P. v. MacKenzie

Filed 3/5/19 P. v. MacKenzie CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DONALD JOSEPH MACKENZIE,
Defendant and Appellant.
B282720
(Los Angeles County
Super. Ct. No. YA089418)
APPEAL from a judgment of the Superior Court of
Los Angeles County. Alan B. Honeycutt, Judge. Conditionally
reversed and remanded with directions.
Patricia S. Lai, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn McGahey Webb, David E. Madeo, Zee
Rodriguez, and Noah P. Hill, Deputy Attorneys General, for
Plaintiff and Respondent.
_______________________

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In an amended information, the Los Angeles County
District Attorney’s Office charged defendant and appellant
Donald Joseph MacKenzie with arson of an inhabited structure
or property (Pen. Code, § 451, subd. (b); count 2),1 two counts of
vandalism with damage over $400 (§ 594, subd. (a); counts 3 & 4),
and arson of the property of another (§ 451, subd. (d); count 5).
The amended information further alleged that defendant suffered
three prior convictions within the meaning of the “Three Strikes”
Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), suffered three
prior serious felony convictions (§ 667, subd. (a)(1)), and served
two prior prison terms (§ 667.5, subd. (b)).
Defendant pleaded no contest to counts 3 and 4 and
admitted the truth of the prior conviction and prior prison term
allegations as to those counts. Trial on counts 2 and 5 was by
jury. The trial court granted defendant’s motion for acquittal on
count 2, pursuant to section 1118. The jury found defendant
guilty of count 5. Defendant admitted the truth of the prior
conviction and prior prison term allegations.
The trial court struck two of defendant’s prior strike
convictions pursuant to section 1385, and sentenced defendant to
a term of 13 years eight months in prison, including five years
pursuant to section 667, subdivision (a)(1). He was awarded
2,320 days of presentence custody credit.
Defendant timely filed a notice of appeal. In his opening
brief, defendant contends that his conviction on count 5 must be
reversed because the trial court erred by admitting evidence of:
(1) a prior uncharged arson to prove identity pursuant to
Evidence Code section 1101, subdivision (b); and (2) an
1 All further statutory references are to the Penal Code
unless otherwise indicated.

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unauthenticated photograph that was obtained from defendant’s
Facebook page. Defendant also argues his presentence custody
credits were incorrectly calculated.
In a supplemental brief filed September 24, 2018,
defendant argues that we should remand the matter to allow the
trial court to conduct a pretrial diversion hearing pursuant to
newly enacted section 1001.36. In a second supplemental brief,
filed October 25, 2018, defendant argues that we should remand
the matter to allow the trial court to exercise its discretion to
strike the five-year enhancement imposed pursuant to section
667, subdivision (a)(1). (Sen. Bill No. 1393 (2017-2018 Reg. Sess.)
(SB 1393).)
We conclude that the trial court did not err in admitting
evidence of a prior uncharged arson and of the photograph
obtained from defendant’s Facebook page. But, we conclude that
newly enacted section 1001.36 and the recent amendment to
section 667, subdivision (a), apply to this case. Accordingly, we
conditionally reverse the judgment to allow the trial court to
determine whether defendant qualifies for diversion and then
proceed according to the procedures set forth in section 1001.36.
If defendant’s judgment of conviction stands, then the trial court
must exercise its discretion under amended section 667,
subdivision (a), to determine whether to dismiss the punishment
for the prior serious felony conviction. Lastly, the judgment must
be modified to correctly reflect defendant’s presentence custody
credits.
BACKGROUND
The People’s Evidence
A. The January 2, 2014 Arson Offense
At around 7:00 p.m., Antoun Safar (Safar), the owner of a
liquor store, was working behind the counter when defendant
pushed a shopping cart through the open front door of the store

