People v. Haddad CA3 ( 2021 )

Filed 12/28/21 P. v. Haddad CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C092160
Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE-
2019-0013874)
v.
RAMY NABIL HADDAD,
Defendant and Appellant.
Defendant Ramy Nabil Haddad repeatedly threatened a Stockton code
enforcement officer and also shot and killed numerous large dogs in his neighborhood.
Following his indictment, defendant requested mental health diversion under Penal Code
section 1001.36,1 arguing that his offenses were the result of his underlying mental health
disorder. The trial court denied defendant’s request, concluding that while defendant
suffered from a mental health disorder contributing to the offenses, he posed an
unreasonable risk to public safety. Subsequently, defendant pleaded no contest to one
1 Undesignated statutory references are to the Penal Code.
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count of criminal threats and one count of animal cruelty. The trial court ordered
defendant to complete five years of formal probation.
On appeal, defendant argues that there was insufficient evidence that he would
pose a risk to public safety. He also argues that his five-year probation term is no longer
valid under Assembly Bill No. 1950 (2019-2020 Reg. Sess.). We agree with the latter
contention but will otherwise affirm the judgement.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant called the victim, a Stockton code enforcement officer, and very
graphically threatened to harm him and his family. In addition, defendant shot and killed
several of his neighbors’ dogs with a “high-powered air rifle.” Defendant was charged
with committing criminal threats (§ 422, subd. (a)⸺counts 1, 2, 4, 5, 7, 8, 10 & 11);
resisting an officer (§ 69⸺counts 3, 6, 9 & 12); stalking (§ 646.9, subd. (a)⸺counts 13-
14); animal cruelty (§ 597, subd. (a)⸺counts 15-20); and misdemeanor vandalism
(§ 594, subd. (a)⸺count 21).
Defendant filed a motion for mental health diversion pursuant to section 1001.36.
The prosecution filed an opposition. On May 4, 2020, the court conducted a diversion
hearing. Defendant presented the testimony of three witnesses: Dr. Daniel Gutkind; his
wife, Nicole Haddad; and himself.
Dr. Gutkind, a psychologist, works with the Department of Veterans Affairs
(V.A.). According to Dr. Gutkind, defendant had been diagnosed with posttraumatic
stress disorder (PTSD) stemming from his military service. Dr. Gutkind reviewed
defendant’s V.A. medical file and compiled a treatment plan to assist with defendant’s
diversion; he recommended that defendant meet with a psychiatrist every one to two
months and with a mental health clinician every two weeks. Based on defendant’s
medical history, he was already meeting regularly with a psychiatrist prior to the events
of this case. Dr. Gutkind recommended frequent, scheduled meetings with a clinician,
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classes, and a support group where he would discuss a particular condition, such as
anxiety or PTSD, with other similarly afflicted veterans.
Mrs. Haddad, defendant’s wife, testified that she was aware of defendant’s mental
health issues when they met in 2013. Defendant told her that he received treatment for
PTSD, anxiety, depression, bipolar disorder, and pain issues with his back, ankles, and
wrists. Mrs. Haddad was defendant’s caretaker, and she testified he had been on at least
10 different PTSD medications. She testified that defendant was upset that cats from an
adjacent residence roamed their property, and their lot and sidewalk “was covered in [cat]
feces.” To secure the property from these cats, defendant “welded” a “chain link” fence,
which drew a code enforcement complaint. The code enforcement officer insisted that
the fence had to be removed. During this time, defendant increased his marijuana use,
which correlated with an increase in his anxiety and anger.
Defendant testified that he has many mental health ailments, including PTSD,
obsessive compulsive disorder, bipolar disorder, and anxiety, related to his military
service. Following his discharge, defendant was diagnosed with PTSD, obsessive
compulsive disorder, and bipolar disorder. Defendant “had a mental breakdown” and
was admitted to a state hospital. Between 2013 and 2015, defendant completed a
program for conditional release from a state hospital (CONREP), where he had to
participate in regular therapy, meet with a social worker, and maintain employment.
Defendant testified that during the time of the offenses, he stopped taking his prescription
medication for anxiety and proceeded to ingest wax, “a marijuana concentrate,” which in
his view caused him to experience a “drug-induced psychosis.”
