People v. Colon CA3 ( 2020 )

Filed 9/29/20 P. v. Colon CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C084537
Plaintiff and Respondent, (Super. Ct. No. 14F06476)
v. OPINION ON TRANSFER
OMARI COLON et al.,
Defendants and Appellants.
A jury found defendants Omari Laquan Colon and Faragi Lewayne Woodard1
guilty of three counts of first degree robbery of three residents of a home (two parents
and their eldest daughter), along with two other counts against defendant Woodard that
are not pertinent on appeal. It also sustained allegations that they were acting in concert,
1 Defendant Colon’s middle name is erroneously omitted from his abstract of judgment,
and defendant Woodard’s middle name is spelled in a variety of ways in the record. Both
should be addressed upon remand.
1
that defendant Colon personally used a gun in committing the three robberies, and that
defendant Woodard was armed with a gun. The trial court, as explained in more detail in
the Discussion, sentenced defendants to state prison. It also dismissed trailing
misdemeanor matters as to both defendants in the interest of justice, which are not at
issue in this appeal.
On appeal, both defendants contend that their trial counsel were ineffective in not
moving to suppress identifications of them that the home’s residents made individually at
separate in-field showups of each defendant. Defendant Colon adds arguments that his
multiple gun enhancements violate the rule against splitting offenses (see People v.
Hammon (1987) 191 Cal.App.3d 1084, 1088, 1092-1093 & fn. 9 [discussing nature of
rule], disapproved in People v. Harrison (1989) 48 Cal.3d 321, 334, as to its application
of rule to serial sex offenses), and in any event postconviction amendments to the statute
(Pen. Code, § 12022.53)2 require remand to the trial court for it to exercise the newly
granted discretion to strike the enhancements. Defendant Woodard argues the trial court
wrongly relied on the same fact to impose both a middle principal term and consecutive
sentences, otherwise erred in imposing consecutive sentences, and failed to take
mitigating factors into account. He further argues that the court did not properly
calculate his custody credits.3
We originally remanded for the trial court to exercise its discretion as to striking
the gun enhancements for defendant Colon, and to clarify the custody credits of
defendant Woodard. We otherwise affirmed the judgment.
2 Undesignated statutory references are to the Penal Code.
3 Defendant Woodard purported to join in advance any arguments that defendant Colon
might raise in his subsequently filed brief. We disregard this purported joinder. (People
v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364; People v. Nero (2010)
181 Cal.App.4th 504, 510, fn. 11.)
2
Defendants petitioned for rehearing based on section 1001.36, arguing the matter
should be remanded for the trial court to determine whether they should be granted
mental health pretrial diversion. We denied rehearing but authorized a request for
diversion in the first instance in the trial court.
Our Supreme Court granted review but deferred further action pending disposition
in People v. Frahs (2020) 9 Cal.5th 618 (Frahs). Following its decision in Frahs, the
court transferred this matter back to us with directions to vacate our decision and
reconsider the cause in light of Frahs. In Frahs, the court found section 1001.36 applies
retroactively to defendants whose cases were not yet final when the Legislature enacted
section 1001.36. (Frahs, at pp. 640-641.) The court further concluded a defendant need
only argue he suffers from a qualifying mental disorder to be entitled to a limited remand
to allow the trial court to conduct a mental health diversion eligibility hearing. (Id. at
p. 640.) As we are bound by our Supreme Court’s decision in Frahs, we will
conditionally remand for the purpose of determining defendants’ eligibility for mental
health diversion under section 1001.36. Our holding as to defendants’ other appellate
claims remains unchanged.
FACTUAL AND PROCEDURAL BACKGROUND
The circumstances of the offense themselves are relevant primarily for context.
We will incorporate other pertinent facts in the Discussion.
In September 2014, a family was living in their Florin-area home, including three
children (then aged 16, 13, and 12). It was later in the evening, and the father was
starting up a fire in the barbeque pit in the backyard as it was getting dark. Four men
jumped over the fence into the backyard. Two pointed guns at him and told him to put up
his hands.
3
They directed the father into the house. As the father entered, he was speaking
loudly in the hope of alerting his oldest daughter to the intruders. The 16-year-old
daughter, who was in her bedroom, heard him and called 911.
