Opinion
C087085
03-24-2020
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR KEITH PENIARANDA-BALDERAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CF06046) OPINION ON REHEARING
Appointed counsel for defendant Arthur Keith Peniaranda-Balderas filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We affirm the judgment.
FACTS AND PROCEEDINGS
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Defendant entered the victims' home through an unlocked door while they were asleep inside. He stole the victims' keys and electronics and then used the keys to steal their car. He was later stopped by law enforcement for his erratic driving and claimed he stole the car because he needed money.
The People charged defendant with first degree burglary, alleging people were present at the time of the burglary. (Pen. Code, §§ 459, 667.5, subd. (c); unless otherwise stated, statutory section references that follow are to the Penal Code.) The People also alleged defendant was previously convicted of two strike offenses. (§§ 667, subd. (d), 1170.12, subd. (b).) Defendant pleaded no contest to burglary, admitted a person was present during the burglary, and admitted to a prior strike conviction.
In exchange for defendant's plea, the People moved the court to strike the allegation that defendant was convicted of a second strike offense. The court granted the People's motion. The trial court subsequently sentenced defendant to the upper term of six years in state prison, doubled for the prior strike offense. (§ 461, subd. (a) [first degree burglary punishable by two, four, or six years in state prison].)
The court also resentenced defendant for his conviction in Tehama County Superior Court case No. 17CR001625: two years for receiving stolen property (§ 496d, subd. (a)), and two additional years for enhancement allegations under section 667.5, subdivision (b). The court ordered those to be served concurrent to defendant's 12-year prison sentence in the current case.
The court then ordered defendant to pay the following fines and fees: a $300 restitution fine (§ 1202.4); a $300 parole revocation fine, which was stayed (§ 1202.45); a discretionary section 672 fine totaling $200; a $40 court surcharge (§ 1465.7); a $100 construction fund fee (Gov. Code, § 70372, subd. (a)); a state penalty assessment totaling $200 (§ 1464); a DNA identification fee totaling $20 (Gov. Code, § 76104.6); a $140 county penalty assessment (§ Gov. Code, § 76000); a theft fine totaling $39 (§ 1202.5); a court operations assessment of $40 (§ 1465.8); a conviction assessment totaling $30 (Gov. Code, § 70373); and victim restitution in an amount to be determined later. The trial court also reimposed those fines and fees previously imposed in case No. 17CR001625.
Defendant timely appealed; he did not obtain a certificate of probable cause.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date the People filed their opening brief. More than 30 days elapsed, and we received no communication from defendant. We examined the entire record and found no arguable error that would result in a disposition more favorable to defendant. We filed our opinion accordingly. Defendant then petitioned for rehearing and asked to submit supplemental briefing on the issues recently addressed in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and those raised by the amendments to section 1001.36 and mental health diversion programs. We granted defendant's petition.
I
Fines and Fees
In his supplemental brief, defendant claims that pursuant to the holding in Dueñas, supra, 30 Cal.App.5th at pages 1168, 1172, the portion of the trial court order directing defendant to pay fines and fees should be stayed pending a hearing on his ability to pay.
In Dueñas, numerous citations and convictions related to driving without a license resulted in significant fines and fees the defendant could not pay, Dueñas requested a hearing to determine her ability to pay those costs. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1163.) Following the statutory language, the trial court ruled that the assessments were mandatory and that Dueñas had not shown the " 'compelling and extraordinary reasons' " required to waive the restitution fine. (Id. at p. 1163.)
The Court of Appeal reversed, holding that due process prohibits a trial court from imposing court assessments under section 1465.8 and Government Code section 70373, and requires the trial court to stay execution of any restitution fines, until it ascertains the defendant's ability to pay those assessments and fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) To support this conclusion, Dueñas relied on two lines of due process precedent. First, it cited authorities addressing access to courts and waiving court costs for indigent civil litigants. Second, it relied on due process and equal protection authorities that prohibit incarceration based on a defendant's indigence and inability to pay a fine or fee. (Dueñas, supra, 30 Cal.App.5th at pp. 1165-1166, 1168.) The court also concluded that imposing costs on indigent defendants "blamelessly" unable to pay them transformed a "funding mechanism for the courts into additional punishment." (Id. at p. 1168.)
The appellate court in People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks), review granted November 26, 2019, S258946, rejected Dueñas's reasoning, under both lines of due process authority. Although review has been granted in Hicks, we may still consider it as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1).)