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into a display of wine bottles. A customer pointed towards
defendant, who was walking away from the store. Safar ran
outside and yelled at defendant. Defendant laughed at Safar and
began running up Trudie Drive. Defendant jumped on top of an
electrical box; then he jumped on top of a car. Defendant was
acting “weird.”
Safar returned to his store, got his car keys and his phone,
and went to follow defendant in his vehicle. Safar called 911 and
reported the incident. He then drove up Trudie Drive and turned
right onto Jaybrook Drive.
Moments later, Safar saw defendant crouching on the porch
of a house located on Jaybrook Drive. Defendant had removed a
flag from a pole in front of the residence and lit it on fire
approximately one foot from the home’s wooden front door. Safar
made a U-turn and drove back towards the house, when
defendant suddenly ran across the street in front of his vehicle.
Safar got out of his vehicle and kicked the burning flag away
from the door of the residence. The flames were approximately
18 inches high and 18 to 24 inches wide. Safar stomped out the
fire. The fire left ashes and stained the concrete area in front of
the porch. The owners emerged from their residence and Safar
went to look for defendant, but he could not locate him.
Safar identified defendant at trial, and prior to trial from a
photographic array, as the man who had pushed a cart into his
store and subsequently set a fire on Jaybrook Drive.
On January 22, 2014, Los Angeles County Sheriff’s
Department Detective James Dondis went to defendant’s
residence, located on Trudie Drive, close to the residence on
Jaybrook Drive. As Detective Dondis entered the residence,
defendant stated that he had thrown his cell phone into the
toilet. Detective Dondis retrieved the phone and attempted to

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dry it out. The Sheriff’s Department was unable to extract any
information from the cell phone.
Detective Dondis arrested defendant.
B. Prior Uncharged Arson Offense—December 30, 20132
Houston Brignano (Brignano) was in the backyard of his
residence on North Parker Street in San Pedro when he looked
over his wall and saw that the Christmas tree he had just thrown
away in the alley was on fire. Defendant was standing in the
alley facing the tree and he was recording the burning tree with
his cell phone. Brignano asked defendant what he was doing.
Defendant did not respond. Brignano photographed defendant
and his vehicle, including the vehicle’s license place number.
Defendant got into the vehicle and drove away. Brignano called
911.
The fire spread quickly and engulfed the entire tree.
Brignano extinguished the fire himself. When the fire
department arrived, Brignano told firefighters what had occurred
and showed them the pictures he had taken. Arson investigators
ran the license plate number and determined that it was
registered to Socooro MacKenzie at defendant’s address on
Trudie Drive.
C. Facebook Photographs
Detective Dondis located a Facebook profile belonging to
defendant. The profile was in the name of “Joe Mack III.”
Defendant’s middle name is Joseph. The Facebook page
contained a photograph, located in the “mobile uploads” section of
the page, depicting Brignano’s burning Christmas tree.
2 The uncharged offense was admitted into evidence for the
limited purpose of establishing defendant’s identity as the person
who committed the charged offense.

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Defendant’s Evidence
Defendant called one expert, who offered evidence
regarding memory and eyewitness identification.
DISCUSSION
I. The trial court did not abuse its discretion when it
admitted evidence, for the limited purpose of proving
identity, that defendant burned Brignano’s Christmas tree
three days prior to the instant offense
A. Relevant proceedings
Prior to trial, the People filed a motion to admit evidence of
uncharged acts pursuant to Evidence Code section 1101,
subdivision (b). Specifically, the People sought the admission of
defendant’s act of burning Brignano’s Christmas tree, as well as
admission of a third act of arson involving a different Christmas
tree. Defendant opposed the People’s motion.
After entertaining oral argument, the trial court
determined that it would admit evidence of the incident involving
Brignano’s Christmas tree in order to prove identity under
Evidence Code section 1101, subdivision (b), but that it would
exclude evidence of the incident involving another Christmas
tree. The trial court explained that defendant lived in the area
where the charged offense occurred, and that he lived close to
Brignano’s residence as well. The offenses occurred within three
days of one another, both fires involved areas accessible “from the
street to which [defendant] could have approached,” and the
burning of single objects found “on scene.” In so ruling, the trial
court found that the probative value of the evidence was not
substantially outweighed by the potential of undue prejudice
against defendant under Evidence Code section 352.
Prior to the admission of the evidence concerning the
uncharged offense, the trial court instructed the jury as follows:
“The People are going to present evidence that the defendant

