People v. Stinson CA4/1

Filed 2/10/22 P. v. Stinson CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079052
Plaintiff and Respondent,
v. (Super. Ct. Nos.
C1652157, C1506969)
AXEL GARY STINSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Santa Clara County,
Hector E. Ramon, Judge. Conditionally reversed and remanded with
directions.
Suzanne M. Morris, under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters and
Jeffrey M. Laurence, Assistant Attorneys General, Eric D. Share and Ashley
Harlen, Deputy Attorneys General, for Plaintiff and Respondent.
In Santa Clara County Superior Court case No. C1652157, a jury
convicted Axel Gary Stinson of one felony count of inflicting corporal injury
on his partner and mother of his child. (Pen. Code,1 § 273.5, subd. (a).) In a
bifurcated trial, the trial court found true allegations that he suffered a prior
conviction for robbery (§ 211), a serious and violent felony as defined in
sections 667.5, subdivision (c) and 1192.7, subdivision (c). At the time of the
incident in case No. C1652157, Stinson was on probation in Santa Clara
County case No. C1506969 for convictions of felony robbery (§§ 211/212.5)
and misdemeanor criminal threats (§ 422.2). Two months before Stinson’s
sentencing hearing, the Legislature enacted sections 1001.35 and 1001.36,
putting in place a discretionary pretrial diversion program for individuals
with qualifying mental disorders. (Stats. 2018, ch. 34, § 24; see People v.
Frahs (2020) 9 Cal.5th 618, 625 (Frahs II).) At Stinson’s sentencing, the
court denied his motion to strike his prior conviction (People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 (Romero); § 1385) and imposed in case
No. C1652157 the low term of two years on the domestic violence conviction,
doubled for the prior strike, for a total term of four years. The court revoked
Stinson’s probation in case No. C1506969 and imposed the midterm of four
years on the robbery conviction to be served concurrently with the four-year
term imposed in case No. C1652157.
On appeal, Stinson contends this court should apply section 1001.36
retroactively and conditionally remand case No. 16521557 so the trial court
can assess whether he is eligible for pretrial mental health diversion. He
1 Undesignated statutory references are to the Penal Code.
2
contends that if we determine he forfeited the issue, then his counsel was
prejudicially ineffective by failing to request an eligibility assessment before
his sentencing hearing. Stinson further contends the court violated his
constitutional rights to due process and the prohibition against excessive
fines by imposing and executing fines and assessments without finding he
had the ability to pay them. He likewise contends if we find he forfeited that
claim, then his counsel was prejudicially ineffective for failing to object to the
fines and assessments. As we explain, it is appropriate to conditionally
reverse and remand the case with directions for the court to hold a hearing
under section 1001.36 to determine whether to grant Stinson mental health
diversion. (Frahs II, supra, 9 Cal.5th at p. 640.) If the court determines
Stinson is ineligible for diversion, or if he is granted diversion but fails to
complete his treatment program, the court shall reinstate the judgment. On
remand, Stinson will have an opportunity to demonstrate whether he has an
ability to pay the court-imposed fines and assessments.
FACTUAL AND PROCEDURAL BACKGROUND
Stinson does not challenge the sufficiency of the evidence of his
convictions. Thus, we briefly summarize the underlying facts of his offenses.
In November 2017, the victim, C.H., appeared at her friend and neighbor’s
door bleeding from a cut above her eyebrow and told the neighbor that
Stinson—C.H.’s boyfriend and the father of their young child—had “beat the
shit” out of her. C.H. later called 911 and told the operator and later a
responding police officer that Stinson had repeatedly struck her in the head
and face. An emergency room doctor diagnosed C.H. with a concussion.
Following his December 2017 conviction for felony domestic violence
stemming from the incident, Stinson, who was on probation in case No.
