Filed 1/6/20 P. v. Perez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL RYAN PEREZ,

Defendant and Appellant.

D074332

(Super. Ct. No. SCD273809)

APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Conditionally reversed and remanded with directions.

Janice R. Mazur, 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, Steve Oetting and Warren J. Williams, Deputy Attorneys General for Plaintiff and Respondent.

In April 2018, Daniel Ryan Perez pled guilty to four counts of carjacking while on parole (Pen. Code, §§ 215, subd. (a), 1203.085, subd. (b)). In July, the trial court sentenced him to prison for 28 years, comprised of five years on count 1, doubled to 10 years for an admitted strike prior; plus three years, four months on counts 2, 3, and 4, to run consecutively; plus five years for an admitted serious felony prior; plus one year each for three of five admitted prison priors (specifically, for the first, third, and fourth prison priors). The trial court did not impose a sentence for the second prison prior because it had been reduced to a misdemeanor under Proposition 47, and the trial court stayed punishment for the fifth prison prior based on the same conviction as his serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)).

Perez appeals, arguing (1) the case should be remanded to allow the trial court to exercise its discretion to grant mental health diversion pursuant to section 1001.36, which allows courts to grant pretrial diversion to defendants who suffer from mental disorders and whose mental disorders played a significant role in the charged crimes; (2) the case should be remanded for resentencing to allow the trial court to exercise its discretion to strike the formerly mandatory five-year enhancement under sections 667, subd. (a)(1) and 1385 (as amended by Stats. 2018, ch. 1013, §§ 1-2); and (3) the trial court erred in imposing and staying rather than striking his fifth one-year prison prior enhancement because he was also given a five-year sentence for the same offense under the serious felony prior enhancement (§ 667.5, subd. (b)). This court requested supplemental briefing regarding the impact of Senate Bill No. 136, which amended section 667.5, subdivision (b) to allow imposition of a one-year prison prior enhancement only if the prior conviction is for a sexually violent offense. (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020 (Sen. Bill No. 136).) In his supplemental brief, Perez contends Senate Bill No. 136 applies retroactively and his three, one-year enhancements should be stricken without remanding for further proceedings in the trial court.

We conclude the mental health diversion statute applies retroactively in this case and exercise our discretion to address this contention despite any forfeiture. We therefore reverse the judgment with directions for the trial court to determine whether to grant mental health diversion under section 1001.36. If the trial court grants diversion, it shall proceed under that statute. If the trial court does not grant diversion, the trial court shall resentence Perez. As part of the resentencing, the court should strike the three, one-year prison prior enhancements and consider whether to exercise its discretion to strike Perez’s prior serious felony conviction enhancement. Although it was also error to stay, rather than strike, the fifth one-year prison prior enhancement, this error is moot given our conclusion that all three one-year prison prior enhancements must be stricken based on Senate Bill No. 136.

FACTS

As the factual basis of his guilty plea, Perez admitted he took two motor vehicles of others, occupied by four total passengers, by force or fear, with the intent to temporarily or permanently deprive the individuals of possession of the vehicles. He admitted he did this while on parole, after release from state prison.

According to the probation officer’s report, on September 21, 2017, J. Campos and B. Pena were parked at a trolley station. Campos stood at the open hood of the Volkswagen Jetta while Pena sat in the passenger seat. The car key was in the ignition. Campos closed the hood and moved to the driver’s side door when Perez grabbed him and pushed him away from the car. Perez put a hand in his waistband as if to draw a weapon. Campos feared for himself and for Pena. After a struggle for the car keys, Pena exited the car while Perez accelerated away.

Perez drove to another parking lot where E. Bermea and C. Ramirez were exiting a taco shop. Perez parked the Volkswagen nearby Bermea’s Hyundai Genesis. While Ramirez sat in the passenger seat, Bermea got into the driver’s seat and started the engine. Perez approached Bermea and pulled him out of the vehicle. Perez told Bermea, ” ‘get out,’ ” and asked him, ” ‘Are you trying to die tonight?’ ” Perez told Ramirez, ” ‘Get the fuck out,’ ” and asked him, ” ‘Are you trying to die tonight?’ ” When Perez put the vehicle in reverse, Ramirez jumped out.

Perez drove the Hyundai over 110 miles an hour on the interstate highway before crashing into another vehicle. Pena’s purse and personal belongings were recovered from the Hyundai, which was totaled. Perez was arrested at the scene before being taken to a hospital for treatment of his injuries from the collision. Perez told police that things were ” ‘kind of a blur’ ” and that he was just released from a Mexican jail where he was incarcerated for being under the influence. He claimed to have walked across the border and said he took the Volkswagen to get back home. He hoped he had not injured anyone. He stated he was driving away when he saw a Maserati. He parked the first car, went to the second, and drove off without a plan. He stated he was fumbling with the radio and ” ‘jamming through the gears’ ” and was unable to stop in time to avoid the collision. He claimed he committed the crimes because of ” ‘temptation,’ ” explaining that he saw a car he liked and had to have it, but he admitted ” ‘[i]t was wrong.’ ”

An investigation revealed Perez had just been released from a local detention facility; he later agreed he had not been in a Mexican jail as he previously thought.

