Opinion
F077737
03-15-2021
THE PEOPLE, Plaintiff and Respondent, v. MARCUS HARDIN, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Eric L. Christoffersen and Darren K. Indermill, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. F17905194 & F16907657)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Eric L. Christoffersen and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Marcus Hardin stands convicted of second degree attempted robbery (Pen. Code, §§ 211, 664; count 1) and misdemeanor battery (§ 242; count 2) after he tried to steal a burrito at a convenience store and, in the process, injured the store manager. Prior to trial, defendant admitted he had suffered a prior conviction for a serious felony (§ 667, subd. (a)(1)), and that he had previously suffered a conviction for a serious or violent felony (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Following the jury's verdict of conviction on both counts, defendant was sentenced to an aggregate term of nine years: the court imposed a term of four years on count 1, and imposed a consecutive five-year term for the prior serious felony. Defendant was sentenced to jail for 180 days on count 2. The court also imposed sentence in defendant's trailing probation violation case, Fresno Superior Court case No. F16907657 (case one). Probation was revoked and the court imposed a three-year term to be served concurrent with the nine-year sentence imposed in Fresno Superior Court case No. F17905194 (case two).
All further statutory references are to the Penal Code unless otherwise indicated.
We conclude the trial court did not err in refusing to instruct the jury on attempted theft as a lesser included offense of attempted robbery, and we find harmless any error in admitting the testimony of Detective Kham Xiong. Nevertheless, defendant's convictions must be conditionally reversed and the case must be remanded for the trial court to consider defendant's eligibility for mental health diversion under section 1001.36 pursuant to People v. Frahs (2020) 9 Cal.5th 618 (Frahs). To the extent the trial court determines defendant is ineligible for mental health diversion or he does not successfully complete the mental health diversion program, the convictions will be reinstated and resentencing will be required. Upon any resentencing, the court will have the opportunity to consider whether to exercise its discretion to strike the five-year enhancement imposed under section 667, subdivision (a)(1), and defendant is entitled to present his argument regarding his inability to pay relevant fines and fees pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
FACTUAL AND PROCEDURAL SUMMARY
I. Case One: Probation Violation
An information was filed against defendant in June 2017, charging him for crimes that occurred on December 23, 2016, including assault, attempted first degree burglary, and obstructing a peace officer. In April 2017, doubts arose about defendant's competency, and the court appointed Dr. Terrell to evaluate defendant. Dr. Terrell noted defendant suffered from a psychotic disorder, but he appeared to be doing well on medication; Dr. Terrell opined defendant was competent to stand trial and the court agreed.
In August 2017, an amended information was filed against defendant alleging assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)); attempted first degree burglary (§§ 459, 460, subd. (a), 664); and misdemeanor resisting, obstructing or delaying a peace officer (§ 148, subd. (a)(1)). The information also alleged defendant had suffered a strike prior and two section 667.5, subdivision (b), prior prison terms.
Defendant pled no contest to assault and, in August 2017, the trial court dismissed the remaining counts and allegations. Imposition of the sentence was suspended and defendant was placed on probation subject to terms and conditions, including that he obey all laws.
II. Case Two: Current Felony Case
A. Defendant Arrested and Charged
Shortly after pleading guilty in case one and being sentenced to probation, defendant was involved in an altercation at a convenience store in September 2017 and was arrested. He was charged with second degree attempted robbery and misdemeanor battery. The amended information also alleged he had previously suffered a conviction for a serious felony, and that he had suffered a conviction for a serious or violent felony. Just prior to trial, defendant admitted the prior conviction allegations. The case proceeded to jury trial in May 2018.
B. Trial Proceedings
1. Evidence Presented
When K.B., the manager of a convenience store, arrived at the store around 8:00 a.m. on September 4, 2017, he saw defendant sitting outside next to the store's door with a few friends doing something with foil paper. K.B. told defendant not to do what he was doing, and then K.B. walked to his office and began paperwork. At some point, defendant left the store's premises, but returned about an hour and one-half later and walked into the store. Defendant proceeded to a corner of the store, grabbed a burrito from a cooler and put the burrito in his pocket. A store worker informed K.B. of this, and K.B. walked over to confront defendant.
K.B., who saw defendant had an open container of alcohol in his hand, informed defendant he could not have the open container in the store and asked defendant "nicely" if he could "'have the burrito back?'" but defendant refused and "start[ed] yelling at [K.B.]." Defendant said he was hungry, and K.B. told defendant he should have asked for the burrito. Defendant said he was "'not from here.'" Defendant never indicated to K.B. he was going to pay for the burrito.
A store customer, Alex R., heard the two arguing and walked over. Alex was an older gentleman who came to the store daily and used a walker; that day, though, Alex was not using the walker when he approached K.B. and defendant. K.B. heard Alex tell defendant that K.B. is a nice guy and that defendant did not need to argue with him. Defendant started arguing with Alex, and while defendant was turned toward Alex, K.B. grabbed the burrito out of defendant's pocket, and defendant "pushed [K.B.] and scratched [the] inside [of his] nose."
K.B. described the interaction: "He just—like he was arguing with the other guy [Alex]. You know, he was like telling [Alex] stuff and all that, so when [defendant] turned around, I see the burrito halfway out so I grabbed the burrito. This guy [defendant], tried to swing at [Alex], so I put the burrito on the thing—on the counter. I tried to protect [Alex] because you're going to—[Alex] can't even walk, you know. I don't want him to get hurt. So [defendant] was—most of the time he was—after [defendant] scratched me, he was on [Alex], tried to hurt [Alex] and all that. He ke[pt] saying that—old man, I'm going to do this, I'm going to do that."
When asked again by the prosecutor what happened as K.B. grabbed the burrito away from defendant, K.B. testified as follows. "When I reached for the burrito, first [defendant] was arguing with the older guy [Alex] when [defendant] tried to take a swing at [Alex], so [defendant] turned, so I just reached for the burrito. I took the burrito out. That's like he was yelling at him already, pushing him—try to push [Alex], so then I said no, no, because the older guy [Alex] almost fell. I tried to grab him, tried to deal with him. That's how the whole thing started."
The prosecutor then asked K.B. when defendant had scratched, pushed, or laid his hands on K.B. for the first time, and K.B. responded, "right after like when I took the burrito from him." K.B. testified defendant began pushing and scratching instantaneously when K.B. took the burrito from defendant. According to K.B., defendant did not try to take the burrito back because "he was too busy scratching [K.B.'s] face and [at the] same time arguing with the older guy [Alex]." Defendant was "cussing" at K.B., and Alex was telling defendant not to argue with K.B.
K.B. testified his height is 5 feet 10 inches tall, he estimated Alex is about the same height, and that defendant was over 6 feet tall. The prosecutor then asked K.B. where K.B. was in physical proximity to defendant when K.B. took the burrito from him. K.B. testified that he "was away from him. [¶] [Defendant] was picking up a soda and taking the burrito, then he walk[ed] up to my face and get [sic] too close to it. I have a leg problem. I can't step back really fast, so I try not to arguing [sic] with him, and all this—try to stay away from him. He was just right on my face and that's how ... Alex saw it, too. That's what he was telling—[¶] ... [¶] [defendant] to don't argue with me."
