P. v. Lopez

Filed 6/19/19 People v. Lopez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE OF THE STATE
OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOEL LOPEZ,
Defendant and Appellant.
B290344
(Los Angeles County
Super. Ct. No. PA087591)
APPEAL from an order of the Superior Court of Los
Angeles County, Hilleri G. Merritt, Judge. Reversed and
remanded.
Tyrone A. Sandoval, 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, Margaret E. Maxwell and Peggy Z. Huang,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________

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A jury convicted Joel Lopez of assault with a deadly
weapon. He was sentenced to 16 years in prison. On appeal, the
parties agree that the case must be remanded to allow the trial
court to (1) exercise its discretion whether to strike the five-year
serious felony enhancements, and (2) either impose or strike the
four one-year prior prison enhancements. Lopez also argues that
remand is appropriate to consider whether to grant pre-trial
diversion for mental health treatment under recently enacted
Penal Code section 1001.36.1 We reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
On November 14, 2016, while placed on an involuntary
hold at a psychiatric hospital, Lopez tackled another patient,
punching him and scratching the victim’s face with a screw.
Lopez was charged with assault with a deadly weapon (§ 245,
subd. (a)(1).) The information alleged that that he served four
prior prison terms (§ 667.5, subd. (b)), three prior serious felony
convictions (§ 667, subd. (a)(1)), and three prior serious felonies
within the meaning of the Three Strikes law (§§ 667, subd. (d),
1170.12, subd. (b)).
Lopez pled not guilty by reason of insanity. At trial, Lopez
testified that he was paranoid and heard voices at the time of the
assault. The jury convicted of him of assault, and the trial court
entered a directed verdict on the sanity issue.
Lopez was sentenced to 16 years in state prison: the mid-
term of three years doubled under the Three Strike law plus two
five-year enhancements pursuant to section 667, subdivision
(a)(1) for the prior serious felony convictions. Reasoning that
1 All further statutory references are to the Penal Code.

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Lopez “deserve[d] . . . mental health help” and in the interests of
justice, the court exercised its discretion to strike two of Lopez’s
prior felony convictions under the Three Strikes law. The court
also stayed the prior prison term enhancements. Lopez timely
appealed.
DISCUSSION
1. The Court’s Discretion to Strike the Five-Year
Enhancements
Lopez argues remand is required to give the trial court an
opportunity to exercise discretion conferred by Senate Bill
No. 1393, which authorizes a trial court to strike a five year
section 667, subdivision (a) sentencing enhancement if found to
be in the interests of justice (§ 1385). The Attorney General
concedes, and we agree that the changes in law worked by Senate
Bill No. 1393 apply retroactively and that, on this record, Lopez
is entitled to the remand he seeks.
At the time Lopez was sentenced, imposition of the section
667, subdivision (a)(1) five-year enhancement for sustaining a
prior serious felony conviction was mandatory. (Former § 1385,
subd. (b), amended by Stats. 2018, ch. 1013, § 2, eff. Jan. 1, 2019
[“This section does not authorize a judge to strike any prior
conviction of a serious felony for purposes of enhancement of a
sentence under Section 667”].) After Lopez’s sentencing, the
Governor signed Senate Bill No. 1393, which deletes the
provision of section 1385 that makes imposition of a section 667
prior serious felony conviction enhancement mandatory (as well
as related language in section 667 itself), thereby permitting trial
courts to strike such enhancements when found to be in the
interest of justice. (Sen. Bill No. 1393 (2017–2018 Reg. Sess.)