1506969 for felony robbery and misdemeanor criminal threats, moved in May
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2018 to strike his prior felony conviction. Stinson was 25 years old at the
time. In his motion, he pointed to the probation officer’s report in which the
victim reported that on the day of the incident, Stinson had gone on a
drinking binge after losing custody of his son from another relationship, and
that Stinson’s “main problem” was his “mental health issues.” Stinson
argued that at the time of the offense, he “was not medication[-]compliant” as
“he was unable to fill the medication he was prescribed for his mental
illnesses.” “As such, [he] was suffering from deep depression and turned to
drugs and alcohol to self-medicate.” Stinson also argued he had experienced
childhood trauma and suffered from mental illness, having been placed in
foster care as an infant and having suffered physical abuse from his biological
mother and her parents, as well as sexual abuse from two brothers. He
argued he began engaging in self-harm after his foster father died and his
older brother was murdered. Stinson argued that though he had attended
community college for a time, he dropped out in 2014 and became homeless
after breaking up with his girlfriend, and again turned to drugs and alcohol
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as he was unable to refill his prescribed psychiatric medications. Stinson’s
motion described him as having “an extensive history of psychiatric illness.”2
Stinson reported to the probation officer that he had been diagnosed in
the past with ADHD, bipolar II disorder, schizophrenia, and borderline
2 Stinson wrote in his Romero motion: “In 1999, when Mr. Stinson was
only six (6) years old, he received his first psychiatric treatment. Mr. Stinson
was diagnosed with ADHD, depression, and possible bipolar and post-
traumatic stress disorder. As a result of his diagnoses, Mr. Stinson was
found eligible for placement in special education due to hyperactivity,
aggression, conduct problems, depression, atypicality, and attention [sic]. In
2001, at age eight (8), Mr. Stinson reported that he had been experiencing
auditory hallucinations as far back as he could remember. Mr. Stinson was
diagnosed with psychotic disorder and schizoaffective disorder and prescribed
anti-psychotic medication. In 2005, Mr. [Stinson] continued to meet the
qualifications for special education, receiving assistance in the categories of
specific learning disability, serious emotional disturbance, and other health
impaired. [¶] When Mr. Stinson turned 18, he was taken off juvenile
probation supervision, thereby losing his access to resources and his
prescribed medications. While Mr. Stinson engaged in drinking as a minor,
his relationship with alcohol turned abusive after Mr. Stinson turned 18. Mr.
Stinson stated he began drinking every day, and by age 23, his drinking
caused him to lose visitation rights with his son. Mr. Stinson first turned to
marijuana at age 15, but his relationship with marijuana also turned abusive
after he turned 18. When Mr. Stinson first turned to marijuana, he was
using to alleviate his mental health symptoms. As the years progressed,
however, Mr. Stinson began to engage in heavy narcotic and alcohol abuse,
including experimenting with methamphetamine and ecstasy. Due to his
psychiatric condition, as well as the childhood trauma he endured, Mr.
Stinson attempted suicide three (3) times. At age 17, Mr. Stinson attempted
to hang himself while at a group home. At age 18, he again attempted
suicide while suffering from homelessness. As recently as January 25, 2016,
Mr. Stinson attempted to hang himself for a third time while at the main jail.
Mr. Stinson’s psychiatric history has also led to several [Welfare and
Institutions Code section] 5150 holds at Valley Medical Center. In addition
to his suicide attempts, Mr. Stinson also engaged in self-harm. Mr. Stinson
indicated that he ‘cuts’ when he feels overwhelmed, sad, or guilty. Mr.
Stinson described the sensation as a ‘reset button’ when things feel out of
control.”
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personality disorder. He reported being hospitalized as a juvenile,
undergoing a three-day hold in January 2015, and twice attempting suicide
by hanging, the latest of which occurred while he was in custody in November
2016. He reported attending a foster youth mental health program from 2011
to 2015. The probation officer contacted a county mental health
representative, who reported Stinson’s psychological diagnosis as
“unspecified [m]ood disorder and cannabis abuse.” She reported he had been
prescribed Trazodone and Trileptal, and was compliant with his medications.
The probation officer acknowledged Stinson had “struggled with mental
health and substance abuse issues . . . .”
During arguments on Stinson’s Romero motion, Stinson’s counsel
explained that Stinson did not seek to use his drug and alcohol abuse in
conjunction with his mental health issues as an excuse, but to explain what
brought him before the court. His counsel raised the court’s drug treatment
and mental health treatment programs and pointed out Stinson was
diagnosed with mental health issues at age six, stating, “If people in Mr.
