People v. Short CA2/7 ( 2020 )

Filed 11/16/20 P. v. Short CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B293373
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA084722)
v.
KIRK MARSHALL SHORT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Susan M. Speer, Judge. Affirmed and remanded
with directions.
Robert E. Scott, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Blythe J. Leszkay and Kristen J. Inberg,
Deputy Attorneys General, for Plaintiff and Respondent.
______________
Kirk Marshall Short appeals from a judgment entered after
a jury convicted him of battery causing serious bodily injury and
assault by means of force likely to produce great bodily injury.
The jury found true as to the assault that Short personally
inflicted great bodily injury upon the victim.
On appeal, Short contends the trial court erred in revoking
his Faretta1 right to represent himself at trial. He also argues
there was insufficient evidence to support the trial court’s
determination he was competent to stand trial. Further, Short
asserts a limited remand is appropriate for the trial court to hold
a mental health diversion eligibility hearing pursuant to Penal
Code2 section 1001.36. In addition, Short requests we remand for
the court to exercise its discretion under Senate Bill No. 1393
(2017-2018 Reg. Sess.) to decide whether to strike the five-year
enhancement the court imposed pursuant to section 667,
subdivision (a)(1). Short also contends, the People concede, and
we agree under Senate Bill No. 136 (2019-2020 Reg. Sess.), the
two 1-year prior prison term enhancements imposed under
section 667.5, subdivision (b), must be stricken. Finally, Short
requests we remand for the trial court to conduct a hearing on his
ability to pay the court assessments and restitution fines
pursuant to this court’s opinion in People v. Dueñas (2019)
30 Cal. App. 5th 1157 (Dueñas).
We affirm the judgment of conviction. But we remand for
the trial court to exercise its discretion whether to strike the five-
year sentence enhancement under section 667, subdivision (a)(1),
1 Faretta v. California (1975) 422 U.S. 806, 819 (Faretta).
2 Further undesignated statutory references are to the Penal
Code.
2
to strike the one-year sentence enhancements for the prison
priors, and to allow Short to request a hearing and present
evidence demonstrating his inability to pay the court
assessments and restitution fines.
BACKGROUND AND PROCEDURAL HISTORY
A. The Amended Information
The amended information charged Short with battery
causing serious bodily injury (§§ 242, 243, subd. (d); count 1),
assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(4); count 2), and dissuading a witness by force or
threat (§ 136.1, subd. (c)(1); count 3). As to counts 2 and 3, the
amended information specially alleged Short personally inflicted
great bodily injury (§ 12022.7, subd. (a)) and suffered a prior
serious felony conviction (§ 667, subd. (a)(1)). As to all counts,
the amended information specially alleged Short suffered a prior
conviction of a violent or serious felony under the three strikes
law (§§ 667, subds. (b)-(j), 1170.12) and served three prior prison
terms (§ 667.5, subd. (b)).
Short pleaded not guilty and denied the special allegations.
B. The Evidence at Trial
On August 24, 2016 Iesha Wilson was working as a cashier
at a grocery store in Canoga Park. At approximately 3:15 p.m.
Short approached Wilson at her cash register and attempted to
return a package of ground turkey and milk using a store receipt.
Wilson noticed the last four numbers of the store’s club card on
the receipt “were scribbled out,” which she found “was a little
suspicious.” Wilson asked Short for his store club card, but he
3
did not have one.3 Wilson contacted manager Morel So through
the loud speaker. Wilson also called over another manager who
was downstairs (Janie). Janie looked at the receipt and told
Short he needed a club card to return the items. Janie took the
items to the second floor office.
So, the manager responsible for the cashiers and baggers
that day, was in the upstairs office.4 Janie came into the office
and stated, “He’s back again.” So looked at the security camera
and saw Short in the front area of the store. So went downstairs
and told Short, “You’re not allowed in the store. You’re
trespassing. You need to leave, otherwise I’m going to call the
cops.” Short responded, “Why am I not supposed to be here? I
want my shit back.”
So went to the customer service desk to call the police. As
So was calling, Short approached him from behind and punched
him with a closed fist on the right side of his face.5 So felt a
“tremendous amount of pain on the right of [his] face.” He felt
ringing in his ears and his jaw bone “cracking.” So could not see
3 Wilson testified when a customer wants to return a store
item, the cashier typically asks for the customer’s store club card
to match the last four numbers on the card with the numbers
printed on the receipt.
4 So first encountered Short five years earlier when So was a
manager at another grocery store. Short stole from the store by
placing items in his shopping cart and obtaining a cash refund
without a receipt. On the occasions the store refused to give
Short a refund, he left with the items without paying. So told
Short two or three times he needed to leave the store or So would
call the police.
5 The prosecutor showed the video of the incident to the jury.
4
from his right eye, and he bled from his mouth. So had to have
two teeth extracted and two titanium plates and 11 titanium
screws implanted in his face and jaw to repair the four fractures
to the right side of his face. As a result, So can no longer fully
open his jaw. In addition, So sometimes has blurry vision and
ringing in his ears, and he feels sharp pain on the right side of
his face. As of the time of So’s October 17, 2017 trial testimony,
he had been unable to return to work because of his injuries.
After punching So, Short ran out of the grocery store and
entered an athletic club that shared a parking lot with the
grocery store. Sales representative Melanie Fann interacted with
Short after Short indicated he was interested in a club
membership. Fann observed Short was nervous and had a
bleeding cut on his right knuckles. Short filled out a guest
registration form, including his name, but he picked up his bags
and ran when an ambulance and police cars arrived outside the
grocery store. Short was arrested on December 12, 2016, after So
identified him from a six-pack photographic lineup.
Short did not testify or call any witnesses.
C. The Verdicts and Sentences
The jury found Short guilty on count 1 of battery causing
serious bodily injury and on count 2 of assault by means of force
likely to produce great bodily injury. As to count 2, the jury
found Short personally inflicted great bodily injury upon So
(§ 12022.7, subd. (a)). The jury was unable to reach a verdict on
5
count 3 for dissuading a witness by force or threat, and the trial
court declared a mistrial as to that count.6
After a bifurcated court trial, the trial court found true
Short suffered a conviction of a serious or violent felony under the
three strikes law (assault with a deadly weapon). The court also
found true Short served three prior prison terms within the
meaning of section 667.5, subdivision (b).
The trial court denied Short’s motion for a new trial and his
motion to strike his prior felony conviction under People v.
Superior Court (Romero) (1996) 13 Cal. 4th 497 (Romero). The
court also denied Short’s requests for a diagnostic evaluation
under section 1203.03 and mental health diversion under section
1001.36.
The trial court sentenced Short to an aggregate term of 18
years in state prison. On count 2 for assault by means of force
likely to produce great bodily injury, the court sentenced Short to
the upper term of four years, doubled to eight years under the
three strikes law, plus three years for the great bodily injury
enhancement (§ 12022.7, subd. (a)), five years for the prior
serious felony conviction (§ 667, subd. (a)(1)), and two years for
two of the prior prison terms (§ 667.5, subd. (b)). On count 1 for
battery with serious bodily injury, the court imposed the upper
term of four years, doubled to eight years under the three strikes
law, but the court stayed the sentence pursuant to section 654.
The court imposed a $30 court facilities assessment (Gov. Code,
§ 70373) and a $40 court operations assessment (Pen. Code,
§ 1465.8, subd. (a)(1)) on each count and a $300 restitution fine
6 The trial court later granted the People’s motion to dismiss
that count under section 1385.