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committed another offense of arson that was not charged in this
case. Now, you may consider this evidence only if the People
prove by a preponderance of the evidence that the defendant in
fact committed the uncharged offense.
“Proof by a preponderance of the evidence is a different
burden of proof than beyond a reasonable doubt. A fact is proved
by a preponderance of the evidence if you conclude that it is more
likely than not that the fact is true. If the People have not met
this burden, you must disregard this evidence entirely. If you do
decide that the defendant committed the uncharged act, you may,
but are not required to, consider the evidence for the following
limited purpose: that the defendant was the person who
committed the offenses charged and alleged in this case.
“In evaluating this evidence, consider the similarity or lack
of similarity between the charged offenses and the acts charged
in this case.
“Do not consider this evidence, the uncharged act, for any
other purpose except for the limited purpose of establishing
identity.
“Do not conclude from this evidence that the defendant has
a bad character or is disposed to commit crime.
“If you conclude that the defendant committed the
uncharged acts, that conclusion is only one factor to consider
along with all the other evidence. It is not sufficient by itself to
prove that the defendant is guilty of arson. The People must still
prove each charge and allegation in this case beyond a reasonable
doubt.”
Following the presentation of evidence, the trial court
repeated this limiting instruction to the jury.
B. Relevant law
Evidence that a defendant has committed crimes or acts
other than those he is currently charged with is not admissible to

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prove the defendant’s conduct on a specific occasion. (Evid. Code,
§ 1101, subd. (a).) However, evidence of uncharged crimes or
“other acts” is admissible to prove the identity of the perpetrator
of the charged crimes, the existence of a common design or
scheme, motive for the commission of the offense, or the intent
with which the perpetrator acted in the commission of the
charged crimes. (Evid. Code, § 1101, subd. (b); People v. Kipp
(1998) 18 Cal.4th 349, 369; People v. Ewoldt (1994) 7 Cal.4th 380,
393, superseded in part by statute on other grounds as stated in
People v. Robertson (2012) 208 Cal.App.4th 965, 991.)
In order for uncharged misconduct to be admissible to
prove identity, “the uncharged misconduct and the charged
offense must share common features that are sufficiently
distinctive so as to support the inference that the same person
committed both acts.” (People v. Ewoldt, supra, 7 Cal.4th at
p. 403; see also People v. Chism (2014) 58 Cal.4th 1266, 1306.) In
order to support an inference that the same person committed
both the uncharged and charged offenses, the proponent of the
evidence does not need to establish “one or more unique or nearly
unique common features; features of substantial but lesser
distinctiveness may yield a distinctive combination when
considered together. [Citation.]” (People v. Miller (1990) 50
Cal.3d 954, 987.) Although “characteristics common to both the
charged and uncharged acts must be distinctive” in order to prove
identity, “they may be few in number.” (People v. Erving (1998)
63 Cal.App.4th 652, 660.)
A trial court may admit evidence under Evidence Code
section 1101, subdivision (b), unless to do so would constitute an
abuse of discretion under Evidence Code section 352. (People v.
Branch (2001) 91 Cal.App.4th 274, 280–283.)
We review a trial court’s decision to admit evidence of a
defendant’s prior uncharged offense for abuse of discretion.

