People v. Brown CA6

Filed 10/6/20 P. v. Brown CA6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX
THE PEOPLE, 2d Crim. No. B291733
(Super. Ct. No. 1442714)
Plaintiff and Respondent, (Santa Barbara County)
v.
JOSEPH IRBY BROWN,
Defendant and Appellant.
Joseph Irby Brown appeals from the judgment after
the jury convicted him of two counts of second degree robbery
(Pen. Code,1 § 211). As to the first count (bank robbery), the jury
also convicted Brown of resisting an officer by threats or violence
(count 3, § 69). As to the second count (gas station robbery), the
jury also convicted Brown of wearing a mask or disguise to avoid
detection (count 4, § 185, a misdemeanor) and found true an
enhancement for use of a deadly weapon (§ 12022, subd. (b)(1)).
1
Unless otherwise noted, all subsequent statutory
references are to the Penal Code.
Brown admitted that he suffered two prior serious felony
convictions (§ 667, subd. (a)(1)) and two prior strikes (§ 667,
subds. (d)(1), (e)(1)). The trial court sentenced him to state prison
for a determinate term of 27 years and a consecutive
indeterminate term of 50 years to life.
Brown contends: (1) his confession was involuntary,
(2) the trial court improperly admitted, and failed to properly
instruct regarding, expert opinion evidence as to his mental state,
(3) the judgment must be reversed for cumulative prejudice, (4)
the case must be remanded for consideration of mental health
diversion, (5) the case must be remanded to allow the trial court
to exercise discretion whether to strike the serious felony priors,
and (6) the term for the misdemeanor count must be stayed.
We reverse in part. We find the confession to the gas
station robbery involuntary and reverse counts 2 and 4. We
conditionally reverse counts 1 and 3 and remand for the trial
court to consider mental health diversion. We also remand for
the trial court to exercise its discretion whether to strike the
serious felony priors at resentencing. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Gas station robbery
Shortly before 4:00 a.m., a man entered the
convenience store of a USA Gasoline station in Santa Barbara.
He was wearing a black sweatshirt with the hood pulled down
low and a bandana covering his mouth. Only his eyes were
visible. A sock was on one hand and a glove on the other. He
walked directly to the cash register holding a 10-inch knife.
The man pointed the knife at the employee, N.C., and
demanded money. When she opened the cash register, he took
2
the cash, dropping some outside as he fled. N.C. told police she
did not believe she recognized him as a customer.
Later that morning, Brown’s girlfriend, A.O., came
into the store. N.C. looked scared and said she was robbed. A.O.
asked if she knew who the robber was and how many people were
involved. She purchased beer, using cash. N.C. recognized one of
the dollar bills with “love for me means a lot” written on it
because she was about to put it in the safe before the robbery.
The bill was not seized by police and was not introduced at trial.
A.O. returned to the store about a week later. N.C.
remembered that A.O. had spent the money with the writing on
it. She also remembered seeing A.O. together with Brown. It
was “like a puzzle getting together more.” N.C. called police and
said that A.O.’s boyfriend was the robber.
At trial, N.C. identified Brown as the robber. She
testified that A.O. and Brown were regular customers. She
testified that during the robbery, she recognized Brown’s voice
and the way he walked. She was “pretty sure” then she knew
who he was.
Bank robbery
Twelve days after the gas station robbery, Brown
entered a Rabobank in Santa Barbara wearing a baseball cap, a
grey sweatshirt with the hood over his head, sunglasses, and
black gloves. Teller G.D. was immediately suspicious because it
was not a cold day and the clothing was unusual.
Brown took a deposit slip and wrote on it, “Give me
the money[.] No one gets hurt[.] Act stupid you die.” He went to
the teller window and set down the note. G.D. put about $4,000
in currency on the counter. Brown asked if there was a dye pack,
3
and G.D. assured him there was not. He put the money under
his sweatshirt and walked out of the bank.
Officer Richard Washington saw Brown a few blocks
from the bank and noted his scruffy red beard, which matched
the description of the robber provided by the bank. Brown was
holding a bag containing a hoodie and hat that closely resembled
those worn by the robber in a photograph transmitted by the
bank.
Washington had Brown sit on the curb. When
Washington radioed for backup, Brown stood up and ran.
Washington caught Brown and tackled him. Brown got up and
continued running. Washington tackled him a second time.