Stinson’s position with his background and his mental health issues were
meant to be successful on regular adult probation then that treatment court
would not exist. That specialized attention would not exist. It exists for
people like Mr. Stinson.” Counsel stated that Stinson “remained
unmedicated for a majority if not all of the time leading up to the date of this
offense.” She asked the court to consider putting Stinson on probation in the
drug and mental health treatment courts in part so he could “become
medication-complaint, . . . [and] have access to medication and people who
will help him get that medication . . . .” The trial court eventually denied
Stinson’s request to strike his prior conviction.
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Stinson was sentenced on August 30, 2018. The next day he filed this
appeal.
DISCUSSION
I. Request for Mental Health Diversion Under Section 1001.36
Effective June 27, 2018, after Stinson’s conviction and about two
months before his sentencing hearing, the Legislature enacted sections
1001.35 and 1001.36, creating a pretrial mental health diversion program.
(§§ 1001.35, 1001.36, added by Stats. 2018, ch. 34, § 24; see Frahs II, supra, 9
Cal.5th at p. 626.) Those sections authorize pretrial diversion for defendants
suffering from a diagnosed and qualifying “mental disorder [that] was a
significant factor in the commission of the charged offense” (§ 1001.36, subd.
(b)(1)(B)), provided the defendant meets “all of the requirements” specified in
that subdivision. (Id., subd. (b)(1)(A)-(F).)3
Qualifying mental disorders can be schizophrenia, bipolar disorder, and
posttraumatic stress disorder, but not, for example, antisocial personality
disorder, borderline personality disorder or pedophilia. (§ 1001.36, subds. (a),
(b)(1)(A); Negron v. Superior Court (2021) 70 Cal.App.5th 1007, 1014.)
“Evidence of the defendant’s mental disorder shall be provided by the defense
and shall include a recent diagnosis by a qualified mental health expert. In
opining that a defendant suffers from a qualifying disorder, the qualified
mental health expert may rely on an examination of the defendant, the
3 “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.’ ” (Frahs II, supra, 9
Cal.5th at p. 626.)
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defendant’s medical records, arrest reports, or any other relevant evidence.”
(§ 1001.36, subd. (b)(1)(A).)
“ ‘[P]retrial diversion’ means the postponement of prosecution, either
temporarily or permanently, at any point in the judicial process from the
point at which the accused is charged until adjudication, to allow the
defendant to undergo mental health treatment.” (§ 1001.36, subd. (c).) The
eligibility criteria are:
“(A) The court is satisfied that the defendant suffers from a [qualifying]
mental disorder . . . .
“(B) The court is satisfied that the defendant’s mental disorder was a
significant factor in the commission of the charged offense . . . .
“(C) In 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.
“(D) The defendant consents to diversion and waives the defendant’s
right to a speedy trial . . . .
“(E) The defendant agrees to comply with treatment as a condition of
diversion.
“(F) The court is satisfied that the defendant will not pose an
unreasonable risk of danger to public safety, as defined in Section 1170.18, if
treated in the community. The court may consider the opinions of the district
attorney, the defense, or a qualified mental health expert, and may consider
the defendant’s violence and criminal history, the current charged offense,
and any other factors that the court deems appropriate.” (§ 1001.36, subd.
(b)(1)(A-F).)
Under section 1001.36, the court may consider the defendant’s ability
to establish eligibility for mental health diversion “[a]t any stage of the
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proceedings.” (§ 1001.36, subd. (b)(3).) Mental health diversion is available
“at any point in the judicial process from the point at which the accused is
charged until adjudication . . . .” (§ 1001.36, subd. (c).) If a defendant
qualifies for diversion and performs satisfactorily in diversion, the court
dismisses the charges against the defendant that were the subject of the
criminal proceedings at the time of the initial diversion. (§ 1001.36, subd.
(e).) “ ‘[T]he arrest upon which the diversion was based shall be deemed
never to have occurred.’ ” (Frahs II, supra, 9 Cal.5th at p. 627.)
Stinson asks this court to conditionally remand his matter so the lower
court can assess whether he is eligible for mental health diversion under this
scheme. Though Stinson’s counsel did not seek diversion at his sentencing
hearing, Stinson contends his claim is cognizable and not forfeited because
the relevant law changed so unforeseeably one month after his sentencing
hearing—when this court in People v. Frahs (2018) 27 Cal.App.5th 784(Frahs I) applied the law retroactively—that it was unreasonable to expect
his trial counsel to have anticipated its application to a case where a
defendant exercised his or her right to a jury trial or was convicted. He
argues that to the extent we find the claim forfeited, his counsel was
prejudicially ineffective for failing to ask for mental health diversion.
