Filed 12/27/19 P. v. Dale CA4/2

See Concurring Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES DALE, JR.,

Defendant and Appellant.

E070965

(Super.Ct.No. RIF1703994)

OPINION

APPEAL from the Superior Court of Riverside County. Bambi J. Moyer and Christian F. Thierbach, Judges. Conditionally reversed with directions.

Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant James Dale, Jr., pleaded guilty to one count of possession of methamphetamine, having been previously convicted of lewd acts upon a child under 14 years of age and subject to sex offender registration (Health & Saf. Code, § 11377, subd. (a); count 1) and one count of possession of drug paraphernalia (Health & Saf. Code, § 11364; count 2). He also admitted that he had suffered one prior prison term (Pen. Code, § 667.5, subd. (b)). In return, the trial court sentenced defendant to 16 months in state prison with 588 days of credit for time served.

On appeal, defendant contends (1) the judgment must be conditionally reversed and remanded with directions to the trial court to determine whether he is eligible for a pretrial mental health diversion program under section 1001.36; and (2) pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), a remand is necessary for an ability-to-pay hearing on the fees and fines.

We conditionally reverse the judgment and remand the matter to the trial court with directions to conduct a mental health diversion eligibility hearing pursuant to section 1001.36, enacted effective June 27, 2018. (Stats. 2018, ch. 34, § 24 (Assem. Bill No. 1810).) If the court finds the statutory criteria are met, it may grant diversion, and if defendant successfully completes diversion, the court shall dismiss the charges. (People v. Frahs (2018) 27 Cal.App.5th 784, 789, 790-792, 796 (Frahs) [section 1001.36 applies retroactively to all judgments not final when the statute was enacted effective June 27, 2018], review granted Dec. 27, 2018, S252220; People v. Weaver (2019) 36 Cal.App.5th 1103, 1117, 1121-1122 [same]; People v. Hughes (2019) 39 Cal.App.5th 886, 894-895 [same]; cf. People v. Craine (2019) 35 Cal.App.5th 744, 749, 754, 760 (Craine) [section 1001.36 applies only prospectively].) If, however, the court determines that defendant is not eligible for mental health diversion pursuant to section 1001.36, or if defendant commits a new crime or does not successfully complete the diversion program, the judgment of conviction shall be reinstated and defendant must be resentenced.

We also conclude that defendant’s Dueñas claim is moot because the trial court failed to orally pronounce any fines or fees at the time defendant was sentenced. If defendant successfully completes diversion, the court must dismiss the charges. (Frahs, supra, 27 Cal.App.5th at p. 792.) If, however, the judgment is reinstated and defendant is resentenced, the trial court must orally impose any assessments, fines, and/or fees defendant is ordered to pay. At resentencing, defendant may assert an ability-to-pay argument under Dueñas.

II

FACTUAL AND PROCEDURAL BACKGROUND

On January 24, 2016, defendant was paroled after serving 16 years in state prison for committing six lewd acts upon a child under the age of 14. On September 28, 2017, defendant’s parole agent came to his residence to conduct an unannounced search. When the parole agent arrived, defendant, who had been sitting on the front porch, ran inside and locked the door. After knocking on the front door, the parole agent looked through a glass window and observed defendant exiting his bedroom. Defendant then unlocked the door and let his parole agent in. Defendant claimed that he ran inside the house because he had to use the bathroom. Defendant appeared unusually nervous, was stuttering, and his hand was shaking. The parole agent found defendant’s behavior abnormal based on his interactions with defendant for two years. The parole agent ultimately found methamphetamine and a “‘meth pipe’” in defendant’s bedroom. Defendant admitted the methamphetamine and pipe belonged to him.

On December 21, 2017, an information was filed charging defendant with one count of possession of methamphetamine, having been previously convicted of lewd acts upon a child under 14 years of age and subject to sex offender registration (Health & Saf. Code, § 11377, subd. (a); count 1) and one count of possession of drug paraphernalia (Health & Saf. Code, § 11364; count 2). The information also alleged that defendant was on parole at the time he committed the charged offenses (Pen. Code, § 3000) and that he violated his probation in case No. RIM1700920 by reason of the charged offenses (Pen. Code, § 1203.2, subd. (b)). The information further alleged that defendant had suffered one prior prison term (Pen. Code, § 667.5, subd. (b)) and six prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e)(2)(A) & 1170.12, subd. (c)(2)).

On February 14, 2018, defendant filed a motion to reduce the possession of methamphetamine offense to a misdemeanor pursuant to section 17, subdivision (b). On the same day, defendant also filed a motion to dismiss his prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

On March 12, 2018, the People agreed defendant was eligible for a pretrial diversion drug treatment program under section 1000. The trial court therefore referred defendant’s case to the probation department for a section 1000.1, subdivision (b) suitability report.