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§§ 1, 2.) The legislative changes made by Senate Bill No. 1393
took effect on January 1, 2019.
Senate Bill No. 1393 applies retroactively to defendant
under the principles espoused in In re Estrada (1965) 63 Cal.2d
740 and People v. Francis (1969) 71 Cal.2d 66, 76. (People v.
Garcia (2018) 28 Cal.App.5th 961, 972–973.) Because the record
provides no clear indication the trial court would have refused to
exercise in Lopez’s favor the discretion conferred by Senate Bill
No. 1393, a limited remand is appropriate.
2. In Resentencing Lopez, the Trial Court Must Strike or
Impose the Prior Prison Enhancements
Lopez admitted that he had served four prior prison terms
within the meaning of section 667.5, subdivision (b). At
sentencing, the trial court stayed the four one-year enhancements
under this statute.
Section 667.5, subdivision (b) requires the trial court to
enhance a defendant’s sentence by a consecutive one-year for
each prior prison term served by the defendant where he or she
was convicted of a felony within five years of completing that
term. “Once the prior prison term is found true within the
meaning of section 667.5(b), the trial court may not stay the one-
year enhancement, which is mandatory unless stricken.” (People
v. Langston (2004) 33 Cal.4th 1237, 1241.) Thus, at resentencing,
the trial court must either impose one or more of the prison terms
required by section 667.5, subdivision (b) or strike any term not
imposed.

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3. Lopez Should Be Considered for Relief Under Section
1001.36
The parties submitted supplemental briefs on whether
defendant is entitled to a conditional remand to allow the trial
court to consider whether to refer defendant to mental health
diversion.
Lopez contends that he is entitled to a pretrial hearing on
diversion under recently enacted section 1001.36 because the
Legislature intended the statute to apply to cases pending on
appeal. As Lopez notes, the record shows that at the time he
committed the assault, he was admitted to a psychiatric hospital
and experiencing psychotic symptoms. Respondent counters that
the language of subdivision (c) of section 1001.36 demonstrates
that the Legislature intended the enactment to operate
prospectively only, i.e., the enactment does not apply to cases
such as this one in which there has already been a trial court
adjudication.
Recently in People v. Frahs (2018) 27 Cal.App.5th 784
(Frahs), the Court of Appeal held that section 1001.36 applies
retroactively. Our Supreme Court, in turn, has granted review of
Frahs, and will have the final say on the matter. (People v. Frahs
(Dec. 27, 2018, S252220).)2 For now, we agree with Frahs that
section 1001.36 applies retroactively.
2 California Rules of Court, rule 8.1115(e)(1) [“Pending
review and filing of the Supreme Court's opinion, unless
otherwise ordered by the Supreme Court under (3), a published
opinion of a Court of Appeal in the matter has no binding or
precedential effect, and may be cited for potentially persuasive
value only.”].)

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As in Frahs, Lopez’s case is not yet final on appeal and the
record affirmatively discloses that he appears to meet at least one
of the threshold requirements. We will therefore remand to allow
the trial court to determine whether defendant should be referred
for mental health diversion under section 1001.36. (Frahs, supra,
27 Cal.App.5th at p. 791.)
DISPOSITION
The judgment is conditionally reversed and the matter is
remanded to the trial court with directions to conduct a diversion
eligibility hearing under section 1001.36 within 90 days from the
remittitur. If the trial court determines that Lopez is not eligible
for diversion, then the court shall reinstate the judgment.
If the trial court determines that Lopez is eligible for
diversion but, in exercising its discretion, the court further
determines diversion is not appropriate under the circumstances,
then the court shall reinstate the judgment.
If the trial court determines that Lopez is eligible for
diversion and, in exercising its discretion, the court further
determines diversion is appropriate under the circumstances,
then the court may grant diversion. If Lopez successfully
completes diversion, the court shall dismiss the charges in
accordance with section 1001.36, subdivision (e). If, however,
Lopez does not successfully complete diversion, the trial court
shall reinstate the judgment.
The sentence is reversed as well. If the trial court
reinstates the judgment after considering diversion under section
1001.36, it should hold a resentencing hearing to consider
whether to exercise its discretion to (1) strike Lopez’s five-year
sentencing enhancements under section 667, subdivision (a)(1),

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and (2) either impose or strike the one-year prior prison terms
under section 667.5, subdivision (b).
We also order the abstract of judgment corrected to
accurately reflect that Lopez admitted three prior strike
convictions.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.

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