The mother and the other two children were in the living room. The intruders
demanded money and marijuana, which the residents denied having. The intruders struck
the father in the back of his head with a gun, and then kicked at him as he lay on the
ground. One of them went into the older daughter’s bedroom to bring her into the living
room with the rest of the family. She managed to hide her phone, with the line still
active, under a pillow. Some of the intruders began to ransack the house, going through
all the rooms. They collected various items, including phones, a tablet, a laptop, a wallet,
a purse, and a video gaming station, ripping a smart phone from the mother’s hand.
Hearing an approaching helicopter after about 15 minutes that they correctly
surmised signaled the arrival of law enforcement, the intruders fled into the backyard.
They knocked down the back fence and ran off. Confirming that they were gone, the
father told everyone to run out the front door and await the authorities. The mother then
called 911 again.
Deputies detained the codefendants at separate locations. The father made a field
identification of defendant Colon, and he and his daughters made field identifications of
defendant Woodard.
Defendant Colon did not testify. Deputies did not find a gun on his person, or
recover any firearm despite their search of an extensive area. Defendant Woodard
testified that he was a close friend of defendant Colon, but was not with him in the later
part of the evening after they had dinner together.
4
DISCUSSION
1.0 Defendants Have Failed to Establish Ineffective Assistance of Counsel in the
Failure to Move to Exclude the Witness Identifications of Defendants
Defendants assert that their trial counsel could not have had a reasonable tactical
basis for failing to move to exclude the father’s identifications of defendant Colon and
the family’s identifications of defendant Woodard. On direct appeal, this is not a viable
contention.
Where the record is silent regarding trial counsel’s litigation tactics, we must find
that counsel did not fall below an objective standard of reasonableness according to
prevailing professional norms unless counsel was asked for an explanation and failed to
provide one, or unless any reasonable attorney would not have made the same choice. In
addition, a defendant must establish on appeal that a more favorable result is reasonably
probable in the absence of trial counsel’s failing. (People v. Ledesma (1987) 43 Cal.3d 171,
215, 217; People v. Pope (1979) 23 Cal.3d 412, 426.) A failure to object to evidence is
generally not a profitable basis for challenging the competence of trial counsel. (People v.
Kelly (1992) 1 Cal.4th 495, 520.)
With respect to an identification procedure, a defendant must establish that it is
unnecessarily suggestive with a substantial likelihood of misidentification, and that it was
not otherwise reliable under the totality of the circumstances. (People v. Cunningham
(2001) 25 Cal.4th 926, 989-990.)
California courts (and the United States Supreme Court) have consistently
emphasized that a single-person field identification is not inherently unfair, and any
potential unfairness is outweighed because it serves the necessary purposes of a prompt
identification while memory of the offense is fresh and the exclusion of innocent persons
to allow investigators to track the malefactor more quickly. (People v. Cowger (1988)
202 Cal.App.3d 1066, 1071-1072; accord, People v. Ochoa (1998) 19 Cal.4th 353, 413;
5
Stovall v. Denno (1967) 388 U.S. 293, 302 [18 L.Ed.2d 1199, 1206].)4 An inherent
necessity in such circumstances for the security of officers and witnesses are restraints on
the potential suspect. (See, e.g., United States v. Kessler (9th Cir. 1982) 692 F.2d 584,
586 [noting that use of handcuffs or other indicia of custody will not invalidate a showup
where necessary for prompt and orderly presentation of the suspect, consistent with
protection of the officers and witnesses].) Thus, the appearance of suspects in restraints
does not contribute to any unnecessary suggestiveness in the identification, particularly
where the record does not have any indication that law enforcement made express or
implied insinuations to the witness to encourage the identification of the suspect as the
malefactor. (In re Carlos M. (1990) 220 Cal.App.3d 372, 386; People v. Johnson (1989)
210 Cal.App.3d 316, 323 [suspect escorted to station house where witness was present;
this was not unnecessarily suggestive where witness not told that he would be shown
actual suspect].)
We offer two observations before we discuss additional facts relating to the field
identifications in this case. In the first place, these are the facts as developed at trial; as a
result, they do not necessarily reflect the knowledge of trial counsel on direct appeal for
purposes of bringing any pretrial motion to suppress. Moreover, we are not resolving the
issue of whether the field identifications were in fact unnecessarily suggestive and
unreliable; the ultimate question is simply whether any reasonable attorney would have
come to that conclusion and moved the court to exclude the identifications at trial rather
than simply argue to the jury that it should not give any weight to them.
