P. v. Abt

Filed 6/20/19 P. v. Abt CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JORDAN SCHUYLER ABT,
Defendant and Appellant.
D073321
(Super. Ct. No. SCD269892)
APPEAL from a judgment of the Superior Court of San Diego County, David M.
Rubin, Judge. Conditionally reversed, with directions.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Christine Levingston Bergman, A.
Natasha Cortina and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and
Respondent.

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A jury found Jordan Abt guilty of robbery (Pen. Code, § 211) and found true the
allegation that he personally used a dangerous or deadly weapon (a knife) in the
commission of the felony offense (Pen. Code, §§ 12022, subd. (b)(1), 1192.7, subd.
(c)(23).)1 The trial court found Abt had suffered one strike prior, one serious felony
prior, and three prison priors. The court sentenced him to 10 years in prison, consisting
of the following: four years for the robbery conviction (the two-year lower term, doubled
for the strike prior); a consecutive one-year term for the personal use enhancement; and a
consecutive five-year term for the serious felony prior conviction.
Abt raises three sentencing issues on appeal. First, he contends we should remand
to allow the trial court the opportunity to grant him mental health diversion under statutes
enacted after he was convicted. (See §§ 1001.35, 1001.36.) He maintains this
ameliorative legislation applies retroactively and that he has made a showing sufficient to
warrant remand. The retroactivity issue is pending before the California Supreme Court.
(See People v. Frahs (2018) 27 Cal.App.5th 784, 791 (Frahs) [finding the statutes
retroactive], review granted Dec. 27, 2018, S252220.) Pending further guidance from the
Supreme Court, we conclude the diversion statutes apply retroactively. We further
conclude Abt has made a showing of potential eligibility sufficient to warrant a remand
for further proceedings.
1 Further statutory references are to the Penal Code.

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Second, Abt contends we should remand for resentencing because the trial court
imposed the one-year personal use enhancement on the mistaken belief the enhancement
is mandatory. The Attorney General agrees, as do we.
Finally, Abt contends we should remand for resentencing on the additional ground
that, after he was sentenced, the Governor signed into law Senate Bill No. 1393, which
gives trial courts the discretion to strike five-year serious felony prior enhancements. Abt
and the Attorney General agree that Senate Bill No. 1393 applies retroactively, but the
Attorney General argues remand is unnecessary because the trial court's comments during
the sentencing hearing indicate the court would not have exercised its newly vested
discretion favorably to Abt. We agree Senate Bill No. 1393 applies retroactively, and
conclude remand is appropriate on this record.
Accordingly, as more fully set forth in the Disposition, we conditionally reverse
the judgment to allow the trial court to conduct mental health diversion proceedings and,
depending on the outcome of those proceedings, to resentence Abt.
FACTUAL AND PROCEDURAL BACKGROUND
The Offense
On November 29, 2016, loss prevention agents at a home improvement store
observed Abt conceal electronic devices in his clothing and leave the store without
paying. The agents followed Abt outside, where one of them stated loudly enough for
Abt to hear that he was calling the police. Abt turned toward the agents, holding a multi-
purpose tool with a knife blade exposed, and stepped toward them. A friend of Abt's,

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whom the agents had also been monitoring inside the store, then pulled up quickly in a
car. Abt got in, and they drove off. The items Abt took were worth $67.74.
Charges, Jury Verdict, and Priors
The prosecution charged Abt with a single count of robbery (§ 211), and alleged
he personally used a dangerous or deadly weapon in the commission of the felony offense
(§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). The prosecution further alleged Abt had
suffered three prison priors (§§ 667.5, subd. (b), 668), one serious felony prior (§§ 667,
subd. (a)(1), 668, 1192.7, subd. (c)), and one strike prior (§§ 667, subds. (b)-(i), 668,
1170.12).
The jury found Abt guilty and found the personal use allegation true. Following a
bench trial, the court found all the alleged priors true.
Sentencing
Before proceeding to sentencing, the trial court requested a "psychiatric workup"
on Abt based on "some of the things [the court] observed" during trial.
While the psychological evaluation was pending, Abt filed a sentencing
memorandum requesting that the court strike his strike prior under People v. Superior
Court (Romero) (1996) 13 Cal.4th 497. Abt based his Romero motion (in part) on his
claimed mental health issues. He also cited "psychological issues and addiction to
methamphetamine" as mitigating factors.