On June 8, 2018, after considering the suitability report, the trial court found that defendant was unsuitable for a pretrial diversion drug treatment program under section 1000. The court also denied defendant’s motion to reduce the possession of methamphetamine offense to a misdemeanor. The court, however, granted defendant’s Romero motion to dismiss his six prior strike offenses. In addition, on this same day, after the trial court provided an indicated sentence of 16 months, defendant pleaded guilty to both counts and admitted the prior prison term and violating his probation in case No. RIM1700920.

On July 18, 2018, the trial court sentenced defendant to 16 months as indicated with 588 days of credit for time served. With credit for time served, defendant was immediately released. The court also terminated defendant’s probation in case No. RIM1700920. Defendant filed a timely notice of appeal on this same day, and an amended notice of appeal on July 30, 2018.

III

DISCUSSION

A. Mental Health Diversion (§ 1001.36)

Defendant contends that section 1001.36 applies retroactively to his case and the matter should be remanded for a mental health diversion hearing. We agree.

1. Pretrial Diversion Generally

Generally, pretrial diversion suspends criminal proceedings for a prescribed time period, subject to specified conditions. (§§ 1000-1000.1 [drug offense diversion]; 1001.60-1001.62 [bad check diversion]; 1001.71 [parental diversion]; 1001.80 [military diversion]; 1001.81 [repeat theft offense diversion].) Criminal charges normally are dismissed if a defendant successfully completes a diversion program. (§§ 1001.9, 1001.33, 1001.55, 1001.74-1001.75.)

Effective June 27, 2018, the Legislature enacted section 1001.36, which authorizes pretrial diversion for qualifying defendants with mental health disorders. Section 1001.36 defines “‘pretrial diversion’ [as] 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).)

Section 1001.36 authorizes the trial court to grant pretrial mental health diversion if the following criteria are satisfied: (1) the trial court is satisfied, based on evidence from a qualified mental health expert, that the defendant suffers from a recognized mental disorder; (2) the trial court is satisfied the defendant’s disorder played a significant role in the commission of the charged offense; (3) in the opinion of a qualified mental health expert, the defendant’s mental health symptoms, which motivated criminal behavior, would respond to mental health treatment; (4) the defendant consents to diversion and waives his right to a speedy trial; (5) the defendant agrees to comply with treatment for the disorder as a condition of diversion; and (6) the trial court is satisfied the defendant “will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.” (§ 1001.36, subd. (b)(1)(A)-(F).)

2. Retroactive or Prospective Application

The Courts of Appeal are currently divided on the question of whether section 1001.36 applies retroactively to persons, like defendant, who were tried, convicted, and sentenced before section 1001.36 went into effect on June 27, 2018. (Cf. Frahs, supra, 27 Cal.App.5th at pp. 790-792 [§ 1001.36 applies retroactively] with Craine, supra, 35 Cal.App.5th at pp. 749, 754, 760 [§ 1001.36 applies only prospectively].)

In Frahs, Division Three of this court concluded that section 1001.36 applies retroactively to all persons whose judgments, like defendant’s, were not final when section 1001.36 went into effect on June 27, 2018. (Frahs, supra, 27 Cal.App.5th at pp. 789-791.) More recently, in Craine, the Fifth District Court of Appeal disagreed with the reasoning of Frahs and held that “section 1001.36 does not apply retroactively to defendants whose cases have progressed beyond trial, adjudication of guilt, and sentencing.” (Craine, supra, 35 Cal.App.5th at p. 760.) Defendant’s case had been adjudicated and he had been sentenced, but the judgment is not final on appeal.

On December 27, 2018, the Supreme Court granted review in Frahs to determine whether section 1001.36 applies retroactively. Because the Frahs and Craine courts have thoroughly addressed the reasons for and against the retroactive versus prospective application of section 1001.36, it is unnecessary to discuss the retroactivity issue in detail. In sum, we agree with Frahs that the Legislature implicitly intended section 1001.36 to apply retroactively to all defendants whose judgments, like defendant’s, were not final when section 1001.36 went into effect on June 27, 2018. (Frahs, supra, 27 Cal.App.5th at pp. 789-791.)