4 Given the uniform body of California law to this effect, we disregard defendant
Woodard’s reliance on nonbinding authority to the contrary. We also reject defendant
Colon’s invocation of secondary authorities as a basis for calling the identifications into
question as a matter of law.
6
The broadcast description to the deputies in pursuit described the suspects as “four
black male teens wearing all black and one had dreads.” The deputy responding to the
residence stated the father’s description was “four or five male blacks, dreads, black
clothes.” One of them had striped shorts; another one was wearing a “black zipped-up
hoodie” with jeans. Their ages were in the range of 18 to 28.
The helicopter had trailed defendant Colon from the backyard almost to a gas
station parking lot, at which point the pilot lost contact for 45 seconds until a deputy on
the ground with whom the pilot was in continuous contact reported that he had detained
defendant Colon at the gas station. When a deputy encountered defendant Woodard
leaving a nearby apartment complex, the latter was visibly out of breath and sweaty. He
fled when approached and was eventually tracked to a backyard where a police dog
seized him. Defendant Woodard forcibly resisted arrest. At trial, he explained that he
had evaded the deputies because he had an outstanding misdemeanor warrant. He did not
explain why this would lead him to forcibly resist arrest after the police dog seized him.
At trial, the father testified he had noted one intruder (defendant Woodard) was
wearing jeans and a hooded zippered sweatshirt. Deputies brought the father to an
ambulance where defendant Woodard was being treated. A deputy gave him a standard
admonishment that the person detained might or might not be one of the intruders. After
looking at him for 10 to 12 seconds, the father was 70 to 80 percent certain he was one of
the intruders on the basis of the clothing (dark, with jeans and a zippered hoodie) and the
hair (stating at trial that his certainty was now 100 percent; at the time, with defendant
Woodard’s face bloodied and dirty, he preferred to be cautious lest he identify an
innocent man).
The father had stared at the face of intruder who had approached him in the yard
with a gun (defendant Colon) and was struck by the fact the latter was wearing plaid
shorts similar to his own. He had also mentioned the intruder’s dreadlocks to deputies.
When lying on the floor, he had surreptitiously looked up “numerous times” at the
7
intruders while they were present, and the two who remained in the living room were the
codefendants. A deputy brought the father to the gas station where defendant Colon was
being detained. Immediately, the father was entirely certain that this was one of the
armed intruders who had walked up to him with a gun, based on the face and because the
suspect had been wearing the exact same shorts as the father (black, white, and orange
plaid), and “the [orange] shoes, the dreads, everything,” as well as a tattoo on defendant
Colon’s arm (which he characterized as a “T” or a “J”). He acknowledged at trial that the
letters in defendant Colon’s tattoos displayed to him did not include either a “T” or a “J.”
Another deputy also brought the children to the ambulance in which defendant
Woodard was detained one at a time, admonishing them that the detained person might
or might not be one of the intruders. After viewing him for a few seconds, the oldest
daughter was absolutely certain he was the one who pulled her from her room; the other
daughter was confident that he was the intruder who pulled her sister from her room,
based on his face and clothing. Their younger brother was not sure.
The older daughter asserted at trial that the man with dreadlocks and a gun (whom
she identified at trial as defendant Colon) had seized her from her bedroom and then
stood over the family, but she had not mentioned plaid shorts (instead describing him as
wearing black jeans), and she pointed at defendant Colon as the man she had identified at
the ambulance (rather than defendant Woodard). The younger daughter testified
defendant Colon was the man with dreads and colorful shorts who pointed a gun at her
father, but she also seemed to conflate him with the man “in the ambulance,” i.e.,
defendant Woodard.
Deputies brought the children individually to view two other detained suspects.
The two daughters thought one of them was an intruder; the brother was again unsure.
(This defendant was charged along with the codefendants, but is not part of this trial or
appeal.) The older daughter admitted that she had not gotten a good look at the other
8
intruders. The daughters said the other suspect was not an intruder; their brother was not
sure.