Hicks first observed that imposition of fees after a determination of guilt, does not deny a criminal defendant's access to the courts, and does not interfere with a defendant's right to present a defense or challenge a trial court's rulings on appeal. (Hicks, supra, 40 Cal.App.5th at p. 326, review granted.) Second, Hicks noted imposition of fees, without more, does not result in incarceration for nonpayment of fines and fees due to indigence; thus, it does not infringe on that fundamental liberty interest. (Ibid., review granted.)
Hicks went on to conclude that Dueñas's expansion of these due process "foundational pillars" was an incorrect interpretation of due process foundations because it was inconsistent with the principles announced by our Supreme Court and the United States Supreme Court, that imposition of fines and assessments on indigent defendants is not prohibited because the State has a fundamental interest in punishing those who violate the criminal law, and not conferring immunity for such punishment on indigent defendants. (Hicks, supra, 40 Cal.App.5th at pp. 327-328, review granted.) In addition, Dueñas's ruling was inconsistent with the purposes and operation of probation by relieving an indigent defendant of any duty to make an effort to repay their debt to society, and giving defendants a significant period of time in which to repay these financial obligations. (Ibid., review granted.)
We find the reasoning in Hicks well-founded and persuasive and reject the holding in Dueñas. We thus conclude the imposition of fines, fees, and assessments on an indigent defendant does not violate due process and there is no requirement the trial court conduct an ability to pay hearing prior to imposing these fines, fees, and assessments.
II
Mental Health Diversion Program, Section 1001.36
On March 1, 2018, defendant pleaded no contest to first degree burglary in violation of section 459 and admitted an allegation that there was a person or persons present in the building which he burglarized. He also admitted he had been convicted of a felony that qualified as a strike within the meaning of sections 667, subdivision (d) and 1170.12, subdivision (b). On March 29, 2018, the trial court sentenced defendant according to the terms of his plea agreement.
In his supplemental brief, defendant also contends he should have the benefit of section 1001.36 effective June 27, 2018. Defendant asks us to remand the matter so the trial court can determine whether he is eligible for "pretrial diversion" due to a specified mental disorder under the recently enacted section 1001.36, which he argues is retroactive as to all cases not yet final. We find no merit in his argument.
Put simply, defendant is asking to have the benefit of pretrial diversion as defined in section 1001.36 posttrial.
In support of his contention, defendant relies on the retroactivity rules of In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara). The People contend section 1001.36 is not retroactive and it does not apply to defendant's case because his guilt was adjudicated when he entered his plea which occurred before the statute's effective date.
Courts are divided as to whether section 1001.36 applies retroactively to cases not yet final on appeal under Estrada and Lara. (Compare People v. Frahs (2018) 27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220 (Frahs), People v. Weir (2019) 33 Cal.App.5th 868, review granted June 26, 2019, S255212, People v. Weaver (2019) 36 Cal.App.5th 1103, review granted Oct. 9, 2019, S257049, People v. Burns (2019) 38 Cal.App.5th 776, review granted Oct. 30, 2019, S257738, and People v. Hughes (2019) 39 Cal.App.5th 886, review granted Sept. 11, 2019, S258541 with People v. Craine (2019) 35 Cal.App.5th 744, 749, review granted Sept. 11, 2019, S256671 (Craine), People v. Torres (2019) 39 Cal.App.5th 849, and People v. Khan (2019) 41 Cal.App.5th 460, review granted Jan. 29, 2020, S259498.)
Given that the statutory language is clear and unambiguous, the plain meaning of the statute must govern. Agreeing with Craine, we conclude the statute does not have retroactive effect as to cases, like this one, that were adjudicated (whether by jury or by plea) before the statute's effective date.
A. Applicable Legal Principles
We are required here to determine the meaning of section 1001.36 regarding the retroactive application of that statute.
"In construing the relevant provisions of subdivision (c)(6), 'as with any statute, we strive to ascertain and effectuate the Legislature's intent.' (People v. Loeun[ (1997)] 17 Cal.4th [1, 8].) Because statutory language generally provides the most reliable indicator of that intent (Hsu v. Abbara (1995) 9 Cal.4th 863, 871[]), we turn to the words themselves, giving them their 'usual and ordinary meanings' and construing them in context. (People v. Loeun, supra, [at p. 9]). ' "If there is no ambiguity in the language of the statute, ' . . . the Legislature is presumed to have meant what it said, and the plain meaning of the statute governs.' " ' (Ibid.)" (People v. Lawrence (2000) 24 Cal.4th 219, 230-231.)