When defendant got close to him, K.B. was fearful because he has "two kids and family waiting. I'm not there to fight anybody. I'm there to just serve the people and do [the] best I can, and I try not to get into these kind of problems, you know." K.B. indicated that when defendant got close to K.B., defendant was arguing with him and that was when Alex came over.
Before Alex came over, though, K.B. said he and defendant were just talking and at that time defendant was "really nice" to K.B. Defendant was not "cussing" at K.B., they were just talking. But Alex heard them talking louder and defendant was getting "louder and louder." Alex told defendant not to argue with K.B., and defendant told Alex to stay out of it. The prosecutor asked whether defendant still had the burrito and K.B. testified as follows: "First couple minutes yeah, he did, when he tr[ied] to swing at me. After that, no, he didn't have no burrito in his pocket."
K.B. explained why he decided to take the burrito: "Because I was going to buy him, to be honest with you, because I don't—the way he was—he was—came in the store, has a bottle. I was afraid. I just want[ed] to get him out of there, you know, so I just ask[ed] him nicely ...." To K.B. it appeared that if he had not taken the burrito from defendant, then defendant would simply have walked out with it because he had it in his pocket. K.B. could not remember if defendant pushed him or Alex first. K.B. saw defendant swing at Alex two or three times total, none of which made contact with Alex, and then defendant pushed Alex about two or three times, but Alex did not fall.
The prosecutor then went through the store surveillance video of the event with K.B. on the stand and played it for the jury. K.B. identified the person in the video with the white shirt and tan pants as Alex. K.B. indicated the video showed K.B. approaching defendant, and it was at this time that K.B. was talking to defendant as he had testified earlier. K.B. said that he took the burrito from defendant when defendant was arguing with Alex, but that K.B.'s action of taking the burrito was not visible in the video.
Near the end of the video, the prosecutor asked what K.B. had in his hand. K.B. testified that it was a squeegee and that "[w]hen [defendant] started hitting me, I—my co-worker hand[ed] me that to stop him because, like I said, I already was on the ground one time. I fell. When I get [sic] up, and so I get up with the help of the stick, so then he was—ke[pt] hitting us, so I have that in my hand." K.B. explained that when defendant "went toward [Alex], [defendant] already pushed me. I was on the ground, too. You can see that."
On cross-examination, K.B. testified he assumed that defendant was stealing the burrito when K.B. saw it in defendant's pocket. K.B. reiterated that when he first approached defendant, defendant was "talking nicely" to K.B. But the conversation escalated to yelling when K.B. asked for the burrito back and that is when Alex came over. When Alex told defendant not to yell at K.B., that was when K.B. took the burrito from his pocket. When defendant started pushing, the burrito fell on the floor somewhere. K.B. also confirmed defendant did not push him until after Alex walked up to them.
K.B. explained that due to the effects of polio and a lower back surgery, he has to keep one hand in his pocket to help propel his affected leg while he walks. Thus, when he was grabbing for the burrito he had one hand in his pocket and the other on the burrito. When defendant pushed K.B., the burrito fell from K.B.'s hand when he defended against the push. K.B. confirmed he spoke with Fresno Police Officer John Pinedo that day about what happened.
Alex also testified. He indicated he is a regular customer at the store and knows K.B. as the manager of the store. Alex calls K.B. "Papa" and considers him a friend. On the day of the incident, Alex saw defendant taking something from the sandwich department and putting it in his pocket. Alex saw K.B. approach defendant, but Alex did not follow right away. He approached after he saw K.B. and defendant wrestling: "I seen Papa pushing [defendant] away from Papa, trying to get ahold of him. They were getting into it. Papa was trying to stop him. When he put hands on Papa, I went to help him." K.B. was using a stick "to keep the guy away from him—from his legs." They kept "fighting back and forth," so Alex went to assist K.B.
When Alex walked toward defendant and K.B., they were both standing up. Alex never saw K.B. fall to the ground before he went over. Alex walked over and was planning to "grab [defendant's] Adams apple," but defendant was too tall and he pushed Alex back with one hand. Alex heard K.B. tell defendant to "leave it alone," meaning the items defendant was taking.
Pinedo testified he was dispatched to the store that morning on a report of a male "beating the manager." Pinedo indicated he had known K.B. for years because police frequently responded to calls there for service regarding trespassers, vagrants, loitering, and homeless.
When Pinedo reached the store, he spoke with K.B., who appeared nervous. K.B. told Pinedo he had confronted defendant when he saw defendant taking a burrito and putting it in his pocket. K.B. said that at some point he grabbed the burrito from defendant and that was when defendant assaulted K.B. by scratching his face and cutting his lip. K.B. indicated defendant was trying to grab the burrito back and that was when defendant assaulted K.B. Pinedo also spoke with Alex, who said defendant had grabbed Alex by the back of the neck and Alex almost fell backwards. Pinedo asked another detective to come out and collect the store's surveillance video.
Xiong testified he collected the surveillance video from the convenience store. Xiong had nothing to do with the investigation of the case, however; his sole duty was to retrieve the video. Once Xiong downloaded the video, he had a chance to review it. As discussed more fully below, Xiong testified about what he perceived was captured by the video during the incident.
The defense presented no evidence.
2. Closing Arguments
In closing, the prosecutor argued defendant intended to take the burrito without paying, and then defendant used force and fear in trying to abscond with the burrito after he was confronted by K.B. As for fear, the prosecutor argued K.B. had testified defendant got really close to him, which intimidated K.B. and caused him fear. Then, when defendant turned his anger on Alex, K.B. was nervous and scared for Alex and had to intervene. The prosecutor argued force was applied when defendant scratched K.B. and cut his lip in an attempt to take the burrito back after K.B. grabbed it.
Defense counsel argued in closing that the evidence did not show attempted robbery, but instead "exaggerated petty theft and battery." Counsel also argued defendant put the burrito in his pocket because his hands were full and he was trying to get a soda. K.B. jumped to the conclusion defendant was stealing the burrito and immediately confronted him. Defendant was responding nicely, but then Alex approached and tried to grab defendant's Adam's apple. While trying to avoid Alex, K.B. went into defendant's pocket and removed the burrito; defendant made contact with K.B. in an automatic reaction, not an attempt to get the burrito. Defense counsel noted the video did not seem to show that either K.B. or Alex were frightened.
In rebuttal, the prosecutor maintained defendant meant to take the burrito without paying: he put it in his pocket and, when confronted, he did not offer to pay—he said only that he was hungry. The prosecutor replayed parts of the video and argued that it confirmed K.B.'s testimony and the prosecutor's theory. The prosecutor noted that while K.B. testified defendant never tried to get the burrito back after K.B. took it, K.B. told Pinedo immediately after the event that defendant had tried to get the burrito back after K.B. removed it from his pocket. The prosecutor argued that, perhaps, during his testimony K.B. had misremembered that defendant tried to get the burrito back.
C. Jury Verdict and Sentencing
The jury convicted defendant on both count 1 (second degree attempted robbery) and count 2 (battery). Based on this conviction in case two, defendant was found in violation of probation on May 30, 2018, in case one. On June 25, 2018, defendant was sentenced in both case one and case two. In case two, defendant was sentenced to two years for second degree attempted robbery (§§ 211, 664) doubled to four years (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a consecutive five years was imposed for the prior serious felony (§ 667, subd. (a)(1)). As to case one, the court imposed the middle term of three years (§ 245, subd. (a)(4)), to be served concurrently with defendant's sentence in case two.
