People v. Fain CA3 ( 2021 )

Filed 7/9/21 P. v. Fain 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C087400
Plaintiff and Respondent, (Super. Ct. No. 18CF00262)
v.
FELICIA MARIE FAIN,
Defendant and Appellant.
Defendant Felicia Marie Fain rear-ended a man’s car and drove off. When he
followed her into a cul-de-sac, she accelerated her car into his, causing damage to his car.
A jury found defendant guilty of felony assault with a deadly weapon (Pen. Code, § 245,
subd. (a)(1)) (statutory section citations that follow are to the Penal Code unless
otherwise stated) and misdemeanor hit and run resulting in property damage (Veh. Code,
§ 20002, subd. (a)). The trial court granted defendant three years’ probation with one
year to be spent in jail, and imposed various fines and fees. On appeal, defendant argues
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this case must be conditionally reversed and remanded for the trial court to conduct a
mental health diversion eligibility hearing under section 1001.36, which she contends
applies retroactively. Defendant further argues the trial court violated her due process
and equal protection rights when it imposed fines and fees without first determining her
ability to pay. We conditionally reverse defendant’s judgment and remand to the trial
court for an eligibility determination under section 1001.36.
FACTS AND HISTORY OF THE PROCEEDINGS
B.McC. was stopped at a red light when defendant hit his car from behind while
she was driving her SUV. B.McC. got out of the car and walked towards defendant’s car,
but defendant drove away. B.McC. returned to his car, began to follow defendant, and
called the police. B.McC. followed her to a cul-de-sac and, believing defendant would
park her car, stayed in his car at the entrance of the cul-de-sac to wait for the police.
However, defendant “floor[ed]” the accelerator on her car and drove straight at him.
Defendant attempted to back up, but she hit his car on the front driver’s side, causing
significant damage.
After the jury found defendant guilty of felony assault with a deadly weapon and
misdemeanor hit and run resulting in property damage; the trial court held a sentencing
hearing. Noting the “bizarre circumstances” of the case, the trial court appointed a
forensic and clinical psychologist to evaluate defendant’s mental status to determine
whether defendant’s mental health would prevent her from successfully completing
probation.
The psychologist’s report concluded that defendant met the DSM-5 diagnostic criteria
for multiple mental health disorders. At sentencing, the trial court, having reviewed the
psychologist’s report, suspended defendant’s sentence and placed her on three years of
probation under various terms and conditions, including that defendant must serve 365
days in county jail. The trial court also ordered defendant pay various fines and fees,
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including a $200 fine (§ 672), $200 state penalty assessment (§ 1464), $40 state
surcharge (§ 1465.7), $100 state court construction penalty (Gov. Code, § 70372, subd.
(a)), $140 county penalty assessment (Gov. Code, § 76000), $20 DNA penalty (Gov.
Code, § 76104.6), $80 DNA penalty (Gov. Code, § 76104.7), $60 court facilities
assessment (Gov. Code, § 70373), $80 court operations assessment (§ 1465.8), $4
Emergency Medical Air Transportation fund penalty (Gov. Code, § 76000.10), $300
restitution fine (§ 1202.4), and a (stayed) $300 probation revocation restitution fine
(§ 1202.44).
DISCUSSION
I
Mental Health Diversion Eligibility Hearing
Defendant argues that she is entitled to remand so the trial court can determine
whether she is eligible for pretrial diversion, due to a specified mental disorder under the
recently enacted section 1001.36. In doing so, she contends that section 1001.36 is
retroactive to all cases not yet final. While the People counter that section 1001.36 is not
retroactive and defendant is not entitled to remand, they rely on People v. Craine (2019)
35 Cal.App.5th 744, which has since been vacated and remanded pursuant to our
Supreme Court’s decision in People v. Frahs (2020) 9 Cal.5th 618 (Frahs). We conclude
that under Frahs, conditional remand is required.