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(People v. Memro (1995) 11 Cal.4th 786, 863.) In conducting that
review, we balance the probative nature of the evidence against
four factors: (1) the inflammatory nature of the uncharged
conduct; (2) the possibility of confusion of issues; (3) remoteness
in time of the uncharged conduct; and (4) possible undue
consumption of time at trial. (People v. Ewoldt, supra, 7 Cal.4th
at pp. 404–406; People v. Branch, supra, 91 Cal.App.4th at
pp. 282–283; People v. Harris (1998) 60 Cal.App.4th 727, 737–
741.)
C. Analysis
Applying these legal principles, we conclude that the trial
court did not abuse its discretion when it admitted evidence of
defendant’s uncharged act of burning Brignano’s Christmas tree
in order to establish his identity as the individual who committed
the charged arson. The two offenses shared characteristics
sufficient to support an inference that the same person
committed both offenses. The offenses were committed within a
span of three days and in the same general vicinity, which was in
the area of defendant’s residence. Both incidents involved
defendant burning a single object that he encountered outside of
a residence, without any apparent use of an accelerant. Based on
the proximity of the two events in time and location, and the
similarity of the acts of burning items found outside of a
residence, the trial court did not abuse its discretion, in
admitting the uncharged offense to prove identity. (People v.
Sanchez (2016) 63 Cal.4th 411, 452–453; People v. Kipp, supra, 18
Cal.4th at p. 371; People v. Erving, supra, 63 Cal.App.4th at
pp. 659–660.)
Moreover, the trial court did not abuse its discretion under
Evidence Code section 352 when it determined that the
possibility of undue prejudice to defendant from the admission of
the evidence was not outweighed by the probative value of the

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evidence. Defendant’s uncharged arson of a discarded Christmas
tree in an alley was far less inflammatory than the charged
offenses in counts 2 and 5 involving the burning of an American
flag on the porch of an occupied residence, within a foot of the
home’s wooden door. (People v. Branch, supra, 91 Cal.App.4th at
p. 283.) The uncharged offense was not remote in time, as it
occurred a mere three days prior to the charged offense. (Id. at
p. 281.) Given the trial court’s limiting instructions, there was no
possibility of confusion by the jury, and the appellate record does
not suggest any confusion on the part of the jury. (Id. at p. 284.)
Finally, the evidence pertaining to the uncharged offense was
presented in a short amount of time at trial. (Id. at p. 285.)
Urging reversal, defendant suggests that the admission of
the evidence of the uncharged arson violated his federal
constitutional right to due process. But it is well-established that
the trial court’s application of the ordinary rules of evidence do
not violate a defendant’s right to due process. (See People v.
Lindberg (2008) 45 Cal.4th 1, 26; People v. Boyette (2002) 29
Cal.4th 381, 427–428.)
Even if the trial court had erred by admitting this evidence,
which it did not, defendant failed to establish that he suffered
any prejudice as a result of the alleged error. (People v. Watson
(1956) 46 Cal.2d 818, 836; People v. Welch (1999) 20 Cal.4th 701,
749–750.) The trial court instructed the jury that in evaluating
this evidence, it had to “consider the similarity or lack of
similarity between the charged offense[] and the acts charged in
this case.” It specifically told the jury that it could not consider
this evidence for any purpose other than for identity, and that it
could “not conclude from this evidence that the defendant has a
bad character or is disposed to commit crime.” We presume the
jury understood and followed the trial court’s instructions.
(People v. Bradford (1997) 15 Cal.4th 1229, 1337.)

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It follows that even if the uncharged arson was dissimilar
from the charged offense, the jury would not have relied upon
that evidence to conclude that defendant was the individual who
committed the charged offense. Instead, following the trial
court’s instructions, the jury would have relied upon Safar’s
eyewitness identification of defendant as the individual who set
the fire on Jaybrook Drive.
II. The trial court did not err by admitting defendant’s
Facebook photograph (People’s Exhibit Number 14)
Defendant contends that the trial court abused its
discretion when it admitted a photograph of Brignano’s burning
Christmas tree, which Detective Dondis obtained from
defendant’s Facebook page, into evidence.
A. Forfeiture
Preliminarily, we note that defendant failed to pose any
objection to the introduction of the photograph, or to Detective
Dondis’s testimony about it, at trial. It follows that his objection
has been forfeited on appeal. (Evid. Code, § 353, subd. (a); People
v. Doolin (2009) 45 Cal.4th 390, 448; People v. Bolin (1998) 18
Cal.4th 297, 321; People v. Sims (1993) 5 Cal.4th 405, 448.)
Defendant seems to suggest that a statement in his
written, pretrial opposition to the People’s motion to admit
evidence under Evidence Code section 1101, subdivision (b),
preserved this claim for appellate review. His contention lacks
merit.
In his opposition, defendant stated: “There is no evidence
of when or who took the pictures. There is no indication of when
these fires occurred or in what state or county they occurred.
There are no police reports regarding the Facebook account [or]
the pictures on Facebook. This offered evidence is not
admissible.” These statements are insufficient to preserve
defendant’s objection that the photograph was not properly