The People acknowledge that Stinson may have one or more qualifying
mental health disorders. They also acknowledge that the California Supreme
Court in Frahs II, supra, 9 Cal.5th 618 held that a defendant whose case is
not final may be entitled to a limited conditional remand as Stinson requests,
but they argue Stinson forfeited the claim by failing to request it below at his
sentencing hearing. According to the People, this court’s opinion in Frahs I
on retroactivity did not change the law, and it was not an interpretation that
was contrary to apparently prevalent contemporaneous interpretations (see
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People v. Black (2007) 41 Cal.4th 799, overruled on other grounds by
Cunningham v. California (2007) 549 U.S. 270) that would permit this court
to conclude it would have been unforeseeable to his counsel. They also argue
Stinson’s counsel did not act unreasonably because there is no evidence
Stinson’s mental health disorders “substantially contributed” to his criminal
conduct. (§ 1001.36, subd. (b)(1)(B).)
A defendant may forfeit a right in a criminal case by failing to timely
assert the right before the tribunal with jurisdiction to determine it. (People
v. Trujillo (2015) 60 Cal.4th 850, 856.) “However, neither forfeiture nor
application of the forfeiture rule is automatic. [Citation.] Competing
concerns may cause an appellate court to conclude that an objection has not
been forfeited. [Citations.] Similar concerns may also cause an appellate
court to refrain from applying the forfeiture bar.” (People v. McCullough
(2013) 56 Cal.4th 589, 593.) We decline to find a forfeiture under these
circumstances, where section 1001.36 was enacted two months before
Stinson’s sentencing hearing, and this court had not yet decided Frahs I,
supra, 27 Cal.App.5th 784. Nothing in the record indicates the parties or
court were aware of the newly enacted statute, or that Stinson would be
entitled to seek pretrial diversion under it. The statute’s plain language is
ambiguous as to whether a defendant who has already been convicted but not
yet sentenced is entitled to seek diversion under its provisions. Courts
generally decline to apply the forfeiture rule to a right derived from recent,
unanticipated changes to the law. (See People v. Edwards (2013) 57 Cal.4th
658, 704-705; People v. Black, supra, 41 Cal.4th at p. 810; People v. Turner
(1990) 50 Cal.3d 668, 703.)
Further, Stinson’s counsel during his Romero motion asked the court
for a disposition that would take into account Stinson’s need for mental
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health treatment. It is difficult to conclude Stinson’s counsel relinquished
the right to seek the relief provided by the statutes. Counsel’s failure to raise
section 1001.36 is excusable, and thus we decline to apply the rule of
forfeiture.4
We further conclude Stinson is entitled to request a mental health
diversion hearing with respect to both cases. In case No. C1506969, when
Stinson was put on probation, imposition of his sentence was suspended.
When a trial court suspends imposition of sentence, it does not pronounce a
judgment, and a defendant is placed on probation without a judgment
pending against him or her. (People v. Chavez (2018) 4 Cal.5th 771, 781.)
The probation order is considered to be a final judgment only for the “limited
purpose of taking an appeal therefrom.” (People v. Superior Court (Giron)
(1974) 11 Cal.3d 793, 796.) The judgment in that case was not considered
final for purposes of Stinson’s ability to take advantage of ameliorative
statutory amendments. (See People v. McKenzie (2020) 9 Cal.5th 40, 45-46
[convicted defendant placed on probation after imposition of sentence is
suspended who does not timely appeal from the order granting probation,
may take advantage of ameliorative statutory amendments that take effect
during a later appeal from a judgment revoking probation and imposing
sentence, because “defendant’s ‘ “criminal proceeding . . . ha[d] not yet
reached final disposition in the highest court authorized to review it” ’ ”].)
4 Even if we held Stinson technically forfeited this claim by not
requesting mental health diversion in the trial court, we would elect to
consider it on the merits. (In re Sheena K. (2007) 40 Cal.4th 875, 887 [an
appellate court may review a forfeited claim]; People v. Williams (1998) 17
Cal.4th 148, 161, fn. 6 [“[a]n appellate court is generally not prohibited from
reaching a question that has not been preserved for review by a party”];
People v. Crittenden (1994) 9 Cal.4th 83, 146 [reviewing court may exercise
discretion to consider forfeited claims to forestall ineffective assistance of
counsel arguments]; People v. Vega (2015) 236 Cal.App.4th 484, 495 [same].)