Section 1001.36, which went into effect before defendant’s judgment became final
(stats. 2018, ch. 34, § 24, eff. June 27, 2018), provides pretrial diversion may be granted
if the trial court finds all of the following criteria are met: (1) the defendant suffers from
a recently diagnosed mental disorder enumerated in the statute; (2) the disorder was a
significant factor in the commission of the charged offense, and that offense is not one of
the offenses enumerated in subdivision (b); (3) “[i]n the opinion of a qualified mental
health expert, the defendant’s symptoms of the mental disorder motivating the criminal
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behavior would respond to mental health treatment”; (4) the defendant consents to
diversion and waives her right to a speedy trial; (5) the defendant agrees to comply with
treatment as a condition of diversion; and (6) 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)-(2).) If the treatment under pretrial diversion is deemed
successful, the charges shall be dismissed, and the defendant’s criminal record expunged.
(§ 1001.36, subds. (b)(1)(A)-(C), (c)(3), (e).)
The statute further provides: “At any stage of the proceedings, the court may require
the defendant to make a prima facie showing that the defendant will meet the minimum
requirements of eligibility for diversion and that the defendant and the offense are
suitable for diversion. The hearing on the prima facie showing shall be informal and may
proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie
showing is not made, the court may summarily deny the request for diversion or grant
any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).)
In Frahs, our Supreme Court concluded Estrada’s inference of retroactivity applies to
section 1001.36 such that defendants with qualifying mental disorders whose cases are
not yet final are entitled to limited remand for the trial court to determine whether they
are eligible for mental health diversion. (Frahs, supra, 9 Cal.5th at pp. 624-625; see In re
Estrada (1965) 63 Cal.2d 740.) The “possibility of being granted mental health diversion
rather than being tried and sentenced ‘can result in dramatically different and more
lenient treatment.’ ” (Frahs, at p. 631, quoting People v. Superior Court (Lara) 4 Cal.5th
299, 303.) As the court explained, “the impact of a trial court’s decision to grant
diversion can spell the difference between, on the one hand, a defendant receiving
specialized mental health treatment, possibly avoiding criminal prosecution altogether,
and even maintaining a clean record, and on the other, a defendant serving a lengthy
prison sentence.” (Frahs, at p. 631.) Thus, “the ameliorative nature of the diversion
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program places it squarely within the spirit of the Estrada rule,” and the program
retroactively applies to defendants whose cases are not yet final. (Ibid.)
Frahs further held that a defendant is entitled to a conditional limited remand for the
trial court to conduct a mental health diversion eligibility hearing when “the record
affirmatively discloses that the defendant appears to meet at least the first threshold
eligibility requirement for mental health diversion - the defendant suffers from a
qualifying mental disorder (§ 1001.36, subd. (b)(1)(A)).” (Frahs, supra, 9 Cal.5th at
p. 640.) In Frahs, the court found a clinical and forensic psychologist’s testimony that
the defendant suffered from a qualifying mental disorder sufficient to meet the first
eligibility requirement. (Ibid.)
Defendant has introduced sufficient evidence demonstrating at least one qualifying
mental disorder. Section 1001.36 defines a qualifying mental disorder as one “identified
in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders,
including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or
post-traumatic stress disorder, but excluding antisocial personality disorder, borderline
personality disorder, and pedophilia.” (§ 1001.36, subd. (b)(1)(A).) As evidence of a
qualifying mental disorder, a defendant must provide a recent diagnosis by a qualified
mental health expert. (Ibid.) Here, as in Frahs, a clinical and forensic psychologist
diagnosed defendant with at least one qualifying mental disorder listed in the DSM-5 and
delineated in the statute.
Given the above evidence, defendant meets at least the first threshold requirement for
eligibility for mental health diversion. (§ 1001.36, subd. (b)(1)(A); Frahs, supra,
9 Cal.5th at p. 640.) A conditional remand for the trial court to conduct a mental health
diversion eligibility hearing is appropriate under the circumstances.
