People v. Bartos CA2/3

Filed 12/23/20 P. v. Bartos CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B294603
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. SA097919
v.
THOMAS EUGENE BARTOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark E. Windham, Judge. Affirmed
as modified.
Tasha G. Timbadia, Pamela J. Voich and Gordon B. 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, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Thomas Eugene Bartos of driving under
the influence of alcohol (DUI) within 10 years of a felony DUI,
and found true he refused to take a chemical test. Bartos
appeals, and we affirm the judgment as modified to strike
the two one-year prior prison term enhancements.
BACKGROUND
An information charged Bartos with one count of DUI
within 10 years of a felony DUI. (Veh. Code, §§ 23152, subd. (a),
23550.5, subd. (a).) The information alleged that during the
commission of the DUI, Bartos refused to take a chemical test
(Veh. Code, § 23578), and he had four prior convictions with
prison terms. All four prior convictions were felony DUIs.
At trial, a witness testified he was driving to the grocery
store on April 10, 2018, when he noticed a white Kia Spectra
driving erratically. The driver was shirtless and wearing a
baseball cap. In moving traffic, he thrust his entire torso in
and out of his driver’s side window while talking and yelling at
no one. The Spectra moved much more slowly than the traffic
and under the speed limit, swerving to the lane marker and
jerking back two to four times.
The witness’s wife called 911 from the passenger seat,
told the operator the driver seemed to be under the influence,
described the erratic driving, and gave the make and model
of the car. The jury heard a recording of the 911 call.
Los Angeles Police Department (LAPD) Officer Carlos
Martin was on duty in the area, and heard a broadcast of reckless
driving of a white Kia Spectra by a shirtless man wearing a
baseball cap. He saw the Spectra crossing all three lanes of
traffic at 15 to 20 miles per hour, nearly hitting the center
divider. The car made a turn and accelerated to 50 to 55 miles
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per hour in a 35 miles-per-hour zone. Officer Martin followed
the Spectra, turned on his lights, and chirped his siren, to stop
the car for speeding and making a sudden turn. The driver
reached across to the passenger seat, dipping down, and after
about a quarter mile pulled over.
Officer Martin approached the open driver’s side window
and smelled a strong odor of alcohol coming from the car. The
driver was Bartos. His eyes were watery, his face was flushed,
his speech was slurred, and his breath smelled of alcohol. Bartos
complied with Officer Martin’s request to get out of the Spectra.
He was wearing shoes, a baseball cap, and white shorts with
fresh, wet purple stains on them. Bartos’s balance was unsteady.
Officer Martin handcuffed and arrested him.
Bartos told Officer Martin he had not drunk any alcohol,
only iced tea, and claimed to be a Santa Monica police officer
(Officer Martin later checked and confirmed this was untrue).
Officer Martin helped Bartos to the police car and put him in
the back seat. On the front passenger floorboard of the Spectra
was a small trash can holding a nearly empty 16-ounce can of
Grape Four Loko (12 percent alcohol) with a small amount of
purple liquid remaining, and two other empty 16-ounce cans of
Four Loko. The driver’s side seat was wet with a purple stain.
The area was too crowded with pedestrians, cars, and bikes
to do field sobriety tests at the scene. Because Bartos obviously
was drunk, Officer Martin drove him to the police station, and
on the way offered him field sobriety and breathalyzer tests.
Bartos said “he wanted to do everything with his attorney.”
At the station, Officer Martin presented Bartos to the
watch commander, and read him the admonitions describing
the consequences of refusing to provide a blood or breath sample,
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and the requirement of submitting to a chemical test. Bartos
refused testing and said: “I’m refusing this whole detainment.”
He denied he drove the car, saying a family friend had been
driving and got out to go to a club.
Officer Martin placed Bartos in a holding cell. When
Officer Martin commented about the purple stain on his shorts,
Bartos said he just had a beer and spilled that. Bartos urinated
on himself and on the floor in the holding cell.
The jury convicted Bartos of DUI and found true the
allegation he refused to take a chemical test. Bartos admitted
the four prior felony DUI convictions. The trial court struck
two of the priors under Penal Code section 1385, subdivision (c).
The court imposed the upper term of three years, and added
one year each for the two remaining prior convictions under
Penal Code section 667.5, subdivision (b),1 for a total sentence
of five years. The court imposed fines and fees as discussed
below. Bartos filed this timely appeal.
