Opinion
C095226
09-27-2022
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO ARMANDO PHILLIPS, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 19FE017907
DUARTE, ACTING P. J.
Defendant Roberto Armando Phillips appeals from his conviction for indecent exposure. He contends trial counsel rendered constitutionally ineffective assistance by failing to request mental health treatment under Penal Code section 1001.36, the trial court violated his Sixth Amendment right to confrontation by allowing witnesses to testify wearing masks, and the court erred by instructing the jury regarding flight. Additionally, defendant contends we must vacate his sentence and remand for resentencing in light of the Legislature's recent amendments to section 1170 via Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill No. 124) and Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567), and that we must remand to allow the court to exercise its discretion to stay various fines and fees.
Further undesignated statutory references are to the Penal Code.
Senate Bill No. 567 was enacted after Assembly Bill No. 124 and incorporated Assembly Bill No. 124's amendments to section 1170. (Stats. 2021, ch. 731, § 3(c).) Thus, Senate Bill No. 567 is the operative legislation.
The Attorney General concedes the recent amendments to section 1170 apply here and require that we remand for resentencing. We agree. Accordingly, we affirm defendant's conviction, but we vacate the sentence and remand for resentencing in light of recent statutory amendments. Defendant may raise any arguments related to his inability to pay fines and fees on remand.
FACTS AND PROCEEDINGS
Factual Background
On September 13, 2019, Maria D. was walking from her office towards her parked car and saw defendant standing fairly close to the passenger side of her car and looking at her. As Maria approached her car, defendant started to back away and continued to make eye contact with her. Maria got inside her car, and defendant continued backing up towards a nearby stairwell. Defendant then pulled down his sweatpants, and stared at Maria as he held his penis in his hand and masturbated for a few seconds. Maria took a photo of defendant, but he had already pulled up his pants and covered up his penis by the time she was able to take the photo. Maria testified that defendant then "just casually walked away" "in a very relaxed pace, like nothing had happened. He wasn't running. He just started walking away and I drove off." Maria called her office, and her boss ran out to check on her, but she had already driven off, and her boss did not see defendant at the scene. Maria identified defendant in a six-pack photo lineup. Defendant testified that he had never encountered Maria and did not expose himself or masturbate to her.
Procedural Background
On November 7, 2019, the trial court found defendant mentally incompetent to stand trial and referred him to CONREP, the Department of State Hospital's Conditional Release Program. On May 27, 2020, the court found defendant competent and reinstated the criminal proceedings against him.
On February 11, 2021, the prosecution filed an amended felony complaint deemed an information against defendant alleging two felony counts of indecent exposure (§ 314, subd. (1)), each count with an additional allegation that defendant had been previously convicted of indecent exposure. On the prosecution's motion, the trial court dismissed count one for insufficient evidence, and defendant admitted the prior indecent exposure conviction.
A jury found defendant guilty on count two. On November 4, 2021, the trial court sentenced defendant to the upper term of three years in state prison. Defendant timely appealed. After delays for record preparation and briefing continuances, the case was fully briefed in July 2022, and was assigned to this panel on July 29, 2022. Defendant requested argument and the case was argued and submitted on September 19, 2022.
DISCUSSION
I
Ineffective Assistance of Counsel
Defendant contends that trial counsel was constitutionally ineffective by failing to request mental health diversion under section 1001.36, violating his state and federal constitutional rights. We disagree.
A. Pretrial Diversion
Effective June 27, 2018, the Legislature added sections 1001.35 and 1001.36, which promote and authorize trial courts to grant "pretrial diversion" to defendants diagnosed with qualifying mental disorders. (Stats. 2018, ch. 34, § 24.) In this context," 'pretrial 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).) Section 1001.36, subdivision (a) permits a trial court, after considering the parties' positions, to "grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in paragraph (1) of subdivision (b)."
Section 1001.36, subdivision (b)(1) sets forth six requirements that must be satisfied for a defendant to be eligible for mental health diversion. First, the trial 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).) Second, the trial court must be "satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense." (Id., subd. (b)(1)(B).) Third, "a qualified mental health expert" must provide an opinion that "defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment." (Id., subd. (b)(1)(C).) Fourth, subject to certain exceptions related to the defendant's competence, the defendant must consent to diversion and waive the 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 defendant meets these eligibility requirements, the trial court may order pretrial diversion into an approved treatment program. (§ 1001.36, subd. (c)(1).) The criminal proceedings against the defendant may be diverted "no longer than two years." (Id., subd. (c)(3).) If the defendant "has performed satisfactorily in diversion," then, at the end of the diversion period, "the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings at the time of the initial diversion," and "the arrest upon which the diversion was based shall be deemed never to have occurred, and . . . access to the record of the arrest [shall be ordered] restricted." (Id., subd. (e).)