6
(§ 1202.4, subd. (b)); and it imposed and suspended a $300 parole
revocation restitution fine (§ 1202.45). The court ordered Short
to pay $22,888.72 in victim restitution to So by stipulation of the
parties. Short did not object to imposition of the assessments and
fines or raise his inability to pay.
Short timely appealed.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Revoking
Short’s Right To Represent Himself
1. The trial court proceedings
On March 16, 2017 Short made a Marsden7 motion to
discharge his appointed attorney, which the trial court denied
after a hearing. Subsequently, defense counsel requested a
continuance to prepare for trial. Short stated, “If she’s saying
that she’s going to waive time and I’m telling you for the record
I’m not waiving time, then I’ll go pro per then because I’m not
waiving time, Your Honor.” The court continued the matter to
April 6, 2017 for further pretrial proceedings. On April 6, 2017
the parties announced they were ready for trial to commence on
April 18, 2017.
At a hearing on April 12, 2017, Short made a Faretta
motion to represent himself.8 In response to the court’s inquiry,
Short indicated he had represented himself in a prior criminal
case and he knew the charges he faced. He added, “I know
7 People v. Marsden (1970) 2 Cal. 3d 118 (Marsden).
8 Short requested a Marsden hearing, but in closed session
he clarified that he sought to represent himself.
7
exactly what’s going on and I’m not waiving any time, Your
Honor.” The court then inquired as to Short’s mental condition.
Short stated he had no history of mental illness and had never
been hospitalized for a mental illness. He represented he had
never taken psychotropic medication although he had been given
a prescription in county jail for depression resulting from a death
in his family. Short stated he was “mentally competent” with “no
psychiatric problems.” He also denied he had difficulty
controlling his behavior in the prior criminal case.
The trial court asked Short, “Sir, you’ve told me on prior
occasions there’s lots of things that you expected to have your
attorney do that weren’t done. How are you going to get those
things done if you are pro per and we’re starting trial on [April]
18th?” Short responded, “I’m going to do it myself. [¶] I studied
my case. I know how to let the jury know that [the People] don’t
have any evidence. I can do that myself. [¶] It’s not a complex
case when you don’t have any medical reports, you don’t have any
pictures, you don’t have any ambulance records, and the guy got
on the stand and lied and said all this stuff.” When defense
counsel informed Short the prosecutor had just turned over the
victim’s medical records to the court, Short stated, “All, right I’ll
review those. I can review those. [¶] . . . I have a right to my
discovery to see all the evidence that’s used against me.” Short
added, “That’s why I want to go pro per because I can review
those medical records all over the weekend. I’ll start trial on
Tuesday.”
The trial court stated it could not provide So’s medical
records to Short that day because the records had to be redacted
to remove So’s personal information. Short replied, “You don’t
have to turn them over to me today, that’s fine. I’m ready to go to
8
trial.” Short added, “So when it come trial, you all don’t even
need to have to show me the records. I’ll ask the [prosecutor] to
show the jurors the record, if that’s how you all want to play, we
can play it like that. [¶] . . . For the record, I’m not waiving any
more time. I’m ready to go pro per and represent myself. So
Tuesday for jury selection because I want to represent myself as
pro per.”
The trial court provided oral Faretta advisements to Short
and reviewed the Faretta waiver form Short had signed. The
court advised Short, “Your right to self-representation will be
terminated by the court if you engage in any serious misconduct
to obstruct the conduct and progress of the trial.” The court
granted the Faretta motion after finding Short had “voluntarily,
knowingly and intelligently waived the right to be represented by
an attorney with a full understanding of that right.”
Later that day, the prosecutor provided to Short in court
about 300 pages of So’s redacted medical records relating to So’s
injuries from the incident, discovery, and still photographs of the
video footage of the incident. Short inquired whether the medical
records included the same records his attorney had shown him
three weeks earlier reflecting that So had a preexisting condition
of “prior syndromes” for which he had been admitted to the
hospital. The prosecutor responded she did not know to what
records Short was referring, noting she only took custody of the
medical records at the last court date.
At this point Short stated, “For the record, I need to waive
time because the syndrome is a preexisting condition and I need
to subpoena [So’s] medical records of all prior treatment
pertaining to all his preexisting syndromes and his treatments
for all these conditions that he was treated for after August 24th.
9
[¶] And I request $60 in auxiliary funds to prepare adequate
defense. [¶] I am asking for [$]500 for a private investigator to
subpoena all his prior treatment, all his prior medical records of
his preexisting condition.” The trial court responded, “Mr. Short,
you made it abundantly clear this morning that you were ready
for trial. You did not want to waive time, you were ready to
proceed on the 18th as we discussed. I would not have allowed
you pro per status.”
The trial court asked Short what had changed since his
refusal to waive time four hours earlier. Short admitted he was
aware of the medical records, but he needed “a doctor specialist to
review the syndromes of the victim to verify . . . whatever he
went to the hospital for, if it was the same as prior to this
incident and to compare to see if it was because of me.” The court
stated, “Mr. Short, if you need a continuance, I’m going to deny
your right to represent yourself and I’m going to bring back
counsel. [¶] . . . [¶] . . . Nothing has changed that I can see
between now and this morning.” Short replied, “Well, Your
Honor, I just went over my case—I just talked to a few people
that I know that know about law and they told me—let me know
that I need to get a specialist because these medical records that
you just gave to me are—due to the fact that he has prior
syndrome or prior—a preexisting condition.”9
The trial court stated to Short, “Either you are ready to
represent yourself and proceed on Tuesday or I’m bringing back
[defense counsel].” Short stated he had a conflict with his
defense attorney, again stating, “I want to represent myself and I
9 The trial court asked Short’s attorney to address the
medical records, and the attorney responded he had reviewed
them and there was “no issue regarding preexisting conditions.”
10
want to waive time because I need to get a private investigator.”
The court then revoked Short’s self-represented status and
reappointed defense counsel, subject to a Marsden hearing,
stating Short had “misrepresented to the court [his] readiness to
proceed to trial in pro per.” The court explained, “I believe that
you are playing games with the court, you are not ready to
proceed, although just hours ago you told me you were not
waiving time, you didn’t need any further discovery, you were
ready to go. [¶] Based upon those conditions that you
represented to the court, I allowed you to represent yourself. [¶]
After lunch you’ve changed your mind and want a lengthy
continuance, a private investigator, an expert, and additional
discovery.”
2. Governing law
“The Sixth Amendment . . . grants to the accused
personally the right to make his defense.” (Faretta, supra,
422 U.S. at p. 819; accord, People v. Trujeque (2015) 61 Cal. 4th
227, 262 (Trujeque) [“Under Faretta, a defendant ‘must be free
personally to decide whether in his particular case counsel is to
his advantage,’ even though ‘he may conduct his own defense
ultimately to his own detriment . . . .’”].) “A trial court may . . .
revoke a defendant’s right to represent himself if he ‘deliberately
engages in serious and obstructionist misconduct.’” (Trujeque, at
p. 263, quoting Faretta, at p. 834, fn. 46; accord, People v. Carson
(2005) 35 Cal. 4th 1, 10 (Carson) [“Whenever ‘deliberate dilatory
or obstructive behavior’ threatens to subvert ‘the core concept of a
trial’ [citation] or to compromise the court’s ability to conduct a
fair trial [citation], the defendant’s Faretta rights are subject to
forfeiture.”].)
