People v. Citizen CA4/1 ( 2023 )

Filed 12/12/23 P. v. Citizen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082213
Plaintiff and Respondent,
v. (Super. Ct. No. RIF2001272)
SHAMREN KE SEAN CITIZEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside,
Stephen J. Gallon, Judge. Affirmed.
Richard Fitzer, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Steve
Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and
Respondent.
I. BACKGROUND
Appellant Shamren Ke Sean Citizen robbed three people over the
course of three consecutive days in May 2020. Shortly after charges were
filed, appellant’s counsel requested suspension of the proceedings to
determine appellant’s competency. The court found appellant competent to
stand trial, and appellant began representing himself after proceedings
resumed. Appellant continued to do so until just before the matter was to be
tried, when the court found him not competent to represent himself. The
court continued trial and reappointed counsel, and counsel represented
appellant for the remainder of the case.
The jury convicted appellant of three counts of robbery (Pen. Code1,
§ 211), two of which were in the first degree (§ 212.5, subd. (b)) and
committed with a gun (§ 12022.53, subd. (b)). The court sentenced appellant
to 18 years 8 months in prison calculated as follows: the low term (3 years)
and gun enhancement (10 years) for count 1; one-third of the midterm (1 year
4 months) and gun enhancement (3 years 4 months) for count 2; and one-
third of the midterm (1 year) for count 3. Although appellant committed the
offenses while released on bail, the court stayed imposition of the
enhancement for that circumstance (§ 12022.1).
On appeal, appellant claims the court had a sua sponte duty to consider
mental health diversion, the gun enhancement on count 2 should have been
dismissed, and his sentence was based on an outdated probation report. We
disagree with each of these claims and affirm the judgment.
1 All further statutory references are to the Penal Code.
2
II. DISCUSSION
A. Mental Health Diversion
Section 1001.36 authorizes mental health diversion, which postpones
prosecution so a defendant can undergo mental health treatment. (§ 1001.36,
subd. (f)(1).)2 Appellant argues that even though he did not request mental
health diversion, the court should have considered it on its own because he
had documented mental health issues, he represented himself for most of the
proceedings, and he should not be expected to ask for diversion.
“Competent defendants are capable of, and required to, request
diversion, consent to it, demonstrate their eligibility, waive the right to a
speedy trial, and agree to comply with treatment. (§ 1001.36, subd. (c)(2) &
(3).) ‘Nowhere ... does the scheme mandate a sua sponte duty for trial courts
to consider mental health diversion’ ....” (People v. Braden (2023) 14 Cal.5th
791, 814.) “The general rule is that defendants who validly choose to
represent themselves are charged with knowing the law,” and a defendant’s
“pro se status is therefore not a ground for excusing his failure to seek mental
health diversion in a timely manner.” (Id. at p. 818, fn. 15.)
The law required appellant to seek mental health diversion because he
was competent to stand trial. Although he represented himself at times and
that right was ultimately revoked, counsel represented appellant during two
portions of the pretrial proceedings that highlighted his mental health.
Counsel requested suspension of proceedings in the beginning of the case to
determine appellant’s competency, and counsel was reappointed three
months before trial when the court determined appellant’s mental illness
2 Section 1001.36 has been amended several times since charges were
filed against appellant (Stats. 2022, ch. 47, § 38; Stats. 2022, ch. 735, § 1;
Stats. 2023, ch. 236, § 1), but these amendments are not relevant to whether
the court has a sua sponte duty to consider mental health diversion.
3
precluded self-representation. Appellant’s attorneys were therefore aware of
his mental health and decided not to seek mental health diversion. Under
these circumstances, the court was not required to consider mental health
diversion on its own, and there was no error under Section 1001.36.
B. Dismissal of Gun Enhancement
Appellant argues the gun enhancement on count 2 should have been
dismissed because subdivision (c)([2])(B) of section 1385 prohibits multiple
enhancements. In the alternative, appellant asserts the matter should be
remanded so the court can consider whether dismissing this enhancement
would endanger public safety.
Appellant forfeited this issue because he did not raise it in the trial
court. (People v. Boyce (2014) 59 Cal.4th 672, 730–731.) In any event, as
Appellant acknowledges, several cases have rejected the claim that multiple
enhancements are prohibited. (People v. Anderson (2023) 88 Cal.App.5th
233, 239–241, review granted April 19, 2023, S278786 (Anderson); People v.
Mendoza (2023) 88 Cal.App.5th 287, 295–297; People v. Lipscomb (2022) 87
Cal.App.5th 9, 17–21; People v. Walker (2022) 86 Cal.App.5th 386, 396–398,
review granted Mar. 22, 2023, S278309 (Walker).)3 We agree with these
cases and decline to depart from them.
