People v. Mercer CA2/5 ( 2021 )

Filed 9/8/21 P. v. Mercer CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B306165
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA460993)
v.
ANTWONE HAROLD
MERCER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed in part,
reversed in part with directions.
Susan Wolk, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Senior Assistant Attorney
General, Scott A. Taryle and David A. Voet, Deputy Attorneys
General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Antwone Harold Mercer appeals from a
judgment following a resentencing hearing. (People v. Mercer
(Nov. 19, 2019, B291181) [nonpub. opn.].) Defendant asserts:
(1) the trial court erred in failing to hold a hearing on his
eligibility for mental health diversion under Penal Code1 section
1001.36; (2) his counsel provided ineffective assistance by failing
to request a mental health diversion eligibility hearing; (3) his
counsel provided ineffective assistance during the resentencing
hearing; (4) the trial court abused its discretion by not striking a
five-year sentence enhancement under section 667, subdivision
(a)(1); (5) the minute order is inconsistent with the oral
pronouncement of judgment; and (6) the court failed to articulate
fines, fees, and assessments on the record. We reverse and
remand for the court to correct the abstract of judgment and
minute order. We otherwise affirm.
II. BACKGROUND
A. Criminal Conviction and Appeal
We provided the factual background in a prior unpublished
opinion (People v. Mercer, supra, B291181) and recite the relevant
facts below.
On the morning of September 12, 2017, defendant entered
a store at which Francisco Mateo was working and got into an
argument with him. When Mateo saw defendant try to steal
1 Further statutory references are to the Penal Code unless
otherwise indicated.
2
cigarettes, he demanded that defendant leave. Defendant
refused and struck Mateo on the head, back, shoulder, and neck
with a stick and his fists. (People v. Mercer, supra, B291181.)
Later that same day, defendant encountered Esau Montiel
at a street corner. Defendant yelled at Montiel and threw a five-
to seven-pound rock at him, striking him in the stomach.
Defendant then hit Montiel in the head with his fists, picked up
the rock again, and used it to strike Montiel on the back of his
head and back. (People v. Mercer, supra, B291181.)
On March 8, 2018, a jury convicted defendant of two counts
of assault with a deadly weapon (§ 245, subd. (a)(1), counts 1 and
3), one count of attempted second degree robbery (§§ 664 and 211,
count 2), and one count of assault by means of force likely to
produce great bodily injury (§ 245, subd. (a)(4), count 4). The jury
found true the allegations that defendant inflicted great bodily
injury in the commission of the crimes alleged in counts 1 and 4.
(§ 12022.7, subd. (a).)
On July 2, 2018, the trial court held the initial sentencing
hearing. It read into the record portions of a November 21, 2017,
psychiatric report submitted by Dr. Jack Rothberg (Rothberg
report), which detailed defendant’s psychiatric history, including
his history of delusions. The court observed, “I believe that
defendant may be delusional but we have no evidence of a mental
or physical condition that significantly reduced the culpability of
the crime committed by [him].” The court then sentenced
defendant to state prison for an aggregate term of 15 years,
which included a five-year enhancement pursuant to section 667,
subdivision (a)(1), for defendant’s prior serious felony conviction
for robbery (§ 211).
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On July 10, 2019, defendant filed a notice of appeal from
the judgment. In that earlier appeal, defendant did not challenge
the trial court’s failure to conduct a hearing under section
1001.36.
On September 19, 2018, following receipt of correspondence
from the Department of Corrections and Rehabilitation, the trial
court reduced defendant’s aggregate term to 13 years.
On November 19, 2019, we reversed defendant’s conviction
for count 3, finding it was not supported by substantial evidence.
We remanded for a full resentencing on the remaining counts,
citing People v. Navarro (2007) 40 Cal.4th 668, 681. (People v.
Mercer, supra, B291181.)
B. Resentencing Hearing
On April 14, 2020, the trial court held the resentencing
hearing. At the hearing, defendant, through counsel, presented
evidence in mitigation, including: unofficial transcripts of classes
that defendant took while in prison and the grades that he
received; articles from the Valley Star newspaper that credited
defendant for photographs and writing; a certificate of completion
dated September 19, 2019, for a training unit on Industrial
Health and Safety; a character letter from defendant’s former
wife; a character letter from defendant’s cousin; a character letter
from defendant’s older sister, who was a licensed clinical
psychologist; and a character letter from defendant’s aunt.