If possible, significance should be given to every word of a statute and any construction which renders a word surplusage should be avoided. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798-799.)
We note again that courts may consider, as persuasive authority, cases that have been granted review by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)
B. Section 1001.36
Section 1001.36, effective June 27, 2018, provides that a trial court, "[o]n an accusatory pleading alleging the commission of a misdemeanor or felony offense" (with exclusions not relevant here), may grant "pretrial diversion" to a defendant who meets all of the requirements specified in the statute. (§ 1001.36, subd. (a).) These include, among others, "a mental disorder . . . including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or [PTSD]," as established by "a recent diagnosis by a qualified mental health expert" (§ 1001.36, subd. (b)(1)(A)), and proof to the court's satisfaction that the mental disorder "was a significant factor in the commission of the charged offense" or "substantially contributed to the defendant's involvement in the commission of the offense." (§ 1001.36, subd. (b)(1)(B).)
"Pretrial diversion" as used in the statute means "the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication[.]" (§ 1001.36, subd. (c); emphasis added.)
When a defendant enters a plea of guilty or no contest and the trial court accepts the plea, there has been an "adjudication" of the charges brought against him for purposes of section 1001.36. (Craine, supra, 35 Cal.App.5th at p. 755[, review granted] ["adjudication" is "shorthand for the adjudication of guilt or acquittal"]; see In re Harris (1989) 49 Cal.3d 131, 135 [no distinction between adjudication of guilt based on plea and that predicated on trial on merits]; People v. Allexy (2012) 204 Cal.App.4th 1358, 1361, 1363 [under § 290.006, entry of no contest plea to felony child endangerment is "time of conviction," as distinct from "time of sentencing"].)
As set forth above, defendant argues we should give the statute retroactive effect as to him. He relies on Frahs, supra, 27 Cal.App.5th 784, review granted; however, for the reasons given in Craine, we conclude Frahs was wrongly decided and the statute does not apply retroactively to persons, like defendant, "who have already been found guilty of the crimes for which they were charged." (Craine, supra, 35 Cal.App.5th at p. 754, review granted.)
The Frahs court decided whether section 1001.36 is retroactive by applying the standard retroactivity rules of Estrada and Lara. In Estrada, the court held that when the Legislature amends a criminal statute so as to lessen the punishment for the offense, it must be inferred that the Legislature's intent was to apply the lighter penalty to all cases not yet final. (Estrada, supra, 63 Cal.2d at pp. 745, 748.) In Lara, the court extended this rule to situations in which new legislation, though not lessening punishment, provides an " 'ameliorating benefit[]' " for accused persons or constitutes an " 'ameliorative change[] to the criminal law[.]' " (Lara, supra, 4 Cal.5th at pp. 308, 309.) Taking these rules together, Frahs found that section 1001.36 confers an " 'ameliorating benefit' " on a class of accused persons and therefore must be understood to work retroactively. (Frahs, supra, 27 Cal.App.5th at p. 791, review granted.)
Lara summarizes Estrada's holding as follows: " 'The Estrada rule 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 . . . .' " (Lara, supra, 4 Cal.5th at p. 308; italics added.) Lara then concludes that neither the language of the initiative there under consideration (Proposition 57) nor the ballot materials rebutted the inference that the initiative was intended to apply retroactively. (Id. at p. 309.)
In quoting Lara, the Frahs court omits the qualifying language of the statute that we have italicized, supra. Thus, Frahs, unintentionally no doubt, but in effect, mischaracterizes the Estrada/Lara rule as one that applies automatically to all legislation conferring an "ameliorating benefit" on persons charged with crimes, regardless of any "contrary indications" (Lara, supra, 4 Cal.5th at p. 308) in the legislation on its face or the legislative history. (Frahs, supra, 27 Cal.App.5th at p. 790, review granted.)
The Frahs court rejected the People's argument that by expressly restricting its scope to the "postponement of prosecution . . . at any point in the judicial process from the point at which the accused is charged until adjudication" (§ 1001.36, subd. (c)), the statute set a temporal limit on its retroactive effect. (Frahs, supra, 27 Cal.App.5th at p. 791, review granted.) The court reasoned: "The fact that mental health diversion is available only up until the time that a defendant's case is 'adjudicated' is simply how this particular diversion program is ordinarily designed to operate." (Ibid., review granted.) Frahs did not address the first part of the statutory language quoted by the People (which the opinion misstates as " ' "postponement or prosecution" ' "). (Ibid., italics added, review granted.)