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authenticated by the People’s witnesses during trial. (People v.
Williams (1997) 16 Cal.4th 635, 661–662; People v. Jackson
(2016) 1 Cal.5th 269, 328 [a proper objection must inform the
trial court of the specific reasons the objecting party believes the
evidence should be excluded].)
Our conclusion is bolstered by Brignano’s testimony, which
resolved many of the concerns defendant briefly voiced in his
opposition to the People’s pretrial motion. Brignano testified at
trial that defendant had taken the photograph in question in an
alley abutting his residence on December 30, 2013. If defendant
believed that this evidence was insufficient to authenticate the
photograph, he should have so objected at trial.
Even if defendant’s written pretrial opposition constituted
a sufficient authentication objection to evidence subsequently
admitted at trial, defendant’s failure to seek or obtain a ruling on
that objection resulted in a forfeiture of the claim on appeal.
(People v. Lewis (2008) 43 Cal.4th 415, 481 [“Failure to press for a
ruling on a motion to exclude evidence forfeits appellate review of
the claim because such failure deprives the trial court of the
opportunity to correct potential error in the first instance”],
rejected on other grounds in People v. Black (2014) 58 Cal.4th
912, 919–920.)
B. The trial court did not err in admitting the
photograph
Setting defendant’s procedural obstacle aside, substantively
defendant’s claim of error fails. The trial court did not abuse its
discretion in admitting the photograph into evidence.
1. Relevant law
Authentication of a writing, including a photograph, is
required before it may be admitted into evidence. (Evid. Code,
§§ 250, 1401.) “Authentication is . . . statutorily defined as ‘the
introduction of evidence sufficient to sustain a finding that it is

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the writing that the proponent of the evidence claims it is’ or ‘the
establishment of such facts by any other means provided by law’
([Evid. Code,] § 1400).” (People v. Goldsmith (2014) 59 Cal.4th
258, 266.) “[T]he proof that is necessary to authenticate a
photograph or video recording varies with the nature of the
evidence that the photograph or video recording is being offered
to prove and with the degree of possibility of error. [Citation.]”
(People v. Goldsmith, supra, at p. 267.) “The foundation requires
that there be sufficient evidence for a trier of fact to find that the
writing is what it purports to be, i.e., that it is genuine for the
purpose offered. [Citation.]” (Ibid.)
“A photograph or video recording is typically authenticated
by showing it is a fair and accurate representation of the scene
depicted. [Citations.] This foundation may, but need not be,
supplied by the person taking the photograph or by a person who
witnessed the event being recorded. [Citations.] It may be
supplied by other witness testimony, circumstantial evidence,
content and location. [Citations.]” (People v. Goldsmith, supra,
59 Cal.4th at pp. 267–268.) There is no restriction on the means
by which a writing or photograph may be authenticated. (People
v. Valdez (2011) 201 Cal.App.4th 1429, 1435.) “‘As long as the
evidence would support a finding of authenticity, the writing [or
photograph] is admissible. The fact conflicting inferences can be
drawn regarding authenticity goes to the document’s weight as
evidence, not its admissibility.’ [Citation.]” (People v. Goldsmith,
supra, at p. 267.)
2. Analysis
The challenged evidence is a photograph of Brignano’s
burning Christmas tree in the alley outside his residence,
obtained from defendant’s Facebook page. Detective Dondis
testified that he obtained the photograph from defendant’s
Facebook page, which was in the name of “Joe Mack III.”