Defendant’s sister wrote: “While [defendant] seems to lack
the insight to recognize his cognitive difficulties and neurological
challenges, what he needs is psychiatric attention and not
continued punishment. . . . [¶] Prior to this incarceration,
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[defendant] was homeless for two years, self-medicating with
drugs for a severe neck pain due to an injury that nearly
paralyzed him; he experienced auditory and visual hallucinations
that onset long before his drug use. A very unfortunate
characteristic of mental illness is poor insight—he does not
totally understand his deficits.”
Defendant’s aunt wrote: “He would eat and rest and talk to
the people in his head[.] . . . [¶] My nephew . . . needs medical
psychiatric help not prison especially not 10–20 years. I would
like for him to get re-evaluated by a medical and psychological
doctor. . . . [¶] I ask the court to please reconsider my nephew[’s]
case and re-evaluate his charges and mental condition. Please
assign him to a medical counselor or facility that works with
people with mental and behavior[al] issues.”
Finally, his cousin stated in her letter: “We sincerely hope
you can somehow see him for the kind, genuine and sensitive
person that he is and not the illness that seems to have overcome
him a couple years ago.”
During the resentencing hearing, the prosecutor
recommended a sentence of 14 years, which sentence included an
enhancement for defendant’s prior felony conviction for robbery.
Defense counsel described the letters and articles he
submitted to the trial court. Regarding the five-year
enhancement, counsel noted that defendant’s conviction for
assault with a dangerous weapon in count three had been
vacated, which “change[d] the complexion of the case.” Counsel
also observed that the prior robbery conviction occurred when
defendant was 19 years old and characterized defendant’s earlier
conduct as a petty theft that turned into a “scuffle” when
defendant tried to leave. Counsel proffered that defendant had
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complied with the terms of probation in the earlier case and paid
restitution. Counsel argued that based on all these factors, the
court should not impose the five-year enhancement.
Counsel also discussed defendant’s mental health
condition. He stated: “And, um, I think it was brought up at
some point in the proceedings [defendant] suffers from some
mental health conditions. I think all of that played a role in how
[defendant] must have appeared to the clerk or the store when
this all went down.” Counsel also referred to defendant’s sister
who was present at the hearing: “I have his sister who’s a
clinical psychologist, she’s just out in the hallway. If it’s not
apparent that there were—mental health played some kind of
role in this . . . .” Although defendant’s sister was prepared to
testify at the resentencing hearing, after consulting with
defendant, counsel stated, “[defendant] does not think it’s
necessary to have his sister speak.”
Following argument, the trial court imposed a 13-year
sentence and declined to exercise its discretion not to impose the
five-year sentence enhancement under section 667, subdivision
(a)(1). The court explained: “And the reason for that is because
it was—this was a crime of violence. That was also a violent
crime. I understand [defendant]’s current position about it, but it
was a [conviction pursuant to section] 211. I did give [defendant]
some benefit on the prior because it was also the subject of the
strike and I struck the strike at the time of the original
sentencing and—but I imposed it as a five-year prior. And I
would do the same again. I’m choosing again to impose it
because it is a crime of violence. In fact, it’s the same class of
crimes as to offenses for which he was convicted in this case.”
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The prosecution did not request the imposition of any fines
or assessments and the trial court, without objection, did not
impose any such fines or assessments. The minute order and
abstract of judgment, however, reflect the imposition of a $300
restitution fine, a $300 parole revocation fine, $120 in court
operations assessments, and $90 in court facility assessments.
Defendant timely appealed.
III. DISCUSSION
A. Mental Health Diversion
Section 1001.36 authorizes a pretrial diversion program for
defendants with qualifying mental disorders. “As originally
enacted, section 1001.36 provided that a trial court may grant
pretrial diversion if it finds all of the following: (1) the defendant
suffers from a qualifying mental disorder; (2) the disorder played
a significant role in the commission of the charged offense; (3) the
defendant’s symptoms will respond to mental health treatment;
(4) the defendant consents to diversion and waives his or her
speedy trial right; (5) the defendant agrees to comply with
treatment; and (6) the defendant will not pose an unreasonable
risk of danger to public safety if treated in the community.