Brown got up again, grabbed the officer’s helmet, and wrenched
his head back and to the right. Washington subdued Brown with
the help of a citizen.
Washington suffered lacerations to his face and elbow
and abrasions to his hand. His uniform was ripped and his
motorcycle helmet was broken.
Sergeant Brian Larson, who was investigating the
gas station robbery, went to the location where Brown was
apprehended. Larson knew Brown. He knew Brown and A.O.
were in a committed relationship, and were living together near
the USA Gasoline station and Rabobank.
A.O. was standing nearby. Larson arrested A.O.
because he suspected she may have been involved in both
robberies and possessed money stolen from the gas station. She
was evasive about Brown and her whereabouts that morning.
She denied using stolen money at the gas station.
4
Officers found a bundle of money in Brown’s
underwear. Together with some money in his pants pocket, they
inventoried $3,530.
First interrogation
Larson contacted Brown at the scene and told him
A.O. had been arrested. Brown asked “for what,” and said
“there’s no reason for her to get arrested.” Larson said, “I kinda
agree with you,” and “I don’t want her to get arrested.” He asked,
“Can we talk about that?” Brown agreed. Larson said, “she could
potentially . . . get unarrested.” Larson said he wanted to “talk
about your relationship and how we can maybe get [A.O.] out of
trouble.” Brown was advised of his Miranda2 rights.
Brown confessed to the Rabobank robbery. He
described handing the teller the note. He said A.O. had no idea
about the robbery. He said he called her after being stopped by
Officer Washington and told her he robbed a bank, they caught
him, and he was going to jail.
Brown denied committing the gas station robbery.
Larson said someone identified Brown as the robber, and said
A.O. came in later with some of the stolen money. Brown denied
A.O. was involved in any robbery he had ever done. Larson said,
“maybe she’s an innocent . . . Maybe she ends up going today.”
“[B]ut to make her innocent in the eyes of the law I need to solve
my case and show . . . she wasn’t the one who did it.” Brown
responded, “okay if you need me to solve that case I’ll solve that
case for you right here, yeah.” He added, “She didn’t have
nothing to do with no robbery. If you need me to clear up some
robberies for you I’ll do that and shit too.”
2 Miranda v. Arizona (1966) 384 U.S. 436.
5
Brown said he stole “a hundred and some bucks.” He
spent the money immediately to buy drugs from a drug dealer. If
A.O. received any of the stolen money, it was an “accident.”
Larson said, “so you did this thing at the gas station.” Brown
replied, “If you need me to admit to that fine I’ll admit to that
dude ’cause that’s what happened dude.” Larson replied, “I don’t
want you to admit to anything . . . I want you to tell me the
truth.” Brown responded, “That’s the truth. That’s what
happened. She didn’t have nothin’ to do with nothin’.” “I did rob
the gas station and yes I robbed the bank.”
Second interrogation
Larson arrested Brown and took him to the police
station. Brown acknowledged his Miranda rights. He repeated
his confession of both robberies and provided details.
Brown admitted changing his clothes after the bank
robbery and putting his other clothing into the bag. He admitted
running from Officer Washington but denied punching him or
doing anything other than possibly pushing back.
Brown admitted robbing the USA Gasoline station.
He said he was high on cocaine. He was having a panic attack
and he needed drugs to cope with it. He felt bad because he
frequently went into the store and the clerk was nice. He said
the mask was “just a . . . black piece of clothing.” He said he held
a kitchen knife and he discarded it as he ran away. Without
being asked about A.O., he reiterated that she had not been
involved in either robbery and did not have advance knowledge of
them.
Brown said he could not keep a job because he had
mental issues and posttraumatic stress disorder (PTSD). Since
6
he was shot a year earlier, whenever he tried to sleep, he would
wake up sweaty and fearful.
Defendant’s trial testimony
Brown testified that a year before the robberies, he
was ambushed by two men. Hospital records showed he suffered
serious permanent injuries consistent with being shot twice with
an assault rifle and stabbed twice with a machete. Brown
testified that after his discharge, he suffered from physical pain,
weakness, nerve damage, recurring fear he was being attacked,
and memory problems. He “tried to never sleep” because he
would have nightmares and flashbacks of his attack.
Brown testified that he often wore hats and hoodies
to hide from people trying to kill him. He sometimes wore gloves
because of nerve damage to his hands.