Concluding the issue could be resolved by applying Estrada and Lara to the plain language of the statute, the Frahs court denied the People's request for judicial notice of the statute's legislative history. (Frahs, supra, 27 Cal.App.5th at p. 789, fn. 2, review granted.)
In Craine, however, the court held that the Frahs analysis was flawed because it did not pay sufficient attention to how section 1001.36, subdivision (c), defines the timing of the "ameliorative benefit" it confers. In other words, Frahs did not properly consider either the phrase " 'postponement of prosecution' " or the phrase " 'until adjudication,' " instead relying only on a mechanical application of the Estrada and Lara rules. (Craine, supra, 35 Cal.App.5th at pp. 754-756, review granted.)
As to "until adjudication" (§ 1001.36, subd. (c)), Craine pointed out that " '[t]he purpose of [diversion] programs [in the criminal process] is precisely to avoid the necessity of a trial.' [Citation.]" (Craine, supra, 35 Cal.App.5th at p. 755, review granted.) In other words, absent clear statutory language showing otherwise, it makes no sense to say that a defendant can be given the benefit of "pretrial diversion" after a case has already gone through trial to conviction (or its equivalent, a guilty or no contest plea). (Id. at pp. 755-756, review granted.)
In addition, the legal term "adjudication" is commonly known to mean "the legal process of resolving a dispute." (Black's Law Dict. (11th ed. 2019) p. 52, col. 1.) In a criminal case the dispute is whether a defendant is guilty or not guilty of a particular crime. That dispute is resolved with a finding of guilt or an acquittal. What comes after that resolution does not extend the meaning of the word "adjudication."
By the same token, the meaning of the phrase "the postponement of prosecution" (§ 1001.36, subd. (c)) depends on the normal usage of "prosecution" in the criminal process: " ' "[t]he proceeding by which a party charged with a public offense is accused and brought to trial and punishment. [Citations.]" ' " (Craine, supra, 35 Cal.App.5th at pp. 755-756, review granted.) "A prosecution 'commences when the indictment or information is filed in the superior court and normally continues until . . . the accused is "brought to trial and punishment" or is acquitted.' " (Id. at p. 756, review granted.)
Therefore, "[p]ursuant to the Legislature's own terminology, pretrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced. Upon reaching this point of 'adjudication,' the 'prosecution' is over and there is nothing left to postpone." (Craine, supra, 35 Cal.App.5th at p. 756, review granted.)
According to Craine, Lara is distinguishable because the ameliorative benefit discussed there (the initial processing of accused juveniles in juvenile court, and trial in adult court only upon transfer) did not create a temporal bar to retroactive relief, as does section 1001.36. (Craine, supra, 35 Cal.App.5th at pp. 756-757, review granted.) The statute itself defines the population of those who are entitled to its benefit by the language of section 1001.36, subdivision (c) as those who have been charged but whose charges have not yet been adjudicated.
Craine also examines the legislative history of section 1001.36 (which Frahs refused to consider) and finds that it points to the same conclusion. The history makes clear that the statute was intended to make it possible to use early intervention wherever possible, partly " 'to avoid unnecessary and unproductive costs of trial and incarceration.' " (Craine, supra, 35 Cal.App.5th at pp. 758-759, italics omitted [quoting Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 215 (2017-2018 Reg. Sess.) as amended Aug. 23, 2018, pp. 2-3], review granted.)
As Craine points out: "Early intervention cannot be achieved after a defendant is tried, convicted, and sentenced. The costs of trial and incarceration have already been incurred. Moreover, because mental health diversion is generally only available for less serious offenses, the reality is many defendants would already be eligible for parole or some other form of supervised release by the time their cases were remanded for further proceedings. Since mental health services are already available to parolees . . . , it is hard to imagine the Legislature intended for additional court resources and public funds to be expended on 'pretrial diversion' assessments at such a late juncture. [Fn. omitted.]" (Craine, supra, 35 Cal.App.5th at p. 759, fn. omitted, review granted.)