Thus, we conditionally reverse the judgment and remand the matter for further proceedings in accordance with the procedures outlined in Frahs. The Frahs court adopted a conditional reversal and remand procedure which requires the court to “conduct a mental health diversion eligibility hearing under the applicable provisions of section 1001.36.” (Frahs, supra, 27 Cal.App.5th at p. 792.) “When conducting the eligibility hearing, the court shall, to the extent possible, treat the matter as though [the defendant] had moved for pretrial diversion after the charges had been filed, but prior to their adjudication.” (Ibid.) In addition, as discussed in Frahs, section 1001.36 authorizes the trial court to grant pretrial mental health diversion if the six criteria under section 1001.36 are satisfied. (Frahs, at p. 789.)

Furthermore, “[i]f [the] 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. (§ 1001.36, subd. (c)(1)(B).) Thereafter, the provider ‘shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.’ (§ 1001.36, subd. (c)(2).) ‘The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.’ (§ 1001.36, subd. (c)(3).) [¶] If the defendant commits additional crimes, or otherwise performs unsatisfactorily in diversion, then the court may reinstate criminal proceedings. (§ 1001.36, 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.’ (§ 1001.36, subd. (e).)” (Frahs, supra, 27 Cal.App.5th at pp. 789-790.)

The People contend that, even if section 1001.36 applies retroactively, defendant’s judgment should be affirmed because he has not shown he would be eligible for mental health diversion under section 1001.36. We conclude, to the contrary, that remand is necessary to allow a diversion eligibility hearing under section 1001.36.

We observe that nothing in the record indicates that remand for a section 1001.36 pretrial mental health diversion eligibility hearing will necessarily be futile. (Cf. People v. McVey (2018) 24 Cal.App.5th 405, 419.) The record indicates that defendant claimed to have been diagnosed with bipolar disorder and that he had previously taken medication to combat his disorder for 10 years. Defendant also asserted that he had been diagnosed with depression and was taking medication from 1999 to 2014. Remand for a diversion hearing under section 1001.36 is required here because we cannot conclude, on this record, that defendant is unable to demonstrate the eligibility factors listed in section 1001.36, subdivision (b)(1)(A)-(F). There is evidence that he may suffer from mental disorders and that those disorders may have played a significant role in his charged crime.

This court cannot make factual determinations in the first instance as to whether defendant has sufficiently demonstrated any of the eligibility factors for mental health diversion under section 1001.36. It is inappropriate for this court to speculate as to whether the trial court will find defendant eligible for mental health diversion. Remand is therefore necessary because we cannot say, as a matter of law, based on the record, that defendant would not be able to establish eligibility for mental health diversion under section 1001.36.

If, on remand, the court determines that defendant is ineligible for mental health diversion pursuant to section 1001.36, or if defendant commits another crime or does not successfully complete diversion, then the court must reinstate defendant’s convictions and the true findings on his sentencing enhancements. (Frahs, supra, 27 Cal.App.5th at pp. 792, 796.) Additionally, defendant must be resentenced.

B. Ability to Pay Fees and Fines

Defendant contends that he is also entitled to a remand for an ability-to-pay hearing on the fines and fees that he had been ordered to pay pursuant to Dueñas, supra, 30 Cal.App.5th 1157. However, as noted by the People and acknowledged by defendant in his reply brief, the claim is moot because the trial court never orally pronounced or imposed the fines and fees.

While the court’s minute order of the sentencing hearing and the abstract of judgment reflect the imposition of a $300 restitution fine (§ 1202.4, subd. (b)), a $300 parole revocation fine (§ 1202.45, subd. (c)), an $80 court operation assessment (§ 1465.8), and a $60 conviction assessment (Gov. Code, § 70373), and defendant acknowledged fines and fees would flow as a consequence of his plea, the trial court never orally pronounced any fines, fees, and/or assessments at the time defendant was sentenced. A trial court is required to separately delineate and identify all fines, fees, penalty assessments, and surcharges. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) “Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts.” (Ibid.) Accordingly, a remand is necessary to allow the trial court to properly impose the fines and fees.

And because defendant can assert his ability to pay on remand, his Dueñas claim is moot. “‘[A] case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief.’” (Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 925; see People v. Rish (2008) 163 Cal.App.4th 1370, 1380.) “‘[T]he duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’” (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.)

IV

DISPOSITION

The judgment is conditionally reversed. The matter is remanded to the trial court with directions to conduct a mental health diversion eligibility hearing pursuant to section 1001.36. If the court finds the statutory criteria are met, it may grant diversion, and if defendant successfully completes diversion, the court shall dismiss the charges. If, however, the court determines that defendant is not eligible for mental health diversion pursuant to section 1001.36, or if defendant commits a new crime or does not successfully complete the diversion program, the judgment of conviction shall be reinstated and defendant must be resentenced. At resentencing, the court must orally impose any assessments, fees, and fines defendant is ordered to pay.