DISCUSSION
I. No Error in Refusing to Instruct on the Lesser Included Offense
A. Background
Over defendant's objection, the trial court declined to instruct the jury on the lesser included offense of theft by larceny. The trial court determined there was no substantial evidence defendant was guilty of the lesser theft offense and not the charged offense.
Defendant argues this was instructional error that violated both state and federal law because there was substantial evidence defendant was guilty of attempted theft rather than attempted robbery. According to defendant, the evidence supports a theory that while defendant initially tried to steal the burrito, he no longer possessed it or tried to recover it at the time he used force or fear on K.B.—thus, the jury could have found he was guilty of attempted theft, but not attempted robbery, entitling defendant to an instruction on the lesser included crime of attempted theft.
B. Applicable Law
1. Standard of Review
Attempted theft is a lesser-included offense of attempted robbery. (See People v. Reeves (2001) 91 Cal.App.4th 14, 53.) The trial court has a sua sponte duty to "instruct fully on all lesser necessarily included offenses supported by the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 148-149 (Breverman).) This duty extends to every lesser included offense supported by substantial evidence; it is not satisfied "when the court instructs [solely] on the theory of that offense most consistent with the evidence and the line of defense pursued at trial." (Id. at p. 153.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (Id. at p. 162.) "'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could ... conclude[]"' that the lesser offense, but not the greater, was committed." (Ibid.) "We independently review a trial court's failure to instruct on a lesser included offense." (People v. Cook (2006) 39 Cal.4th 566, 596.)
2. Robbery and Theft by Larceny
Defendant was alleged to have stolen a burrito and, what began as theft, ripened into a so-called Estes robbery when defendant used force or fear against K.B. to keep the burrito when confronted. "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) It includes two phases: caption and asportation—i.e., acquiring the property and carrying it away. (People v. Gomez (2008) 43 Cal.4th 249, 255 (Gomez).) The slightest movement may constitute asportation. (Ibid.)
An Estes robbery refers to the case People v. Estes (1983) 147 Cal.App.3d 23 (Estes) and is generally known, as explained below, to involve a robbery where the stolen item is not acquired by force or fear, but force or fear is exercised in attempting to escape with the property or to prevent the victim from retaking the property.
Robbery also includes an intent element. (People v. Waidla (2000) 22 Cal.4th 690, 737 [robbery comprises elements embracing use of force or fear to effect a taking from the victim and also an intent to steal].) "The intent required for robbery has been described as the specific intent to deprive the victim of the property permanently. [Citations.] Thus, 'the act of force or intimidation by which the taking is accomplished in robbery must be motivated by the intent to steal ....'" (People v. Anderson (2011) 51 Cal.4th 989, 994.)
"What sets robbery apart from simple theft is the use of force or fear and taking from the victim's immediate presence. 'Theft by larceny may be committed without force or the threat of violence and may be completed without the victim ever being present.' (Gomez[, supra, 43 Cal.4th] at p. 254.) In the prototypical case, a person commits robbery by assaulting a person and then stealing the person's property. The force or fear is used to acquire the property." (People v. Robins (2020) 44 Cal.App.5th 413, 418 (Robins).)
While the force or fear present in a robbery often occurs when the robber is trying to acquire the property (caption), robbery also occurs when a robber uses force or fear to escape with the property or uses force or fear when the victim attempts to regain the property. In Estes, the court explained that "a robbery occurs when [the] defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner's immediate presence regardless of the means by which [the] defendant originally acquired the property." (Estes, supra, 147 Cal.App.3d at pp. 27-28.) Another robbery like that described in Estes occurred in Gomez, where the defendant had seized property from a restaurant when the victim was not present, but the victim arrived at the scene before the defendant departed and followed the defendant as he was leaving. (Gomez, supra, 43 Cal.4th at p. 253.) As the victim followed the defendant in his car, the defendant shot at him to scare him. (Ibid.) This constituted robbery. (Id. at p. 264 ["crime of robbery occurs when property is forcefully retained in the victim's presence, even when the victim was not present at its initial caption"].)
If the robber truly abandons the property before using any force or fear, then he could be guilty of theft, but not robbery. (People v. Pham (1993) 15 Cal.App.4th 61, 68 (Pham).) This is so because the force or fear to accomplish the robbery must be motivated by an intent to steal. (People v. Anderson, supra, 51 Cal.4th at p. 994.) If the property has already been truly abandoned, then the force or fear used subsequently is not motivated by an intent to steal.
Attempted robbery may include the element of force or fear, but it need not. The prototypical attempted robbery case involves a robber who is caught, usually with a weapon, before taking any property or committing an act of force or fear. For example, in People v. Vizcarra (1980) 110 Cal.App.3d 858, the defendant had approached a liquor store with a rifle and was attempting to hide on the pathway immediately adjacent to the store when he was observed by a customer; the defendant walked back to his car and later drove by the store. (Id. at p. 862.) In concluding this was sufficient evidence to support an attempted robbery conviction, the court noted that while a completed robbery would have required a force and fear element, an attempted robbery may also include this element of the offense, but that does not mean the crime must have progressed this far to constitute an attempt. (Id. at pp. 862-863.) In other words, a person may commit attempted robbery by planning to take property and engaging in conduct demonstrating the readiness to use force or fear in order to carry out that plan, without actually using force or fear against the property's possessor.
Attempted Estes robbery is perhaps a more unusual variety of attempted robbery. Usually an attempted Estes robbery will involve an actual completed robbery, but the prosecution may still charge the offense as one of attempt. (See Robins, supra, 44 Cal.App.5th at pp. 420-422 [commission of Estes robbery does not preclude conviction of attempted robbery for which the defendant was charged].) As discussed above, an Estes robbery occurs when the property was taken (caption) without any force or fear, but in trying to escape with the property or in trying to prevent the victim from regaining the property, the robber uses force or fear. Whether or not the robber actually escapes safely with the property or ultimately loses it, the crime of robbery is complete the moment caption and asportation along with the use of force or fear has occurred. If, unbeknownst to the robber, he loses the stolen goods in the process of caption or asportation and then uses force or fear against the victim in an attempt to escape with the stolen goods (that he unknowingly no longer has), potentially this would be an example of an attempted Estes robbery. (Robins, supra, at p. 421, fn. 7 [presenting hypothetical case of attempted Estes robbery where shoplifter unknowingly loses property before engaging in use of force when confronted by victim].)
This case was charged as an attempted robbery, but there is evidence supporting a completed Estes robbery.
C. No Error
Defendant's argument there was substantial evidence of attempted theft rather than of an attempted or completed Estes robbery focuses on the evidence showing there was no use of force or fear until after K.B. took the burrito out of defendant's pocket. The People dispute this contention and argue the evidence shows defendant applied force or fear on K.B. even before K.B. had regained possession of the burrito. Moreover, the People maintain, defendant used force to maintain possession of the burrito when K.B. took it from him, despite that K.B.'s testimony was admittedly less than clear regarding the sequence of events. The People also note the evidence does not show or create an inference that defendant knew K.B. had taken the burrito when defendant pushed and scratched him.
