People v. Mabrok CA4/3

Filed 3/30/22 P. v. Mabrok CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059642
v. (Super. Ct. No. 11HF3038)
AHMAD KHALIAH MABROK, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Gary S. Paer, Judge. Affirmed.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Meredith S.
White, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Ahmad Khaliah Mabrok appeals a postjudgment order denying
his motion for mental health diversion under Penal Code section 1001.36. He contends
reversal is required because he was not present at the motion hearing. However, the
record shows appellant waived his right to attend the hearing through counsel, and, even
if that were not the case, any error in conducting the hearing in his absence was harmless.
We therefore affirm the trial court’s ruling.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are set forth in our prior opinion in People v. Mabrok
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(Oct. 10, 2019, G056251) [nonpub. opn.] (Mabrok I). In sum, the record shows
appellant commandeered a limousine by force in Irvine and led police on a dangerous
high-speed chase to his brother’s house in Whittier, where he crashed into a fence and
was tracked down by a police dog.
At trial, appellant presented evidence he suffers from bipolar disorder and
was having delusional thoughts on the day in question. Nonetheless, the jury rejected his
mental impairment defense and convicted him of carjacking, evading arrest while driving
recklessly, and unlawfully taking a vehicle. Because he was a repeat offender, the trial
court sentenced him to six years and eight months in prison.
While appellant’s appeal was pending, the Legislature enacted Penal Code
section 1001.36, which authorizes diversion for defendants with mental health disorders.
Under that section, a trial court may grant diversion if: “(1) the defendant suffers from a
qualifying mental disorder; (2) the disorder played a significant role in the commission of
the charged offense; (3) the defendant’s symptoms will respond to mental health
treatment; (4) the defendant consents to diversion . . .; (5) the defendant agrees to comply
with treatment; and (6) the defendant will not pose an unreasonable risk of danger to
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We grant the parties’ request to judicially notice this opinion and the appellate record in that case.
(Evid. Code, §§ 452, subd. (d), 459.)
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public safety if treated in the community. [Citation.]” (People v. Frahs (2020) 9 Cal.5th
618, 626-627.)
In Mabrok I, we determined appellant was entitled to the benefit of this new
law because his case was not yet final. (Mabrok I, supra, G056251, at pp. 3-8.)
Therefore, we conditionally reversed the judgment and remanded the case for the trial
court to assess appellant’s eligibility for diversion under that statutory scheme. (Id. at pp.
8-9.)
At the time of the diversion hearing, appellant was still serving his prison
sentence in San Luis Obispo. At the outset of the hearing, defense counsel informed the
court appellant waived his right to attend the hearing, and the hearing proceeded in his
absence. Based on psychological reports submitted by the parties, the court found
appellant suffers from a qualifying mental illness. However, the court did not believe
appellant would benefit from treatment because the reports indicate appellant denies
having a mental disorder, and he has not complied with treatment in the past. In fact, the
reports suggest the events giving rise to this case were precipitated by appellant’s failure
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to take his prescribed medications.
The trial court was also concerned about the threat appellant would pose to
public safety if he were released into the community to attend a diversion program.
Citing appellant’s prior criminal record (which includes convictions for battery, domestic
violence and elder abuse), his dangerous conduct in this case (which the court described
as “ultrahazardous”), and his poor adjustment while in custody (during which appellant
has been cited for numerous major rule violations), the court determined appellant would
be like a ticking “time bomb” if he were to be released from prison. Therefore, the court
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The parties have filed sealed and redacted appellate briefs to keep the information in the reports as
private as possible, but much of that information was disclosed in the course of appellant’s underlying trial.
Moreover, the nature of appellant’s claim for mental health diversion dictates that we disclose a certain amount of
information about his psychological condition. (See, e.g., People v. Pacheco (2022) 75 Cal.App.5th 207.) We have
disclosed no more information than is necessary to adjudicate his appeal.
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denied his request for diversion in lieu of confinement. It then reinstated the judgment
with but one modification, consisting of a mandatory one-year reduction in appellant’s
sentence due to a new sentencing law enacted after his trial.