There was controverted testimony from a lawyer who had briefly represented
defendant Woodard before trial. She went with an investigator to interview the father
and the oldest daughter at their home. She claimed at trial to have identified herself as a
defense lawyer; the father testified that he had thought she was from the prosecutor’s
office, and she had never identified herself as a defense lawyer. She claimed at trial that
the father had twice asked if she was related to one of the intruders because she looked
like them (she described herself as having “African-American and Scandinavian”
ancestry); the father denied this at trial, and the former defense lawyer admitted that her
investigator’s report did not reflect any remark to this effect. According to the former
defense lawyer, the father said he was wearing the shorts that resembled defendant
Colon’s, which she thought were not the same (although she did not photograph them or
describe them in her notes). She testified the father disclaimed ever receiving
admonishments before seeing the detained suspects, and both he and his daughter had
stated that they expected to see the invaders when they arrived for the field
investigations. The father stated that he had been focused on faces, not clothing. She
admitted that the father had mentioned a prominent tattoo in the shape of a “T” on the
forearm of the man with the gun.
In light of these facts, a reasonable attorney could conclude that any motion to
exclude the field and trial identifications would probably be futile. (People v. Anderson
(2001) 25 Cal.4th 543, 587 [not required to make frivolous motions]; People v. Memro
(1995) 11 Cal.4th 786, 834 [no need to make “probably” futile motion].) None of the
circumstances about the field identification in the testimony of the deputies and the
witnesses indicated it was any more suggestive than an ordinary field identification, and
deputies testified that they had admonished the witnesses against assuming these were
two of the intruders. The daughters excluded another suspect despite the circumstances
9
of the field identifications, and their brother did not identity anybody. The evidence from
the former defense lawyer was at best contradictory evidence that was not corroborated in
her notes or her investigator’s, and it was certainly not of such strong value that trial
counsel would believe that the court would credit it, particularly in light of the father’s
testimony establishing reliability: That he had repeated opportunities to observe the
codefendants; had correctly described in advance defendant Colon’s shorts, dreadlocks,
and at least some sort of tattoo on his forearm; and had given at least a description of the
generic attire that defendant Woodard was wearing. While the testimony of the daughters
at trial seemed to confuse which defendant was which, this did not detract from their
certainty that both were nonetheless involved and again did not eviscerate the weight of
their identifications to the point that a reasonable attorney would believe that a court
would exclude them, particularly where their father had also identified both defendants.
In short, it would have been a reasonable trial tactic to refrain from making a
motion and instead argue to the jury that it should not give weight to the identifications in
light of the suggestiveness of field identifications (as indeed trial counsel for defendant
Colon asserted in closing argument). We therefore reject the claim of ineffective
assistance for purposes of this direct appeal.
2.0 Absent Authority for the Proposition That Imposing Multiple Enhancements
Under Section 12022.53 to Reflect Multiple Victims Amounts to “Splitting” a
Single Gun Enhancement, Existing Precedent Authorizes the Practice
Of uncertain jurisprudential provenance, there is nonetheless a distinction between
the prohibition on multiple prosecutions for a single “offense” as opposed to multiple
punishments for offenses arising out a single transaction, although analytic principles
developed in the latter context are relevant to the former. (People v. Hammon, supra,
191 Cal.App.3d at pp. 1092-1093 & fn. 9.) In the former context, the remedy is reversal
of the impermissible convictions rather than staying the punishment for them. (Id. at
p. 1093.)
10
Our Supreme Court has ruled unequivocally that when there are multiple victims
in offenses involving use of a gun in a single transaction, it is proper to impose an
enhancement in connection for each offense. Beginning in 1993, the court overruled its
prior holding that a trial court could impose only one gun enhancement for multiple
offenses involving multiple victims arising out of a single transaction, agreeing attempts
to give it a consistent interpretation were “illogical” and it would be “ ‘grotesque’ ” to
apply the principle because it would otherwise allow a defendant to add additional
victims without consequence. (People v. King (1993) 5 Cal.4th 59, 77-78 [defendant
killed one victim and attempted to kill other victim during robbery; § 12022.5, personal
use of a gun].) It expanded upon this holding in In re Tameka C. (2000) 22 Cal.4th 190,
in which the defendant fired one shot at four victims in a single occasion (as well as
separately shooting another victim). (Id. at p. 192.) The juvenile court imposed
enhancements on all offenses. (Id. at p. 193.) “This court has held that multiple firearm-
use enhancements may be imposed . . . when the defendant uses a firearm in a single,
indivisible transaction that results in injury to multiple victims.” (Ibid.) “Under the King
rationale, a robber who enters a convenience store and obtains the valuables of seven
patrons with a single display of a firearm has committed seven robberies, and each felony
is subject to enhancement for use of a firearm. Keeping in mind both the effect on the
victims and the culpability of the defendant, we [do not] see [any] distinction between
this situation and one in which a defendant commits multiple assaults with a single shot
from a firearm.” (In re Tameka C., at p. 196.) In People v. Oates (2004) 32 Cal.4th
1048, the court then explicitly extended this principle to section 12022.53’s 25-year
penalty for firing a gun and inflicting great bodily injury, where only one of a group of
five people was struck and injured when the defendant fired two shots at them, but the
trial court imposed the enhancement as to all five counts of attempted murder. (Id. at
pp. 1052, 1053-1054.) Oates noted that the statute precluded multiple enhancements for
its various provisions for each crime, but not for the transaction out of which multiple
11
crimes against multiple victims occurred. (Id. at p. 1057.) It was thus neither
“anomalous nor unique” that the number of enhancements for inflicting injury with a gun
would turn on the number of people present during the criminal transaction. (Id. at
p. 1060.)