B. Additional Background
On October 10, 2019, defense counsel expressed a doubt as to defendant's competency pursuant to section 1368. Counsel explained that he was having difficulty communicating with defendant "in a rational manner," and explained that defendant "kind of goes in and out of being rational." The trial court subsequently declared a doubt as to defendant's competency, suspended criminal proceedings, and appointed a doctor to evaluate him.
On November 7, 2019, a doctor's report was filed with the court. The report indicated that defendant asserted that he was innocent of the offense, believed "everyone was lying," and claimed that the offense was fabricated and that "women are paranoid and schizophrenic." He stated that he had never had any symptoms suggesting mental health issues, although he acknowledged he had previously been prescribed antipsychotic medication. The report concluded that defendant "suffers from significant psychological dysfunction" and was incapable of rationally assisting counsel in his defense. Based upon this report, the trial court found defendant incompetent to stand trial.
On May 27, 2020, the trial court noted that it had a report from the Napa State Hospital indicating that defendant was mentally competent to stand trial, and criminal proceedings were reinstated. The report discussed defendant's mental health history and treatment, but the report did not indicate that defendant's mental health issues had any role in his current offense.
Following the jury's guilty verdict, defense counsel submitted a statement in mitigation. In arguing that the current case be treated as a misdemeanor, counsel noted defendant's history of mental health issues and criminal background. The statement did not, however, suggest that mental health diversion was appropriate in this case.
Prior to sentencing, the probation department submitted a report. The report noted defendant's lengthy criminal history, which included four other convictions for indecent exposure, and noted that he was on parole at the time of his most recent offense. The report further noted that defendant's Static-99R score--an actuarial measure of risk for sexual offense recidivism--was "well above average," indicating that he was a risk to reoffend within five years if released on probation.
At the time of sentencing, defense counsel argued: "Just to note that [defendant], as the Court and Counsel knows, has a long-standing history of mental health issues. He's been declared incompetent in two different cases. The reporters have noted that he . . . presents with schizophrenia and a mental health disorder, it's been long standing. [¶] I think what's of note, his mother has informed me that when he was younger, in the 90's, he was hit over the head, and that's what had the on slot [sic] of his issues, including his stutter. Before that, everything was fine. He did well in school. And then after that incident -- and what makes it particularly difficult is he doesn't remember that incident. So I think that's tragic in this case. [¶] And so with that, we would ask the Court to exercise its discretion" to sentence defendant to a misdemeanor or to a sentence that would allow him to be released based on his time served.
The trial court noted it was "empathetic to the mental health condition," but cited to defendant's "repeated pattern of behavior" that "puts other people at risk" and sentenced defendant to state prison for the upper term of three years.
Trial counsel never requested a mental health diversion eligibility hearing under section 1001.36; nor did she mention defendant's potential eligibility for mental health diversion or otherwise mention section 1001.36 during this case.
C. Ineffective Assistance of Counsel
To prevail on his claim of ineffective assistance of counsel, defendant must show (1) that his counsel's representation was deficient, i.e., that it "fell below an objective standard of reasonableness," and (2) that prejudice resulted, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) "If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (People v. Holt (1997) 15 Cal.4th 619, 703.)
"When examining an ineffective assistance claim, a reviewing court defers to reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) The record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or admission. (People v. Williams (1997) 16 Cal.4th 153, 215.) If the record on appeal sheds no light on why trial counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
D. Analysis
The record is silent as to why counsel did not pursue pretrial diversion under section 1001.36. Although defendant contends the record affirmatively shows that counsel had no rational tactical purpose for not requesting pretrial diversion under section 1001.36 and there is no other satisfactory explanation for failing to request pretrial diversion (see People v. Hoyt (2020) 8 Cal.5th 892, 985; Centeno, supra, 60 Cal.4th at p. 675), we disagree that no potential reason for the omission is apparent.