Additionally, the request to remand for consideration of appellant’s
danger to public safety lacks merit. That consideration was not formulated
in case law decided after appellant’s sentencing as he suggests. Instead, it
3 The California Supreme Court has granted review in Anderson and
Walker to determine a separate issue, which is whether subdivision (c) of
Penal Code section 1385 creates a rebuttable presumption in favor of
dismissing an enhancement unless the trial court finds dismissal would
endanger public safety. (Anderson, supra, 88 Cal.App.5th 233, review
granted; Walker, supra, 86 Cal.App.5th 386, review granted.)
4
comes from the plain language of subdivision (c) of section 1385 which existed
at the time of sentencing.4 There is no indication the court was unaware of
or confused by this language, so we presume it knew and applied the correct
law. (People v. Thomas (2011) 52 Cal.4th 336, 361.)
For these reasons, we see no basis for reversal on this ground.
C. The Probation Report
A probation officer prepared a sentencing report for appellant on
August 21, 2021. Approximately seven months later, on March 14, 2022, the
Judicial Council amended Rule 4.423 of the California Rules of Court, adding
new mitigating circumstances a sentencing judge must consider. The court
sentenced appellant five months later on August 19, 2022. Based on this
timeline, appellant argues he was sentenced on an outdated probation report,
preventing consideration of the new mitigating circumstances in Rule 4.423.
Although appellant did not raise this issue below, we review it through
his claim of ineffective assistance of counsel. To prevail on this claim,
appellant must show deficient performance by his counsel that affected the
outcome. (People v. Rices (2017) 4 Cal.5th 49, 80.)
We do not know why appellant’s counsel did not request a
supplemental probation report. Therefore, deficient performance can only be
established if counsel’s actions had no conceivable tactical purpose. (People v.
Arredondo (2019) 8 Cal.5th 694, 711.) “[T]here are cases where the defendant
may well not want a supplemental report. For example, he may have had
4 Appellant was sentenced on August 19, 2022. The pertinent provisions
subdivision (c) of section 1385 have been in effect since January 1, 2022
(Stats. 2021, ch. 721, § 1) and state, “Proof of the presence of one or more of
these circumstances weighs greatly in favor of dismissing the enhancement,
unless the court finds that dismissal of the enhancement would endanger
public safety.” (§ 1385, subd. (c)(2), emphasis added.)
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problems in prison that he would prefer not be presented to the sentencing
court.” (People v. Llamas (1998) 67 Cal.App.4th 35, 40, fn. 7.) This
establishes a potential tactical reason for not requesting a supplemental
report and defeats the claim of ineffective assistance of counsel.
We are also not convinced counsel and the court disregarded the
relevant new mitigating circumstances in California Rules of Court,
rule 4.423. Appellant acknowledges only five of them might apply. They are
psychological trauma, mental illness, defendant under 26 years of age,
multiple enhancements alleged in a single case, and discriminatory racial
impact from an enhancement. (Cal. Rules of Court, rule 4.423(b)(3), (b)(4),
(b)(6), (b)(11) & (b)(12).)
We first note that these five circumstances are deemed considered
because the record does not affirmatively reflect otherwise. (Cal. Rules of
Court, rule 4.409.)
Further, in arguing for a lower sentence, appellant’s counsel relied on
appellant’s psychological deterioration from concussions, his mental illness as
documented by his mother and the two reports from clinical psychologists
used to determine appellant’s competency, his substance abuse, and his
youth. Appellant’s counsel also argued all three enhancements were
discretionary and sought dismissal of the two gun enhancements. The court
agreed appellant’s mental health was mitigating, resulting in the low term
for count 1. The court declined to dismiss the gun enhancements, finding the
use of a gun on two separate occasions was dangerous and traumatized the
victims, but stayed imposition of the bail enhancement. The record therefore
reflects that psychological trauma, mental illness, appellant’s age under 26,
and the potential for multiple enhancements were addressed.
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As for the remaining circumstance, discriminatory racial impact from
an enhancement, appellant asserts that it “could very well apply” because he
is African American. Without citation, he refers to a comment from a senator
regarding Senate Bill No. 815 that African Americans have been
disproportionately targeted with enhancements. However, appellant offers
no explanation or evidence of how his gun enhancements resulted in a more
severe sentence than that imposed on similarly situated individuals of a
different race. He has therefore not shown this circumstance applies,
demonstrating counsel did not need to address it at sentencing.
Consequently, appellant has not shown error regarding the probation
report or the latest amendment to California Rules of Court, rule 4.423.
III. DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
DATO, J.
DO, J.
5 Senate Bill No. 81 amended section 1385 to specify mitigating
circumstances courts should consider when deciding whether to strike
enhancements in the interest of justice. (Stats. 2021, ch. 721, § 1.)
7