The prosecutor offered no witnesses but submitted multiple exhibits, including:
People’s exhibit No. 1, a Stockton police report from 2019 offered to show defendant’s
violence toward animals; People’s exhibit No. 2, a psychiatric competence report from
2020 demonstrating defendant’s “homicidal tendencies starting back in 2012”; People’s
exhibit No. 3, a San Joaquin County sheriff’s report from 2012, when defendant was
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committed to the state hospital, involving defendant’s threats to his mother, offered to
show defendant’s “homicidal reasoning” and “unreasonable risk to public safety”;
People’s exhibit No. 13, defendant’s V.A. medical records offered to demonstrate that
defendant “would not respond appropriately to treatment”; People’s exhibit No. 14,
phone calls from defendant; and People’s exhibit Nos. 15 and 16, placement hearing
testimony from defendant and Mrs. Haddad blaming his conduct on marijuana, not on his
mental health disorders.
Following argument, the trial court denied mental health diversion. The court
concluded that defendant suffers from PTSD, a disorder specifically listed in section
1001.36. Next, while the court concluded, based in part on “the extraordinarily detailed
vicious comments” heard on recordings, that defendant’s mental disorder was “a
significant factor” in the offenses, the court acknowledged that the comments also
supported the prosecutor’s argument that defendant posed an “unreasonable risk of
danger to the public safety.” Proceeding to the third element required for diversion, the
court concluded that, in the opinion of a qualified mental health expert, defendant’s
mental health condition “would respond to mental health treatment.” The court also
found that defendant “would consent to diversion” and “would agree to comply with any
treatment as a condition of diversion.” Nevertheless, the court noted that defendant’s
“biggest problem” was the final element, that defendant would “not pose an unreasonable
risk to public safety, as defined in [section] 1170.18.” The court was concerned that,
beyond making threats, defendant looked up “the victim’s address,” learned “the victim’s
middle name,” and searched the Internet to see the contents of “the victim’s backyard.”
The court was not satisfied that defendant would “not pose an unreasonable risk of
danger to the public safety.” Therefore, the court denied the request.
Subsequently, defendant pleaded no contest to counts 1 and 15, and the remaining
counts were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754,
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758. The trial court suspended imposition of sentence and placed defendant on five
years’ formal probation.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Denial of Mental Health Diversion
Defendant argues that the trial court abused its discretion when it denied his
request for mental health diversion because there was insufficient evidence that he posed
an unreasonable risk of danger to public safety. As we explain, we find no abuse of
discretion.
A defendant may be eligible for pretrial diversion pursuant to section 1001.36 if
the defendant has not been charged with a disqualifying offense and the trial court finds:
“(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.” (People v. Frahs (2020) 9 Cal.5th 618, 626-627 (Frahs); see
§ 1001.36, subd. (b)(1)(A)-(F), (2)(A)-(H).)
Regarding the latter requirement, section 1001.36 states that pretrial diversion may
be granted if “[t]he court is 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.
The court may consider the opinions of the district attorney, the defense, or a qualified
mental health expert, and may consider the defendant’s violence and criminal history, the
current charged offense, and any other factors that the court deems appropriate.”
(§ 1001.36, subd. (b)(1)(F).) Section 1170.18 defines “ ‘unreasonable risk of danger to
public safety’ [to] mean[ ] an unreasonable risk that the petitioner will commit a new
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violent felony” described in section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd.
(c).) “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.)
“If the defendant makes a prima facie showing that he or she meets all of the
threshold eligibility requirements and the 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).)” (Frahs,
supra, 9 Cal.5th at p. 627.)
We review the trial court’s order denying mental health diversion for an abuse of
discretion. (People v. Moine (2021) 62 Cal.App.5th 440, 448 (Moine); see Frahs, supra,
9 Cal.5th at p. 626 [“Section 1001.36 gives trial courts the discretion to grant pretrial
diversion for individuals suffering from certain mental health disorders”].) “A court
abuses its discretion when it . . . [citations] . . . bases its decision on express or implied
factual findings that are not supported by substantial evidence.” (Moine, supra, at
p. 449.)
When denying defendant’s request for pretrial mental health diversion, the trial
court expressly stated that it found that there was an unreasonable risk of danger to public
safety if defendant was treated in the community. Defendant argues that there was “no
reason to speculate that [defendant]’s conduct, while on a treatment regimen, would
escalate to the point that he would commit” a super-strike offense. Here, no abuse of
discretion occurred when the trial court was not convinced that defendant would not pose
an unreasonable risk of danger to public safety if treated in the community. In
summarizing the evidence at the diversion hearing, the prosecutor stated that defendant
shot at animals, stalked the code enforcement officer, and repeatedly called the officer
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with threats “to filet his children.” The court expressed concern about defendant
violently “shooting” animals. The court did not deny diversion based on defendant’s
threats, although it viewed the threats to commit acts that would qualify as super-strike
offenses as “really bad.” Rather, the primary basis for denial was defendant’s “lengthy
internet search” to discover the victim’s address, middle name, and backyard contents via
a satellite image. We agree with the trial court’s conclusion that, together with
defendant’s acts of shooting multiple neighbors’ dogs, this was evidence that defendant
posed a risk of acting on his threats and engaging in a super-strike offense such as
homicide.