Lastly, if defendant is resentenced, the court is directed to prepare a supplemental sentencing minute order together with an amended abstract of judgment and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

I concur:

FIELDS

J.

[E070965, People v. Dale]

RAPHAEL, J., Concurring.

In defendant’s abstract of judgment, the trial court imposed four mandatory fines or assessments, but the court did not orally pronounce those fines at the sentencing hearing. Today’s opinion holds that the lack of an oral pronouncement was an error warranting a resentencing hearing, and further orders the trial court to orally impose such assessments or fines at that hearing. (Maj. opn., ante, at pp. 11-13.) I respectfully write separately because my view is that the failure to orally pronounce mandatory fines at sentencing is not reversible error under existing case law.

Our Supreme Court has held that mandatory penalties may be imposed through an appellate ruling even where they are raised for the first time on appeal. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; see, e.g., People v. Myles (2016) 6 Cal.App.5th 1158, 1160 [modifying sentencing order by striking inapplicable fee that trial court orally imposed and adding mandatory fees that trial court did not address]). This demonstrates that it is error to fail to impose mandatory penalties in a judgment, but it also indicates that the court’s failure to articulate them orally is either harmless error or not erroneous at all. In my view, we should not reverse judgments to order the rote articulation of mandatory penalties, as the lack of an oral pronouncement of a mandatory fee is not a miscarriage of justice. (See Cal. Const., art. VI, § 13.)

Even where the penalties are not mandatory, Court of Appeal case law does not require the oral articulation of each fee, assessment, or surcharge at the sentencing hearing. (See People v. Hamed (2013) 221 Cal.App.4th 928, 940 (Hamed); People v. Voit (2011) 200 Cal.App.4th 1353, 1372 (Voit) [court “adequately pronounced” sentence by imposing a specific fine and “generally referring” to applicable penalty assessments]; People v. Sharret (2011) 191 Cal.App.4th 859, 864 (Sharret) [“acceptable practice” for court to use shorthand approach at hearing]). One case has observed that trial courts “frequently orally impose” penalties and surcharges “by a shorthand reference to ‘penalty assessments.’” (Sharret, at p. 864.)

In my view, we should not burden trial courts with an inflexible rule that every fee, assessment, or surcharge must be expressly detailed at the hearing. A wise practice, in my opinion, is endorsed by Hamed, supra, 221 Cal.App.4th at pp. 939-940. This is for all the assessments, fines, and fees to be “set forth in a probation report” or other writing and for the court to “state the amount and statutory basis for the base fine and make a shorthand reference in its oral pronouncement” to the penalties set forth in that report. (Ibid.) This procedure would help the parties identify any objections: “By itemizing and listing the component parts of base fines and penalty assessments prior to sentencing, the parties would have an opportunity to identify and correct errors in the trial court, avoiding unnecessary appeals. A detailed list would also prompt a sentencing court to take appropriate steps when a fine has an ability-to-pay requirement.” (Id. at p. 940.)

Importantly—and distinct from the oral pronouncement—all penalties must be detailed in the written abstract of judgment. There, the court clerk must “list the amount . . . and statutory basis for each penalty assessment” to ensure that the Department of Corrections and Rehabilitation has the information needed to forward collected moneys to the appropriate agency. (Hamed, supra, 221 Cal.App.4th at p. 940.) A deficient written abstract of judgment was the basis for reversal in the case today’s opinion relies upon, People v. High (2004) 119 Cal.App.4th 1192, 1199-1200. To be sure, that case also states that California law does not allow shortcuts in articulating the penalties orally at the sentencing hearing. (Id. at p. 1200.) But this is dicta that I do not think we should endorse; instead, we should follow Hamed, Voit, and Sharret, and the greater discretion it allows trial courts. Even People v. High does not hold that the failure to make a detailed oral articulation of penalties was reversible error. That case did not remand for a new sentencing hearing because the penalties were not orally articulated—it simply ordered the abstract of judgment corrected. (People v. High, at p. 1201.)

It may be reversible error if a defendant can demonstrate that he was not provided adequate notice of, and opportunity to object to, a penalty imposed in the abstract of judgment, and that he has a reasonable probability of a successful objection to that penalty. But there is no such claim here. As I understand it, the reversal of the sentence is solely because of the lack of oral pronouncement of the fees and assessments.

Here, I concur fully in the opinion’s analysis remanding for a mental health diversion hearing. I also agree that we must order a resentencing if diversion is not ordered or completed, but I reach that conclusion due to defendant’s argument pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157. The People provided no substantive opposition to defendant’s People v. Dueñas claim.

RAPHAEL

J.