Important parts of the trial testimony were uncontroverted: (1) defendant had the burrito in his pocket before K.B. confronted him and it remained there until some point after Alex walked over to the men and K.B. later grabbed it; (2) when initially confronted, defendant told K.B. he was hungry and never offered to pay for the burrito; and (3) defendant scratched and pushed K.B. Thus, the evidence was uncontroverted defendant had achieved possession of the property and had carried it away. (Gomez, supra, 43 Cal.4th at p. 255 ["slightest movement" may constitute asportation]; accord, In re Aaron J. (2018) 22 Cal.App.5th 1038, 1059 [taking cell phone from victim's pocket without permission and holding it until deciding to return it when police arrived satisfied asportation element of robbery; robbery is completed upon any asportation, however slight or short].) The question was whether there was evidence defendant intended to steal the burrito and whether defendant used force or fear in an effort to accomplish that intent.
The attempted robbery verdict was supported by evidence that defendant used force or fear against K.B. at least three separate times during their eight-minute confrontation in the store. To show attempted theft rather than attempted robbery occurred, there had to be substantial evidence that despite evidence defendant intended to steal the burrito, he never used force or fear at all during the confrontation, or that he used force or fear at a time when he no longer had an intent to steal. There was certainly evidence defendant intended to steal the burrito when he put it in his pocket and never offered to pay for it—two uncontroverted pieces of K.B.'s testimony. However, while there is evidence defendant used force or fear before Alex joined the altercation, there is also substantial evidence defendant did not use any force or fear at this time.
K.B. testified when he initially confronted defendant before Alex walked over, defendant physically intimidated K.B. by coming very close to him—K.B. testified he was fearful. The fear experienced during a robbery need not be the result of an express threat or the use of a weapon, and the victim's fear need not be extreme to constitute robbery. (People v. Morehead (2011) 191 Cal.App.4th 765, 775.) Moreover, intimidation of the victim equates with fear. (Ibid.) The intimidation must not only produce fear, but the fear must be of the infliction of injury. (People v. Montalvo (2019) 36 Cal.App.5th 597, 612.) While the video does not conclusively confirm whether defendant physically crowded K.B. in an intimidating manner during this time, K.B.'s testimony was substantial evidence defendant employed fear as a means to keep the burrito after K.B. demanded it back. (People v. Young (2005) 34 Cal.4th 1149, 1181 [unless physically impossible or inherently improbable, testimony of a single witness is sufficient to constitute substantial evidence].)
The video shows K.B. reaches defendant in the corner of the store at 13:58.04 on the video clock. Alex reaches the back corner where K.B. and defendant were located at 13:59.00.
However, there are also facts to support a reasonable inference defendant did not try to physically intimidate K.B. before Alex joined the altercation and that K.B. was not fearful at any time, as defense counsel argued in closing. The video could be interpreted as showing no physical intimidation of K.B. by defendant before Alex joined them. It was K.B. who walked over to confront defendant, and he was already familiar with defendant from earlier in the day. And, K.B. testified defendant was talking very nicely to him at first. The video reveals the entire confrontation between the men lasted approximately seven minutes and could be interpreted as never showing K.B. trying to get away from defendant, nor did K.B. testify he tried to end the confrontation or get away from defendant. Rather, K.B. continued to confront defendant, despite K.B.'s physical limitations and smaller relative size. In fact, K.B. reached into defendant's pocket to retake the burrito several minutes into the interaction, after he claimed he had become fearful of defendant. A reasonable jury could infer from the circumstances and length of the interaction that defendant had not physically intimidated K.B. (People v. Brooks (2017) 3 Cal.5th 1, 57 ["'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.'"].)
As for force employed by defendant against K.B. during the first minute of their confrontation, K.B. testified a store worker handed him a window-washing squeegee so that K.B. could defend himself from defendant, who was hitting him. The video does not clearly show whether defendant pushed or hit K.B. during the initial one-minute encounter before Alex walked over, but in that time frame it does show a store worker walking to where K.B. and defendant were obscured from the camera's view and appeared to hand over an item that could be a squeegee. Near the end of the video, K.B. is seen holding what could be a squeegee, and he testified the video shows him holding the squeegee the worker had handed him to defend himself. Thus, although K.B.'s testimony was somewhat unclear about when defendant had started hitting him in relation to when Alex walked over, he testified he was hit before he got the squeegee, which the video could be interpreted to show was before Alex came over. Further, Alex testified defendant had started to hit K.B. before he walked over, and that was why Alex walked over.
At another point in his testimony, though, K.B. claimed that before Alex walked over to them, defendant was talking nicely and that defendant only first laid hands on him at the time K.B. grabbed the burrito from defendant's pocket, which was after Alex first joined them. Whether defendant used force or fear against K.B. in the first minute before Alex joined the confrontation was a factual issue for the jury to resolve. The slight discrepancy in K.B.'s testimony could have been resolved to support a finding that defendant did not employ any force or fear against K.B. when defendant still had the burrito and before Alex walked over.
The crux of the parties' dispute, however, is what happened when K.B. took the burrito from defendant and whether defendant demonstrated any intent to steal when he then pushed and scratched K.B. K.B. testified that defendant scratched him "instantaneously" when K.B. recovered the burrito from defendant's pocket, but that defendant did not try to get the burrito back from him because he was "too busy scratching" K.B. and "arguing" with Alex. Yet, on the day of the incident, K.B. told Officer Pinedo that defendant was trying to get the burrito back when he assaulted K.B. The video does not conclusively show when the burrito was taken or what defendant did at that moment; when K.B. watched the video on the witness stand, he acknowledged it did not show him taking the burrito from defendant—the view was obscured.
Defendant argues there is evidence that he used force or fear against K.B. only after he lost possession of the burrito and when he no longer had any intent to steal it. Defendant cites several cases for the proposition that when force or fear is applied only after the stolen property has been recovered, such that the defendant no longer intended to deprive the owner of the property at the time of the force or fear, the defendant is guilty only of theft and not robbery.
In People v. Hodges (2013) 213 Cal.App.4th 531 (Hodges), the defendant pulled items off of a grocery store shelf, put them in a bag, and walked out of the store without paying. (Id. at p. 535.) Loss prevention officers (LPOs) confronted the defendant at his car in the parking lot; the defendant got out of his car and shoved the items at one of the LPOs, then pushed the LPO, and got back in his car and tried to drive away. (Id. at pp. 535-536.) The LPO at whom the items were shoved fell backward, recovered, and then reached inside the defendant's car to turn off the engine. The defendant put the car in gear and ended up dragging the LPO along with the moving car. (Id. at p. 536.) The LPO was ultimately thrown over the driver's door, landed on the ground, and the defendant drove away.
During deliberations, the jury sought legal guidance on whether the defendant could be convicted of robbery if it determined he "'surrendered'" the goods prior to the use of force. (Hodges, supra, 213 Cal.App.4th at p. 541.) The trial court provided an instruction that improperly allowed the jury to conclude the defendant was guilty of robbery without regard to whether the defendant intended to deprive the owner of the property at the time the force or resistance occurred. (Id. at pp. 541-543.) This was error because it resolved the factual conflict inherent in the jury's inquiry regarding the impact of the defendant's surrender of the goods prior to the use of force. (Id. at p. 543.)