11
“When determining whether termination is necessary and
appropriate, the trial court should consider several factors in
addition to the nature of the misconduct and its impact on the
trial proceedings. One consideration is the availability and
suitability of alternative sanctions. . . . The court should also
consider whether the defendant has been warned that particular
misconduct will result in termination of in propria persona
status. [¶] Additionally, the trial court may assess whether the
defendant has ‘intentionally sought to disrupt and delay his
trial.’ . . . In many instances, such a purpose will suffice to order
termination; but we do not hold that an intent to disrupt is a
necessary condition. . . . Ultimately, the relevance inheres in the
effect of the misconduct on the trial proceedings, not the
defendant’s purpose.” (Carson, supra, 35 Cal.4th at pp. 10-11,
citations omitted.)
“On review, we accord ‘due deference to the trial court’s
assessment of the defendant’s motives and sincerity as well as
the nature and context of his misconduct and its impact on the
integrity of the trial in determining whether termination of
Faretta rights is necessary to maintain the fairness of the
proceedings.’ [Citation.] The court exercises considerable
discretion in this regard and ‘the exercise of that discretion “will
not be disturbed in the absence of a strong showing of clear
abuse.”’” (People v. Becerra (2016) 63 Cal. 4th 511, 518.) The
“‘erroneous revocation of pro. per. status’” is reversible per se.
(Becerra, at p. 520; accord, People v. Butler (2009) 47 Cal. 4th 814,
825.)
12
3. The trial court did not abuse its discretion
Short acknowledges a trial court may condition the grant of
an untimely Faretta motion on a defendant’s ability to proceed
immediately to trial. (People v. Espinoza (2016) 1 Cal. 5th 61, 80;
People v. Valdez (2004) 32 Cal. 4th 73, 103.) But he contends the
court should have denied his continuance request instead of
revoking his self-represented status. (See Espinoza, at p. 81
[trial court did not abuse its discretion in denying defendant’s
midtrial request for a one-day continuance where defendant’s
self-represented status was conditioned on the trial proceeding
within agreed upon time frame].) This contention lacks merit.
On April 6, 2017 the parties announced they would be
ready for trial on April 18. Short made his Faretta motion four
court days before trial,10 at which time he stated he was not
“waiving any more time” and would be ready to start trial the
following Tuesday, April 18. When the trial court indicated it
could not provide So’s medical records to Short that day because
it had to redact So’s private information, Short responded, “You
don’t have to turn them over to me today, that’s fine. I’m ready to
go to trial.” He added, “[Y]ou all don’t even need to have to show
me the records.” Before the trial court granted the Faretta
motion, it cautioned Short it would terminate his self-represented
status if he “engage[d] in any serious misconduct to obstruct the
conduct and progress of the trial.”
Just four hours later, when the prosecutor provided So’s
redacted medical records to Short, Short requested a continuance
to subpoena additional medical records, arguing he needed
10 The April 12, 2017 hearing was on the Wednesday
preceding the Tuesday, April 18 trial date.
13
information on So’s purported preexisting “syndromes.” The trial
court responded that nothing had changed from Short’s
representations that morning. Contrary to Short’s contention on
appeal, the court advised Short of his options, explaining, “[I]f
you need a continuance, I’m going to deny your right to represent
yourself and I’m going to bring back counsel.” Short still insisted
on a continuance to retain an investigator and medical expert.
Under these circumstances, the trial court did not abuse its
discretion in revoking Short’s self-represented status, concluding
Short was intentionally “playing games with the court” by
representing he would be ready for trial the following week so he
could obtain self-represented status just four court days before
trial, then four hours later claiming he needed a lengthy
continuance to investigate the same medical records he earlier
said he did not need to review. (Trujeque, supra, 61 Cal.4th at
p. 263; Carson, supra, 35 Cal.4th at p. 10.)
B. Substantial Evidence Supports the Trial Court’s
Determination Short Was Competent To Stand Trial
1. The court declares a doubt as to Short’s mental
competency
On April 12, 2017, after revoking Short’s self-represented
status, the court held a Marsden hearing. During the hearing
defense counsel noted, “I’ve been battling back and forth in this
matter because Mr. Short was evaluated by a psychiatrist or
psychologist, not on my request but on my predecessor’s request.
The report did come back that he was incompetent.” Defense
counsel observed initially Short “comes across clear, cogent,” but
“as he goes along, there always seems to be that touch of
paranoia or touch of lack of clarity, which hinders my ability to
14
adequately assist and advise him.” Short interjected, “No, I
don’t,” and “I don’t have any history.” Defense counsel continued,
“So I’m really on the border as to whether to ask the court to
declare a doubt in this matter.”
After further discussion with Short and his attorney, the
trial court stated to Short, “You are not making any sense to me.
Your arguments are not cogent, not reasonable. They are not
supported by the facts as represented by your attorney and the
knowledge that I have of this case. I’m wondering about your
competency.” The court denied Short’s Marsden motion, at which
time Short started yelling obscenities and called the judge a
“stupid ass bitch.” Short was removed from the courtroom, and
the court declared a doubt as to Short’s mental competency. The
court explained, “The defendant’s demonstrating paranoia,
irrationality, he’s in yellows, and apparently does have a history
of a positive psychological evaluation and prior outbursts that
I’ve been informed of. Doubt is declared, proceedings are
suspended.”
2. Dr. Edward Fischer’s evaluation
At the request of Short’s prior attorney, the trial court
appointed psychologist Dr. Edward Fischer to evaluate Short’s
competence to stand trial. On March 17, 2017 Dr. Fischer
interviewed Short for approximately two hours at the county jail.
Dr. Fischer observed Short wore “the yellow clothing of [a]
mental patient.” Short reported he was prescribed Risperdal11 in
county jail, but he refused to take the medication because he did
11 According to Dr. Fischer, Risperdal is “an antipsychotic
medication appropriate to the treatment of paranoid
schizophrenia.”
15
not need it. Short denied he had any mental illness. In his
April 6, 2017 report, Dr. Fischer found, “There was no definite
evidence of a thought disorder, but [Short] did articulate both
persecutory and grandiose statements that could be construed as
delusions. . . . He does appear to have a propensity for fighting
with his peers. His judgment is impaired and he lacks insight.”
Dr. Fischer noted Short understood the charges and that he
was subject to a sentence enhancement for his prior conviction for
assault with a deadly weapon. But Short “is unwilling or unable
to work with anyone who disagrees with him, at least as long as
he is not receiving appropriate antipsychotic medication.”
Dr. Fischer observed, “[Short] was able to tolerate the interview
with this examiner as long as he was not contradicted, but as
soon as he came to believe that the examiner was not 100%
behind him in his desire to abandon his attorney and represent
himself, he was no longer able to rationally consider the opinions
of this expert or his attorney that he was quite likely to lose his
case if he attempted to represent himself without counsel.”
Dr. Fischer concluded, “[Short] is not [c]ompetent to
rationally assist his attorney and he is incapable of putting a
rational defense to the charges without counsel as a result of his
mental disorder, a paranoid syndrome that includes aspects of
paranoid schizophrenia and paranoid personality disorder.”
Dr. Fischer added, “It is medically appropriate to treat [Short’s]
psychiatric condition with medication. Medication is likely to be
effective. The defendant does not have the capacity to make
decisions about such medication. If untreated with medication,
[Short] will probably suffer serious harm to his physical and
mental health. [¶] . . . Appropriate medication is likely to make
[Short] competent to stand trial.”
