Opinion
G055761
10-19-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JOSEPH GIDANIAN, Defendant and Appellant.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16HF1619) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard J. Oberholzer, Judge. (Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Judgment conditionally reversed and remanded with directions. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Following a court trial defendant Daniel Joseph Gidanian was convicted of felony malicious mischief (Pen. Code, § 594, subds. (a), (b)(1)), and felony stalking with a prior felony stalking conviction (Pen. Code § 646.9, subd. (c)(2)). The court sentenced defendant to a term of five years in prison. Defendant appealed from the final judgment.
This is our second opinion in this case. In our first opinion (People v. Gidanian (July 31, 2018, G055761) [nonpub. opn.] (Gidanian I)), we concluded there were no arguable issues, and we affirmed the judgment under Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende).
We subsequently granted defendant's petition for rehearing to consider the applicability of Penal Code section 1001.36 (section 1001.36), which created a new pretrial diversion program for defendants with diagnosed mental disorders. (See Stats. 2018, ch. 34 (Assem. Bill No. 1810 (2017-2018 Reg. Sess.) § 24, eff. June 27, 2018.)
In this second opinion, as in Gidanian I, we have independently reviewed the entire record as required under Anders and Wende, and once more we have found no arguable issues regarding the legality of defendant's convictions or sentence. However, we agree with defendant that section 1001.36 applies retroactively to this case.
Therefore, we conditionally reverse the judgment and remand the matter to the trial court with directions to conduct a diversion qualification hearing pursuant to section 1001.36. If the court determines defendant qualifies, then the court may grant diversion. But if the court determines defendant does not qualify, or if he does not successfully complete diversion, then his convictions and sentence shall be reinstated.
FACTS
Throughout 2016, Tammy D., the victim, lived in a Laguna Niguel apartment complex. Defendant was one of her neighbors and he repeatedly came to her apartment asserting she had his mail. He was told this was not the case and when he began to come around as late as 10:00 p.m. Tammy told defendant he was making her feel uncomfortable and that he should not come anymore.
Defendant stayed away for about six weeks but then reappeared on October 13, 2016, when Tammy was having a party in her apartment. One of her guests invited him in and another gave him a drink. Fifteen minutes later, Tammy found him sitting on her kitchen floor eating some food. Tammy told defendant "[you are] weirding me out" and told him to go back into the living room. Defendant instead left the party and the door was locked behind him—but afterwards an unknown person tried to open the locked door.
Three days later, Tammy experienced the first of eight incidents in which her car's tires were either punctured or slashed. The cost of this vandalism totaled $1,611.77. Tammy installed a motion-activated video camera in her carport and one morning around 5:00 a.m. it recorded defendant slashing her car's tire.
Subsequently, Tammy encountered defendant on the apartment grounds where he stared, "stomped," and "almost growled." On other occasions he would glare at her when she came home from work. On one occasion, she found him standing underneath her balcony and she screamed, "What are you doing?" "Leave me alone." Defendant stared at her and then ran away.
Later, an Orange County deputy sheriff executed a traffic stop and found a metal leather puncture or spike along with a knife in a toolbox in defendant's car. Sheriff deputies then executed a search warrant of defendant's apartment and found: (1) notes that had Tammy's work address, her driver's license number and her vehicle's plate number; (2) two scratch awls; and (3) two keys labeled with Tammy's address, one of which unlocked Tammy's apartment door.
Defendant's telephone contained a voice note made by defendant describing an original epigraph that Tammy had hanging on her bedroom wall. The phone also revealed Internet searches on how to slash a tire and how to vandalize a neighbor's car so they will move away. There were 72 Internet searches on the phone relating to Tammy.
Defendant waived jury and represented himself at trial. He did not cross-examine any witnesses and did not offer any defense evidence. Defendant argued he did not know Tammy. He had moved from Laguna Niguel in October. He returned to his former complex only once and someone pointed out there was a camera installed in a parking stall so he looked at it. He never punctured or slashed anyone's tires and did not perform the Tammy related searches on his cell phone.
SENTENCING
At the sentencing, Tammy gave a victim impact statement describing her fear of defendant. She said the only peace she had was when she could be assured he was in custody. She asked the court to order the maximum term of imprisonment.
Defendant's parents testified at the sentencing hearing. They explained defendant had been diagnosed as being autistic with the subtype of Asperger Syndrome. Since childhood defendant had been unable to recognize how his conduct is perceived by others. Because of his lack of communication abilities, it was difficult for him to avoid antagonizing others. This was a problem when he was in custody, so he had been placed in isolation on numerous occasions.
A psychiatrist also testified at the sentencing hearing. He advised the court defendant's family had the financial resources to put defendant in a Northern California residential treatment program that offers promising new treatment techniques and drugs for individuals suffering from autism, and they had been told there was an improved prognosis for people with his kind of behavior.
The court found a grant of probation "is not the proper disposition in this particular case." Although the court observed defendant "appears to be suffering from a mental condition that could reduce culpability for the crime," "those deficiencies make it difficult for probation department to monitor him." The court doubted defendant "would be capable or willing to comply with the reasonable rules and regulations of the probation department."
The court concluded, "In light of the stated reasons, the court determines that the appropriate term is the upper term." However, the court directed the Secretary of the Department of Corrections and Rehabilitation to consider the court's recommendation for a mental health evaluation for treatment in a state hospital in accordance with Penal Code section 2684 as an alternative to prison punishment.
APPELLATE PROCEEDINGS
We appointed counsel to represent defendant on appeal. Counsel filed a brief that summarized the proceedings and facts of the case and advised us he found no arguable issues to assert on appeal. (Anders, supra, 386 U.S. 738; Wende, supra, 25 Cal.3d 436.) Counsel notified defendant he could file a supplemental brief on his own behalf. But we received no supplemental brief from him and the time to file one passed.
After we issued our opinion in Gidanian I and affirmed the judgment, counsel filed a petition for rehearing seeking a conditional reversal on the grounds that section 1001.36 applied retroactively. We granted the petition for rehearing and invited supplemental briefing from the parties regarding the applicability of section 1001.36.
Defendant filed a supplemental brief which argues: (1) defendant is within the class of defendants whose mental disorder played a significant role in the charged offenses; (2) because the judgment is not yet final, section 1001.36 applies retroactively; and (3) a conditional reversal with a limited remand is appropriate.
Respondent did not file a supplemental brief.
DISCUSSION
Again, we have independently reviewed the entire record as required under Anders and Wende, and, like defendant's counsel, we have found no arguable issues regarding the legality of defendant's convictions or sentence. However, we agree with defendant section 1001.36 applies retroactively to this case, and a conditional reversal with directions to conduct a diversion qualification hearing is appropriate. (See People v. Frahs (Sept. 28, 2018, G054674) ___ Cal.App.5th ___ .)
DISPOSITION
The judgment is conditionally reversed. The matter is remanded to the superior court with directions to conduct a hearing to determine if defendant qualifies for diversion pursuant to section 1001.36, no later than 90 days after the remittitur is issued. If the court determines defendant qualifies, then it may grant diversion. But if the court determines defendant does not qualify for diversion, or if he does not successfully complete diversion, then his convictions and sentence shall be reinstated.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.