On the day of the bank robbery, Brown had $30 in his
pocket to buy prescription medication. He believed he began
experiencing a blackout between 3:30 and 6:30 a.m. He stood in
front of the drug store, then went into Rabobank across the
street. He wrote the note, gave it to the teller, and robbed the
bank. He said he had an out-of-body experience in the bank and
returned to normal after exiting.
Brown denied committing the gas station robbery.
He visited the gas station regularly, and he frequently spoke with
the employee. The day of the robbery, A.O. was happy because
she found some money between their residence and the gas
station. He told Larson he robbed the gas station because he
believed if he did so, Larson would let A.O. go.
Expert testimony
Dr. Nancy Kaser-Boyd, a clinical and forensic
psychologist with extensive experience in PTSD, testified for the
7
defense. She testified that PTSD is caused by an incident where
a person feels they are going to die or sense a threat to their
physical integrity. Brown had PTSD, exacerbated by substance
abuse. She testified that Brown’s behavior during the bank
robbery was consistent with a dissociative state. She did not
interview Brown about the gas station robbery because he was
adamant he did not commit it and confessed only to protect his
girlfriend.
In rebuttal, the prosecution called Dr. James
Tahmisian, a clinical psychologist with 45 years’ experience. He
concluded after interviewing Brown that Brown was not in a
dissociative state during the bank robbery but engaged in goal-
directed behavior.
Sentence
The court denied Brown’s motion to dismiss the
strikes. (People v. Superior Court (Romero) (1996) 13 Cal. 4th
497, 514.) Brown was sentenced to a determinate term of 27
years, consisting of the upper term of three years for the violation
of section 69, doubled for the prior strikes (§ 667, subd. (e)(1)),
one year for use of a firearm, and five years for each of the
serious felony priors for each robbery. He was sentenced to
consecutive indeterminate terms of 25 years to life for each of the
robberies, for a total of 50 years to life, to follow the determinate
term. The court sentenced Brown to 180 days in county jail for
the misdemeanor (§ 185, count 4), concurrent, with credit for 180
days served.
DISCUSSION
Voluntariness of confession
Involuntary confessions are inadmissible pursuant to
the due process clauses of the state and federal constitutions.
8
(People v. Weaver (2001) 26 Cal. 4th 876, 920.) The prosecution
has the burden to prove the voluntariness of a confession by a
preponderance of the evidence. (People v. Peoples (2016) 62
Cal. 4th 718, 740.)
After hearing Larson testify and reviewing the audio
recording of the first interrogation and the video recording of the
second interrogation, the trial court found that Brown did not
exhibit signs of impairment from drug use or mental disability
from PTSD. The court ruled the confessions were voluntary and
admissible. Because the interrogations were recorded and the
relevant facts are undisputed, we review the voluntariness of the
confessions de novo. (People v. Peoples, supra, 62 Cal.4th at p.
740.)
A confession may be involuntary if obtained by direct
or implied promises. (People v. McWhorter (2009) 47 Cal. 4th 318,
347 (McWhorter).) To establish an involuntary confession, there
must be a causal link between coercive police activity and the
suspect’s statement. (Ibid.) A confession is involuntary if the
defendant’s will has been overborne, even if the confession is
reliable. (Jackson v. Denno (1964) 378 U.S. 368, 384-385.)
An offer of more lenient treatment in exchange for
making a statement may render the statement involuntary and
inadmissible. (People v. Jackson (1980) 28 Cal. 3d 264, 299,
overruled on other grounds by People v. Cromer (2001) 24 Cal. 4th
889, 901, fn. 3.) “The offer or promise of such benefit need not be
expressed, but may be implied from equivocal language not
otherwise made clear.” (Ibid.)
An involuntary confession may be based on an
express or implied promise to release a family member from
custody. (People v. Trout (1960) 54 Cal. 2d 576, 585, overruled on
9
other grounds by People v. Cahill (1993) 5 Cal. 4th 478, 509 & fn.
17.) In Trout, an officer told defendant his wife would be released
from custody “if it were shown that she was not involved.” (Id. at
p. 584.) Because the officer was seeking a confession from the
defendant, “it could have been understood as suggesting that
defendant’s wife would be released from custody upon his
confession.” (Ibid.) Similarly, in McWhorter, the defendant’s
statements were involuntary and inadmissible after police
promised to release the defendant’s wife if he gave enough details
about the crime.