Trial counsel may have conferred with defendant, and defendant may have been unwilling to consent to diversion or to the treatment required by the statute. (See § 1001.36, subd. (b)(1)(D), (E).) Or counsel could have investigated the facts and determined that defendant did not satisfy any of the other requirements for diversion. Thus, contrary to defendant's argument, we cannot conclude on the silent record that defendant's trial counsel was ineffective.
Moreover, even if defendant's counsel's performance "fell below an objective standard of reasonableness," he has failed to establish prejudice. The trial court noted at sentencing that defendant's "repeated pattern of behavior . . . is problematic societally and it puts other people at risk," noting "[t]hat is a great concern for this Court." Thus, it is unlikely defendant would have satisfied the requirements of section 1001.36, subdivision (b)(1)(F), which requires that the court be satisfied defendant would not pose an unreasonable risk of danger to public safety. Nor does the record contain evidence of a qualified mental health expert's opinion that defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment. (Id., subd. (b)(1)(C).) Additionally, the letter from Napa State Hospital indicating that defendant was mentally competent to stand trial did not indicate that his mental health issues had any role in the current offense. (See id., subd. (b)(1)(B).) Thus, as defendant has failed to point to evidence that he met the requirements for eligibility, he has failed to establish prejudice.
For the foregoing reasons, defendant has not met his burden of establishing ineffective assistance of counsel.
II
Witness Testifying With Masks
Defendant's trial occurred during the COVID-19 pandemic. Due to the pandemic, various health and safety measures were imposed at courthouses. Defendant filed a supplemental motion in limine arguing that the universal masking order that had been implemented by the Sacramento Superior Court "directly undermine[d] all four core features of the confrontation clause," and that it "must be rejected." The trial court recognized that, "due to the Delta variant and the COVID situation, the court currently has a policy in place that all people in the courtroom including witnesses, litigants, counsel and the judge all wear a mask, and that policy will be adhered to."
Defendant now contends the trial court erred when it denied his motion for witnesses to testify without wearing masks, violating his rights under the confrontation clause of the federal Constitution. He asserts that the court's ruling hindered the jury's ability to assess the credibility of witnesses, including its unwillingness to adopt procedures that would assure the reliability of witnesses, such as clear masks. We disagree.
Multiple California and federal courts have concluded that, "due to the unique and substantial public health risks created by the ongoing global pandemic, the Confrontation Clause is not violated by having a witness testify in a criminal proceeding with a mask covering the nose and mouth." (People v. Lopez (2022) 75 Cal.App.5th 227, 232 (Lopez) [collecting cases]; People v. Alvarez (2022) 75 Cal.App.5th 28, 36-39; People v. Edwards (2022) 76 Cal.App.5th 523, 525-527.)
We agree with those cases concluding the public interest exception to the face-to-face confrontation requirement applies here. (See Lopez, supra, 75 Cal.App.5th at p. 233.) In Maryland v. Craig (1990) 497 U.S. 836, at pages 849-850, the high court explained that the face-to-face confrontation right in the Sixth Amendment is not absolute, and" 'a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.'" (See also Lopez, at p. 233.) Craig recognized that the procedural safeguards ensuring the reliability of evidence are: (1) in person testimony, (2) given under oath, (3) subject to cross-examination, and (4) the ability of the defendant and factfinder to view witness demeanor for the purpose of evaluating witness credibility. (Craig, at pp. 845-846.)
The court in Lopez concluded both prongs of Craig were satisfied in the context of mask requirements during the COVID-19 pandemic, opining: "the mask requirement did not meaningfully diminish the face-to-face nature of the witness testimony. The witnesses testified in court, under oath and were subject to unfettered cross-examination by counsel. The mask requirement did not significantly obstruct the jury's ability to assess witness demeanor. The jurors could see the witnesses' eyes, hear the tone of their voices, and assess their overall body language. 'To whatever slight extent masks impinge on [a defendant's] Confrontation Clause right to see a witness's full facial expressions, requiring them is justified by important public policy interests to protect the health and safety of those in the courthouse while allowing court functions to proceed during a pandemic.'" (Lopez, supra, 75 Cal.App.5th at p. 234.) The same is true here.