In Pham, the defendant took a bag from another person's car; the victims whose property was in the bag chased after the defendant, and he put the bag on the ground before attempting to fight them off. (Pham, supra, 15 Cal.App.4th at p. 64.) The defendant later argued the evidence was insufficient to prove the taking of the property was accomplished with force or fear to constitute a robbery. (Ibid.) The court rejected the argument, noting that the defendant had kept the property in his proximity and fought the victims off to maintain his control over it—these facts were evidence of robbery. In rejecting the defendant's argument the trial court should have instructed on attempted robbery, the court recognized that had the defendant "truly abandoned the victims' property before using force, then, of course he could be guilty of theft, but not of an Estes-type robbery." (Id. at p. 68.)
In People v. Etheridge (2015) 241 Cal.App.4th 800 (Etheridge), the defendant was inside a grocery store and hid a steak near the back of the store underneath a loading dock. (Id. at p. 803.) He then purchased beer, walked out the front door, and recovered the steak he had hidden. (Ibid.) After security guards confronted the defendant and identified themselves, the defendant ran away and threw the steak onto the roof of a nearby store. (Ibid.) One of the guards overtook the defendant, but the defendant struck the guard with a rock. (Ibid.) The defendant was convicted of second degree robbery, but through a writ petition argued there was insufficient evidence to support his robbery conviction; the appellate court agreed. (Id. at pp. 803-804.) The court explained the defendant had abandoned the steak by throwing it on the roof before the guards caught up to him and used force only after he abandoned the steak; thus, he did not use force or fear to gain possession or maintain possession. (Etheridge, supra, at pp. 803-804.) This did not constitute evidence to support robbery—it was evidence of assault and theft. (Id. at p. 804.) The court concluded the jury was improperly instructed it could conclude the defendant was guilty of robbery without regard to whether the defendant intended to permanently deprive the owner of the property at the time the force or resistance occurred, and the defendant's conviction was modified to petty theft. (Ibid.)
The appeal in this case did not directly involve the writ petition, but was an appeal following the defendant's resentencing after the writ petition regarding the robbery conviction was granted. However, the court explained the facts and reasoning of its holding from the prior order granting the writ petition. (Etheridge, supra, 241 Cal.App.4th at pp. 803-804.)
As exemplified in these cases, when a person voluntarily tosses away, abandons or otherwise relinquishes possession of a stolen item in a knowing manner, there is an evidentiary basis to make conclusions about the person's intent with respect to that item. (People v. Abilez (2007) 41 Cal.4th 472, 506-507 ["'[T]he intent required for robbery ... is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime.'"].) It is only from evidence of knowing relinquishment or loss of the property that it can be inferred the person no longer harbored an intent to steal. If a person takes property with an intent to steal but the person unknowingly loses the property during asportation and then engages in a forceful attempt to escape with the property, there is no evidence to conclude that person's intent to steal no longer exists, even though possession was lost before the force occurred. Here, unlike in Hodges and Etheridge, there was no act by defendant of knowingly relinquishing the burrito. No matter what version of facts is credited about whether defendant grabbed for the burrito when K.B. took it or defendant never tried to get the burrito back at all, no reasonable inference can be drawn that his intent to steal the burrito was absent at the time force was used.
Specifically, there is evidence from K.B.'s statement to Officer Pinedo that when K.B. took the burrito from defendant, defendant tried to grab it back and that was when defendant assaulted K.B. If that version of the events were credited, then there is evidence from which to infer defendant knew K.B. took the burrito because he took actions to grab it, and that defendant scratched at K.B. specifically to get the burrito back and steal it. This set of facts does not support any reasonable inference the intent to steal was gone when defendant used force against K.B. (See Pham, supra, 15 Cal.App.4th at p. 68 [forcibly trying to prevent the victims from recovering their property, even for a short time, constitutes robbery even if the robber does not escape with the loot].)
At trial, K.B. testified he took the burrito out of defendant's pocket when defendant had turned to argue with Alex, and defendant never tried to retake the burrito after K.B. took it. But crediting this version rather than what K.B. told Officer Pinedo, there are then no physical movements or words by defendant to infer his knowledge about his possession of the burrito and that he no longer intended to steal it. K.B. testified he had taken it from defendant's front pocket, but this fact alone does not give rise to a reasonable inference defendant was necessarily aware K.B. took it given the circumstances. The men had been engaged in an argument over the burrito for several minutes according to K.B. and the video does not refute that; K.B. testified several times that when he took the burrito, defendant was turned toward Alex and arguing with him. When the prosecutor asked K.B. if defendant tried to retake the burrito when K.B. took it, K.B. answered, "No. he was ... he was too busy scratching my face and same time arguing with [Alex]." Given these facts, no reasonable inference could be drawn that defendant was aware the burrito had been taken from his pocket and, thus, no way to infer he no longer intended to steal it when he did not grab for it.
Further, as K.B. noted in his testimony, K.B.'s taking of the burrito cannot be seen in the video. Having closely reviewed it, the video by itself provides no evidentiary basis to make inferences that defendant knew the burrito had been taken from him at the time force was used. Some evidence that defendant knew K.B. was taking or had taken the burrito from his pocket was essential to support an inference that when defendant subsequently employed force against K.B., his intent to steal the burrito was gone. Defendant's knowledge cannot be inferred from nothing. Inferences must have a rational basis in the facts presented; they cannot be taken from thin air. This evidence did not support attempted theft rather than attempted (or completed) robbery. (See Robins, supra, 44 Cal.App.5th at p. 421, fn. 7 [hypothesizing attempted robbery occurs where robber uses force against victim while trying to escape after unknowingly losing possession of victim's property].)
No matter which version of events is credited, neither provides a reasonable inference defendant no longer intended to steal the burrito by the time he pushed and scratched K.B. such that his taking the burrito would be attempted theft rather than attempted robbery. So, while there was some evidence that no use of force or fear occurred until defendant pushed and scratched K.B., there was no evidence to conclude that use of force was not accompanied by an intent to steal. The trial court did not err by refusing to instruct on the lesser included offense of attempted theft.
II. Any Error in Admitting Testimony of Detective Xiong was Harmless
A. Background
Xiong, whose only role in the case was collecting the surveillance video from the convenience store and watching the video, was permitted to testify about the contents of the video, describing to the jury what he thought he could see occurring in the footage.
When the prosecutor asked Xiong what he saw in the video, defense counsel interposed an objection based on the best evidence rule, which the court overruled. Xiong then testified the video showed defendant by the deli section of the store and showed K.B. walk over to confront defendant.
Xiong testified that after K.B. walked over to defendant, it appeared to Xiong they had "some type of conversation, then shortly afterwards, I would say about 20 seconds afterwards, some type of physical altercation that happens just right by the fountain drink area. You can clearly see the defendant's hands going up and towards the victim."
Xiong then testified as follows:
"[PROSECUTOR:] Do you see the victim standing at any time?
"[XIONG:] Yes. During the altercation, you do see him standing.
"[PROSECUTOR:] Okay. At some point, do you see the victim on the ground?
"[XIONG:] Yes. That's a little bit afterwards.