(Former § 1001.36, subd. (b)(1)–(6).) Section 1001.36 was
subsequently amended by Senate Bill No. 215 (2017–2018 Reg.
Sess.) . . . to specify that defendants charged with certain crimes,
such as murder and rape, are ineligible for diversion. (§ 1001.36,
subd. (b)(2), as amended by Stats. 2018, ch. 1005, § 1.)
“If the defendant makes a prima facie showing that he or
she meets all of the threshold eligibility requirements and the
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defendant and the offense are suitable for diversion, and the trial
court is satisfied that the recommended program of mental
health treatment will meet the specialized mental health
treatment needs of the defendant, then the court may grant
pretrial diversion. (§ 1001.36, subds. (a), (b)(3) & (c)(1).) The
maximum period of diversion is two years. (Id., subd. (c)(3).) If
the defendant is subsequently charged with an additional crime,
or otherwise performs unsatisfactorily in the assigned program,
then the court may reinstate criminal proceedings. (Id., subd.
(d).) ‘If the defendant has performed satisfactorily in diversion,
at the end of the period of diversion, the court shall dismiss the
defendant's criminal charges that were the subject of the criminal
proceedings at the time of the initial diversion’ and ‘the arrest
upon which the diversion was based shall be deemed never to
have occurred.’ (Id., subd. (e).)” (People v. Frahs (2020) 9 Cal.5th
618, 626–627 (Frahs).)
As defendant concedes, defendant did not request a hearing
pursuant to section 1001.36. Nor did defendant challenge the
trial court’s failure to conduct such a hearing during his first
appeal of his conviction. We conclude that defendant has thus
forfeited his argument on appeal. (People v. Romero (2008) 44
Cal.4th 386, 411; People v. Senior (1995) 33 Cal.App.4th 531,
538.)
Defendant seeks to avoid the forfeiture doctrine by
suggesting that the trial court had a sua sponte duty to hold a
hearing on defendant’s eligibility for pretrial mental health
diversion at the resentencing hearing because there was evidence
that defendant had a history of mental health problems.
Defendant argues that such a duty is consistent with the
Legislature’s intent to apply the mental health diversion program
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as broadly as possible. (Frahs, supra, 9 Cal.5th at p. 632.) We
disagree. Section 1001.36, subdivision (a) provides: “On an
accusatory pleading . . . , the court may, after considering the
positions of the defense and prosecution, grant pretrial diversion
to a defendant . . . .” (Italics added.) Common principles of
statutory interpretation establish that, absent evidence to the
contrary, the word “may” grants permissive or discretionary
authority, while the word “shall” is directive or mandatory.
(California Correctional Peace Officers Assn. v. State Personnel
Bd. (1995) 10 Cal.4th 1133, 1143 [the word “may” is ordinarily
deemed permissive]; Ajaxo, Inc. v. E*Trade Financial Corp.
(2020) 48 Cal.App.5th 129, 165 [use of word “may” gave trial
court discretion to award royalties, but did not require such an
award]; Severson & Werson, P.C. v. Sepehry-Fard (2019) 37
Cal.App.5th 938, 946 [when the Legislature uses both the terms
“shall” and “may” in the same statute, the word “shall” is
construed as mandatory, not permissive].) We observe that the
Legislature here used the word “shall” when it expressed a
requirement for the court to act. For example, “[u]pon request,
the court shall conduct a hearing to determine whether
restitution . . . is owed to any victim as a result of the diverted
offense . . .” (§ 1001.36, subd. (c)(4)) and upon satisfactory
completion of diversion, “the court shall dismiss” the relevant
charges (id., subd. (e)). Based on our reading of the statutory
text, we reject defendant’s contention that the court had a sua
sponte duty to conduct an eligibility hearing here.