16
3. Dr. Kory Knapke’s evaluation
The trial court also appointed psychiatrist Dr. Kory
Knapke to evaluate Short’s competency. Dr. Knapke attempted
to interview Short on May 3 and June 7, 2017 at the county jail,
but Short refused to talk with him. On both occasions, sheriff’s
deputies brought Short to speak with Dr. Knapke in a dayroom at
the jail. Short appeared calm and relaxed and did not exhibit any
bizarre or unusual behavior. Instead, Short asked Dr. Knapke
why he wanted to speak with him, and after learning of the
nature of the interview, Short calmly responded, “I’m not talking
to you.” Dr. Knapke spoke with a sheriff’s deputy who was
familiar with Short about Short’s behavior in the county jail.
Dr. Knapke reported the deputy “stated that [Short’s] cell is
always clean and that he does not exhibit any bizarre or unusual
behaviors whatsoever. He also indicated that the defendant
interacted with other inmates appropriately. He has not
observed Mr. Short mumbling to himself or exhibiting any other
psychotic behavior.”
Dr. Knapke reviewed the preliminary hearing transcript
from a 2014 criminal case in which Short represented himself.12
Dr. Knapke observed Short did “an adequate job asking [a
witness to the first offense] relevant questions for the most part.”
With respect to Short’s cross examination of the victim of the
second offense, Dr. Knapke found, “Mr. Short kept interrupting
12 In the 2014 criminal case, Short fled from a grocery store
after stealing a beer can and punching a store display of potato
chips. Short then went to a restaurant and demanded money
from a customer. When the customer refused, Short punched
him in the face and swung a chair at him.
17
him with objections that were overruled frequently. The court
admonished the defendant about his outbursts during testimony
and clearly had concerns about [Short] conforming his behavior
with the dignity and decorum of the courtroom. However, I
noticed that the defendant was not making any delusional
comments and was not behaving in a way suggestive of a major
mental illness.” Dr. Knapke opined, “It became clear as I
reviewed the preliminary hearing transcript when [Short] was
representing himself that the defendant at the minimum
understood the charge against him and understood basic
courtroom proceedings, and there [were] no symptoms of a
mental illness that were prohibiting him from understanding the
charges and proceedings against him at that time.”
According to Dr. Knapke, at the time of a January 2015
hearing in Short’s 2014 criminal case, “Short was taking the
antipsychotic medication Abilify twice a day,” and Short reported
he “had been taking the medication for five months.” In that
case, Short pleaded no contest to assault with a deadly weapon
after the trial court found Short had expressly and intelligently
waived his constitutional rights; his plea was free and voluntary;
and he understood the charges and the consequences of the plea.
Dr. Knapke opined as to Dr. Fischer’s conclusion in his
report that Short may suffer from paranoid personality disorder
or schizophrenia, “I saw no indication in Dr. Fischer’s report that
[Short] had any overt psychotic symptoms other than his general
mistrust of the criminal justice system, which is a very common
characteristic of most criminal defendants that I have examined
in the county jail.” Dr. Knapke also questioned whether
Dr. Fischer, as a psychologist, could properly opine on whether it
was medically appropriate to treat Short with medication or
18
conclude medication was likely to be effective in treating his
mental illness.
Dr. Knapke reviewed discovery from the current case and
“saw no documented psychotic symptoms.” Dr. Knapke added,
“Simply because a defendant has a difficult personality style and
is opposed to having a public defender represent them does not
necessarily render them incompetent. Because the defendant
refused my clinical interview, I am unable to render an opinion
as to whether he lacked capacity to rationally cooperate and
assist his attorney if he chooses to do so. It appears that his
unwillingness to cooperate with an attorney is volitional rather
than based on any underlying psychiatric symptoms based upon
the discovery I reviewed.” Dr. Knapke concluded, “I am unable to
overcome the presumption that [Short] is competent to stand
trial. I had no clinical information provided to me, which would
indicate that [Short] has been exhibiting psychotic symptoms or
suffers from a diagnosis of [s]chizophrenia.”
4. The competency hearing
At the competency hearing, the parties submitted on the
reports of Dr. Fischer and Dr. Knapke, the trial court’s
observation of Short while in court, the circumstances of the
offenses, Short’s criminal history, and the probation report. The
trial court found Short failed to prove he was not competent to
stand trial by a preponderance of the evidence. The court
reasoned based on Dr. Knapke’s report, “[Short] does not want
any public defender, in my opinion, to be assigned to him who
does not agree with his position of the case. [¶] His
unwillingness or unhappiness in working with his public
defender does not render him incompetent . . . . [¶] [Short]
19
would have to actually lack the capacity to rationally cooperate
and assist his attorney to be found incompetent, which I do not
find to be the case here. . . . [¶] It appears that [Short’s]
unwillingness to cooperate with his attorneys is a volitional act
rather than based upon any underlying psychological pathology.”
The court noted Short had adequately represented himself
at the preliminary hearing in the 2014 case, and that although he
became “argumentative and disruptive,” he did not become
“delusional.” The court added that Short had taken Abilify and
was prescribed Risperdal, but he refused to take his medication
and did not receive any psychological treatment. The court noted
Dr. Fischer was not a psychiatrist, and thus he was not qualified
to opine about medication. The court added as to Short’s
behavior in jail that “he has not exhibited any bizarre or unusual
behaviors. He interacts well and properly with the other
inmates.”
The trial court disagreed with Dr. Fischer’s opinion Short
was unable to cooperate with his attorney, finding it was Short’s
“reluctance to cooperate with his attorney[,] not his inability.”
The court observed, “[Short] gets extremely agitated to the court
personnel and to this court when he doesn’t get his way . . . . [¶]
When his pro per [status] was revoked or his Marsden hearing
gets denied, he yells and he actually spit at the court at the last
proceeding, or if his public defender disagrees with him. [¶] He’s
loud, aggressive and shouts profanities to me. This is just
malingering in his attempt to appear to be incompetent, which I
do not find. [¶] . . . [¶] For all these reasons . . . , the court does
find the defendant competent to stand trial within the meaning of
[section] 1368.”
20
5. Governing law
“The due process guarantees of both the federal and state
Constitutions forbid the trial of a criminal defendant while he or
she is mentally incompetent.” (People v. Buenrostro (2018)
6 Cal. 5th 367, 385 (Buenrostro); accord, People v. Mickel (2016)
2 Cal. 5th 181, 194-196 (Mickel); see § 1367, subd. (a) [“A person
shall not be tried or adjudged to punishment . . . while that
person is mentally incompetent.”].) “A defendant is incompetent
to stand trial if the defendant lacks ‘“sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding . . . [or] a rational as well as factual
understanding of the proceedings against him.”’” (Mickel, at
p. 195; accord, Buenrostro, at p. 386; see § 1367, subd. (a) [“A
defendant is mentally incompetent . . . if, as a result of a mental
health disorder or developmental disability, the defendant is
unable to understand the nature of the criminal proceedings or to
assist counsel in the conduct of a defense in a rational manner.”].)
“‘[A] trial court is obligated to conduct a full competency
hearing if substantial evidence raises a reasonable doubt that a
criminal defendant may be incompetent.’” (Buenrostro, supra,
6 Cal.5th at p. 387; accord, Mickel, supra, 2 Cal.5th at p. 195.)
After the trial court has declared a doubt as to a defendant’s
mental competency, section 1369, subdivision (a)(1), requires
“[t]he court [to] appoint a psychiatrist or licensed psychologist,
and any other expert the court may deem appropriate, to examine
the defendant.”
