People v. Kieta CA4/2

Filed 8/15/23 P. v. Kieta CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E079138
v. (Super.Ct.No. RIF2105166)
KIONNE KIETA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Conditionally reversed and remanded with directions.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, and Christopher P. Beesley and
Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
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Kionne Kieta was charged with felony robbery and misdemeanor destruction of
property and admitted an enhancement for personal use of a deadly weapon. Kieta
requested mental health diversion, and the trial court granted it for the misdemeanor but
denied it as to the felony. Kieta subsequently pled guilty to the charges. On appeal,
Kieta argues the court’s decision to deny him mental health diversion for the felony
robbery charge was an abuse of discretion. Due to newly enacted changes in the law, we
conditionally reverse the conviction and remand to allow the trial court to reconsider
Kieta’s request for mental health diversion.
BACKGROUND
In November 2021 Kieta ordered a bicyclist to dismount while brandishing a
pocketknife.1 Kieta stabbed both tires of the bicycle and removed the cellphone attached
to the handlebars. He started walking away, but then returned and took the bicyclist’s
jacket.
The Riverside County District Attorney charged Kieta with felony robbery (Pen.
Code, § 211)2 and misdemeanor destruction of property (§ 594, subd. (a)). They also
alleged Kieta personally used a deadly or dangerous weapon in the commission of the
robbery (§ 12022, subd. (b)(1)), that the robbery was a serious and violent felony
1 Because Kieta’s plea was the sole factual basis for his convictions, we have
taken the facts regarding the underlying crime from Kieta’s Prima Facie Showing of His
Eligibility and Suitability for Mental Health Diversion.
2 Unlabeled statutory citations refer to the Penal Code.
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(§§ 1192.7, subd. (c), 667.5, subd. (c)), and that Kieta was on probation at the time of the
offenses.
Superior Court Judge Gail A. O’Rane found Kieta was eligible for pretrial
diversion for mental health reasons. Superior Court Judge Emma C. Smith then found
Kieta unsuitable for mental health diversion for the felony offense, but suitable for the
misdemeanor offense. The court explained that it was “frightened, not just for the public,
but also for [Kieta] because had certain people been there with law enforcement or
otherwise at the scene of this incident, and watched what transpired, [he] could really,
really have been hurt.” The court further stated, “this is a terrifying experience for all
people involved . . . [b]ecause if someone didn’t know [Kieta was] sick, right, [he] could
easily have been taken down for this.” It also expressed concern that just two months
before this robbery Kieta was convicted of assault upon the person of another by any
means of force likely to produce great bodily injury.
Kieta then pled guilty to both charges and admitted the enhancement. The court
granted probation according to Kieta’s plea agreement. Kieta timely appealed his
judgment. In doing so he requested a certificate of probable cause, which the trial court
granted.
ANALYSIS
Kieta argues the trial court erred by refusing to grant mental health diversion
because the two judges involved in assessing his request for mental health diversion
made several contradictory findings. Specifically, Kieta argues it was error to determine
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he was not a threat to the public for purposes of his eligibility for mental health diversion,
but that he was a danger to the public for purposes of his suitability. He also argues it
was inconsistent to grant mental health diversion as to one charge, deny it as to the other,
and ultimately grant probation. We conclude that recent changes in the law compel
remand to allow the trial court to reconsider Kieta’s request in light of those changes.
“Section 1001.36 authorizes a pretrial diversion program for defendants with
qualifying mental disorders.” (People v. Frahs (2020) 9 Cal.5th 618, 626.) “[A] trial
court may grant pretrial diversion if it finds all of the following: (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 and waives his or her speedy
trial right; (5) the defendant agrees to comply with treatment; and (6) the defendant will
not pose an unreasonable risk of danger to public safety if treated in the community.”
(Id. at pp. 626-627; § 1001.36 subds. (b)(1)-(2), (c)(1)-(4).)
Prior to January 1, 2023, all six of these criteria determined a defendant’s
eligibility for mental health diversion. (§ 1001.36, former subd. (b); People v. Whitmill
(2022) 86 Cal.App.5th 1138, 1149.) While all six of these criteria are still required (with
some modifications), as of January 1, 2023, the first two now determine a defendant’s
eligibility for mental health diversion, while the last four determine a defendant’s
suitability. (§ 1001.36, subds. (b), (c).)