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B. Ineffective Assistance of Counsel for Failing to Request
Mental Health Diversion
Defendant alternatively argues that his counsel was
ineffective for failing to request mental health diversion at the
resentencing hearing. According to defendant, given the record of
his apparent mental health issues, “[t]here is simply no
satisfactory explanation for counsel’s failure to request a
diversion hearing.”
When challenging a conviction on grounds of ineffective
assistance, “[a defendant] ‘must show that counsel’s performance
was deficient, and that the deficiency prejudiced the defense.’
[Citations.] On direct appeal, a finding of deficient performance
is warranted where ‘(1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation.’
[Citation.] ‘[W]here counsel’s trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not find
ineffective assistance of counsel on appeal unless there could be
no conceivable reason for counsel’s acts or omissions.’” (People v.
Johnsen (2021) 10 Cal.5th 1116, 1165.)
Defendant cannot demonstrate that counsel’s failure to
request an eligibility hearing fell below an objective standard of
reasonableness. The record in this case suggests a conceivable
reason for counsel’s failure to act. For instance, counsel may
have concluded that there was an insufficient factual basis to
assert that any mental health disorder was a significant factor in
the commission of the charged offenses. Indeed, defendant
testified: “I try to keep them from disturbing me as much as
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hallucinations and voices and things of the nature. Um, but I
don’t want to try to put that all sole blame on that. Um, you
know, like I said in my letter, I could have walked away from
both incidents and I didn’t. I pursued the argument. I pursued
the fight—um, the fights.” Further, the trial court, during the
initial sentencing hearing, had observed that in its view, there
was no evidence that defendant’s mental problems reduced
defendant’s culpability for his crimes.
Counsel also may have been apprised that defendant did
not want to participate in a diversion program. The record
reflects that defendant lacked insight into his mental illness and
had ignored his family’s advice to obtain psychological help
because “he didn’t trust anyone.”
Finally, counsel may have concluded that defendant was
ineligible for diversion because his lengthy criminal history
demonstrated that he posed an unreasonable risk to public
safety. Indeed, defendant had sustained a 1993 conviction for
robbery, for which the court imposed a five-year sentencing
enhancement; a 2000 conviction for domestic violence; a 2002
conviction for petty theft with a prior; a 2013 conviction for
disturbing the peace; two convictions in 2014 for possession of
controlled substances; a 2014 conviction for trespass; a 2015
conviction for shoplifting; a 2015 conviction for grand theft; a
2015 conviction for possession of a controlled substance; a 2016
conviction for use of PCP; and a 2017 conviction for trespass. We
thus reject defendant’s claim that counsel was ineffective in
failing to request a hearing on mental health diversion.
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C. Ineffective Assistance of Counsel at Resentencing Hearing
Defendant next argues that his trial counsel provided
ineffective assistance at his resentencing hearing by (1)
purportedly submitting without argument on the application of
the five-year sentencing enhancement; and (2) failing to cite to
the Rothberg report2 at the resentencing hearing.
Defendant contends that counsel submitted, without
argument, to the application of the five-year sentencing
enhancement and cites to just one page of the resentencing
transcript, in which counsel stated, “I’ll submit to the court.”
Defendant has failed to reference the remainder of counsel’s
argument at the resentencing hearing, including those we detail
above in which counsel urged the court not to impose the five-
year enhancement. Defendant has failed adequately to describe
the record and his argument is meritless.
We also conclude that counsel was not ineffective in failing
to expressly cite to the Rothberg report at the resentencing
hearing. The record here suggests reasonable tactical reasons for
counsel’s failure to cite to the Rothberg report. Counsel may
have concluded that there was little benefit to citing to a three-
2 In our December 1, 2020, order granting defendant’s
motion to augment the record with Rothberg’s report, we noted
that “[a] copy of the document attached to this Motion to
Augment is in this Court’s file previously under seal.” We grant
defendant’s request for judicial notice that the Rothberg report
was attached as an exhibit to defendant’s “MOTION FOR
MODIFICATION OF SENTENCE PURSUANT TO
CALIFORNIA PENAL CODE § 1170, SUBDIVISION (d)” and
was filed, not under seal, on January 8, 2019, in the superior
court.
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year old report that the trial court had cited, at length, at the
initial sentencing hearing, prior to imposing a lengthy sentence.
