People v. Owney CA5

Filed 1/13/21 P. v. Owney CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079799
Plaintiff and Respondent,
(Super. Ct. No. BF172619A)
v.
DARRELL MONTE OWNEY, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshw,
Judge.
Andrea Keith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Barton E. Bowers, Jamie A.
Scheidegger and William K. Kim, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
Defendant Darrell Monte Owney stands convicted of robbery. On appeal, he
contends he was eligible for the mental health diversion program and therefore (1) the
trial court abused its discretion in denying his request for a new attorney who would
assist him to that end, and (2) defense counsel was ineffective in failing to seek mental
health diversion. Additionally, defendant contends his one-year prior prison term
enhancement should be stricken pursuant to Penal Code section 667.5, subdivision (b),1
as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). The
People agree with all three contentions. We conditionally reverse the judgment, direct
the trial court to strike the prior prison term enhancement, and remand to the trial court
for further proceedings.
PROCEDURAL SUMMARY
On July 10, 2018, the Kern County District Attorney filed an information charging
defendant with robbery (§§ 211, 212.5, subd. (c); count 1), and petty theft with a prior
theft conviction (§ 666, subd. (a); count 2). The information further alleged that
defendant had suffered a prior felony “strike” conviction within the meaning of the
“Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), which also qualified
as a prior serious felony conviction (§ 667, subd. (a)), and had served seven prior prison
terms (§ 667.5, subd. (b)).
On July 12, 2019, the jury found defendant guilty on count 1. The jury reached no
verdict on count 2, and the trial court later dismissed that count. On July 16, 2019, in a
bifurcated hearing, the trial court found true that defendant had suffered a prior strike
conviction and a prior serious felony conviction and had served five prior prison terms.
The prior prison terms found true were served for convictions of robbery (§ 212.5);
unauthorized acquisition, possession, or sale of food benefits (Welf. & Inst. Code,
§ 10980, subd. (g)); failure of a sex offender to inform a law enforcement agency of a
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
change in residential address (§ 290.013, subd. (a)); possession of a firearm by a felon
(former § 12021, subd. (a), now § 29800, subd. (a)(1)); and possession of a controlled
substance in prison (§ 4573.6, subd. (a)).
On August 13, 2019, the trial court sentenced defendant to 12 years in prison as
follows: on count 1, six years (the middle term of three years doubled due to the prior
strike), plus a five-year prior serious felony enhancement and a one-year prior prison
term enhancement.2
On August 13, 2019, defendant filed a notice of appeal.
FACTUAL SUMMARY
On June 12, 2018, at about 9:30 a.m., defendant and a woman were observed in a
grocery store in Kern County. They walked with a cart containing alcohol bottles past
the cash registers and exited the grocery store. A store clerk approached defendant and
the woman and asked if they had a receipt. Defendant said, “ ‘If you know what’s good
for you, you’ll back off.’ ” Defendant then said, “ ‘It’s not you worth risking your life.’ ”
Defendant and the woman then walked to a vehicle and loaded the alcohol in the trunk.
Defendant was unable to start the car and walked to a fast food restaurant, roughly
400 feet from the grocery store.
On the same morning, Bakersfield police officers arrested defendant at the fast
food restaurant.
DISCUSSION
A. Mental Health Diversion
Defendant contends that he should have been considered for mental health
diversion. Because defense counsel did not assist him to that end, defendant argues that
(1) the trial court erred in failing to grant his request for new counsel pursuant to People
v. Marsden (1970) 2 Cal.2d 118, and (2) his defense counsel provided ineffective
2 The trial court struck the other prior prison term enhancements.
3.
assistance of counsel. The People agree, as do we, that defendant may be eligible for
mental health diversion and the matter should be remanded for the trial court to make that
determination in the first instance.
1. Additional Background
On June 20, 2019, the trial court held a hearing on defendant’s request for new
counsel. Defendant complained, among other things, that he had asked defense counsel
to seek his placement in the mental health diversion program. Defense counsel
responded that he had defendant assessed by a psychologist, who diagnosed him with
schizophrenia and bipolar disorder, found that his conditions did contribute to the
charged offense, and found “that psychiatrically he would be eligible for mental health
diversion.” However, defense counsel commented that defendant had a 1996 conviction
for sodomy while confined in a state prison (§ 286, subd. (e)) that rendered him ineligible
for mental health diversion. The trial court denied defendant’s request for new counsel,
in part because defendant “would not be eligible for the [mental health] diversion”
program. The court explained that it had recently resolved a similar issue in a different
case where the defendant was automatically ineligible for a diversion program because of
a prior conviction.