A defendant is presumed competent to stand trial.
(Buenrostro, supra, 6 Cal.5th at p. 387; accord, People v.
Blacksher (2011) 52 Cal. 4th 769, 797 (Blacksher).) “When the
defendant puts his or her competence to stand trial in issue, the
21
defendant bears the burden of proving by a preponderance of the
evidence that he or she lacks competence.” (People v. Mendoza
(2016) 62 Cal. 4th 856, 871; accord, Buenrostro, at p. 387.) “In
reviewing on appeal a finding of competency, ‘an appellate court
must view the record in the light most favorable to the verdict
and uphold the verdict if it is supported by substantial evidence.’”
(Blacksher, at p. 797; accord, Mendoza, at p. 871.) “When the
sufficiency of the evidence to support the verdict is challenged,
our review is limited to the evidence presented at the competency
trial.” (Mendoza, at pp. 871-872; accord, People v. Marks (2003)
31 Cal. 4th 197, 218, fn. 3.)
6. Short forfeited his challenge to Dr. Knapke’s report,
and substantial evidence supports the trial court’s
finding of mental competency
Short contends there is insufficient evidence to support the
trial court’s finding he was competent to stand trial because the
court relied on Dr. Knapke’s evaluation, and Dr. Knapke did not
personally examine Short. Short has forfeited this argument by
submitting on the experts’ reports and failing to object.
(Blacksher, supra, 52 Cal.4th at p. 797 [“Because defendant
submitted the question of his competency on [the psychiatrist’s]
report, he has forfeited the claims that the court abused its
discretion by determining competency on the ‘majority vote’ of the
experts or by relying on allegedly insufficient reports.”]; People v.
Weaver (2001) 26 Cal. 4th 876, 904 [“Having submitted the
competency determination on the two psychiatric reports,
defendant may not now relitigate that question [of the effect of
medication] with arguments he did not make below.”]; People v.
Kirvin (2014) 231 Cal. App. 4th 1507, 1514 (Kirvin) [“[D]efendants
22
may not attack the validity of expert reports to which they
submit with arguments they did not present to the trial court.”].)
Even if Short had not forfeited his challenge to
Dr. Knapke’s report, his argument the court should not have
relied on Dr. Knapke’s report absent an in-person evaluation
lacks merit. It was Short who refused to meet with Dr. Knapke
on two occasions. A trial court “may rely upon a report not based
on a face-to-face interview when the subject refuses to meet with
the expert.” (Kirvin, supra, 231 Cal.App.4th at p. 1514; accord,
People v. Hightower (1996) 41 Cal. App. 4th 1108, 1112 [experts’
reports supported trial court’s finding defendant was competent
to stand trial even though “examination of [defendant] was
limited by his refusal to participate”].)
Further, substantial evidence supports the trial court’s
finding of mental competency. Both Dr. Fischer and Dr. Knapke
found Short understood the charges against him, and Short’s self-
representation in the 2014 criminal case showed he understood
the criminal court proceedings. The experts disagreed on
whether Short could rationally “assist counsel in the conduct of a
defense” because of a mental health disorder. (§§ 1367, subd. (a),
1369, subd. (a)(2).) But the court was entitled to credit
Dr. Knapke’s finding there was no evidence of psychosis or
delusions in the preliminary hearing transcripts in Short’s 2014
criminal case or the discovery in the present case. (See People v.
Mendoza, supra, 62 Cal.4th at p. 882 [in reviewing the sufficiency
of the evidence for a competency finding, an appellate court does
not substitute its judgment for that of the factfinder or reweigh
the evidence]; Kirvin, supra, 231 Cal.App.4th at p. 1514 [“It is
‘not the role of this court to redetermine the credibility of experts
or to reweigh the relative strength of their conclusions.’”].)
23
In addition, when Dr. Knapke attempted to interview Short
at the county jail, Short was calm and relaxed and did not exhibit
any bizarre or unusual behavior, instead declining to talk with
Dr. Knapke once he learned the nature of the interview. And, as
Dr. Knapke noted, the sheriff’s deputy at the county jail reported
Short’s cell at the county jail was “always clean” and Short did
not “exhibit any bizarre or unusual behaviors whatsoever.” Short
interacted appropriately with other inmates, and he did not
mumble to himself or exhibit any other psychotic behavior. As
discussed, Dr. Knapke concluded based on this information and
his review of the record that Short was competent to stand trial
and his “unwillingness to cooperate with an attorney is volitional
rather than based on any underlying psychiatric symptoms.” We
reject Short’s argument the court erred in relying on
Dr. Knapke’s conclusion instead of that of Dr. Fischer. “The
testimony of a single witness, if believed by the fact finder, is
sufficient to prove any fact.” (People v. Kerley (2018)
23 Cal. App. 5th 513, 530; accord, Kirvin, supra, 231 Cal.App.4th
at p. 1514; see Evid. Code, § 411 [“Except where additional
evidence is required by statute, the direct evidence of one witness
who is entitled to full credit is sufficient for proof of any fact.”].)
Finally, the trial court properly relied in its own
observations in court, noting Short becomes “extremely
agitated . . . when he doesn’t get his way,” including when his
self-represented status was revoked and his Marsden motion was
denied. The court found Short’s loud and aggressive behavior,
including yelling obscenities at the court, was “just malingering
in his attempt to appear to be incompetent, which I do not find.”
Further, “[v]oluntary barriers to communication with counsel on
the part of a defendant who was able to cooperate do not
24
demonstrate incompetence.” (People v. Mendoza, supra,
62 Cal.4th at p. 879; accord, People v. Mai (2013) 57 Cal. 4th 986,
1034 [“[A]n uncooperative attitude is not, in and of itself,
substantial evidence of incompetence.”]; People v. Medina (1995)
11 Cal. 4th 694, 735 [“[d]efendant’s cursing and disruptive actions
displayed an unwillingness to assist in his defense, but did not
necessarily bear on his competence to do so”]; People v.
Hightower, supra, 41 Cal.App.4th at p. 1112 [“[Defendant]
asserts that his disruptive behavior in the courtroom and
disputes with defense counsel prove that he was not competent to
stand trial. His conduct demonstrates an unwillingness to
cooperate with defense counsel but does not constitute proof of
mental incompetence.”].)
C. The Trial Court Did Not Err in Denying Short’s Request for
Mental Health Diversion
1. Short’s request for mental health diversion
At sentencing, defense counsel requested the trial court
grant Short mental health diversion pursuant to section 1001.36,
arguing Short suffered from schizophrenia and he was
hospitalized in 2011 because he was delusional and aggressive.13
13 Short relied on his medical records from his May 3 to 10,
2011 hospitalization at Olive View UCLA Medical Center.
According to a May 4, 2011 medical note, Short was homeless and
sleeping in the hospital lobby when security told him to leave.
Short was placed on a psychiatric hold because he “was
disorganized with grandiose delusion including that he was a
boxer that put a famous boxer into retirement”; “he wanted to
hurt all black women and get high until he died”; and he had
“affective flattening and paranoid delusions consistent with
25
Defense counsel claimed Short was willing to be treated for his
mental health disorder. She also argued that despite Short’s
lengthy criminal record and a conviction for assault with a deadly
weapon, he was not a violent person.
The trial court denied Short’s request on multiple grounds.