Counsel may also have concluded that it was a better strategy to
focus his arguments on the more recent letters submitted by
defendant’s family members, which detailed defendant’s history
of mental health problems. On this record, we decline to find
that defense counsel acted unreasonably. (Knowles v. Mirzayance
(2009) 556 U.S. 111, 127 [“The law does not require counsel to
raise every available nonfrivolous defense”].)
D. Five-Year Enhancement under Section 667,
subdivision (a)(1)
Defendant argues the trial court erred by not striking the
five-year enhancement under section 667, subdivision (a)(1)
pursuant to section 1385. We review the court’s authority to
strike enhancements under section 1385 for an abuse of
discretion. (People v. Shaw (2020) 56 Cal.App.5th 582, 586–587.)
The trial court observed that the 1993 robbery was a crime
of violence and similar to the crimes for which he was being
sentenced. Further, the court stated that, in its view, it had
exercised sufficient leniency by striking defendant’s prior strike
and therefore declined to also strike the sentencing enhancement
under section 667, subdivision (a)(1). Finally, defendant had a
lengthy criminal history. On this record, we conclude that the
court did not abuse its discretion by declining to strike the
enhancement. (People v. Shaw, supra, 56 Cal.App.5th at p. 587
[“No error occurs if the trial court evaluates all relevant
circumstances to ensure that the punishment fits the offense and
the offender”].)
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E. Minute Order
Defendant contends the minute order mistakenly refers to
the dismissed count. We agree. “Courts may correct clerical
errors at any time, and appellate courts (including this one) that
have properly assumed jurisdiction of cases have ordered
correction of abstracts of judgment that did not accurately reflect
the oral judgments of sentencing courts.” (People v. Mitchell
(2001) 26 Cal.4th 181, 185.)
The April 14, 2020, minute order provides: “Consecutive to
count 3, the court imposes 1 year for the allegation pursuant to
. . . section 12022.7[, subdivision] (a), which is 1/3 the term. [¶]
The court orders the sentence in count 3 to run consecutive to the
sentence in count 1. [¶] Consecutive to counts 1 and 3, the court
imposes an additional 5 years pursuant to . . . section 667[,
subdivision] (a)(1) for a total state prison term of 13 years for this
case.” It is clear that the trial court’s references to count 3 were
for count 4. We will order the court to correct this error in the
minute order.
F. Fines and Assessments
1. Restitution and Parole Revocation Fines
Defendant next contends the abstract of judgment and
minute order erroneously indicate that the trial court imposed
restitution and parole revocation fines. Respondent agrees, and
so do we. The court’s imposition of restitution and parole
revocation fines pursuant to section 1202.4, subdivision (b) is not
mandatory (People v. Tillman (2000) 22 Cal.4th 300, 302) and the
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court did not impose any such fines at the sentencing hearing.
Thus, we will order the minute order and abstract of judgment
corrected to reflect that no restitution or parole revocation fines
should be imposed. (People v. Mitchell, supra, 26 Cal.4th at
p. 185).)
2. Assessments
Defendant also argues that the abstract of judgment and
minute order should be corrected to remove imposition of $120 in
court operations assessments (§ 1465.8, subd. (a)) and $90 in
court facilities assessments (Gov. Code, § 70373, subd. (a)(1)).
Respondent counters that we should impose these mandatory
assessments on appeal. We decline to do so as the prosecution
neither sought such assessments nor objected to the trial court’s
failure to impose them. (See People v. Carranza (1996) 51
Cal.App.4th 528, 536.) Instead, we will order the abstract of
judgment and minute order corrected to remove imposition of the
assessments. (People v. Mitchell, supra, 26 Cal.4th at p. 185.)
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IV. DISPOSITION
The judgment is reversed with directions for the trial court
to correct the minute order to reflect that defendant was
sentenced for count 4, not count 3. The court is further directed
to delete imposition of the restitution fine, parole revocation fine,
court operations assessments, and court facilities assessments in
the minute order and abstract of judgment, and to prepare an
amended abstract of judgment reflecting this correction. The
court is directed to furnish a copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation.
The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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