Defendant Colon concedes that under these controlling precedents he cannot
challenge his multiple enhancements under section 12022.53 for the robberies of the
three family members in their home. He further admits that “We [sic] have not found a
case applying the [splitting] rule to enhancements,” but he contends it is “only logical” to
apply it here, asserting in this regard that the cases discussed above did not consider this
exact principle and therefore do not preclude him from raising the issue.
As an intermediate appellate court, we are loathe to upset settled jurisprudential
apple carts, a task beyond our purview absent a compelling basis to do so. Because it is
a long-settled proposition that the presence of multiple victims will authorize multiple
punishments for an act of violence arising out of a single transaction under section 654
(e.g., People v. Newman (2015) 238 Cal.App.4th 103, 112), and—as noted above—the
principles surrounding multiple punishment inform the analysis under the “splitting”
rule’s proscription against multiple convictions, we conclude that a gun enhancement
may be imposed for each offense against a separate victim in the same transaction
without transgressing the rule.
3.0 Remand for Consideration of Whether to Strike Defendant Colon’s Section
12022.53 Enhancements
Effective 2018, section 12022.53 now provides that a trial court may, in the
interests of justice, strike an enhancement pursuant to this section. (Id., subd. (h); see
Stats. 2017, ch. 682, § 2.)
Defendant Colon asserts he is entitled to retroactive application of the amendment
to his pending appeal. In conclusory fashion, he simply requests a remand because
nothing in the record indicates the manner in which the trial court might exercise its
12
discretion on the issue. The People concede, in light of the uniform body of law that has
considered this amendment, that it applies retroactively to any case still pending on
appeal. (E.g., People v. Woods (2018) 19 Cal.App.5th 1080, 1083.) We accept the
concession. They contend, however, that a remand for the trial court to exercise this
newly awarded discretion would be an idle act. (E.g., People v. McVey (2018)
24 Cal.App.5th 405, 419.)
The discretionary power is for the trial court to exercise in the first instance and
not this court. (Collateral Loan & Secondhand Dealers Assn. v. County of Sacramento
(2014) 223 Cal.App.4th 1032, 1041, fn. 7.) As a result, unless the operative facts are
such that they compel a result as a matter of law, we should ordinarily remand for the
exercise of discretion.
In connection with defendant Colon, the trial court accepted the recommendation
of the lower term for the principal term “because of his youth [he was born in 1995] and
the materials he has submitted” and in light of “the gun enhancement for which he’ll be
punished [that] attaches a significant time,” as well as its ability to impose consecutive
sentences for the three robberies. This abbreviated elucidation of its thinking does not
illuminate us with respect to whether the trial court would have stricken one or both of
the consecutive enhancements after balancing off the imposition of the lower term with
the principal enhancement and consecutive sentences. We therefore remand for
reconsideration of defendant Colon’s sentence.
4.0 Defendant Woodard’s Sentencing Claims Are Without Merit
The trial court identified a number of aggravating factors in sentencing that
applied to defendant Woodard: the crime involved great violence; great bodily harm; the
threat of great bodily harm; other acts evincing cruelty, viciousness, or callousness; the
commission of the crime demonstrated planning, sophistication, or professionalism; and
the crime involved violent conduct representing a serious danger to society. It cited the
13
mitigating factor of his youth (not yet 23 years old in 2014) and acknowledged that it had
“considered the letters . . . submitted on his behalf” as attached to defense counsel’s cover
letter including “character letters regarding sentencing in this case.” It found the three
robberies were predominantly independent of each other, with separate acts of violence
against separate victims (which included uncharged crimes against the two youngest
siblings, who were vulnerable and greatly traumatized). Thus, as with defendant Colon,
the trial court exercised its discretion to impose consecutive sentences. On the principal
term, it imposed the midterm sentence because the aggravating factors outweighed the
mitigating factors.