As a threshold matter, the court observed section 1001.36
provided for “pre-conviction diversion.” However, the court then
proceeded to consider the factors applicable to mental health
diversion. The court relied on Dr. Knapke’s opinion there “was
no clinical basis to support that the defendant had a major
mental illness or disorder”; Short denied any history of a mental
illness or disorder; and Short did not exhibit any bizarre or
unusual behavior while he was in jail. The court also found any
mental disorder Short suffered from did not play a significant
role in the charged offense. The court explained, “There’s no
report that I’m aware of that shows that his schizophrenia or any
other mental illness played a significant role in the defense in
this case. He was simply stealing and then hitting the manager
to avoid being arrested. He could have simply walked out the
store. [¶] Based on [the store’s] policy, he never would have even
been chased down or arrested probably, but he chose instead to
assault the manager, in my opinion, out of revenge for the
manager threatening or telling him to leave and threatening to
call the police.” The court further found, “There’s no treatment
plan in place that would address his mental health issues or
schizophrenia.” After Short was given notice of the hold, “he
banged doors and cussed at people, exposed himself and urinated
in the hallway and threw milk and juice on the floor.” At the
time of his May 10, 2011 discharge, Short was diagnosed with
schizoaffective disorder, bipolar type.
26
prevent him from engaging in future criminal conduct, . . . and I
think he represents a substantial threat to the safety of the
community.”
Defense counsel then requested the trial court consider and
mark as an exhibit Short’s medical records.14 The court asked,
“What are the records going to tell me that we haven’t received
from Dr. Fischer and Dr. Knapke?” Defense counsel responded
Short’s medical records show he was diagnosed with
schizoaffective disorder and had been prescribed Abilify, and the
records would provide “a full picture of what he suffers from.”
The court replied, “Well, as I mentioned earlier, he doesn’t fit
within the six criteria even if it is applicable to him post
conviction. And we know he has a history of mental illness and I
think you are just proving my point. [¶] He’s been hospitalized
extensively. He’s been examined multiple times. He’s been
prescribed psychotropic drugs, which he refused to take, and has
not been deterred from his criminal behavior. His criminal
conduct is continuous.”
14 The medical records included his 2011 records from Olive
View UCLA Medical Center and records from a 2014 outpatient
visit in which Short sought “medication for mood and anxiety.”
The 2014 notes indicate Short did not exhibit paranoia, and he
denied any mania. Short also submitted medical records from
2015 and 2016 reflecting outpatient visits for infections and back
pain. The records consistently describe Short’s condition as not
consistent with a mental disorder. During a 2015 outpatient visit
for back pain, the notes reflect Short was “welcome” to visit the
psychiatry department to discuss his mental health issues, but
the records do not show Short followed up. In addition, Short’s
list of medications in the 2015 and 2016 records did not include
any psychotropic medications.
27
The prosecutor objected to Short’s request for a mental
health diversion order, arguing Short was “sophisticated and
calculated,” lashing out at the court whenever he was confronted
with authority or denied relief. The court declined to review the
medical records, finding the records would not make a difference
in the court’s decision. At the request of defense counsel, the
court admitted Short’s mental health records “for purposes of
review on appeal if so allowed.”
2. Governing law
Effective June 27, 2018, “the Legislature enacted
sections 1001.35 and 1001.36 as part of Assembly Bill No. 1810
(2017-2018 Reg. Sess.) . . . . [Citation.] Section 1001.36 gives
trial courts the discretion to grant pretrial diversion for
individuals suffering from certain mental health disorders.
(§ 1001.36, subd. (a).)” (People v. Frahs (2020) 9 Cal. 5th 618, 626
(Frahs).) “The stated purpose of the diversion statute ‘is to
promote all of the following: [¶] (a) Increased diversion of
individuals with mental disorders to mitigate the individuals’
entry and reentry into the criminal justice system while
protecting public safety. [¶] (b) Allowing local discretion and
flexibility for counties in the development and implementation of
diversion for individuals with mental disorders across a
continuum of care settings. [¶] (c) Providing diversion that
meets the unique mental health treatment and support needs of
individuals with mental disorders.’ (§ 1001.35, subds. (a)-(c).)”
(Ibid.)
Under section 1001.36, subdivision (c), “‘pretrial diversion’
means the postponement of prosecution, either temporarily or
permanently, at any point in the judicial process from the point
28
at which the accused is charged until adjudication . . . .” If a
defendant is charged with qualifying offenses,15 “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.” (Frahs, supra, 9 Cal.5th at pp. 626-627; accord,
People v. Weaver (2019) 36 Cal. App. 5th 1103, 1115, fn. 13; see
§ 1001.36, subd. (b)(1)(A)-(F).)
If all six criteria in section 1001.36, subdivision (b)(1), are
met, and if the trial court “is satisfied that the recommended
inpatient or outpatient program of mental health treatment will
meet the specialized mental health treatment needs of the
defendant” (id., subd. (c)(1)(A)), then the trial court may order
pretrial diversion into an approved mental health treatment
program for up to two years (id., subd. (c)(1), (3)). If the
defendant commits an additional offense or otherwise performs
unsatisfactorily in the diversion program, the trial court may
reinstate the 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.” (Id., subd. (e).)
15 A defendant may not be placed into a diversion program for
murder, manslaughter, use of a weapon of mass destruction, or
certain enumerated sex offenses. (§ 1001.36, subd. (b)(2).)
29
Upon successful completion of diversion, “the arrest upon which
the diversion was based shall be deemed never to have
occurred . . . .” (Ibid.; accord, Frahs, supra, 9 Cal.5th at p. 627.)
Short contends, and we agree, section 1001.36 applies
retroactively to Short’s case even though the question of diversion
arose postconviction. (Frahs, supra, 9 Cal.5th at pp. 624-625.)
As the Frahs court observed, section 1001.36 “offers a potentially
ameliorative benefit for a class of individuals—namely, criminal
defendants who suffer from a qualifying mental disorder.”
(Frahs, at p. 631.) We review the trial court’s decision whether to
grant mental health diversion for an abuse of discretion. (See id.
at p. 626 [“Section 1001.36 gives trial courts the discretion to
grant pretrial diversion for individuals suffering from certain
mental health disorders. (§ 1001.36, subd. (a).)”].) “[A] trial court
does not abuse its discretion unless its decision is so irrational or
arbitrary that no reasonable person could agree with it.” (People
v. Carmony (2004) 33 Cal. 4th 367, 377.)
Short argues a limited remand is appropriate to allow the
trial court to conduct a mental health diversion eligibility hearing
in light of Short’s medical records, which show Short had been
diagnosed as a paranoid schizophrenic, contrary to Dr. Knapke’s
opinion he was not currently suffering from a mental disorder.
The trial court did not abuse its discretion. Although the court
declined to review Short’s medical records, it acknowledged Short
suffered from a qualifying mental disorder, stating Short “has a
history of mental illness” and had been “hospitalized extensively.”
As the court stated in denying Short’s Romero motion, “He has a
history of mental illness. He was diagnosed with schizophrenia
in 2011.” (See § 1001.36, subd. (b)(1)(A) [mental disorder
includes schizophrenia and schizoaffective disorder].)
30
Instead, the trial court concluded Short did not meet three
of the six requirements for eligibility for mental health diversion.