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Defendant’s middle name is Joseph, and his last name is
MacKenzie. Brignano testified that he observed defendant
taking the photograph with his cell phone. Brignano even
photographed defendant at the time defendant was filming the
burning tree, and his photographs were shown to the jury.
Detective Dondis testified that the alley depicted in the
photograph obtained from defendant’s Facebook page was the
same alley located outside Brignano’s residence. Taken together,
the testimony of Brignano and Detective Dondis and the
photographs from the alley were sufficient to establish the
authenticity of People’s Exhibit Number 14. (Evid. Code, § 1400;
People v. Chism, supra, 58 Cal.4th at pp. 1303–1304; People v.
Valdez, supra, 201 Cal.App.4th at p. 1435; People v. Goldsmith,
supra, 59 Cal.4th at pp. 267–268.)
Defendant contends that the photograph was not properly
authenticated because: (1) he did not testify that he had taken
the photograph and uploaded it to Facebook; (2) no one testified
that they saw him upload the photograph to Facebook; (3) no
expert testified as to whether the Facebook account belonged to
defendant; (4) assuming the Facebook page belonged to
defendant, no expert testified regarding other people’s access to
defendant’s Facebook account; and (5) no expert testified that the
photograph was not a “composite” or “faked” photograph. These
issues go to the weight of the evidence, not its authenticity.
(People v. Valdez, supra, 201 Cal.App.4th at p. 1435.) The
author’s (or photographer’s) testimony is not required to
authenticate a document (or photograph). (Evid. Code, § 1411;
People v. Valdez, supra, at p. 1435.) In fact, there are no
restrictions on “the means by which a writing may be
authenticated.” (Evid. Code, § 1410.) Similarly, no expert
testimony regarding content obtained from a social media
Web site, or photographs taken from such a Web site, is required

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before a trial court may determine that the content has been
properly authenticated. (In re K.B. (2015) 238 Cal.App.4th 989,
996–997; People v. Valdez, supra, at p. 1436.)
Even if the trial court erred by admitting People’s Exhibit
Number 14 into evidence, which it did not, defendant suffered no
prejudice as a result of the claimed error. There is no reasonable
probability that defendant would have received a more favorable
outcome at trial had the photograph been excluded. (People v.
Watson, supra, 46 Cal.2d at p. 836.)
As set forth above, Brignano testified that he saw
defendant standing in front of the burning tree, filming the tree
with his cell phone. Brignano photographed defendant, and the
jury saw Brignano’s photograph at trial. Brignano also
photographed defendant’s vehicle, which arson investigators
established was registered to one of defendant’s family members
who resided at his residence. In light of this evidence, there is no
reasonable probability that defendant would have obtained a
more favorable result at trial had the evidence obtained from
defendant’s Facebook page been omitted. (People v. Beckley
(2010) 185 Cal.App.4th 509, 517–518 [error in admitting
document obtained from the internet was harmless given other
evidence establishing the same facts established by the
document].)
Defendant claims that he was prejudiced by the admission
of the photograph because it allowed the prosecutor to argue to
the jury that defendant destroyed his cell phone because he had
arson-related photographs on his phone that would have
incriminated him. But the prosecutor could have made this same
argument irrespective of the admission of People’s Exhibit
Number 14 because Brignano testified that he saw defendant
filming the burning tree, and photographed him doing so, and
Detective Dondis testified that defendant threw his cell phone in

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the toilet the moment the detective arrived at defendant’s
residence. Thus, defendant has not established prejudice.
III. No cumulative error
Defendant argues that his conviction should be reversed as
a result of cumulative error. As set forth above, defendant has
failed to demonstrate any error. And, even if we agreed that
defendant’s claims of evidentiary error had merit, the claimed
errors were insignificant in light of the overwhelming evidence of
defendant’s guilt. Thus, we reject defendant’s contention of
cumulative error. (People v. Montiel (1993) 5 Cal.4th 877, 944
[errors do not require a reversal whether considered singly or
together as they had a minimal impact on the overall fairness of
the defendant’s trial], disapproved in part on other grounds in
People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) Defendant
was not denied a fair trial. (People v. Homick (2012) 55 Cal.4th
816, 884.)
IV. Presentence custody credits
We agree with the parties that the abstract of judgment
must be modified to reflect one additional day of presentence
custody credit.
The trial court found defendant was entitled to 1,160 days
of actual custody time. However, the total number of days in
between and including the day of defendant’s arrest is 1,161
days. (People v. Bravo (1990) 219 Cal.App.3d 729, 735 [“a
sentencing court must award credits for all days in custody up to
and including the day of sentencing”].)
Accordingly, we order the abstract of judgment to be
modified to reflect 1,161 days of presentence actual custody time.
V. Diversion hearing (§ 1001.36) and newly authorized
discretion to strike (SB 1393)
While this appeal was pending, the Legislature enacted
section 1001.36, which took effect June 27, 2018, and authorized