4.1 Prohibitions on “Dual Use of Facts” Do Not Apply to This Case
As defendant Woodard frames his first argument, “The trial court is not permitted
to use the same fact to sentence a defendant to an upper [sic] term and to sentence a
defendant consecutively on multiple counts. (Cal. Rules of Court, rule 4.425.) That the
court cited violence as a factor supporting both the midterm and consecutive sentences
therefore represents an impermissible dual use of the same fact.” He further contends (in
an argument unrelated to the heading)5 that “violence” cannot be an aggravating factor
because it is inherent in robbery.
These arguments are frivolous. Even if “violence” were the sole factor on which
the trial court based its sentencing decisions, the imposition of a middle term allows the
court to rely on the same aggravating factor to impose consecutive sentences; the concept
of “dual use of facts” does not have any application. (People v. Sperling (2017)
12 Cal.App.5th 1094, 1104 (Sperling), see id. at pp. 1105-1106 (Yegan, J., conc. opn.
5 This court has long expressed its disapproval of this style of briefing, which forfeits our
plenary consideration of claims raised this way. (Imagistics Internat., Inc. v. Department
of General Services (2007) 150 Cal.App.4th 581, 593, fn. 10; Smith v. City of Napa
(2004) 120 Cal.App.4th 194, 202.)
14
[concurring with self to note frivolous nature of sentencing contentions]).) Moreover, the
trial court in fact identified multiple aggravating factors, set out above, which would have
rendered any “dual use of facts” manifestly harmless. (People v. Osband (1996)
13 Cal.4th 622, 728-729.)6 Finally, the gratuitous acts of violence against the subdued
father are not incidental to the act of robbery such that they are subsumed within its
commission. (Cf. People v. Dixie (1979) 98 Cal.App.3d 852, 856-857 [“violence” not
inherent in murder and therefore the manner of commission can be aggravating factor].)
4.2 Nothing More Than Multiple Victims Is Required to Impose Consecutive
Terms
Defendant asserts the trial court erred in finding the robberies were predominantly
independent of each other in imposing consecutive terms because they were “essentially
one act with multiple victims.” The trial court’s reference to multiple victims is of itself
sufficient to support consecutive sentences. (People v. Caesar (2008) 167 Cal.App.4th
1050, 1060.) We therefore find this contention frivolous.
4.3 The Record Belies the Claim of Failure to Consider Mitigating Factors
Although, as noted above, the trial court explicitly stated on the record that it had
considered the mitigating factor of defendant Woodard’s youth and the materials he had
submitted, on appeal he insists the trial court “failed to acknowledge” his mental or
physical condition detailed in the other materials, or his insignificant criminal record.
The argument is frivolous.
Defendant Woodard’s criminal record was part of the probation report that the trial
court considered. The trial court also explicitly referenced the material defense counsel
had submitted, and the mitigating factor of youth specified in the probation report. A
trial court is presumed to have considered all mitigation factors that are included in the
6 Given this conclusion, we do not need to consider the People’s argument that the rule
against dual use of facts is now a dead letter in light of changes to sentencing law.
15
probation report and sentencing submissions from defense counsel, absent evidence in the
record showing the contrary, and need not explain its reasoning if it chooses not to credit
them. (Sperling, supra, 12 Cal.App.5th at p. 1102; People v. Avalos (1996)
47 Cal.App.4th 1569, 1582-1583.) Furthermore, defense counsel and the trial court in
fact explicitly discussed the issue of the lack of a significant criminal record. As this
argument does not establish the necessary factual prerequisite, we reject it.
5.0 We Will Remand for the Trial Court to Interpret the Unclear Record with
Respect to Defendant Woodard’s Custody Credits
At the sentencing hearing, the trial court (with the concurrence of defense counsel)
determined that defendant Woodard had 91 days of custody credit, against which the
court awarded 14 days of conduct credits. This is reflected in the court’s summary
minute order. Citing an earlier summary minute order, defendant Woodard contends the
document purports to demonstrate that he had posted bail on November 13, 2014, and the
record otherwise establishes that the court remanded him back into custody in March
2017 after the return of the verdicts. By his calculation, this shows that he had 112 days
of custody and was entitled to 16 days of conduct credit.