As to the second statutory requirement, the trial court stated
there was no report showing Short’s schizophrenia or any other
mental illness played a significant role in the commission of the
offense. (See § 1001.36, subd. (b)(1)(A), (B).) Short has not
pointed to evidence to the contrary. As to the third requirement,
the court found there was “no treatment plan in place that would
address his mental health issues or prevent him from engaging in
future criminal conduct.” (Id., subd. (b)(1)(C).) Although
Dr. Fischer opined that medication would address Short’s mental
illness, Short did not present evidence of a treatment plan, and
Short had refused to take medication doctors had previously
prescribed for him. As to the sixth requirement, the court
determined Short represented “a substantial threat to the safety
of the community.” (Id., subd. (b)(1)(F).) Although the court did
not provide further detail, in the context of sentencing, the court
found Short was “a clear and present danger to the community”
based on his violent conduct during the incident and his prior
offenses of increasing seriousness.
D. Remand Is Appropriate for the Trial Court To Exercise Its
Discretion Whether To Strike the Five-year Enhancement
Under Section 667, Subdivision (a)(1)
In 2018 the Governor signed into law Senate Bill No. 1393
(2017-2018 Reg. Sess.), which went into effect on January 1,
2019. Senate Bill No. 1393 amended section 1385 by deleting
subdivision (b), which prohibited trial courts from exercising
discretion “to strike any prior conviction of a serious felony for
purposes of enhancement of a sentence under [s]ection 667.”
31
(§ 1385, former subd. (b).) As the People concede, Senate Bill
No. 1393 applies retroactively to Short because his sentence was
not final at the time the new law became effective on January 1,
2019. (People v. Stamps (2020) 9 Cal. 5th 685, 699; People v.
Jones (2019) 32 Cal. App. 5th 267, 272; see In re Estrada (1965)
63 Cal. 2d 740, 744 [Absent contrary legislative intent, “[i]f the
amendatory statute lessening punishment becomes effective prior
to the date the judgment of conviction becomes final then, in our
opinion, it, and not the old statute in effect when the prohibited
act was committed, applies.”].)
“Remand is required unless ‘the record shows that the trial
court clearly indicated when it originally sentenced the defendant
that it would not in any event have stricken [the] enhancement’
even if it had the discretion.” (People v. Franks (2019)
35 Cal. App. 5th 883, 892; accord, People v. Billingsley (2018)
22 Cal. App. 5th 1076, 1081 [remand is required when “the record
does not ‘clearly indicate’ the court would not have exercised
discretion to strike the firearm allegations had the court known it
had that discretion”]; People v. McDaniels (2018) 22 Cal. App. 5th
420, 425 [same].) “In reviewing whether the trial court made
such an unequivocal indication, we consider the trial court’s
statements and sentencing decisions.” (Franks, at p. 892.)
Short contends remand is appropriate for the trial court to
exercise its discretion whether to strike the prior serious felony
conviction enhancement imposed pursuant to section 667,
subdivision (a)(1). The People respond the trial court’s
statements at sentencing show it would not have stricken the
five-year enhancement even if it had the discretion to do so.
Short has the better argument.
32
At the time Short was sentenced on October 16, 2018, the
five-year enhancement for a prior serious felony conviction was
mandatory. (§ 1385, former subd. (b).) The People point to
statements made by the trial court finding aggravating factors
and no mitigating factors. The trial court stated, “My tentative
sentence is 18 years, which I planned to give him all along.” The
court explained, “The crime involved great violence, disclosing a
high degree of cruelty, viciousness and callousness.” The court
noted the victim suffered serious injuries and was vulnerable
because he had his back turned to Short when Short attacked
him without any warning. The court also found, “[Short] has
engaged in violent conduct that indicates a serious danger to
society. [¶] The defendant inflicted great bodily injury and
risked killing the victim just to avoid being arrested for
attempted petty theft.” The court noted Short’s “record spans
seven years reflecting multiple convictions for crimes such as
drug possession, theft, burglary, assault with a deadly weapon,
and battery conviction,” and Short’s “prior performance on
probation” was “unsatisfactory.” The court added, “The
defendant is erratic, his criminal conduct continuous[,] frequent
and increasing in seriousness, and he does not appear amenable
to treatment in an outpatient setting. He is a clear and present
danger to the community.”
Although the trial court emphasized Short’s vicious and
callous conduct that supported both denial of his Romero motion
and imposition of the upper term on counts 1 and 2, this does not
provide a clear indication the court would have declined to strike
the five-year sentence enhancement under section 667,
subdivision (a)(1), if it had the discretion to do so, especially given
the significant 11-year sentence Short would still face on remand
33
absent the five-year enhancement. (See People v. Bell (2020)
47 Cal. App. 5th 153, 200 [“As for the court’s statement about
[defendant’s] Romero motion, it is only a ‘clear indication’ of its
views on that particular sentencing decision. We cannot
speculate from the court’s statements and decision as to one
sentencing issue to divine what the court would have done if it
had broadened discretion on another sentencing issue.”]; People v.
McDaniels, supra, 22 Cal.App.5th at p. 427 [“Given these high
stakes, it seems to us that a reviewing court has all the more
reason to allow the trial court to decide in the first instance
whether these enhancements should be stricken, even when the
reviewing court considers it reasonably probable that the
sentence will not be modified on remand.”].)
People v. Jones, supra, 32 Cal.App.5th at page 272, relied
on by the People, is distinguishable. The Court of Appeal in
Jones concluded “the trial court made clear its intention to
impose the most stringent sentence it could justifiably impose,”
noting the “defendant’s actions were premeditated, dangerous,
senseless and absurd, . . . and the court took ‘great satisfaction’ in
imposing the ‘very lengthy sentence’ it imposed.” (Id. at pp. 274-
275; see People v. McVey (2018) 24 Cal. App. 5th 405, 419
[declining to remand for resentencing because there was no
possibility the trial court would strike the firearm enhancement
on remand where it explained in imposing the upper term on the
enhancement, “‘[T]his is as aggravated as personal use of a
firearm gets,’ and ‘the high term of 10 years on the enhancement
is the only appropriate sentence on the enhancement’”].)
Although the trial court here expressed its view Short’s conduct
was vicious and callous, it did not make the type of statements
the Jones and McVey trial courts made that provided a clear
34
indication the courts would not have stricken the five-year
enhancement even if they had the discretion to do so. We
therefore remand for resentencing to afford Short a “‘“sentencing
decision[] made in the exercise of the ‘informed discretion’ of the
sentencing court.”’” (People v. Billingsley, supra, 22 Cal.App.5th
at p. 1081; accord, People v. Gutierrez (2014) 58 Cal. 4th 1354,
1391.)
E. The Two 1-Year Prior Prison Term Enhancements Must Be
Stricken
Short argues, the People concede, and we agree both one-
year enhancements under section 667.5, subdivision (b), must be
stricken. Effective January 1, 2020, Senate Bill No. 136 (2019-
2020 Reg. Sess.) amended section 667.5, subdivision (b), to
provide for a one-year prior prison term sentence enhancement
only for sexually violent offenses, as defined in Welfare and
Institutions Code section 6600, subdivision (b). (People v.
Matthews (2020) 47 Cal. App. 5th 857, 862; People v. Gastelum
(2020) 45 Cal. App. 5th 757, 772; People v. Jennings (2019)
42 Cal. App. 5th 664, 681.) Senate Bill No. 136 applies
retroactively to Short because his sentence was not final at the
time the new law became effective on January 1, 2020. (People v.