Additionally, like the court in Lopez, we are not persuaded by defendant's argument that the court was required to adopt other measures to assure the reliability of witnesses, such as clear masks. (See Lopez, supra, 75 Cal.App.5th at pp. 234-235.) As we have discussed, the mask requirement did not significantly obstruct the jury's ability to assess witness demeanor, and the witnesses were in person, testifying under oath, and subject to cross-examination. Defendant's confrontation rights were not violated.
III
Jury Instruction
Defendant contends the trial court committed instructional error by instructing the jury on flight with pattern instruction CALCRIM No. 372 as follows: "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. [¶] If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself." Defendant contends the instruction was not supported by the evidence, violating his federal right to due process. We disagree.
A. Additional Background
In discussing jury instructions, defense counsel argued that the flight instruction (CALCRIM No. 372) was not applicable because defendant had "just walked away" and gone on with his day "versus an actual flight that would show consciousness of guilt." The prosecutor responded that the instruction was applicable and that defendant was "booking out of there" as soon as he saw Maria take his photograph. The prosecutor noted that Maria's boss had gone outside to try to find defendant, but that defendant was gone from the area. Recognizing that defense counsel could argue that he was just walking around, not fleeing, the prosecutor argued the instruction should be given.
Following a recess, the trial court explained that CALCRIM No. 372 was "intended to be a limiting instruction" with which the court had a duty sua sponte to instruct when counsel is going to argue flight. Because the prosecutor had stated his intent to argue flight regardless of the instruction, and "in light of the evidence," the court ruled that it would give the instruction and did so.
The prosecutor relied on the flight instruction at trial: "And then another instruction that I don't have a slide for, but it's important, is [CALCRIM No.] 372, which says, if the defendant fled immediately after the crime was committed, that conduct may show he was aware of his guilt. [¶] You heard that right after this incident, [Maria] called her boss. Her boss came out and they couldn't find him. So, in a matter of minutes, he has now fled the scene. [¶] And the reason why someone flees the scene, they don't want law enforcement to come and start questioning them. If he truly didn't know he had exposed himself or some huge misunderstanding, law enforcement would have found him somewhere in the area but they didn't until three weeks later when he was caught wearing that same orange shirt."
B. Legal Background
"[A]ssertions of instructional error are reviewed de novo." (People v. Shaw (2002) 97 Cal.App.4th 833, 838.) "On review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt." (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
Section 1127c provides: "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine."
" 'In general, a flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt."' [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest 'a purpose to avoid being observed or arrested.' [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence." (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
C. Analysis
The evidence supported the required findings and inferences here. We acknowledge that Maria testified that defendant "casually walked away" from the scene after she took a photograph of him, but there is no dispute that defendant left the scene immediately. Further, defendant had made prolonged eye contact with Maria, was likely aware that Maria had seen him masturbating, and could have been aware that Maria had taken his picture. The jury could have inferred that defendant, although appearing to leave the scene casually, was aware that he had been observed masturbating by a woman who was only just leaving her office, and that he would have to leave the scene to avoid being caught. Thus, it was not error to give the instruction.
IV
Cumulative Error
Defendant contends the cumulative effect of the errors he has asserted requires reversal. "In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial. [Citation.] A predicate to a claim of cumulative error is a finding of error. There can be no cumulative error if the challenged rulings were not erroneous." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Because we have found no error, defendant's claim necessarily fails.
V
Senate Bill No. 567
Defendant contends, and the Attorney General agrees, that we should remand for resentencing in light of the presumption of a lesser sentence created by Senate Bill No. 567. As relevant here, amended section 1170, subdivision (b)(6) provides that "the court shall order imposition of the lower term" if, among other things, "[t]he person has experienced psychological, physical, or childhood trauma," unless doing so would be "contrary to the interests of justice." (Stats. 2021, ch. 695, § 5, adding § 1170, subd. (b)(6).) The parties agree the change in the law is ameliorative and applies retroactively to defendant's case. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
As we have discussed, there was evidence suggesting defendant had endured psychological, physical, or childhood trauma that could conceivably support a finding that the prior trauma played a role in the offense. Accordingly, we will vacate the sentence and remand for a full resentencing so the trial court can resentence defendant in light of the recent amendments to section 1170. (See People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate' "].) On remand, defendant may also raise any arguments related to his inability to pay fines and fees.
DISPOSITION
The conviction is affirmed. The sentence is vacated, and the matter is remanded for resentencing.
We concur: Renner, J., Earl, J.