DISCUSSION
1. Bartos has not shown trial counsel was ineffective
Bartos argues his trial counsel was ineffective because
she did not call an expert to testify Bartos was mentally ill,
and she did not request mental health diversion.
To prevail on his claim of ineffective assistance under
either the federal or state Constitutions, Bartos “must show
(1) deficient performance under an objective standard of
professional reasonableness and (2) prejudice under a test of
reasonable probability.” (People v. Mayfield (1993) 5 Cal.4th
142, 175.) We must consider whether the record contains any
1 All subsequent statutory references are to the Penal Code
unless otherwise indicated.
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explanation for counsel’s choices, and we do not second-guess
tactical or strategic decisions. (People v. Mitcham (1992)
1 Cal.4th 1027, 1058-1059.)
On July 10, 2018, defense counsel declared a doubt that
Bartos was competent to stand trial, and the court appointed
a clinical psychologist to prepare a psychiatric evaluation. On
August 10, 2018, the trial court held a section 1368 hearing
and took the report into evidence.
The report, dated August 7, 2018, stated that in an
interview on July 20, 2018, Bartos immediately complained about
his public defender, claimed she looked at him like he was crazy
and was “chummy” with the judge, and there was no concrete
evidence against him (“ ‘[n]o toxicology’ ”). Public defenders were
“ ‘shaky’ ” and his counsel was not on his side, “ ‘railing against
me’ ” at a hearing for substitution of counsel. Bartos ended
the meeting and left the room. The psychologist stated Bartos
had sufficient legal knowledge to participate. The psychologist
had reviewed a 2013 report from Patton State Hospital. The
2013 report (which is not in the appellate record) stated Bartos
“suffered from a fixed delusional belief system that directly
impacted his ability to cooperate with his attorney. His beliefs
at the time of both cases are strikingly similar.” Bartos
“continues to suffer from delusional beliefs that impact his ability
to cooperate with his attorney in a rational manner.” He showed
paranoia and could not cooperate during the interview, and
she did not believe he would be able to work with his attorney.
The report concluded Bartos was not competent to go to trial
and medication might help treat his delusional disorder.
The trial judge noted “[t]his is a very strange situation with
regard to the issue of competency. It is based solely on . . . the
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ability of Mr. Bartos to cooperate with counsel. He’s a very smart
man. He understands the nature of the proceedings against him.
He understands how the system works. But the issue is whether
or not he can cooperate with counsel.” Given the expert’s opinion
that Bartos likely suffered from a delusional disorder making
him unable to cooperate, the court found him incompetent, and
ordered him to Patton State Hospital for forced medication.
On September 28, 2018, while Bartos waited for placement
at Patton, the Office of Diversion and Reentry identified him as
a person in custody who was ordered to state hospital placement
but became competent while waiting, under Welfare and
Institutions Code section 1370, subdivision (a)(1)(G). In the
attached evaluation, a psychologist stated he interviewed Bartos
in jail on September 27, 2018 and had reviewed the August 7,
2018 report. Bartos was not receiving mental health treatment
in jail and had been classified as having no current impairment.
Bartos reported no history of mental illness, showed no psychotic
symptoms, and appeared stable. He identified his charge,
explained why it was a felony, showed insight into the
circumstances, and was aware of possible sentences. He defined
the roles of court personnel, identified his plea options, and
understood plea bargaining. “Although his plan to proceed
may reflect wishful thinking, his reasoning was rational and
he acknowledged other outcomes were possible. Mr. Bartos
expressed concern regarding a ‘lack of communication’ with his
lawyer, but demonstrated no paranoid or delusional beliefs about
his case or the legal system. While he may disagree with counsel,
he has the ability to assist her in his defense if he chooses
to do so.” Bartos did not present symptoms of mental illness
that compromised his competence to stand trial, and he
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“demonstrated the capacity to rationally assist counsel in his
defense.” At a hearing on October 11, 2018, the court considered
the report and found Bartos competent to stand trial.
Bartos does not argue trial counsel should have sought
another competency evaluation. He argues that given the
competency evaluations and the circumstances of the charged
crime, counsel could have no tactical reason not to call an expert
to testify on Bartos’s mental health history and the effect his
mental health had on his charged DUI. We disagree.