The structure of the relief provided by the statute also indicates that the Legislature intended to grant such relief only prospectively. In addition to the precise definition of "pretrial diversion" found in section 1001.36, subdivision (c), which we have already discussed, we note the following:
The period allowed for pretrial diversion is limited to a maximum of two years. (§ 1001.36, subd. (c)(3).) The defendant must prove he has a qualifying mental disorder that would respond to treatment; this proof must include "a recent diagnosis by a qualified mental health expert" (what constitutes "recent" is undefined) who may rely on "any . . . relevant evidence" including examination of the defendant, the defendant's medical records, and arrest reports, inter alia. (§ 1001.36, subd. (b)(1)(A), (C).) Once the defendant has met this burden, the trial court must determine whether the defendant's mental disorder was "a significant factor in the commission of the charged offense" by reviewing "any relevant and credible evidence," including all of the evidence considered by the mental health expert and more. (§ 1001.36, subd. (b)(1)(B).) At the end of the two-year diversion period, if the defendant has "performed satisfactorily" according to specified criteria, the court "shall dismiss the . . . criminal charges that were the subject of the criminal proceedings at the time of the initial diversion" and the defendant's record shall be expunged. (§ 1001.36, subd. (e).)
It would greatly strain scarce judicial resources to extend this complex scheme to persons who have already gone through the criminal process to the point of conviction. When added to the "contrary indications" (Lara, supra, 4 Cal.5th at p. 308) contained in the statutory definition of "pretrial diversion" and the legislative history, this consideration further supports the conclusion that section 1001.36 was not intended to have retroactive application.
For all the reasons stated in Craine, we disagree with Frahs and find that "pretrial diversion" under section 1001.36 is not available to the defendant here because he has already been tried, convicted, and sentenced.
We note here the cases that have found the statute to have retroactive application have relied primarily on the holdings in Estrada and Lara. But the Estrada rule " 'is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of an express saving clause or its equivalent.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 185, italics added.)
Here, the legislature has clearly signaled its intent regarding who should have the benefit of the statute by defining the population of those who are to benefit from its provisions as those persons who have been formally accused of a crime but who have not yet had those accusations adjudicated, that is, those who have not yet had their prosecutions resolved by a finding of guilt or an acquittal. The charges against this defendant were "adjudicated" long ago.
And, while the statute arguably provides a certain "ameliorative benefit" (Lara), that can be of no moment given the language of the statute as a whole and its history and the holding in Floyd.
Finally, in order to find the statute has retroactive effect, one must turn many venerable principles of statutory construction on their head, including reading the word "pretrial" out of the statute's reference to "pretrial diversion" thus treating the word in this procedural context as surplusage, ignoring what has been the traditional legal meaning of the word "adjudication," ignoring the phrase "postponement of prosecution," ignoring the plain wording of the statute and ignoring the legislative history discussed in Craine including the comments of the author of the bill regarding its purposes.
We thus conclude defendant is not entitled to pretrial diversion as provided for in section 1001.36 at this stage of his criminal proceedings.
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, J. We concur: /s/_________
BLEASE, Acting P. J.
I concur in the majority's decision in Part A regarding fines and fees; as to the majority's decision in Part B relating to the retroactive application of Penal Code section 1001.36 (section 1001.36), I dissent.
As the majority has noted, our colleagues across the state are divided on the question of retroactivity, which is now pending before the Supreme Court. (Compare People v. Frahs (2018) 27 Cal.App.5th 784, 791, review granted Dec. 27, 2018, S25220 (Frahs) [§ 1001.36 applies retroactively]; People v. Weaver (2019) 36 Cal.App.5th 1103, 1121, review granted Oct. 9, 2019, S257049 (Weaver) [same]; and People v. Burns (2019) 38 Cal.App.5th 776, 787, review granted Oct. 30, 2019, S257738 (Burns) [same] with People v. Craine (2019) 35 Cal.App.5th 744, 760, review granted Sept. 11, 2019, S256671 [§ 1001.36 does not apply retroactively] and People v. Khan (2019) 41 Cal.App.5th 460, 493, review granted Jan. 29, 2020, S259498 [same and listing other recent cases that address the issue].)
This court is now divided as well. Our Supreme Court will soon have the last word on the subject.
I agree with the reasoning of Frahs, Weaver, and Burns and disagree with the cases that call that reasoning into question. Thus I disagree with the majority of this panel. I would conclude that section 1001.36 applies retroactively to cases, like defendant's, that were not final on appeal when the statute became effective on June 27, 2018. Accordingly, I would remand for application of section 1001.36.
/s/_________
DUARTE, J.