People v. Griffin CA2/6 ( 2023 )

Filed 5/4/23 P. v. Griffin CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. B317141
(Super. Ct. Nos. 2020030101,
Plaintiff and Respondent, 2021016595)
(Ventura County)
v.
ANTHONY JOHN GRIFFIN,
Defendant and Appellant.
Anthony John Griffin was charged in case No. 2020030101
with two counts of driving or taking a vehicle (Veh. Code,
§ 10851, subd. (a)) with a prior similar conviction (Pen. Code,
§ 666.5, subd. (a)),1 and two counts of receiving stolen property,
i.e., a motor vehicle (§ 496d, subd. (a)). Griffin also was charged
with misdemeanor counts of giving false information to a police
officer (§ 148.9, subd. (a)) and possessing drug paraphernalia
1 All
further statutory references are to the Penal Code
unless otherwise indicated.
(Health & Saf. Code, § 11364, subd. (a)). A 2016 conviction for
dissuading a victim or witness was alleged as a prior “strike.”
(§§ 667, 1170.12.) Griffin pled not guilty and denied all special
allegations.
Griffin moved for mental health pretrial diversion pursuant
to section 1001.36. The trial court released Griffin to a
residential treatment program for further mental health
evaluation.
Approximately two months later, the trial court found that
Griffin was an “eligible candidate” for mental health pretrial
diversion and “tentative[ly]” granted diversion. A court date was
set for Griffin to appear for mental health diversion sentencing.
When Griffin failed to appear for sentencing, the trial court
issued a bench warrant, set bail at $60,000 and determined
Griffin was not a suitable candidate for mental health pretrial
diversion.
In the meantime, Griffin absconded from the residential
treatment program and committed a new offense. He was found
asleep in the driver’s seat of an automobile that had been
reported stolen and was charged with receiving stolen property
(§ 496d, subd. (a)) in case No. 2021016595. It was alleged that
Griffin had suffered a prior Three Strikes conviction (§§ 667,
1170.12) and a previous felony conviction for driving or taking a
vehicle without consent (§ 666.5, subd. (a); Veh. Code, § 10851,
subd. (a)). It was further alleged that Griffin committed the
offense while released from custody on his own recognizance in
case No. 2020030101. (§ 12022.1, subd, (b).)2
2 Section 12022.1, subdivision (b) provides: “Any person
arrested for a secondary offense that was alleged to have been
committed while that person was released from custody on a
2
After waiving his further trial rights, Griffin pled guilty to
the automobile taking and misdemeanor charges in the initial
case and the receiving charge in the second case. He also
admitted the prior “strike,” prior automobile theft and section
12022.1 enhancement allegations.
After denying Griffin’s Marsden3 motion, the trial court
struck the “strike” in both cases and designated the receiving
charge in the second case as the principal term. It imposed the
lower term of two years plus another two years for the section
12022.1 enhancement. On the two felony counts in the initial
case, the court imposed consecutive sentences of one year for each
of the theft offenses, for a total prison term of six years. On the
two misdemeanor counts, the court imposed 90-day jail sentences
to run concurrently with the prison term.
Griffin filed a notice of appeal with a certificate of probable
cause signed by the trial judge.4 In requesting the certificate,
appellant stated: “The reasonable constitutional, jurisdictional,
or other grounds going to the legality of the guilty plea, no-
contest plea, or probation violation admission proceeding are . . . :
[¶] Denial of Oral Motion to Withdraw the Plea. (People v. Ribero
(1971) 4 Cal.3d 55.)”
primary offense shall be subject to a penalty enhancement of an
additional two years, which shall be served consecutive to any
other term imposed by the court.”
3 People v. Marsden (1970) 2 Cal.3d 118.
4 On January 3, 2022, we granted Griffin’s unopposed
motion requesting relief from default due to the untimely filing of
his notice of appeal. (In re Benoit (1973) 10 Cal.3d 72.)
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REQUEST FOR WENDE REVIEW
We appointed counsel to represent Griffin in this appeal.
Griffin’s appointed counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende). In that brief, counsel stated
he could not identify any arguable issues for reversal on appeal
and requested that we review the record for error as mandated by
Wende.
Griffin filed a two-page handwritten supplemental brief
challenging the imposition of the two-year section 12022.1
enhancement. He contends the statute does not apply to him
because he was not released “on bail” or “on his . . . own
recognizance” at the time he reoffended.
As part of our Wende review, we solicited supplemental
briefing from the parties’ counsel on this arguable issue. We
noted that “the defendant in People v. Ormiston (2003) 105
Cal.App.4th 676, was on diversion when he reoffended.
Recognizing that diversion and release on bail or own
recognizance are ‘governed by distinct standards,’ the Court of
Appeal ‘conclude[d] that for purposes of section 12022.1, an order
of diversion under the deferred judgment statutes is neither a
“release” on bail or OR [own recognizance] nor the functional
equivalent of it, and [thus] the enhancement findings are not
supported by the evidence.’ (Ormiston, at pp, 690-692; see People
v. Hernandez (2009) 177 Cal.App.4th 1182, 1190-1192.)”
DISCUSSION
Griffin’s appointed counsel and the Attorney General
submitted responsive briefs. The Attorney General contends
Ormiston is distinguishable because it involved drug diversion
(§ 1000 et seq.) as opposed to mental health diversion (§ 1001.36).
Griffin’s counsel persuasively argues the two types of pretrial
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diversion should be treated in the same manner, but fails to show
that Griffin was actually on mental health pretrial diversion at
the time he reoffended. As the Attorney General points out, the
trial court found that Griffin was an eligible candidate for mental
health pretrial diversion and tentatively granted diversion, but
Griffin then failed to appear at the pretrial diversion sentencing
hearing. Instead, he absconded from the treatment program and
committed a new offense. Since there is no evidence Griffin was
out of custody on a grant of pretrial diversion at that time, he
was properly sentenced to the two-year section 12022.1
enhancement.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
BALTODANO, J.
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Bruce A. Young, Judge
Superior Court County of Ventura
______________________________
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General and Blake Armstrong, Deputy Attorney
General, for Plaintiff and Respondent.
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