Here, Sergeant Larson sought a confession to the gas
station robbery, and stated that A.O. could not be deemed
innocent unless Larson solved the case. Although A.O. and
Brown were not married, Larson knew she was his live-in
girlfriend in a committed relationship for over a year. (See
People v. Dowdell (2014) 227 Cal. App. 4th 1388, 1403 [promises of
leniency for defendant’s girlfriend].)
Larson clearly implied that to ensure A.O.’s release,
Brown needed to admit committing the gas station robbery.
Larson said, “she could potentially . . . get unarrested” and he
wanted Brown to talk about “how we can maybe get [A.O.] out of
trouble.” Throughout the interrogation Brown asserted A.O.’s
innocence. Larson responded, “but to make her innocent in the
eyes of the law I need to solve my case and show . . . she wasn’t
the one who did it.” This statement reversed the burden of proof
and implied that Brown could secure her release by admitting he
robbed the gas station. He responded by admitting to the gas
station robbery and offered to “clear up” additional robberies. We
conclude that the implied promise to release A.O. if Brown
10
confessed rendered the confession to robbing the gas station
involuntary and inadmissible.
The second interrogation occurred at the police
station about an hour after the first. Although Brown continued
to assert A.O.’s innocence, she was not released until after the
second interrogation was concluded. The confession to the gas
station robbery in the second interrogation was thus involuntary
because there was no “‘intervening independent act by the
defendant or a third party’ to break the causal chain in such a
way that the second confession is not in fact obtained by
exploitation of the illegality.” (McWhorter, supra, 47 Cal.4th at p.
360.)
Because the gas station robbery confession was
involuntary, the conviction must be reversed unless it was
harmless beyond a reasonable doubt. (Chapman v. California
(1967) 386 U.S. 18, 24; Arizona v. Fulminante (1991) 499 U.S.
279, 296.) “The standard is satisfied only if ‘[t]here is no
reasonable possibility that the verdict would have been more
favorable to defendant had [the] statements not been admitted.’
[Citation.]” (People v. Henderson (2020) 9 Cal. 5th 1013, 1029.)
The issue is not whether the evidence without the error would
have been sufficient for a reasonable jury, but whether the basis
on which “‘the jury actually rested its verdict’” was “surely
unattributable to the error.” (People v. Quartermain (1997) 16
Cal. 4th 600, 621.)
Without the confession, it is not clear the jury would
have found Brown guilty of robbing the gas station. N.C.
identified Brown at trial even though the robber’s face was
covered with only his eyes visible. N.C. testified she recognized
Brown as a customer and recognized his voice and the way he
11
walked. But she initially told police the robber was not a
customer and she did not recognize him. The morning of the
robbery, A.O. spent a bill that N.C. said she recognized, but it
was not produced at trial. N.C. did not make a connection
between A.O. and Brown until a week later. Because we cannot
conclude that the jury did not rely on the confession in reaching
its verdicts relating to the gas station robbery, the error in
admitting the confession was not harmless. But because the
evidence without the confession would have been sufficient for a
rational trier of fact to find Brown guilty, he may be retried for
counts 2 and 4. (People v. Morgan (2007) 42 Cal. 4th 593, 613
[erroneous jury instructions]; People v. Cooper (2007) 149
Cal. App. 4th 500, 522-523 [erroneous admission of accomplice’s
statement].)
The involuntariness of the confession to the bank
robbery is less clear because it was made before Larson’s
statement about the need to solve the case. But if there was
error in admitting the bank robbery confession, it was harmless
beyond a reasonable doubt. The clothing shown in the bank’s
videotape matched the clothing Brown was carrying minutes
after the crime only a few blocks away. Money similar in amount
to the money stolen was hidden in his underwear. His change of
clothing, flight, and struggle were evidence of consciousness of
guilt.
Any error would also be harmless as to the resisting
charge. The evidence was clear that Brown used force to resist
Officer Washington. Brown’s statements during the
interrogation sought only to minimize his use of force.
12
Expert opinion evidence
Brown contends the trial court erred in permitting
rebuttal testimony by Dr. Tahmisian, and erred when it
“implicitly denied the request to strike the rebuttal testimony.”
Brown forfeited this issue. (Evid. Code, § 353; People
v. Dowl (2013) 57 Cal. 4th 1079, 1087.) A single sentence in a
pretrial motion in limine requested a hearing to establish the
expertise and relevance of psychological opinions by a prosecution
expert. (Evid. Code, § 402.) The court reviewed the
qualifications of the defense and prosecution experts, and
concluded they both had sufficient qualifications to testify. The
defense said nothing further about Dr. Tahmisian’s qualifications
before he took the stand.