The People note that the probation report asserts defendant Woodard was released
on bond on October 22, 2014, which would be in accord with the trial court’s calculation
of days of custody. They concede, however, that the minute order could be interpreted in
the manner that defendant Woodard posits (in which case, as they point out, the correct
totals would be 113 days of custody credits and 16 days of conduct credits). They
therefore request that resolution of this matter requires a remand to the trial court to
explain the discrepancy between the summary minute order and the probation report.
Given that we must remand the matter in any event as to both defendants, we
agree that the trial court is best suited to interpret the shorthand in its own records. We
thus agree with the People that we should allow the trial court to resolve this question.
(In re Antwon R. (2001) 87 Cal.App.4th 348, 353.)
16
6.0 We Will Remand for the Trial Court to Conduct a Mental Health Diversion
Eligibility Hearing
Defendants ask us to remand the matter so the trial court can determine whether
they are eligible for pretrial diversion due to a specified mental disorder under the
recently enacted section 1001.36, which they argue is retroactive as to all cases not yet
final. The People concede, and we agree, that pursuant to our Supreme Court’s decision
in Frahs, defendants are entitled to have the trial court determine their eligibility for
mental health diversion under section 1001.36. (Frahs, supra, 9 Cal.5th at pp. 640-641.)
Section 1001.36, which went into effect before defendants’ judgments 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;7 (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 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 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. (§ 1001.35, subd. (b)(1)-(2).) If the treatment under pretrial
7 Section 1001.36, subdivision (b)(1) provides, in pertinent part: “Pretrial diversion may
be granted pursuant to this section if all of the following criteria are met: (A) The court is
satisfied that the defendant suffers from a mental disorder as 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.”
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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
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.) That is the case
for defendants here.
Both Colon and Woodard introduced evidence demonstrating a qualifying mental
disorder. Colon’s probation report noted he was prescribed medication for attention
deficit hyperactivity disorder (ADHD) and bipolar disorder. His sentencing statement in
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mitigation further noted his life-long struggle with ADHD and bipolar disorder, which he
had suffered from since his youth.
Similarly, in a letter to the court, Woodard’s defense counsel noted that he is
“slow and confused often” and that his mother “always had to care for her son, based on
his disability.” At sentencing, defense counsel notified the court Woodard suffered from
“mental health and medical issues that he’s had since he was a child.” Woodard’s mother
also explained to the court that her son had “special circumstances where he doesn’t
understand a lot of things.” His stepfather wrote the court that Woodard had mental
issues from a young age. According to Woodard’s probation report, he had suffered
ADHD and anger management issues 10 years prior, although he currently was not
prescribed medication for the condition. He also received Social Security disability
income.
Given the above evidence, defendants apparently meet at least the first threshold
requirement for eligibility for mental health diversion--they suffer from a qualifying
mental disorder (ADHD for Woodard and ADHD and bipolar disorder for Colon).
(§ 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.
DISPOSITION
We conditionally reverse the judgments of defendants Colon and Woodard and
remand to the trial court for an eligibility determination under section 1001.36. If the
trial court finds that Colon or Woodard suffers from a mental disorder, does not pose an
unreasonable risk of danger to public safety, and otherwise meets the six statutory criteria
(as nearly as possible given the postconviction procedural posture of this case), then the
court may grant diversion. If defendants successfully complete diversion, then the court
shall dismiss the charges. However, if the court determines that either defendant does not
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meet the criteria under section 1001.36, or if either defendant does not successfully
complete diversion, then his convictions and sentence shall be reinstated.
If the trial court reinstates defendant Colon’s sentence, it shall determine whether
to exercise its discretion to strike the gun enhancements applicable to him, and resentence
Colon accordingly. If the trial court reinstates defendant Woodard’s sentence, it shall
determine the correct amount of custody and conduct credits for him. If necessary, the
court shall file any amended abstracts of judgment reflecting its resolution of these issues
and forward certified copies to the Department of Corrections and Rehabilitation.8
/s/
BUTZ, J.*
We concur:
/s/
DUARTE, Acting P. J.
/s/
HOCH, J.
8 See footnote 1, ante.
* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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