In February 2018, Perez was charged with four counts of felony carjacking (§ 215, subd. (a)). The information alleged that Perez committed each of the offenses, violent and serious felonies, while on parole from state prison pursuant to section 3000 (§ 1203.085, subd. (b)). The information further alleged Perez had suffered five prison priors (§§ 667.5, subd. (b), 668), one serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and one strike prior (§§ 667, subd. (b)-(i), 1170.12, 668).

On April 18, 2018, the defendant signed a written plea agreement in which he “ple[d] to the sheet.” That same day the trial court accepted his guilty plea to all alleged charges and admission of all allegations and enhancements.

Prior to sentencing, the People filed a statement in aggravation requesting a prison term of 36 years. Perez filed a statement in mitigation and requested that the trial court dismiss his prior strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He argued his “mental state at the time of the offense significantly reduces his culpability” because he suffered from a mental disorder and drug addiction. In an attached exhibit, a forensic psychologist described Perez as “delusional” and diagnosed him with “unspecified schizophrenia spectrum and other psychotic disorder” and severe substance abuse disorders. The psychologist opined that Perez’s “mental health and/or substance abuse problems” contributed to his commission of the crimes and recommended treatment.

Perez submitted a letter to the court, apologizing to his victims and requesting leniency in his sentencing. He claimed that drug use had contributed to his criminal behavior, explained that he had not sought or received treatment before, and stated, “I need rehabilitation.” He attached two certificates from the sheriff’s department certifying his completion of “[s]elf-[r]eflection” and “[s]ocial [s]kills” programs in March and April of 2018.

At sentencing, the trial court denied Perez’s Romero motion, stating that the district attorney made a “compelling argument” that Perez “is a true career criminal” and that “there is nothing substantially mitigating about [him] that would warrant striking his prior conviction.” However, the trial court rejected the district attorney’s request to impose the upper term of punishment, instead electing to impose the mid-term of five years. The trial court sentenced Perez to a total term of 28 years, comprised of five years on count 1, doubled to 10 years for the strike prior; plus three years, four months on counts 2, 3, and 4, to run consecutively; plus five years for the serious felony prior; plus one year each for three of the five prison priors. The trial court stayed punishment on the fifth prison prior, which was based on the same conviction as the serious felony prior.

DISCUSSION

I.
Pretrial Mental Health Diversion

Section 1001.36 was enacted on June 27, 2018 (Stats. 2018, ch. 34, § 24) and took effect immediately. (Id., § 37.) Section 1001.36 sets forth a pretrial diversion program for certain defendants diagnosed with qualifying mental disorders. (§ 1001.36, subd. (a).) If a defendant meets the criteria specified in the statute, the trial court may postpone criminal proceedings to allow the defendant to undergo mental health treatment. (§ 1001.36, subds. (a), (c).) If the defendant performs satisfactorily in diversion, the trial court shall dismiss the criminal charges against the defendant that were the subject of the criminal proceedings at the time of the initial diversion. (§ 1001.36, subd. (e).)

Perez contends the statute applies retroactively to defendants like him whose cases were not final when the statute was enacted. (See In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) The Attorney General contends this court does not have to address whether the statute applies retroactively because Perez forfeited his claim by not requesting diversion, or presenting evidence showing he meets the statutory requirements for diversion, in the trial court. Even if the claim was forfeited, we exercise our discretion to consider Perez’s argument on the merits. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate court generally has discretion to consider unpreserved claims]; People v. Johnson (2004) 119 Cal.App.4th 976, 984 [” ‘[t]he fact that a party, by failing to raise an issue below, may forfeit the right to raise the issue on appeal does not mean that an appellate court is precluded from considering the issue.’ “], italics omitted.)

Courts generally presume that laws apply prospectively, as a matter of statutory construction. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara).) However, ” ‘the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication.’ ” (Ibid.) To determine whether a law applies retroactively, we consider the Legislature’s intent in enacting the law. (Ibid.)

Under the Estrada rule, “[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Estrada, supra, 63 Cal.2d at p. 745.) The rule has been extended to statutory amendments that have the effect of reducing the potential punishment for a class of persons, not merely the actual punishment for a particular crime. (People v. Francis (1969) 71 Cal.2d 66, 76; see Lara, supra, 4 Cal.5th at pp. 307-308.) ” ‘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, distinguishing only as necessary between sentences that are final and sentences that are not.’ ” (Lara, at p. 308.)