Winn (2020) 44 Cal. App. 5th 859, 872 [“Because [defendant’s]
conviction is not yet final, he is entitled to the retroactive benefit
of the change in law.”]; Jennings, at p. 682 [“Senate Bill No. 136’s
amendment to section 667.5, subdivision (b) applies retroactively
to all cases not yet final as of its January 1, 2020, effective
date.”]; see In re Estrada, supra, 63 Cal.2d at pp. 744-745.)
None of Short’s prior convictions was for a sexually violent
offense; thus, the section 667.5, subdivision (b) enhancements
35
must be stricken. (People v. Smith (2020) 46 Cal. App. 5th 375,
396; People v. Gastelum, supra, 45 Cal.App.5th at p. 772.)
F. On Remand Short Is Entitled To Request an Ability-to-pay
Hearing on the Fines and Assessments Imposed by the Trial
Court
Short contends he is entitled to an ability-to-pay hearing as
to the $60 in court facilities assessments, $80 in court operation
assessments, $300 restitution fine, and parole revocation
restitution fine in the same amount, relying on this court’s
opinion in Dueñas, supra, 30 Cal. App. 5th 1157.16 We agree Short
is entitled to request a hearing upon remand to the trial court.
1. Dueñas and its progeny
In Dueñas, this court concluded “the assessment provisions
of Government Code section 70373 and Penal Code section
1465.8, if imposed without a determination that the defendant is
able to pay, are . . . fundamentally unfair; imposing these
assessments upon indigent defendants without a determination
that they have the present ability to pay violates due process
under both the United States Constitution and the California
16 To the extent Short contends he is entitled to an ability-to-
pay hearing on the $22,888.72 victim restitution order, he is
incorrect. The trial court ordered Short to pay restitution to So
pursuant to section 1202.4, subdivision (f)(3). “Dueñas does not
apply to victim restitution under section 1202.4, subdivision (f).”
(People v. Abrahamian (2020) 45 Cal. App. 5th 314, 338; accord,
People v. Evans (2019) 39 Cal. App. 5th 771, 777 [“a defendant’s
ability to pay victim restitution is not a proper factor to consider
in setting a restitution award under section 1202.4, subdivision
(f)”].)
36
Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord,
People v. Belloso (2019) 42 Cal. App. 5th 647, 654-655 (Belloso),
review granted Mar. 11, 2020, S259755.)17 In contrast to court
assessments, a restitution fine under section 1202.4, subdivision
(b), “is intended to be, and is recognized as, additional
punishment for a crime.” (Dueñas, at p. 1169; accord, Belloso, at
p. 655.) Section 1202.4, subdivision (c), expressly provides a
defendant’s inability to pay a restitution fine may not be
17 Several Courts of Appeal have applied this court’s analysis
in Dueñas (e.g., People v. Santos (2019) 38 Cal. App. 5th 923,
929-934; People v. Kopp (2019) 38 Cal. App. 5th 47, 95-96, review
granted Nov. 13, 2019, S257844 [applying due process analysis to
court assessments]; People v. Jones (2019) 36 Cal. App. 5th 1028,
1030-1035), or partially followed Dueñas (e.g., People v. Valles
(2020) 49 Cal. App. 5th 156, 162-163, review granted July 22,
2020, S262757 [concluding due process requires ability-to-pay
hearing before imposition of court facilities fee, not restitution
fines]). Other courts have rejected this court’s due process
analysis (e.g., People v. Cota (2020) 45 Cal. App. 5th 786, 794-795;
People v. Kingston (2019) 41 Cal. App. 5th 272, 279-281; People v.
Hicks (2019) 40 Cal. App. 5th 320, 326, review granted Nov. 26,
2019, S258946), or concluded the imposition of fines and fees
should be analyzed under the excessive fines clause of the Eighth
Amendment (e.g., People v. Cowan (2020) 47 Cal. App. 5th 32, 42,
review granted June 17, 2020, S261952; People v. Aviles (2019)
39 Cal. App. 5th 1055, 1061; Kopp, at pp. 96-97 [applying excessive
fines analysis to restitution fines]). The Supreme Court granted
review of the decision in Kopp to decide the following issues:
“Must a court consider a defendant’s ability to pay before
imposing or executing fines, fees, and assessments? If so, which
party bears the burden of proof regarding defendant’s inability to
pay?” (Supreme Ct. Minutes, Nov. 13, 2019, p. 1622; see Kopp,
supra, 38 Cal. App. 5th 47.)
37
considered as a “compelling and extraordinary reason” not to
impose the statutory minimum fine. However, as this court held
in Dueñas, to avoid the serious constitutional questions raised by
imposition of a restitution fine on an indigent defendant,
“although the trial court is required by . . . section 1202.4 to
impose a restitution fine, the court must stay the execution of the
fine until and unless the People demonstrate that the defendant
has the ability to pay the fine.” (Dueñas, at p. 1172; accord,
Belloso, at p. 655.)
In Belloso we rejected the argument the People make here
that “a constitutional challenge to imposition of fines and fees on
an indigent defendant should be analyzed under an excessive
fines analysis instead of a due process framework.” (Belloso,
supra, 42 Cal.App.5th at p. 660.) We observed, “As the California
Supreme Court explained in [People ex rel. Lockyer v. R.J.
Reynolds Tobacco Co. (2005) 37 Cal. 4th 707, 728], in its analysis
of the constitutionality of civil penalties imposed by the trial
court, ‘It makes no difference whether we examine the issue as an
excessive fine or a violation of due process.’” (Ibid.)
2. Short did not forfeit his challenge to the imposition of
the assessments and fees
The People contend Short forfeited his challenge to
imposition of the assessments and fines because he did not assert
his inability to pay at sentencing. However, at the time Short
was sentenced, Dueñas had not yet been decided, and we have
declined to find forfeiture based on a defendant’s failure to object
to fines and fees prior to our opinion in Dueñas. As we explained
in People v. Castellano (2019) 33 Cal. App. 5th 485, 489, “[N]o
California court prior to Dueñas had held it was unconstitutional
38
to impose fines, fees or assessments without a determination of
the defendant’s ability to pay. . . . When, as here, the defendant’s
challenge on direct appeal is based on a newly announced
constitutional principle that could not reasonably have been
anticipated at the time of trial, reviewing courts have declined to
find forfeiture.” (Accord, Belloso, supra, 42 Cal.App.5th at p. 662;
People v. Santos (2019) 38 Cal. App. 5th 923, 931-932; People v.
Johnson (2019) 35 Cal. App. 5th 134, 137-138; contra, People v.
Bipialaka (2019) 34 Cal. App. 5th 455, 464 [defendant forfeited
challenge by not objecting to the assessments and restitution fine
at sentencing]; People v. Frandsen (2019) 33 Cal. App. 5th 1126,
1153-1154 [same].)
In light of Short’s burden to prove his inability to pay
(People v. Castellano, supra, 33 Cal.App.5th at p. 490), on remand
the trial court must afford Short an opportunity to request an
ability-to-pay hearing and to present evidence of his inability to
pay the assessments and fines.18
DISPOSITION
The judgment of conviction is affirmed. We remand for the
trial court to exercise its discretion whether to strike the five-
year sentence enhancement under section 667, subdivision (a)(1)
and to allow Short to request a hearing and present evidence
demonstrating his inability to pay the court assessments and
restitution fines.
18 We note the only evidence in the record as to Short’s ability
to pay is the statement in the probation report that Short was
unemployed.
39
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
40