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II
Ability to Pay
Defendant next argues her case must be remanded to the trial court for an ability to
pay hearing on the fines and fees. Defendant relies primarily on People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas), which held that “due process of law requires the trial
court to conduct an ability to pay hearing and ascertain a defendant’s present ability to
pay before it imposes court facilities and court operations assessments under . . . section
1465.8 and Government Code section 70373.” (Dueñas, at p. 1164.) The Dueñas court
also held “that although . . . section 1202.4 bars consideration of a defendant’s ability to
pay unless the judge is considering increasing the fee over the statutory minimum, the
execution of any restitution fine imposed under this statute must be stayed unless and
until the trial court holds an ability to pay hearing and concludes that the defendant has
the present ability to pay the restitution fine.” (Ibid.) Defendant argues that the trial
court’s imposition of all the fines and fees without determining her ability to pay violated
her constitutional due process and equal protection rights. In response, the People
contend that defendant forfeited her claim by failing to raise it in the trial court, and
further contend that in any event, defendant’s claim fails on the merits.
We need not resolve the questions of forfeiture because we conclude defendant’s
claim lacks merit. Defendant’s claim hinges on the Dueñas analysis finding due process
principles mandate an ability to pay hearing before imposing fines and fees. We are not
persuaded this analysis is correct. Our Supreme Court is now poised to resolve this
question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review
granted November 13, 2019, S257844, which agreed with the court’s conclusion in
Dueñas that due process requires the trial court to conduct an ability to pay hearing and
ascertain a defendant’s ability to pay before it imposes court facilities and court
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operations assessments under section 1465.8 and Government Code section 70373, but
not restitution fines under section 1202.4. (Kopp, at pp. 95-96, review granted.)
In the meantime, we join several other courts in concluding that the principles of due
process do not require determination of a defendant’s present ability to pay before
imposing the fines and fees at issue in Dueñas and in this proceeding. (People v. Cota
(2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 272,
279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019,
S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019)
39 Cal.App.5th 917, 928.)
Defendant’s argument that imposing the monetary obligations without considering her
ability to pay violates equal protection fails for the same reason as her due process
argument.
As noted in People v. Aviles, supra, 39 Cal.App.5th at pages 1068-1069: “Dueñas’s
due process and equal protection analysis was improperly based on a series of cases that
addressed the concern ‘that due process and equal protection guaranteed an indigent
criminal defendant a free transcript of trial proceedings in order to provide that defendant
with access to a court of review, where he would receive an adequate and effective
examination of his criminal conviction. [Citation.]’ (People v. Gutierrez [(2019)]
35 Cal.App.5th [1033,] 1039 (conc. opn. of Benke, J.).) Dueñas’s reliance on certain
statutes was also incorrect because ‘these statutes instead ensure that all people, without
regard to economic status, have equal access to our justice system.’ (Ibid.) The fine and
assessments imposed on the probationer in Dueñas did not raise ‘an issue of access to our
courts or justice system’ or satisfy ‘the traditional due process definition of a taking of
life, liberty or property.’ (Ibid.) ‘[There is] no general due process and equal protection
authority which requires a court to conduct a preassessment present ability-to-pay
hearing before imposing any fine or fee on a defendant, as Dueñas seems to
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conclude . . . .’ (Ibid.)” Therefore, the trial court did not violate equal protection in
failing to conduct an ability to pay hearing prior to imposing the restitution fine here.
(See also People v. Glenn (1985) 164 Cal.App.3d 736, 739-740 [imposing the minimum
restitution fine without considering a defendant’s ability to pay does not violate the equal
protection clause].)
DISPOSITION
We conditionally reverse defendant’s judgment and remand to the trial court for an
eligibility determination under section 1001.36. If the trial court finds that defendant
suffers from a mental disorder, does not pose an unreasonable risk of danger to public
safety, and otherwise meets the six statutory criteria, then the court may grant diversion.
If defendant successfully completes diversion, then the trial court shall dismiss the
charges. However, if the trial court determines that defendant does not meet the criteria
under section 1001.36, or if defendant does not successfully complete diversion, then her
convictions and sentence shall be reinstated.
HULL, Acting P. J.
We concur:
DUARTE, J.
HOCH, J.
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