There is a split of authority concerning the retroactivity of section 1001.36. We agree with courts that have concluded the statute is retroactive because it constitutes an ameliorative change that has the effect of potentially lessening punishment for defendants who are eligible for, are granted, and successfully complete, mental health diversion. (See, e.g., Frahs, supra, 27 Cal.App.5th at p. 791.)

The Attorney General relies on Perez’s prior strike conviction—which makes him ineligible for probation or a suspended sentence under the “Three Strikes” law, section 667, subdivision (c)(2) —to support his claim that mental health diversion is not available to Perez. We rejected the same argument in Burns, supra, 38 Cal.App.5th 776, because the argument misconstrues the conditional reversal procedure of Frahs. “The Frahs procedure conditionally reverses both the convictions and the sentence for an eligibility hearing under section 1001.36. (Frahs, supra, 27 Cal.App.5th at p. 792, rev. granted; see id. at p. 788 [defendant Frahs was also a striker].) Conditional reversal thus restores the case to its procedural posture before the jury verdict for purposes of evaluating [the defendant’s] eligibility for pretrial mental health diversion. At that point, [the defendant] faced a mere allegation of a prior strike, which was insufficient to preclude a suspended sentence or diversion.” (Burns, at p. 789.) The same reasoning applies here; the fact that Perez was sentenced pursuant to the Three Strikes law does not make him ineligible for mental health diversion under section 1001.36.

We also reject the Attorney General’s argument that, by being ineligible for probation, Perez “would also be ineligible for diversion because he would pose an unreasonable risk of danger to public safety” under section 1001.36. The trial court must be “satisfied that 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)(F).) In this context, this requirement means that the defendant cannot pose an unreasonable risk that he or she will commit a new violent felony specified by statute. (Ibid.; see § 1170.18, subd. (c); see also § 667, subd. (e)(2)(C)(iv).) “These violent felonies are known as ‘super strikes’ and include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment.” (People v. Jefferson (2016) 1 Cal.App.5th 235, 242.) None of Perez’s current or past convictions is listed as a “super strike” under the statute. (See § 667, subd. (e)(2)(C)(iv).) Nothing in the record demonstrates the court considered Perez’s risk of dangerousness within the meaning of the statute, or whether Perez’s risk of dangerousness would be mitigated by mental health treatment.

Finally, we reject the Attorney General’s argument that Perez has not made a sufficient showing on all the factors required to seek diversion under section 1001.36. In Frahs, the court concluded conditional reversal was appropriate where “the record affirmatively discloses that [the defendant] appears to meet at least one of the threshold requirements” of section 1001.36. (Frahs, supra, 27 Cal.App.5th at p. 791.) The Attorney General appears to acknowledge there is evidence to support the first three factors. The next two factors, that defendant consents to diversion and agrees to comply with treatment as a condition of diversion, are requirements that involve decisions by Perez, and we infer from his pursuit of diversion on appeal that he would consent to diversion and agree to treatment. Given the high standard for a finding of dangerousness relating to the final criterion, Perez could potentially satisfy that requirement too as he lacks any “super strike” convictions. Of course, the trial court will ultimately have the opportunity to consider the sufficiency of Perez’s request on remand.

We therefore reverse the judgment with directions for the trial court to hold a hearing under section 1001.36 to determine whether to grant diversion under that statute. (Frahs, supra, 27 Cal.App.5th at p. 792.) We express no opinion on the merits of that determination or any criterion thereunder.

II.
Remand for Resentencing to Exercise Discretion as to Whether to Strike the Previously Mandatory Five-year Sentencing Enhancement

Perez contends he is entitled to remand for resentencing in light of Senate Bill No. 1393 to allow the trial court an opportunity to exercise its discretion to strike the section 667, subdivision (a)(1) enhancement. Prior to January 1, 2019, trial courts were required to impose a five-year consecutive term for “[a]ny person convicted of a serious felony who previously has been convicted of a serious felony” (former § 667, subd. (a)(1)), and the court had no discretion “to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667” (former § 1385, subd. (b)). (See People v. Williams (1987) 196 Cal.App.3d 1157, 1160 [former section 1385 “remove[d] from the trial court all discretion to strike the prior felony convictions, thus rendering imposition of a five-year enhancement for each such prior conviction a certainty”].) Effective January 1, 2019, trial courts have discretion to strike a formerly mandatory five-year enhancement applicable to defendants who have suffered a prior serious felony conviction. (Stats. 2018, ch. 1013, §§ 1-2.)

