier insisted be removed as his attorney. The court denied the request, relying on the "same reasons" it gave for denying Freeman's request for counsel at the first sentencing hearing.
The resentencing hearing was held on November 26, 2018. The trial court explained that it was "changing . . . [only] the one sentencing error that was pointed out . . . by the [CDCR]." It then expressly incorporated by reference "all of [its] prior findings" from the first sentencing hearing.
2. Analysis
A criminal defendant has the constitutional right to be either represented by counsel or self-represented. (Faretta v. California (1975) 422 U.S. 806, 819.) But once a defendant has knowingly and voluntarily waived the right to counsel, the right is no longer absolute. (People v. Gallego (1990) 52 Cal.3d 115, 163-164 (Gallego).) Consequently, a trial court has broad discretion in deciding whether to grant a request for counsel by a defendant, like Freeman, who earlier in the proceedings chose to be self-represented. (Id. at pp. 164-165.) Factors the court may consider in evaluating a request to abandon self-representation include (1) whether the defendant has a history of switching between wanting representation and wanting to be self-represented; (2) the defendant's reasons for seeking the new appointment of counsel; (3) the stage of the proceedings; (4) the possibility of disruption or delay; and (5) whether self-representation is likely to be effective. (People v. Elliott (1977) 70 Cal.App.3d 984, 993-994 (Elliott).) A ruling on such a request is affirmed unless it amounts to an abuse of discretion under the totality of the circumstances. (Gallego, at p. 164.)
Applying the Elliott factors, we discern no abuse of discretion. To begin with, Freeman frequently changed his position about appointed counsel. First he wanted an attorney, then he wanted a different one, then he did not want one at all, and then, late in the proceedings, he wanted one for a limited purpose only. "[A] defendant's proclivity to seek changes in counsel status will generally weigh against finding an abuse of discretion." (People v. Lawrence (2009) 46 Cal.4th 186, 196.) In addition, the specific request at issue in this appeal—Freeman's request for appointed counsel for purposes of resentencing only—came at the end of protracted court proceedings, with the court expressing its concern that granting the request could cause further delay. Moreover, the court found that Freeman had represented himself effectively. (See Elliott, supra, 70 Cal.App.3d at p. 994.) Lastly, the court made clear that the resentencing's purpose was very limited, explaining that it intended merely to fix the one error the CDCR identified.
In short, the trial court did not abuse its discretion under the totality of the circumstances. To the contrary, the record shows the court thoughtfully considered the multiple issues Freeman raised regarding appointed counsel and treated him with patience and courtesy. His claim fails.
C. Freeman's Claim Involving the Abstract of Judgment Is Moot.
The abstract of judgment issued after the resentencing hearing did not accurately reflect the trial court's oral pronouncements of Freeman's custody credits and fines. But a new abstract of judgment was issued in June 2019, which Freeman does not challenge. Thus, his claim involving the superseded abstract is moot.
III.
DISPOSITION
The judgment is conditionally reversed. The case is remanded to the trial court with directions to hold a hearing under section 1001.36. The court may exercise its discretion to grant diversion if it determines that Freeman is eligible for it, and it shall dismiss the charges if he successfully completes the diversion program. (§ 1001.36, subd. (e).) If the court declines to grant diversion, or if it grants diversion but Freeman fails satisfactorily to complete the diversion program (§ 1001.36, subd. (d)), the court shall reinstate his convictions and conduct further proceedings consistent with this opinion.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.