Nor did the defense move to strike Dr. Tahmisian’s
testimony. The record shows only that after both sides had
rested, during settlement of jury instructions regarding expert
testimony, counsel said, “I’d ask that those comments . . . about
Post Traumatic Stress Disorder be disallowed.” This untimely
and ambiguous comment did not preserve the issue for appeal.
Even if the defense had objected, Dr. Tahmisian had
extensive training and experience as a psychologist, and the trial
court properly exercised its broad discretion to permit him to
testify as an expert. (People v. Jones (2013) 57 Cal. 4th 899, 949.)
“[Q]uestions about the depth or scope of his . . . knowledge or
experience go to the weight, not the admissibility, of the witness’s
testimony.” (Id. at pp. 949-950.)
Brown also contends the court erred in refusing
pinpoint jury instructions. The defense requested an instruction
that if the jury did not believe Dr. Tahmisian was qualified to
give an opinion on PTSD, it should consider disregarding his
13
comments and opinions on that subject, and that the jury should
disregard his opinion regarding specific intent because that was
an issue for the jury. The court denied the request.3
“The jury must be instructed on general principles
‘“‘closely and openly connected to the facts and that are necessary
for the jury’s understanding of the case’”’ including those
instructions that ‘pinpoint’ a defense theory. [Citation.] Pinpoint
instructions are not warranted, however, when they are
argumentative, such as when requested only to highlight
particular evidence. [Citation.] Pinpoint instructions may also
be refused if, among other reasons, the proposed instruction is
duplicative.” (People v. Mora and Rangel (2018) 5 Cal. 5th 442,
498-499.) We independently review whether jury instructions
correctly state the law. (People v. Posey (2004) 32 Cal. 4th 193,
218.)
The jury instructions given were correct and
sufficient. The court instructed that the prosecution must prove
beyond a reasonable doubt that the defendant acted with the
required intent and mental state. (CALCRIM No. 225, modified.)
It further instructed that the jury was not required to accept
expert testimony as true or correct, that it must “consider the
expert’s knowledge, skill, experience, training, and education,”
and that it “may disregard any opinion that you find
unbelievable, unreasonable, or unsupported by the evidence. [¶]
If the expert witnesses disagreed with one another, you should
3 The record does not include a proposed written special
instruction regarding expert testimony. Brown refers to it as
“defense counsel’s thinking-out-loud proposed pinpoint
instruction.”
14
weigh each opinion against the others. . . . You may also compare
the experts’ qualifications.” (CALCRIM No. 332.)
In light of the defense’s extensive cross-examination
regarding Dr. Tahmisian’s opinions and his limited training
regarding PTSD, and closing argument urging the jury to
disregard his opinions, the instructions given were sufficient for
the jury to evaluate his testimony.
Cumulative prejudice
Brown asserts cumulative prejudice, i.e., that “the
aggregate prejudicial effect of . . . errors was greater than the
sum of the prejudice of each error standing alone.” (People v. Hill
(1998) 17 Cal. 4th 800, 845.) In light of our conclusion that the
gas station robbery and mask convictions (counts 2 and 4) must
be reversed based on the involuntary confession, it is unnecessary
to determine whether a combination of other errors would also
warrant reversal.
As to counts 1 and 3, any error in admitting the
confession was harmless. The jury might have acquitted him of
bank robbery if it believed he was in a dissociative state. But
Brown forfeited a challenge to Dr. Tahmisian’s testimony and has
not shown that its admission was erroneous. As to the resisting
charge, the evidence did not establish that Brown was in a
dissociative state after “coming back into [himself]” when he left
the bank. We conclude that Brown’s guilt “was fairly
adjudicated” as to counts 1 and 3 and no cumulative error has
been shown. (People v. Hill, supra, 17 Cal.4th at p. 844.)
Mental health diversion
On June 27, 2018, the Governor signed Assembly Bill
No. 1810 (2017-2018 Reg. Sess.), providing for diversion of
individuals with mental disorders. (§§ 1001.35, 1001.36, enacted
15
by Stats. 2018, ch. 34, § 24.) The legislation took effect the same
day. (Stats. 2018, ch. 34, § 37.) It provides that the court may
divert from prosecution a defendant who “suffers from a mental
disorder as identified in the most recent edition of the Diagnostic
and Statistical Manual of Mental Disorders, including, but not
limited to . . . post-traumatic stress disorder” that “was a
significant factor in the commission of the charged offense” and
that “would respond to mental health treatment,” if “[t]he court is
satisfied that the defendant will not pose an unreasonable risk of
danger to public safety.” (§ 1001.36, subd. (b)(1).)