Bartos argues he “clearly exhibited signs of a potentially
significant mental illness,” had been declared incompetent
before trial and diagnosed as “delusional,” and his mental
health records showed prior issues of competency. All this
“demonstrated he had a potentially significant mental illness
that likely inhibited his ability to distinguish between right and
wrong or understand the nature of his actions,” and yet counsel
“neglected to call an expert witness to testify about the potential
effect appellant’s mental condition had on his crime.”
First, Bartos does not argue that counsel was ineffective
in not advising him to plead not guilty and not guilty by reason
of insanity. Such a plea would result in a birfurcated trial: in
the guilt phase, the defendant is conclusively presumed to have
been legally sane at the time of the offense, and if the defendant
is found guilty, in the sanity phase the defendant must prove by
a preponderance of the evidence “ ‘that he or she was incapable
of knowing or understanding the nature and quality of his or
her act and of distinguishing right from wrong at the time of
the commission of the offense.’ ” (People v. McCarrick (2016)
6 Cal.App.5th 227, 246.) Second, Bartos does not identify his
purported mental illness at the time of the offense. A defendant
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may not be found insane solely on the basis of his or her abuse of
intoxicating substances. (Id. at p. 247; § 29.8.) The August 2018
competency report stating that Bartos’s delusions prevented him
from cooperating with counsel was not evidence that he acted
under similar delusions when he drove erratically in April 2018,
when all his behavior was consistent with extreme intoxication.
And Bartos’s belief in August that his counsel could not be
trusted because she was “chummy” with the judge and not
on his side contrasts with the September competency report,
which described him as concerned about a lack of communication
with counsel, but not paranoid or delusional.
Bartos does not identify how any expert testimony would
have resulted in a better outcome. Strong evidence showed he
drove while extremely intoxicated. Given his four prior felony
DUI convictions, it was more than likely he understood the
crime. And any “delusions” about counsel have no bearing on
his refusal to test. Bartos said he wanted to “do everything with
his attorney” and “refus[ed] th[e] whole detainment.” Facing
an uphill climb, defense counsel chose to argue the evidence did
not show intoxication beyond a reasonable doubt because the
jury did not see body or dash camera footage after Officer Martin
pulled Bartos over, and the officer did not fill out a DUI form.
We presume counsel acted within the broad range of
reasonableness and defer to tactical decisions. (People v. Mickel
(2016) 2 Cal.5th 181, 198.) On direct appeal, we reverse only
if affirmative evidence demonstrates counsel had no rational
tactical purpose to act as she did. (Ibid.) The appellate record
contains no such affirmative evidence.2 Nothing tells us what
2 The August and September 2018 competency reports were
not included in the initial appellate record. After respondent’s
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an expert witness would or would not have said or whether the
effect would have helped or hurt Bartos’s defense, and he must
“do more than surmise that defense experts might have provided
more favorable testimony.” (People v. Lucas (1995) 12 Cal.4th
415, 448, fn. 5.) Bartos has not shown a competent attorney
would have been required to move for the admission of expert
testimony that Bartos was mentally ill in April 2018.
Even assuming a competent attorney would have done so,
Bartos has failed to meet his burden to show prejudice. We need
not determine whether counsel’s performance was ineffective
if we see no prejudice suffered by the defendant from counsel’s
alleged mistakes. (People v. Lawley (2002) 27 Cal.4th 102, 136.)
On this record, we cannot say Bartos would have been acquitted
of DUI, or found not to have refused to take a chemical test, if
counsel had sought appointment of a mental health expert.
It follows that counsel was not ineffective for failing
to request mental health diversion, as nothing in the record
affirmatively shows Bartos “suffers from a mental disorder
as identified in the most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders.” (§ 1001.36, subd.
(b)(1)(A).) Section 1001.36 went into effect on June 27, 2018,
six months before Bartos’s trial in December 2018. (Stats. 2018,
ch. 34, § 24.) The statute allows the trial court discretion to grant
“pretrial diversion, for the purpose of mental health treatment for
up to two years, if it finds the defendant has a mental disorder
that was a significant factor in the commission of the charged
offense.” (People v. McShane (2019) 36 Cal.App.5th 245, 259.)
brief was filed, we granted the requests of Bartos’s second
and third appellate counsel to supplement the record with the
reports, and counsel elected to submit without filing a reply brief.