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pretrial diversion for defendants with mental disorders. The
Legislature also enacted an amendment to section 667,
subdivision (a), which took effect January 1, 2019, and gives the
trial court discretion to dismiss the punishment for a prior
serious felony conviction.
A. Section 1001.36
Section 1001.36 authorizes pretrial diversion for
defendants with mental disorders. “‘[P]retrial diversion’ means
the postponement of prosecution, either temporarily or
permanently, at any point in the judicial process from the point
at which the accused is charged until adjudication, to allow the
defendant to undergo mental health treatment.” (§ 1001.36,
subd. (c).)
A trial court may grant pretrial diversion under section
1001.36 if the court finds: (1) the defendant suffers from an
identified mental disorder; (2) the mental disorder played a
significant role in the commission of the charged offense; (3) the
defendant’s symptoms will respond to treatment; (4) the
defendant consents to diversion and the defendant waives his
speedy trial rights; (5) the defendant agrees to comply with the
treatment; and (6) the defendant will not pose an unreasonable
risk of danger to public safety, as defined in section 1170.18, if he
is treated in the community. (§ 1001.36, subd. (b).)
If the trial court grants pretrial diversion, “[t]he defendant
may be referred to a program of mental health treatment
utilizing existing inpatient or outpatient mental health
resources” for “no longer than two years.” (§ 1001.36, subds.
(c)(1)(B) & (c)(3).) If the defendant performs “satisfactorily in
diversion, at the end of the period of diversion, the court shall
dismiss the defendant’s criminal charges that were the subject of
the criminal proceedings at the time of the initial diversion.”
(§ 1001.36, subd. (e).)

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Defendant asserts that these statutes apply retroactively to
this case because the statutes have an ameliorative effect on
punishment. The People contend that the new statutes do not
apply retroactively because the Legislature did not intend them
to apply retroactively. We agree with defendant.
As a canon of statutory interpretation, we generally
presume laws apply prospectively rather than retroactively.
(People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307
(Lara).) However, the Legislature may explicitly or implicitly
enact laws that apply retroactively. (Ibid.) To determine
whether a law applies retroactively, we must determine the
Legislature’s intent. (Ibid.)
“‘When the Legislature amends a statute so as to lessen the
punishment it has obviously expressly determined that its former
penalty was too severe and that a lighter punishment is proper as
punishment for the commission of the prohibited act. It is an
inevitable inference that the Legislature must have intended that
the new statute imposing the new lighter penalty now deemed to
be sufficient should apply to every case to which it
constitutionally could apply. The amendatory act imposing the
lighter punishment can be applied constitutionally to acts
committed before its passage provided the judgment convicting
the defendant of the act is not final.’” (Lara, supra, 4 Cal.5th at
p. 307, quoting In re Estrada (1965) 63 Cal.2d 740, 745
(Estrada).) “‘The Estrada rule rests on an inference that, in the
absence of contrary indications, a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend as
broadly as possible, distinguishing only as necessary between
sentences that are final and sentences that are not.’ [Citations.]”
(Lara, at p. 308.)
The Estrada rule applies to section 1001.36 because section
1001.36 lessens punishment by giving defendants the possibility