"[PROSECUTOR:] Okay. So what you see is the victim going up to the defendant and then the defendant talking to him and then waving his hands up in the air a little bit?
"[XIONG:] Yes.
"[PROSECUTOR:] Then what happens?
"[XIONG:] After that is when I believe the physical altercation ensues when the victim attempted to get the property back, and, like I said, based on the defendant's hand movements, it seems like he was—
"[DEFENSE COUNSEL]: Objection, speculation.
"THE COURT: I believe it calls more for an opinion. Overruled.
"[PROSECUTOR]: Thank you.
"[XIONG]: What I observed, it appears that the defendant is using his hands to prevent the victim from retrieving the property.
"[PROSECUTOR]: ... Okay. Do you see when the defendant's hands are up in the air, or can you not see where they are?
"[XIONG:] That's when you see the defendant's hands up in the air and going towards where the victim is standing at.
"[PROSECUTOR:] Then what happens?
"[XIONG:] Shortly after that, the defendant walks over back to the deli section. The victim walks—follows him and then, from there, it appears that another conversation is taking place. Again, there is no audio. We don't know what is being said, then shortly after that, you can see the defendant physically attacking the victim and you can see the victim falling down to the ground.
"[PROSECUTOR:] Does it look like the defendant is standing the entire time?
"[XIONG:] Yes.
"[PROSECUTOR:] The defendant never falls to the ground?
"[XIONG:] No.
"[PROSECUTOR:] When you said the victim falls on the ground, do you see where the defendant's hands are?
"[XIONG:] Yes. It's—his hands are bracing the—it seems like he was also leaning up against the deli section. He does have his hands up, based on the video surveillance, yes."
Defendant claims the trial court improperly allowed Xiong to testify about the contents of the video despite that Xiong had not witnessed the events at the store and was not even an investigating officer on the case. Defendant argues Xiong's testimony was irrelevant, was not a proper expert opinion, and constituted an improper lay opinion because Xiong had no personal knowledge of the events recorded in the video. Defendant also maintains the probative value of Xiong's testimony outweighed its prejudicial effect under Evidence Code section 352.
The People contend defendant's claims on appeal were forfeited because the only two objections made by trial counsel were under the secondary evidence rule, Evidence Code sections 1521 and 1523 (formerly known as the best evidence rule), and one objection to Xiong's description of events as speculative. None of these objections preserved arguments the testimony was irrelevant, unduly prejudicial, or constituted improper lay or expert opinions. Further, the People maintain that even if the speculation objection preserved some of defendant's claims on appeal, it was not an objection to Xiong's entire testimony, only to the portion to which the objection was interposed. And, even if that portion of Xiong's testimony was admitted in error, the error was not of constitutional magnitude and it caused no prejudice in any event.
B. Analysis
We dispense with a lengthy analysis of whether defendant forfeited his arguments on appeal and whether the trial court abused its discretion. Even if we assume the claims now asserted by defendant were preserved for review and the trial court abused its discretion in admitting Xiong's testimony about his perception of the contents of the video, the assumed error did not implicate the federal Constitution and the strength of the evidence against defendant renders any error of state law harmless.
1. No Federal Constitutional Error
The routine application of provisions of the state Evidence Code law does not usually implicate a criminal defendant's constitutional rights. (People v. Jones (1993) 57 Cal.4th 899, 957, as modified on denial of rehearing, Oct. 2, 2013.) "We review evidentiary errors for prejudice by determining whether it was reasonably probable that a jury would have returned a more favorable verdict for [the] defendant had the court not admitted the evidence." (People v. Felix (2019) 41 Cal.App.5th 177, 187, citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) "[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439.) "Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test ...." (Ibid.)
Defendant argues Xiong's testimony that defendant moved his hands to prevent K.B. from retrieving the burrito rendered his trial fundamentally unfair because it undercut defendant's ability to show reasonable doubt that he never used force or fear until after K.B. took the burrito away from him—at a time when he no longer intended to steal the burrito. According to defendant, Xiong's testimony about what the video supposedly depicts directly contradicts this ground for reasonable doubt.
We disagree the assumed error is one of constitutional magnitude. The jury watched the video themselves and could decide what had occurred. They heard Xiong's testimony that he was not a witness to any of the actual events depicted in the video and that he was not an investigating officer in the case; the jury knew Xiong's testimony about the contents video was based on nothing other than his viewing it. K.B. testified extensively about what was occurring on the video, and he never testified he tried to physically take the burrito from defendant approximately 20 seconds after he confronted defendant and demanded the burrito back. In other words, Xiong's testimony did not necessarily match K.B.'s version of events.
The jury was instructed how to evaluate lay opinions such as Xiong's under CALCRIM No. 333, which required them to consider, among other things, the extent of the witness's opportunity to perceive the matters on which the opinion was based. Despite Xiong's testimony, the jury could conclude Xiong's perception of the video was not controlling or credible—it did not undercut defendant's ability to show reasonable doubt about his intent to steal or whether he used force or fear to accomplish that intent during the approximately seven-minute confrontation. Finally, the prosecutor did not emphasize or even mention Xiong's testimony in closing arguments, and this underscores there was ample other credible evidence the jury could rely upon to convict defendant on the attempted robbery charge. The trial was not rendered fundamentally unfair because Xiong offered his opinion about what occurred in the video, and any assumed error in admitting that testimony did not constitute a federal constitutional violation.
2. Assumed Error of State Law Was Harmless
As any error in admitting Xiong's testimony was one of state law only, the Watson standard applies and we conclude the error was harmless. The inquiry under Watson is whether it is reasonably probable that, but for the error, the jury would have reached a result more favorable to defendant. (Watson, supra, 46 Cal.2d at p. 836.) The Watson test "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (Breverman, supra, 19 Cal.4th at p. 177; accord, People v. Beltran (2013) 56 Cal.4th 935, 956.)
Even without Xiong's testimony, there was no reasonable probability the jury would have reached a more favorable result. Important portions of the prosecution evidence were uncontroverted: defendant put the burrito in his pocket before K.B. confronted him and never offered to pay for it; and defendant had the burrito in his pocket up until K.B. took it. The evidence was extremely strong that defendant intended to steal the burrito when he put it in his pocket. During the course of what was a fairly lengthy confrontation, there was evidence of multiple instances of force or fear employed by defendant to retain the burrito.
Xiong testified defendant used his hands to ward off K.B.'s attempt to get the burrito approximately 20 seconds into the confrontation, which was evidence defendant used force to accomplish his intent to steal the burrito. But even without Xiong's testimony, there was ample other evidence defendant used force and fear during the first minute of the confrontation. Specifically, K.B. testified defendant, who had the burrito in his pocket, had already begun hitting K.B. when another store worker handed K.B. a squeegee. K.B.'s testimony was somewhat inconsistent with regard to the timing of this because he also testified defendant was very nice to him when he first confronted defendant. Nevertheless, a store worker can be seen handing something over to where K.B. was standing between 13:58.22 and 13:58.36 on the video clock—approximately 25 seconds into the confrontation. Thus, between this video evidence regarding the squeegee and K.B.'s testimony, there was strong evidence defendant used force against K.B. in the first minute of the confrontation. Alex also testified he came over to the confrontation because defendant was hitting K.B.: "[Defendant] was hitting on [K.B.'s] legs, going forward to get [K.B.]" The video shows Alex reaching where defendant and K.B. were located at approximately 13:59.00 on the video clock. Because it was uncontroverted the burrito was still in defendant's pocket during that portion of the confrontation and he had not offered to pay for it, even in the absence of Xiong's testimony, there was strong evidence defendant engaged in force against K.B. with an intent to steal the burrito.