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We requested supplemental briefing from the parties to determine whether this
change in the law compelled remand. Both parties agree the change in the law is
retroactive to Kieta, and we agree with the parties. (People v. Williams (2021) 63
Cal.App.5th 990, 995 [holding section 1101.36 “applies retroactively to all cases in
which the judgment is not yet final”].) The only remaining question is whether this
change could provide him any relief, including remand for reconsideration.
We conclude it does. Judge Smith decided Kieta was not suitable for diversion
without reference to any of the criteria courts must now use to assess suitability.
Moreover, Judge O’Rane had previously concluded Kieta met nearly identical criteria.
Therefore, Kieta’s eligibility and suitability were not assessed under the framework
which should apply to him, and given Judge O’Rane’s previous findings, it is reasonably
probable he would have obtained a more favorable outcome had Judge Smith been
required to use that framework.
This is further supported by the fact that Judge Smith found Kieta unsuitable for
diversion in large part due to the danger she felt he posed to himself and others. Because
the old version of the law did not provide any guidance for what constituted suitability,
Judge Smith’s decision on Kieta’s dangerousness was not bounded. Under the new
version, in order to be suitable for diversion a defendant must not “pose an unreasonable
risk of danger to public safety, as defined in Section 1170.18.” (§ 1001.36, subd. (c)(4).)
Thus, under the new version of the law there is both a clear indication that dangerousness
is a proper consideration under suitability and a fairly high bar for what constitutes an
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unreasonable risk of danger. Under section 1170.18, an “ ‘unreasonable risk of danger to
public safety’ means an unreasonable risk that the petitioner will commit a new violent
felony within the meaning of . . . Section 667[, subdivision (e)(2)(C)(iv)].” (§ 1170.18,
subd. (c).) “The violent felonies encompassed in this definition ‘are known as “super
strikes” and include murder, attempted murder, solicitation to commit murder, assault
with a machine gun on a police officer, possession of a weapon of mass destruction, and
any serious or violent felony punishable by death or life imprisonment.’ [Citation.] They
also include sexually violent offenses and sexual offenses committed against minors
under the age of 14.” (People v. Moine (2021) 62 Cal.App.5th 440, 449-450.) “By
requiring an assessment of whether the defendant ‘will commit a new violent felony’
within the meaning of section 667, subdivision (e)(2)(C)(iv), a trial court necessarily
must find the defendant is ‘likely to commit a super-strike offense.’ [Citation.] Thus, the
risk of danger is narrowly confined to the likelihood the defendant will commit a limited
subset of violent felonies.” (Id. at p. 450.) In short, there is a “high standard applicable
to a finding of ‘dangerousness’ under sections 1001.36 and 1170.18.” (Id. at p. 451.)
Given this high bar, it is reasonably probable that Kieta would have received a more
favorable outcome if Judge Smith had been expressly required to apply this much higher
standard for dangerousness, as the court will be required to do on remand.
Finally, Kieta is correct that there is at least tension between Judge O’Rane’s
eligibility finding that Kieta was not an unreasonable risk of danger to the public, and
Judge Smith’s finding of unsuitability for felony diversion because he did pose a risk of
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danger to the public. These findings would not be flatly in conflict if Judge Smith were
properly using different criteria for the suitability determination than Judge O’Rane did
for the eligibility one. Kieta has not argued that a contradiction requires an outright
reversal, and, as we are remanding anyway, we do not address further whether the rulings
of the two judges would be in conflict absent the change in the law. Under the current
law, the factors that are applicable to eligibility and suitability are defined.
DISPOSITION
We conditionally reverse the judgment. We remand with directions to determine
whether Kieta is eligible and suitable for mental health diversion. If the trial court
determines that Kieta qualifies for diversion under section 1001.36, then the court may
grant diversion. If Kieta successfully completes diversion, then the trial court shall
dismiss the charges. However, if the court determines that Kieta is ineligible or
unsuitable for diversion, otherwise declines to grant him diversion, or Kieta does not
successfully complete diversion, then his convictions and sentence shall be reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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