2. Standard of Review
“When a defendant seeks substitution of appointed counsel pursuant to People v.
Marsden, supra, 2 Cal.3d 118, ‘the trial court must permit the defendant to explain the
basis of his contention and to relate specific instances of inadequate performance. A
defendant is entitled to relief if the record clearly shows that the appointed counsel is not
providing adequate representation or that defendant and counsel have become embroiled
in such an irreconcilable conflict that ineffective representation is likely to result.’ ”
(People v. Taylor (2010) 48 Cal.4th 574, 599.)
Denial of a request for substitution of counsel is reviewed for abuse of discretion.
(People v. Taylor, supra, 48 Cal. 4th at p. 599.) “Denial is not an abuse of discretion
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‘unless the defendant has shown that a failure to replace counsel would substantially
impair the defendant’s right to assistance of counsel.’ ” (Ibid.) Marsden error is only
harmless if a reviewing court can “ ‘conclude beyond a reasonable doubt that th[e] denial
of the effective assistance of counsel did not contribute to the conviction.’ ” (People v.
Sanchez (2011) 53 Cal.4th 80, 92; accord, People v. Loya (2016) 1 Cal.App.5th 932, 945
[“The standard for prejudice regarding a denied Marsden motion is under Chapman v.
California (1967) 386 U.S. 18.”].)
3. Analysis
In 2018, the Legislature enacted section 1001.36, making defendants charged with
“a misdemeanor or felony” and who suffer from a qualifying mental health disorder
generally eligible for pretrial mental health diversion. (§ 1001.36.) (Stats. 2018, ch. 34,
§ 24.) Section 1001.36 allows a trial court to grant pretrial diversion to a defendant
suffering from a qualifying mental disorder if six criteria are satisfied. (§ 1001.36,
subd. (a).)
First, the defendant must have a qualifying mental disorder. Schizophrenia and
bipolar disorder—both of which defendant was diagnosed with—are qualifying mental
disorders. (§ 1001.36, subd. (b)(1)(A).)
Second, the court must be satisfied that the “defendant’s mental disorder was a
significant factor in the commission of the charged offense.” (§ 1001.36,
subd. (b)(1)(B).) In reaching its conclusion, the court may consider relevant evidence,
including statements by the defendant’s mental health provider. (§ 1001.36,
subd. (b)(1)(B).) Here, defendant’s psychologist’s report indicates she would have
opined that he “committed [the] crime because of his mental disorder.”
Third, the mental health expert must opine that the symptoms of the mental
disorder that motivated the criminal behavior would respond to mental health treatment.
(§ 1001.36, subd. (b)(1)(C).) Here, based on the psychologist’s report, she would have
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opined that defendant’s “mental disorder motivated his criminal behavior and he is
amenable and likely to respond and benefit from mental health treatment.”
Fourth and fifth, the defendant must consent to the diversion program (§ 1001.36,
subd. (b)(1)(D)) and agree to comply with treatment as a condition of diversion
(§ 1001.36, subd. (b)(1)(E)). Here, defendant requested the diversion program during the
Marsden hearing which suggests that he would consent to treatment.
Sixth, “[t]he court [must be] satisfied that the defendant will not pose an
unreasonable risk of danger to public safety, as defined in [s]ection 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)(F).) Section 1170.18 defines “ ‘unreasonable risk
of danger to public safety’ ” as the likelihood a defendant will commit a new violent
felony within the meaning of section 667, subdivision (e)(2)(C)(iv). (§ 1170.18,
subd. (c).) Sodomy, if it was accomplished as a sexually violent offense—accomplished
by force, violence, duress, menace, or fear—is one such offense. (§ 667,
subd. (e)(2)(C)(iv); Welf. & Inst. Code, § 6600, subd. (b).) The record does not make
clear that defendant’s section 286, subdivision (e) conviction was a sexually violent
offense. Regardless, a prior conviction for a violent felony does not categorically
disqualify defendant from diversion program eligibility. As the parties agree, the sixth
inquiry for diversion program eligibility is whether he currently poses an unreasonable
risk to public safety because he is likely to commit a new listed felony. (See People v.