But even if jurors would not have reached that conclusion in the absence of Xiong's testimony, there was additional compelling evidence defendant used fear against K.B. during this initial one minute of the encounter in an effort to steal the burrito. K.B. testified defendant physically intimidated him when he first confronted defendant and demanded the burrito back. Even if the circumstances could support a reasonable inference K.B. was not fearful, that evidence was weak. K.B. was significantly disadvantaged in the instance of a physical confrontation with defendant and it was reasonable to believe physical intimidation by defendant would likely cause K.B. to fear being physically hurt. The fact the store worker brought over a squeegee for defense to K.B. also creates a strong inference even the store workers were fearful for K.B.'s safety, which bolsters K.B.'s testimony he was afraid of being hurt.
Moreover, it is uncontroverted that defendant subsequently pushed and scratched K.B. At some point after Alex walked over, K.B. testified defendant pushed and scratched him instantaneously when K.B. grabbed the burrito out of defendant's pocket. Even to the extent defendant lost the burrito before he pushed and scratched K.B. and never tried to get the burrito back after that, that confrontation was strong evidence defendant intended to steal the burrito and used force or fear to accomplish that purpose.
In short, there were multiple instances of defendant employing force during the course of the confrontation during which it could be inferred defendant harbored the requisite intent to steal. (See People v. Beltran, supra, 56 Cal.4th at p. 956 [in assessing prejudice under Watson, court may consider, among other things, whether evidence supporting judgment is relatively strong and evidence supporting a different outcome is comparatively weak resulting in no reasonable probability error affected the result].) Even without Xiong's testimony about his perceptions of the video's content, there is no reasonable possibility defendant would have received a more favorable verdict.
III. No Cumulative Error
Defendant contends that even if the errors alleged above are not in themselves reversible, they are so cumulatively. Not so. "A predicate to a claim of cumulative error is a finding of error." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Having concluded only that there was potentially an error in admitting Xiong's testimony, which was not prejudicial in itself, there is nothing to cumulate. As such, we necessarily reject defendant's claim of cumulative error resulting in prejudice. (People v. Williams (2013) 56 Cal.4th 165, 201; People v. Sedillo, supra, at p. 1068.)
IV. Mental Health Diversion
Defendant seeks a conditional remand for the court to consider his eligibility for a mental health diversion pursuant to section 1001.36.
Effective June 27, 2018, the Legislature created a diversion program for defendants with diagnosed and qualifying mental disorders such as schizophrenia, bipolar disorder, and posttraumatic stress disorder. (§ 1001.36, subds. (a), (b)(1).) One of the stated 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, to allow the defendant to undergo mental health treatment ...." (§ 1001.36, subd. (c).) "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." (Id., subd. (e).)
"On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion ... if the defendant meets all of the requirements ...." (§ 1001.36, subd. (a).) There are six requirements. (Id., subd. (b).) First, the court must be "satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders ...." (Id., subd. (b)(1)(A).) "Evidence of the defendant's mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert." (Ibid.)
Second, the court must also be "satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense." (§ 1001.36, subd. (b)(1)(B).) "A court may conclude that the defendant's mental disorder was a significant factor in the commission of the charged offense if, after reviewing any relevant and credible evidence, ... the court concludes that the defendant's mental disorder substantially contributed to the defendant's involvement in the commission of the offense." (Ibid.)
Third, "a qualified mental health expert" must opine that "the defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment." (§ 1001.36, subd. (b)(1)(C).) Fourth, subject to certain exceptions, the defendant must consent to diversion and waive his or her right to a speedy trial. (Id., subd. (b)(1)(D).) Fifth, the defendant must agree "to comply with treatment as a condition of diversion." (Id., subd. (b)(1)(E).) Finally, the court must be "satisfied that the defendant will not pose an unreasonable risk of danger to public safety ... if treated in the community." (Id., subd. (b)(1)(F).)
If a trial court determines that a defendant meets the six requirements, then the court must also determine whether "the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant." (§ 1001.36, subd. (c)(1)(A).) The court may then grant diversion and refer the defendant to an approved treatment program. (Id., subd. (c)(1)(B).) "The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years." (Id., subd. (c)(3).) If the defendant commits additional crimes, or otherwise performs unsatisfactorily in diversion, then the court may reinstate criminal proceedings. (Id., subd. (d).) However, if the defendant performs "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 ...." (Id., subd. (e).)
B. Section 1001.36 Applies Retroactively to Defendant
Defendant contends his case should be remanded for the trial court to consider his eligibility for pretrial diversion pursuant to newly enacted section 1001.36, which he claims applies to him retroactively. At oral argument, the People conceded section 1001.36 applies retroactively.
The California Supreme Court recently resolved a split among the Courts of Appeal regarding the retroactivity of section 1001.36 and concluded section 1001.36 applies retroactively to judgments not yet final on appeal. (Frahs, supra, 9 Cal.5th at p. 624.) It held nothing in "the text nor the history of section 1001.36 clearly indicates that the Legislature intended that the [In re] Estrada [(1965) 63 Cal.2d 740] rule[, which stated that an amendatory statute lessening punishment for a crime was presumptively retroactive and applied to all persons whose judgments were not yet final at the time the statute took effect,] would not apply to this diversion program." (Ibid.)
Here, defendant was convicted and sentenced before section 1001.36 went into effect; i.e., the judgment against him was not yet final on the effective date. Thus, pursuant to the Supreme Court's holding in Frahs, section 1001.36 applies retroactively to this case.
C. Defendant is Entitled to Conditional Reversal of His Convictions
We must consider whether the record before us supports a limited remand and conditional reversal of defendant's convictions for the trial court to consider defendant's eligibility for mental health diversion. Defendant argues remand is warranted because defendant suffers from schizophrenia and bipolar disorder as evidenced by psychological evaluations conducted as part of the proceedings in both case one and case two. At oral argument, the People agreed there was evidence to support a limited remand. We concur remand is warranted.
In Frahs, the California Supreme Court held "a conditional limited remand for the trial court to conduct a mental health diversion eligibility hearing is warranted when ... the record affirmatively discloses that the defendant appears to meet at least the first threshold eligibility requirement for mental health diversion—the defendant suffers from a qualifying mental disorder (§ 1001.36, subd. (b)(1)(A))." (Frahs, supra, 9 Cal.5th at p. 640.) In so holding, Frahs acknowledged that "[w]hen, as here, a defendant was tried and convicted before section 1001.36 became effective, the record on appeal is unlikely to include information pertaining to several eligibility factors, such as whether the defendant consents to diversion (§ 1001.36, subd. (b)(1)(D)), agrees to comply with treatment as a condition of diversion (id., subd. (b)(1)(E)), or has provided the opinion of a qualified mental health expert that the defendant's symptoms would respond to mental health treatment (id., subd. (b)(1)(C))." (Id. at p. 638.)