We conclude the facts presented here are distinguishable from those presented in
Moine and People v. Williams (2021) 63 Cal.App.5th 990 (Williams), where the
defendants successfully convinced Courts of Appeal that they did not pose an
unreasonable risk to public safety. In Williams, the defendant was convicted of felony
stalking after making multiple “extremely disturbing” threats (id. at p. 993), such as
writing that he would “ ‘blow [a victim’s] fucking head off’ ” (id. at p. 994, fn. 4). The
First Appellate District concluded that the trial court erred in finding that the defendant
posed an unreasonable risk of danger to public safety for purposes of mental health
diversion because his underlying charges were not super strikes, he posed a low risk to
public safety in the uncontroverted opinions of two mental health professionals, there was
no evidence he owned, possessed, or had access to weapons, and the trial court had
previously released the defendant on bond for two years without incident. (Id. at
p. 1003.)
Likewise, in Moine, supra, 62 Cal.App.5th 440, the defendant was convicted of
assault following a fistfight and of making criminal threats. (Id. at pp. 444-445.) The
defendant had threatened that he had a gun and that he was going to come in and kill
everyone; however, there was no evidence in the record that he owned, possessed, or had
access to guns. (Id. at p. 445 & fn. 2.) The Second Appellate District found that the trial
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court abused its discretion when it determined that the defendant would pose an
unreasonable risk of danger to public safety because there were two opinions by
psychiatrists that the defendant posed a low risk of committing assault, the defendant had
a criminal history of committing misdemeanors, and the circumstances of the pending
charges did not rationally support an inference that he was likely to commit a super-strike
offense. (Id. at p. 451.) The court reasoned the defendant in Moine did not meet the
“high standard” for super-strike “ ‘dangerousness’ under sections 1001.36 and 1170.18”
in large part because, for more than two years, he had been released “into the community
on bond[,]” which required a finding that he “was not likely to cause ‘great bodily harm
to others’ if released.” (Id. at p. 451.)
We find Williams and Moine distinguishable. In those cases, there was nothing in
the record to suggest that the defendants owned or had access to firearms. (Williams,
supra, 63 Cal.App.5th at p. 1003; Moine, supra, 62 Cal.App.5th at p. 445, fn. 2.) Here,
defendant’s underlying offenses were not super strikes, but they involved his personal use
of a high-powered air rifle to kill dogs. Further, in contrast to the defendants in Williams
and Moine, no pretrial release was afforded to defendant and no mental health
professional testified that defendant posed a low risk to public safety. In fact, Dr.
Gutkind conceded that he “did not have a sense there was any strong indication that
[defendant] would be accepted into diversion.” On the facts of this case, the trial court
could rationally infer that defendant’s statements and actions showed that he was capable
of a super-strike offense. Accordingly, having carefully reviewed the evidence in the
record as a whole, we conclude that the trial court did not abuse its discretion when it
denied mental health diversion based on its determination that defendant would pose an
unreasonable risk of danger to public safety if treated in the community.
Defendant’s claim that the trial court’s denial was tantamount to a due process
violation also fails. Under the due process clause of the federal Constitution, no state
“shall . . . deprive any person of life, liberty, or property, without due process of law.”
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(U.S. Const., 14th Amend., § 1.) One’s liberty may not be arbitrarily deprived by a
state’s implementation of its criminal laws. (Hicks v. Oklahoma (1980) 447 U.S. 343,
346 [65 L.Ed.2d 175].) Yet the court below did not arbitrarily reject diversion. Rather, it
afforded defendant the opportunity to make a prima facie case, considered all the
evidence, and carefully rendered a decision in accordance with the provisions of section
1001.36. No procedural due process violation occurred.
II
Probation Term
At the time defendant was sentenced, section 1203.1 provided that a trial court
may grant felony probation “for a period of time not exceeding the maximum possible
term of the sentence.” Further, it stated that if the “maximum possible term of the
sentence [was] five years or less, then the period of suspension of imposition or execution
of sentence may, in the discretion of the court, continue for not over five years.” (Former
§ 1203.1, subd. (a).) Effective January 1, 2021, Assembly Bill No. 1950 amended
section 1203.1, subdivision (a) to limit the probation term for felony offenses to two
years, except in circumstances not present here. (Assem. Bill No. 1950 (2019-2020 Reg.