Buford (2016) 4 Cal.App.5th 886, 913–914 [addressing whether a defendant “would pose
an unreasonable risk of danger to public safety” for purposes of section 1170.126,
subdivision (f)].) The inquiry is “an individualized one, and cannot be undertaken simply
by examining the circumstances of the crime in isolation, without consideration of the
passage of time or the attendant changes in the inmate’s psychological or mental
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attitude.” (Buford, at p. 914.) Contrary to defense counsel’s assertion, defendant was not
categorically ineligible for the diversion program.
As the record shows and the People concede, because defendant was not
categorically ineligible for diversion, his right to assistance of counsel was substantially
impaired by defense counsel’s refusal to seek admission into the diversion program on
his behalf. The trial court therefore abused its discretion in denying defendant’s request
to substitute counsel. Further, we cannot conclude that the error was harmless beyond a
reasonable doubt. For those reasons, we conditionally reverse the judgment.
B. Senate Bill 136
Defendant argues his prior prison term enhancement must be stricken based on the
retroactive application of Senate Bill 136. The People agree, as do we.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b)
to limit application of prior prison term enhancements to only prior prison terms that
were served for sexually violent offenses as defined by Welfare and Institutions Code
section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That
amendment applies retroactively to all cases not yet final on Senate Bill 136’s effective
date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341–342, citing In re Estrada (1965)
63 Cal.2d 740, 742.)
Here, the trial court imposed one 1-year section 667.5, subdivision (b) prior prison
term enhancement. Although the trial court did not specify which of the five prior prison
terms the enhancement was based upon, the trial court found true that defendant served
terms only for convictions of robbery (§ 212.5); unauthorized acquisition, possession, or
sale of food benefits (Welf. & Inst. Code, § 10980, subd. (g)); failure of a sex offender to
inform a law enforcement agency of a change in residential address (§ 290.013,
subd. (a)); possession of a firearm by a felon (former § 12021, subd. (a), now § 29800,
subd. (a)(1)); and possession of a controlled substance in prison (§ 4573.6, subd. (a)),
none of which is a sexually violent offense as defined in Welfare and Institutions Code
7.
section 6600, subdivision (b). On January 1, 2020, defendant’s case was not yet final.
Therefore, as the parties agree, defendant is entitled to the ameliorative benefit of Senate
Bill 136’s amendment to section 667.5, subdivision (b).
Where an appellate court strikes (or orders stricken) a portion of a sentence,
remand for “ ‘a full resentencing as to all counts is [generally] appropriate, so the trial
court can exercise its sentencing discretion in light of the changed circumstances.’ ”
(People v. Buycks (2018) 5 Cal.5th 857, 893.) However, remand is unnecessary where
the trial court has imposed the maximum possible sentence. (People v. Lopez, supra, 42
Cal.App.5th at p. 342.)
Here, defendant was not sentenced to the maximum possible sentence so there is
no reason to deviate from the general rule if the judgment is reinstated. We therefore
direct the trial court to strike defendant’s prior prison term enhancement and resentence
defendant in light of the changed circumstances, on condition that defendant is not
granted mental health diversion, or is granted diversion but does not successfully
complete the program.
DISPOSITION
The judgment is conditionally reversed. The matter is remanded to the trial court
with directions to appoint new counsel and hold a diversion eligibility hearing under
section 1001.36. If the court finds defendant eligible under that statute, it may grant
diversion. If defendant then satisfactorily performs in diversion, the court shall dismiss
the charges. (§ 1001.36, subd. (e).) However, if the court does not grant diversion, or it
grants diversion, but defendant fails to satisfactorily complete it (§ 1001.36, subd. (d)),
then the court shall reinstate the judgment, strike the prior prison term enhancement,
resentence defendant in light of the changed circumstances, and forward a certified copy
of the resulting amended abstract of judgment to the appropriate entities.
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