The record here "affirmatively discloses" defendant "appears to meet at least the first threshold eligibility requirement for mental health diversion ...." (Frahs, supra, 9 Cal.5th at p. 640.) Both before and after the crime was committed in this case, there were psychological evaluations showing defendant suffers from a qualifying mental disorder. In case one, a psychological evaluation of defendant was conducted in May 2017 as part of a section 1368 competency determination, stemming from charges related to the December 2016 incident. The evaluating psychologist noted defendant had a history of mental illness and listed a diagnostic impression of a psychotic disorder. That case was continued on many occasions due to questions about defendant's mental capacity, and defendant's counsel submitted a declaration to support a motion to continue that indicated defendant displayed indicia of a mental health disorder.
A psychological evaluation in March 2018 reported defendant has had a long history of severe mental disorder and that defendant had been diagnosed with schizophrenia and bipolar disorders. The report noted defendant "may be a good candidate for Mental Health Court given his long history of a severe mental disorder; which is treatable and he is able to maintain stability if he maintains compliance with the psychotropic medication regimen." The June 2018 probation report notes defendant's mental health issues and his reported diagnoses.
Pursuant to the California Supreme Court's guidance that we infer "the Legislature intends ameliorative statutes like this one to apply as broadly as possible within the constraints of finality," we conclude this record sufficiently reflects defendant "appears to meet at least the first threshold eligibility requirement ...." (Frahs, supra, 9 Cal.5th at pp. 638, 640.)
We express no view 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. "'If the trial court finds that [defendant] suffers from a mental disorder, does not pose an unreasonable risk of danger to public safety, and otherwise meets the six statutory criteria (as nearly as possible given the postconviction procedural posture of this case), then the court may grant diversion. If [defendant] successfully completes diversion, then the court shall dismiss the charges. However, if the court determines that [defendant] does not meet the criteria under section 1001.36, or if [defendant] does not successfully complete diversion, then his convictions and sentence shall be reinstated.'" (Frahs, supra, 9 Cal.5th at p. 641.)
V. Additional Sentencing Issues
Statutes 2018, chapter 1013, sections 1-2, pages 1-6 (Senate Bill No. 1393 or Sen. Bill No. 1393).
Defendant's sentence included a five-year enhancement under section 667, subdivision (a)(1). Imposition of this five-year enhancement was mandatory upon pleading and proof at the time defendant was sentenced on June 25, 2018.
Effective January 1, 2019, Senate Bill No. 1393 amended sections 667, former subdivision (a)(1), and 1385, former subdivision (b), and granted trial courts the discretion to strike the previously mandatory five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1). The parties agree that Senate Bill No. 1393 applies retroactively to this case.
Courts considering Senate Bill No. 1393 and, in an analogous context, Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1-2, pp. 1-4 (Sen. Bill No. 620)), have uniformly held that the changes apply retroactively to judgments not yet final on appeal. (E.g., People v. Flores (2020) 9 Cal.5th 371, 431 [Sen. Bill No. 620]; People v. Zamora (2019) 35 Cal.App.5th 200, 207-208 [Sen. Bills Nos. 620 and 1393]; People v. Garcia (2018) 28 Cal.App.5th 961, 972-973 [Sen. Bill No. 1393].) As Senate Bill No. 1393 does not contain a saving clause and there is no indication that the Legislature intended any limitation on its retroactive application, we agree with the parties that it applies to this case. (Frahs, supra, 9 Cal.5th at p. 635; People v. Lara (2019) 6 Cal.5th 1128, 1134.)
On remand, if the trial court declines to grant mental health diversion or if defendant fails to successfully complete diversion and his convictions are reinstated, defendant may then request relief under Senate Bill No. 1393 when resentencing occurs.
B. Defendant's Inability to Pay Fines and Fees
The trial court imposed a $2,700 restitution fine under section 1202.4, subdivision (b)(1), and the court also imposed a corresponding parole revocation fine (§ 1202.45) in the same amount, which was suspended, a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code, § 70373). Relying on Dueñas, supra, 30 Cal.App.5th 1157, which was issued while this appeal was pending, defendant contends his fees and fines should be suspended or stricken because he is unable to pay them.
In Dueñas, the court held the assessments under Penal Code section 1465.8 and Government Code section 70373 may be "imposed only on those with the means to pay them" (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169), and "that although the trial court is required by ... section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay" (id. at p. 1172).
We conclude it is unnecessary to reach defendant's Dueñas arguments given remand of this matter for further proceedings under section 1001.36 and Frahs. Defendant may address his inability-to-pay assertion pursuant to Dueñas with the trial court in the first instance at the time any resentencing occurs.
DISPOSITION
Defendant's convictions and sentences thereon are conditionally reversed pursuant to Frahs, supra, 9 Cal.5th 618. The matter is remanded for the trial court to conduct a mental health diversion eligibility hearing pursuant to section 1001.36. If the court grants mental health diversion in accordance with the statutory scheme, and if defendant successfully completes diversion, then the court shall dismiss the charges. (Frahs, supra, at p. 641.)
If the court determines defendant does not meet the criteria under section 1001.36, or defendant does not successfully complete diversion, then his convictions shall be reinstated. The trial court shall conduct a sentencing hearing and will have an opportunity then to determine whether to strike the five-year enhancement pursuant to section 667, subdivision (a)(1), and defendant may present his request for relief as to fines and fees under Duenas.
MEEHAN, J. I CONCUR: DeSANTOS, J. POOCHIGIAN, Acting P.J., Concurring.
I concur with the majority opinion's disposition for remand and conclusion it is not necessary for this court to address defendant's contentions about the amount of the restitution fine at this time. (See, e.g., People v. Rosas (2010) 191 Cal.App.4th 107, 117-121 [restitution and parole revocation fines are not a severable part of a judgment and are within scope of a remand for resentencing]); People v. Buycks (2018) 5 Cal.5th 857, 893 [explaining the " 'full resentencing' " rule]; People v. Acosta (2018) 29 Cal.App.5th 19, 26; People v. Burbine (2003) 106 Cal.App.4th 1250, 1257-1259.)
I write separately to reaffirm my stated position in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), that People v. Dueñas (2019) 30 Cal.App.5th 1157 was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068-1072.)
When the court imposes a restitution fine greater than the $300 statutory minimum amount, "[s]ection 1202.4 expressly contemplates an objection based on inability to pay," and defendant's failure to object results in forfeiture of the issue. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen); Aviles, supra, 39 Cal.App.5th at p. 1073.) Such a forfeiture rule has been consistently followed. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gamache (2010) 48 Cal.4th 347, 409; People v. Trujillo (2015) 60 Cal.4th 850, 853-854.) While the court imposed a restitution fine of $2,700 in this case and defendant did not object, forfeiture is not applicable given the need for remand and possible resentencing.
On remand, however, the imposition of certain fees and assessments is mandatory. If the court again imposes a restitution fine above the statutory minimum, the defendant retains the statutory ability to object to that amount and could make a record to further show his inability the mandated assessments in support of an overall Eighth Amendment objection. (Aviles, supra, 39 Cal.App.5th at pp. 1073-1074; Frandsen, supra, 33 Cal.App.5th at p. 1154.)
POOCHIGIAN, Acting P.J.