Sess.); Stats. 2020, ch. 328, § 2; Cal. Const., art. IV, § 8; Gov. Code, § 9600, subd. (a);
People v. Camba (1996) 50 Cal.App.4th 857, 865-866.)
Defendant contends the revised statute applies to this matter under In re Estrada
(1965) 63 Cal.2d 740, 744-745 (Estrada) because the judgment was not final when the
ameliorative amendment took effect and reduced the maximum term of probation to two
years. The Attorney General concedes that the new legislation falls within the scope of
Estrada and, consequently, defendant’s probation term should be reduced to two years.
We agree with the parties that the amendment applies retroactively.
“Retroactivity of a statute is a question of law subject to our de novo review.”
(Bullard v. California State Automobile Assn. (2005) 129 Cal.App.4th 211, 217.) When a
criminal statute is amended after the criminal act but before final judgment, it applies
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retroactively if it mitigates the applicable punishment. (Estrada, supra, 63 Cal.2d at
p. 742.) “ ‘[A] judgment is not final until the time for petitioning for a writ of certiorari
in the United States Supreme Court has passed.’ ” (People v. Vieira (2005) 35 Cal.4th
264, 306.) Probation is a form of punishment, and therefore a reduction in the allowable
term for probation is a mitigation of the punishment. (See People v. Edwards (1976)
18 Cal.3d 796, 801; People v. Sims (2021) 59 Cal.App.5th 943, 958 (Sims).)
Because Assembly Bill No. 1950 mitigates punishment and there is no savings
clause, it operates retroactively. (Sims, supra, 59 Cal.App.5th at p. 964 [Assem. Bill
No. 1950 is an ameliorative change subject to “the Estrada presumption of retroactivity,”
without a savings clause or other clear indication of intent for it to apply only
prospectively]; People v. Quinn (2021) 59 Cal.App.5th 874, 879-885 [same]; see
People v. Burton (2020) 58 Cal.App.5th Supp. 1, 16-17.) As defendant’s appeal was
pending when Assembly Bill No. 1950 went into effect, he is entitled to a reduced
probation term.
The parties disagree on the appropriate remedy—defendant contends we should
modify his term of probation; the People contend we should remand the matter to the trial
court to modify the term of probation. In People v. Stamps (2020) 9 Cal.5th 685, our
Supreme Court concluded that a defendant was entitled to the benefit of an ameliorative
change in the law—specifically, pursuant to Senate Bill No. 1393 (2017-2018 Reg.
Sess.), he was entitled to have the matter remanded for the trial court to exercise its
discretion to strike a serious felony conviction enhancement in the interest of justice.
(Stamps, supra, at p. 699.) However, because the serious felony conviction enhancement
was imposed as part of a negotiated stipulated sentence, if the trial court exercised its
discretion to strike the enhancement, the People and the trial court were permitted to
withdraw approval for the plea agreement. (Id. at pp. 707-708.) The defendant was not
permitted “ ‘ “to whittle down the sentence ‘but otherwise leave the plea bargain
intact.’ ” ’ ” (Id. at p. 706.)
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Here, the record on appeal reflects that defendant was convicted by a no contest
plea. However, the appellate record does not contain copies of the original plea
agreement; thus, it is not clear exactly what negotiations took place. The court’s
statements at the change of plea hearing also do not confirm whether a stipulated
sentence was a material term of the agreement. As such, we will follow the remedy
employed by the court in Sims and remand the matter for resentencing to allow defendant
to seek a reduced probation term under Assembly Bill No. 1950 and allow the court to
review the status of his probation. (Sims, supra, 59 Cal.App.5th at p. 964 [the “defendant
is entitled to seek a reduced probation term on remand under Assembly Bill No. 1950”].)
However, we express no opinion on whether the People should be allowed to withdraw
from the plea, or the trial court be allowed to rescind its approval of the agreement. (See
People v. Stewart (2021) 62 Cal.App.5th 1065, review granted June 30, 2021, S268787.)
DISPOSITION
We remand the matter for resentencing to allow defendant to seek a reduced
probation term under Assembly Bill No. 1950. In all other respects, the judgment is
affirmed.
/s/
RAYE, P. J.
We concur:
/s/
HULL, J.
/s/
KRAUSE, J.
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