Perez contends, and the Attorney General concedes, the amendments apply here because Perez’s conviction is not yet final. We agree. (People v. Jimenez (2019) 32 Cal.App.5th 409, 426; People v. Garcia (2018) 28 Cal.App.5th 961, 973 [concluding the Legislature intended Senate Bill No. 1393 to “apply to all cases to which it could constitutionally be applied, that is, to all cases not yet final” when the legislation went into effect].)

However, the Attorney General argues remand would be futile because the trial court’s actions at sentencing make clear it would not have dismissed the five-year enhancement even if it had discretion to do so. We disagree with this contention. ” ‘[W]hen the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).) Remand is not required, however, if “the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the previously mandatory] enhancement.” (Ibid.)

The trial court’s statements and sentencing decisions do not show that remand for resentencing would be futile in this case. Although the court described Perez as a “career criminal” with “nothing substantially mitigating about” him when it denied his Romero motion, the court also applied the middle term despite the district attorney’s urging the upper term should apply. This record does not clearly indicate that the trial court would not have stricken Perez’s prior serious felony conviction for sentencing purposes if it had the discretion to do so. (McDaniels, supra, 22 Cal.App.5th at p. 425.) We therefore remand the case to allow the trial court to exercise its discretion to strike the formerly mandatory five-year serious felony enhancement. We express no opinion as to how the trial court should exercise its discretion.

III.
Remand for Resentencing to Strike One-year Prison Prior Enhancements

We requested supplemental briefing regarding the impact of Senate Bill No. 136, which, effective January 1, 2020, amends the convictions that qualify for one-year enhancements pursuant to section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) As amended, one-year prison prior enhancements can only be imposed on a defendant who has a prior conviction for a sexually violent offense. (Ibid.) None of Perez’s prior convictions was for a sexually violent offense. The Attorney General concedes, and we agree, the amendment applies retroactively to all judgments that are not yet final on January 1, 2020. (Estrada, supra, 63 Cal.2d at p. 745; People v. Jennings (2019) 42 Cal.App.5th 664, 682__.) The statute therefore applies in this case to preclude imposition of any one-year prison prior enhancements.

The Attorney General contends the appropriate remedy is to vacate Perez’s sentence and to remand with directions for the trial court to strike the prison prior enhancements and resentence him to a term no longer than the original. Perez disagrees. Citing People v. Nasalga (1996) 12 Cal.4th 784, Perez contends the appropriate remedy is for this court to strike the enhancements and modify the judgment. However, our Supreme Court has more recently “held that when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893; cf. People v. Lopez (2019) 42 Cal.App.5th 337, 342 [striking enhancements rather than remanding for resentencing where the trial court imposed the maximum possible sentence, making it unnecessary for the court to again exercise its sentencing discretion on remand].) We therefore direct that, in the event Perez is resentenced on remand following our conditional reversal, the trial court shall strike the one-year prison prior enhancements and resentence him to a term no longer than the original term imposed. (People v. Wright (2019) 31 Cal.App.5th 749, 756-757.)

IV.
Erroneous Imposition of Multiple Enhancements for the Same Offense

Perez argues, and the Attorney General concedes, that the trial court erred in imposing and staying, rather than striking, the fifth one-year prison prior enhancement (§§ 667.5, subd. (b), 668) because he was also given a five-year sentence for the same offense under the serious felony prior enhancement (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)). We agree. (People v. Perez (2011) 195 Cal.App.4th 801, 805 [trial court erred in imposing both a consecutive five-year enhancement for the serious felony prior and the one-year enhancement for the prior prison term; the one-year prior prison enhancement should have been stricken not stayed]; People v. Jones (1993) 5 Cal.4th 1142, 1150 [“the most reasonable reading of subdivision (b) of section 667 is that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply”].) Although it was error to stay (rather than strike) this one-year prison prior enhancement, this issue is moot in light of our conclusion, ante, that all three one-year prison prior enhancements must be stricken under Senate Bill No. 136.

DISPOSITION

The judgment is conditionally reversed. The matter is remanded to the trial court with directions to hold a mental health diversion eligibility hearing under Penal Code section 1001.36. If the trial court determines that Perez is eligible for diversion, the court may exercise its discretion to grant diversion, and if Perez successfully completes diversion the court shall dismiss the charges. (§ 1001.36, subd. (e).)

If the trial court does not grant diversion, or it grants diversion but Perez does not satisfactorily complete diversion (§ 1001.36, subd. (d)), then the court shall reinstate his convictions, and conduct further resentencing proceedings consistent with this opinion. At any resentencing, the trial court shall exercise its discretion with respect to whether to strike or reimpose the five-year prior serious felony conviction enhancement; shall strike the three, one-year prison prior enhancements; and shall amend any abstract of judgment to accurately reflect Perez’s convictions.

GUERRERO, J.

I CONCUR IN THE RESULT:

HUFFMAN, Acting P. J.

I CONCUR:

HALLER, J.