Brown was sentenced five days after the legislation
went into effect. The mental health diversion statute is
retroactive to cases not final on appeal, including cases where the
defendant has been tried and sentenced. (People v. Frahs (2020)
9 Cal. 5th 618, 640 (Frahs).)
There was evidence that Brown suffered from PTSD
and substance-related and addictive disorders. (Diagnostic and
Statistical Manual of Mental Disorders: DSM-5 (5th ed. 2013),
pp. 271-280, 481-589.) We remand for consideration of diversion
because “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, supra, 9 Cal.5th at p.
640.)
We conditionally reverse counts 1 and 3 pending
resolution of the diversion issue. As in Frahs, “[w]e express no
view regarding whether defendant 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.” (Frahs,
supra, 9 Cal.5th at p. 625.)
16
Serious felony priors
At the time of sentencing, sections 667, subdivision
(a), and 1385, subdivision (b), prohibited the court from striking
an enhancement for a prior serious felony conviction. (People v.
Garcia (2008) 167 Cal. App. 4th 1550, 1560-1561.) These sections
were amended effective January 1, 2019, to allow a court to
exercise its discretion to strike or dismiss a prior serious felony
conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2
(SB 1393).) This legislation is retroactive here because the case
is not final on appeal. (People v. Stamps (2020) 9 Cal. 5th 685,
699.)
“Remand is required unless the record reveals a clear
indication that the trial court would not have reduced the
sentence even if at the time of sentencing it had the discretion to
do so.” (People v. Almanza (2018) 24 Cal. App. 5th 1104, 1110.)
The trial court here did not so indicate. Instead, it correctly
noted that it was compelled by People v. Williams (2004) 34
Cal. 4th 397, 405, to impose two five-year enhancements to each
of the 25-year-to-life terms. “[S]peculation about what a trial
court might do on remand is not ‘clearly indicated’ by considering
only the original sentence.” (Almanza, at pp. 1110-1111.)
Accordingly, we remand for the trial court to exercise its
discretion pursuant to Senate Bill No. 1393 to determine whether
to strike the priors pursuant to section 667, subdivision (a).
Misdemeanor sentence
The Attorney General concedes that the punishment
for count 4 should be stayed because “section 654 precludes
punishment under both sections 185 and 211 for his wearing a
disguise during . . . robberies.” (People v. Sering (1991) 232
Cal. App. 3d 677, 681-682, fn. 2 [accepting concession by Attorney
17
General], overruled on other grounds in People v. Posey, supra, 32
Cal.4th at pp. 205, 215 & fn. 5.) Wearing a mask and robbing the
gas station were indivisible parts of one course of conduct
incident to one objective. (People v. Corpening (2016) 2 Cal. 5th
307, 311.) Although our reversal of counts 2 and 4 renders this
issue moot, the sentence for count 4 must be stayed should Brown
be convicted of counts 2 and 4 after remand.
DISPOSITION
Counts 2 and 4 are reversed. Counts 1 and 3 are
conditionally reversed. The case is remanded to the superior
court with directions to conduct a diversion eligibility hearing as
to all counts no later than 90 days from the filing of the
remittitur. If the trial court determines that Brown qualifies for
diversion pursuant to section 1001.36, the court may grant
diversion. If Brown successfully completes diversion, the trial
court shall dismiss the charges. If the court determines that
Brown is ineligible for diversion, or he does not successfully
complete diversion: (1) he may be retried for counts 2 and 4 and
the deadly weapon enhancement, (2) the conviction for counts 1
and 3 and the admission of the prior serious felony convictions
and prior strikes shall be reinstated, (3) he shall be resentenced,
and (4) the court shall exercise its discretion whether to strike
the serious felony priors.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J. PERREN, J.
18
James E. Herman, Judge
Superior Court County of Santa Barbara
______________________________
Sylvia W. Beckham, 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, Michael C. Keller, Noah P. Hill and
Marc A. Kohm, Deputy Attorneys General, for Plaintiff and
Respondent.