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Neither of Stinson’s criminal proceedings had reached finality when
section 1001.36 was enacted. Thus, he may seek retroactive application of its
ameliorative provisions. Frahs II held “a conditional limited remand for the
trial court to conduct a mental health diversion eligibility hearing is
warranted when . . . the record affirmatively discloses that the defendant
appears to meet at least the first threshold eligibility requirement for mental
health diversion—the defendant suffers from a qualifying mental disorder.”
(Frahs II, supra, 9 Cal.5th at p. 640.) The record shows Stinson—who
reported diagnoses, among others, of bipolar II disorder and schizophrenia—
appears to meet this requirement, and the People do not argue otherwise.
While the People argue the record contains no evidence showing
whether the “disorder was a significant factor in the commission of the
charged offense” (§ 1001.36, subd. (b)(1)(B)), evidence of Stinson’s mental
health disorders is sufficient to order that his case be conditionally reversed
and remanded. On remand, Stinson will have the burden to establish
eligibility under all applicable provisions of section 1001.36. If the lower
court finds the statutory prerequisites are met, it may grant relief as
authorized by the statute. (§ 1001.36, subd. (e).) If it finds Stinson is
ineligible or unsuitable for diversion, his conditionally reversed conviction
and sentence shall be reinstated. (Frahs, supra, 9 Cal.5th at pp. 640-641.)
II. Imposition of Fines and Assessments
At sentencing, the trial court ordered Stinson to pay a $300 restitution
fine under section 1202.4, subdivision (b)(2), and imposed but suspended an
additional $300 restitution fine under section 1202.45. It ordered Stinson to
pay a $40 court security fee (§ 1465.8), a $30 criminal conviction assessment
(Gov. Code, § 70373), and a $129.75 criminal justice administration fee (Gov.
Code, § 29550.1). Stinson now contends the court violated his federal and
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state constitutional rights by imposing the fines and assessments without
first determining, under People v. Dueñas (2019) 30 Cal.App.5th 1157, that
he had the ability to pay them.
In light of our conclusion that Stinson is entitled to a mental health
diversion hearing under section 1001.36, we need not decide the issue.
Stinson may, if he chooses, on remand raise his constitutional challenge to
the fines and assessments imposed by the court. Stinson may also address
whether under the plain language of Government Code section 6111,
subdivision (a), the unpaid balance of the criminal justice administration fee
as of July 2, 2021, is unenforceable and uncollectible, and whether the
portion of the judgment imposing such costs must be vacated. (Gov. Code,
§ 6111, subd. (a);5 see People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 950-
954.)
DISPOSITION
The judgment is conditionally reversed and the matter remanded for
the trial court to conduct a mental health diversion eligibility hearing
pursuant to section 1001.36 and Frahs II, supra, 9 Cal.5th 618, and also to
permit Stinson to challenge imposition of and his ability to pay the court-
imposed fines and assessments. If the court finds Stinson meets the
eligibility requirements of section 1001.36, the court may grant relief as
provided in the statute.
5 Assembly Bill No. 1869 added Government Code section 6111, which
provides that “the unpaid balance of any court-imposed costs pursuant to
[Government Code] Section 27712, subdivision (c) or (f) of [Government Code]
Section 29550, and [Government Code] Sections 29550.1, 29550.2, and
29550.3, as those sections read on June 30, 2021, is unenforceable and
uncollectible and any portion of a judgment imposing those costs shall be
vacated.” (Gov. Code, § 6111, subd. (a).)
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In the event Stinson is found eligible for mental health diversion and
successfully completes a diversion program, the court shall dismiss the
charges against him. If the court finds he does not meet the requirements of
section 1001.36, or if he fails to successfully complete the diversion program,
then his conviction and sentence shall be reinstated, subject to any decision
under Government Code section 6111. We express no views about whether
Stinson will be able to show eligibility on remand or whether the trial court
should exercise its discretion to grant diversion if it finds him eligible.
O’ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
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