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of diversion and then dismissal of criminal charges. (People v.
Frahs (2018) 27 Cal.App.5th 784, 791 (Frahs).) In addition,
applying section 1001.36 retroactively is consistent with the
statute’s purpose, which is to promote “[i]ncreased diversion of
individuals with mental disorders to mitigate the individuals’
entry and reentry into the criminal justice system while
protecting public safety.” (§ 1001.35, subd. (a).)
The statute’s definition of pretrial diversion, which
indicates the statute applies at any point in a prosecution from
accusation to adjudication (§ 1001.36, subd. (c)), does not compel
a different conclusion. “The fact that mental health diversion is
available only up until the time that a defendant’s case is
‘adjudicated’ is simply how this particular diversion program is
ordinarily designed to operate. Indeed, the fact that a juvenile
transfer hearing under Proposition 57 ordinarily occurs prior to
the attachment of jeopardy, did not prevent the Supreme Court
in Lara, supra, 4 Cal.5th 299, from finding that such a hearing
must be made available to all defendants whose convictions are
not yet final on appeal.” (Frahs, supra, 27 Cal.App.5th at p. 791.)
Furthermore, the California Supreme Court decided Lara
before the Legislature passed section 1001.36 and the Legislature
is deemed to have been aware of the decision. (See People v.
Overstreet (1986) 42 Cal.3d 891, 897.) Had the Legislature
intended for the courts to treat section 1001.36 in a different
manner, we would expect the Legislature to have expressed this
intent clearly, not subtly. (See In re Pedro T. (1994) 8 Cal.4th
1041, 1049 [to counter the Estrada rule, the Legislature must
“demonstrate its intention with sufficient clarity that a reviewing
court can discern and effectuate it”].) Consequently, we conclude
section 1001.36 applies retroactively to this case.

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B. SB 1393
While this case was pending on appeal, the Legislature also
enacted an amendment to section 667, subdivision (a), which took
effect on January 1, 2019, and will give the trial court the
discretion to dismiss the punishment for a prior serious felony
conviction. The People contend that we need not remand the case
for resentencing “because the trial court’s discretionary choices at
sentencing clearly indicated that it would not have dismissed the
enhancements in any event.”
When, as here, a court is unaware it had the discretion to
reduce a sentence, “[r]emand is required unless the record reveals
a clear indication that the [court] would not have reduced the
sentence even if at the time of sentencing it had the discretion to
do so. [Citation.]” (People v. Almanza (2018) 24 Cal.App.5th
1104, 1110.)
Here, it is not clear that the trial court would have stricken
the prior serious felony enhancement had it known it had the
discretion to do so. In urging us to reject defendant’s argument,
the People note that the trial court partially granted defendant’s
Romero3 motion, striking two of his three prior strikes in the
furtherance of justice. But, the reporter’s transcript indicates
that the trial court did so because “the conduct in this case and
the fact that the underlying strikes ar[o]se out of a single
incident in a single course of conduct t[ook] [defendant] outside of
the spirits of the Three Strikes law.” Those comments do not
indicate that the trial court exercised the sort of discretion
envisioned under section 667, subdivision (a). The trial court did
not, for example, consider factors in aggravation and mitigation.
(See, e.g., People v. McVey (2018) 24 Cal.App.5th 405, 418.)
Under these circumstances, remand is appropriate.
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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DISPOSITION
The judgment is conditionally reversed. The cause is
remanded to the trial court with directions to conduct a diversion
eligibility hearing under section 1001.36. If the court determines
that defendant qualifies for diversion under section 1001.36, then
it may grant diversion. If defendant successfully completes
diversion, then the court shall dismiss the charges.
However, if the trial court determines that defendant is
ineligible for diversion, or defendant does not successfully
complete diversion, then the court shall reinstate his convictions.
The court shall also conduct a new sentencing hearing to consider
whether to exercise its newly authorized discretion under
amended section 667, subdivision (a), to dismiss the punishment
for the prior serious felony conviction.
In addition, the trial court shall modify the abstract of
judgment to reflect 1,161 days of actual custody credits and then
forward a certified copy of the amended abstract of judgment to
the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, Acting P. J.
ASHMANN-GERST
We concur:
_____________________, J.
CHAVEZ
_____________________, J.
HOFFSTADT

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