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The court must dismiss the criminal charges if the defendant
performs satisfactorily in diversion. (§ 1001.36, subd. (e).) The
statute applies retroactively in cases like Bartos’s, in which the
judgment is not final. (People v. Frahs (2020) 9 Cal.5th 618, 624.)
The threshold requirement for mental health diversion
is that the defendant suffers from a qualifying mental disorder
playing a significant role in the commission of the offense.
(People v. Frahs, supra, 9 Cal.5th at pp. 639-640.) As we explain
above, the appellate record does not demonstrate that Bartos
suffered from such a disorder when he drove the Spectra in April
2018. Counsel could reasonably have concluded there was an
insufficient factual basis to argue Bartos suffered from a mental
disorder qualifying him for diversion, and that the mental
disorder played a significant role in his DUI. As we explained
above, no evidence showed Bartos was delusional at the time
of the offense. And to be eligible for diversion, Bartos also had
to demonstrate the mental disorder motivating the criminal
behavior would respond to mental health treatment, and he
would not “pose an unreasonable risk of danger to public safety”
if treated within the community rather than being incarcerated.
(§ 1001.36, subd. (b)(1)(C), (E) & (F).) He does not argue the
point or identify any record evidence that this would be so.
Bartos has not affirmatively shown counsel was ineffective.
2. Bartos has forfeited his challenge to the fines
and fees
Bartos also argues that the trial court violated his
federal and state rights to due process by imposing a $40 court
operations assessment (§ 1465.8, subd. (a)(1)), a $30 criminal
conviction assessment (Gov. Code, § 70373), and a $300
restitution fine (§ 1202.4, subd. (b)), without determining his
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ability to pay, citing People v. Dueñas (2019) 30 Cal.App.5th
1157. Our colleagues in Division Two recently held that Dueñas
was wrongly decided. (People v. Hicks (2019) 40 Cal.App.5th 320,
327-329, review granted Nov. 26, 2019, S258946; see also People
v. Aviles (2019) 39 Cal.App.5th 1055, 1060, 1067-1069; cf.
People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [concluding
“the due process analysis in Dueñas does not justify extending
its holding beyond” the “ ‘extreme facts’ ” presented there].)
The California Supreme Court is currently considering whether
a court must consider a defendant’s ability to pay before imposing
or executing fines, fees, and assessments. (People v. Kopp (2019)
38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
Pending further guidance from our Supreme Court, we agree
with Hicks.
In addition, a defendant generally must first object and
raise his inability to pay fines, fees, and assessments, or forfeit
the issue on appeal. (People v. Avila (2009) 46 Cal.4th 680, 729;
People v. Aguilar (2015) 60 Cal.4th 862, 866; People v. Rodriguez
(2019) 40 Cal.App.5th 194, 206.) We agree with our colleagues
in Division Eight that this general rule applies here to the
restitution fine and the assessments imposed under the
Penal and Government codes. (People v. Bipialaka (2019) 34
Cal.App.5th 455, 464; People v. Frandsen (2019) 33 Cal.App.5th
1126, 1153-1155; but see People v. Castellano (2019) 33
Cal.App.5th 485, 489.)
3. We must strike the two one-year enhancements under
section 667.5, subdivision (b) as amended
In a birfucated proceeding, Bartos waived his right to a
court trial and admitted the four prior prison term allegations,
all of which were felony DUI convictions. The trial court
11
dismissed two of the prior prison term findings in the interest
of justice (§ 1385, subd. (c)) and imposed one year for each of
the remaining two prior prison terms.
We agree with Bartos that the two prison priors must
be stricken under Senate Bill No. 136, which took effect on
January 1, 2020, and amended section 667.5, subdivision (b).
The amendment states a one-year prior prison term enhancement
applies only if the defendant served the prison term for a sexually
violent offense as defined in Welfare and Institutions Code
section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1;
People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) The
amended statute applies to defendants whose cases are not
yet final. (Lopez, at pp. 341-342; People v. Gastelum (2020)
45 Cal.App.5th 757, 772-773.) Neither of Bartos’s two prison
priors was for a sexually violent offense. Accordingly, we order
them stricken.
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DISPOSITION
We modify the judgment to strike Bartos’s two one-year
prior prison term enhancements and, as modified, affirm the
judgment of conviction. The trial court is to prepare an amended
abstract of judgment and to forward a certified copy to the
California Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
DHANIDINA, J.
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