DISCUSSION
Appellant contends the trial court prejudicially erred in conducting the
diversion hearing in his absence. We disagree.
A criminal defendant “has a constitutional right to be present at all critical
stages of the criminal prosecution, i.e., ‘all stages of the trial where his absence might
frustrate the fairness of the proceedings’ [citation], or ‘whenever his presence has a
relation, reasonably substantial, to the fullness of his opportunity to defend against the
charge.’ [Citation.]” (People v. Rodriguez (1998) 17 Cal.4th 253, 260.) This right is
also protected by statutory provisions designed to ensure the defendant has the
opportunity to be personally involved in his court proceedings. (Pen. Code, §§ 1043,
977.)
“A defendant’s right to presence, however, is not absolute.” (People v.
Gutierrez (2003) 29 Cal.4th 1196, 1202.) A defendant may waive his right to be present,
so long as the waiver is voluntary, knowing and intelligent. (People v. Nieves (2021) 11
Cal.5th 404, 508.) While this generally requires proof the defendant executed a written
waiver in open court (Pen. Code, § 977, subd. (b)), the trial court may consider other
evidence in determining whether the defendant has voluntarily absented himself from the
proceedings. (People v. Gutierrez, supra, 29 Cal.4th at p. 1206.) Indeed, our Supreme
Court has made it clear “that a trial judge may rely on reliable information, such as
statements from jail or court personnel, to determine whether a defendant has waived the
right to presence. [Citation.]” (Id. at p. 1205.)
In this case, appellant’s own attorney was the one who represented to the
court that appellant waived his right to attend his diversion hearing. As an officer of the
court, defense counsel had an ethical responsibility not to mislead the court on this or any
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other matter. (Bus. & Prof. Code, § 6068, subd. (d).) And there is nothing in the record
to suggest defense counsel lacked the authority to enter the waiver on appellant’s behalf.
Accordingly, we conclude appellant waived his right to personally appear at the hearing.
(See People v. Fedalizo (2016) 246 Cal.App.4th 98 [trial courts are allowed to rely on the
representations of counsel on a wide variety of issues, including whether their clients are
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knowingly absent from the proceedings].)
Furthermore, any error in excluding appellant from the hearing was
harmless under any standard of review. At the hearing, the trial court relied primarily on
the various psychological reports that were submitted into evidence. Those reports were
prepared by mental health professionals who interviewed, tested, and evaluated appellant
to assess his psychological functioning and suitability for mental health diversion. As
such, the reports include a wealth of information from appellant himself about his mental
health history and what led him to commit the crimes in this case. Although appellant
was not entirely consistent in his remarks, he admitted that when treated in the past, he
stopped taking his prescribed medications because he did not like how they made him
feel. He also told his evaluators that he thinks he is fine, even though he continues to
display symptoms of mental illness. Given appellant’s statements in this regard, it is
exceedingly unlikely his presence at the diversion hearing would have assuaged the trial
court’s doubts about his ability to benefit from additional treatment.
It is equally improbable appellant’s presence would have alleviated the trial
court’s concerns about his potential danger to the public. As the trial court pointed out,
appellant has an extensive history of violent and dangerous criminal conduct, and his
penchant for misbehavior has not abated while in custody. Appellant suggests he would
have been able to explain his custodial misconduct if he had personally attended the
diversion hearing. But the record shows he has been cited for over a dozen major rule
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Given this conclusion, we need not consider respondent’s alternative argument that the invited
error doctrine applies to preclude appellant from challenging his absence from the hearing.
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violations while in custody, including a violation for brawling with another inmate in
2020. During that incident, appellant refused repeated commands to stop fighting and did
not relent until correctional officers doused him with pepper spray. That would have
taken a lot of explaining.
All told, we are satisfied appellant validly waived his right to attend the
diversion hearing through his attorney, and any error in conducting the hearing in his
absence was patently harmless. Therefore, we have no reason to disturb the trial court’s
ruling.
DISPOSITION
The order denying appellant’s motion for diversion is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
SANCHEZ, J.
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