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The prosecution filed a sentencing memorandum noting Abt is absolutely
ineligible for probation due to his strike prior, and requesting a 12-year sentence.2
Forensic psychiatrist Valerie Rice filed a report of her findings on her evaluation
of Abt. Her review of Abt's treatment records revealed "a history of 'bipolar
schizoaffective,' " a prior diagnosis of "psychotic disorder," and a prior determination that
he was "mentally incompetent." Rice found "[i]t was not possible to effectively
interview" Abt due to his "abnormal mental state" and "paranoid and grandiose" "thought
content." Her diagnostic impression of Abt included "[u]nspecified schizophrenia
spectrum and other psychotic disorders," and "[s]timulant use disorder
(methamphetamine)." Dr. Rice concluded:
"Clearly he does suffer from a severe mental illness characterized by
ongoing psychosis. . . . Certainly, he would need to continue taking
psychiatric medications and be monitored closely by a
psychiatrist. . . . He would benefit from a treatment program, which
would target both his mental illness and substance abuse problems.
Unfortunately, it appears that he has been referred to such programs
on multiple occasions, but has failed to maintain participation in
such programs.
"In my opinion, it is extremely unlikely that he would be able to
comply with conditions of probation. It is also extremely unlikely
that he would be able to comply with any treatment
recommendations. He needs to be continued to be treated for his
mental health issues and substance abuse problems in a highly
structured, highly monitored environment. I believe that, if released
in the community, he would pose a substantial danger to others in
the community due to his mental health and substance abuse issues."
2 The prosecution proposed 12 years based on the following: six years for the
robbery conviction (the midterm of three years, doubled for the strike prior); one year for
the personal use enhancement; and five years for the serious felony prior. The
prosecution proposed staying the three 1-year prison priors.

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The probation officer filed a report detailing Abt's extensive criminal history,
which consisted primarily of misdemeanors and drug offenses, but also included a felony
conviction for assault with a deadly weapon on a peace officer (§ 245, subd. (c)).3 Abt's
probation records reflected multiple diagnoses of schizoaffective disorder as recently as
June 2016, and a commitment to Patton State Hospital in 2013. The report detailed Abt's
history of poor performance on probation, parole, and in drug and mental health
treatment programs.
The probation officer noted Abt was absolutely ineligible for probation due to his
strike prior, but added she would not have recommended probation anyway in light of his
"history of continued drug abuse, failure to stay in treatment, and his propensity towards
violence when high on methamphetamine . . . ." Instead, the probation officer initially
recommended a 10-year sentence based on the six-year middle term for the robbery
conviction, three 1-year terms for the prison priors, and a "mandatory" one-year term for
the personal use enhancement. She revised her recommendation to 14 years when she
realized she had overlooked the five-year serious felony prior.4
With respect to Abt's mental health status, the probation report concluded:
3 According to the probation report, the strike/serious felony prior conviction arose
from Abt recklessly evading police and crashing into a patrol car (narrowly missing a
police officer who had exited the vehicle) while driving under the influence of
methamphetamine.
4 The probation officer reached 14 years by adding the five-year serious felony prior
enhancement to her original 10-year recommendation, and staying one of the one-year
prison priors on the basis it was duplicative of the serious felony prior.

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"The defendant undoubtedly suffers from mental illness for which
psychotropic medication is necessary. From 2004 up until his arrest
in 2017, the defendant has received numerous referrals to drug and
mental health treatment programs. He was unable to stay engaged in
most services for any significant period of time despite
encouragement, guidance, drug testing, and medication."
At the hearing initially set for sentencing, the court, "[o]ut of an abundance of
caution," granted defense counsel's request for a competency evaluation. The court
ultimately found Abt competent.
At the sentencing hearing, defense counsel noted Abt faced a maximum exposure
of 19 years, but asked the court to "consider the low term" and "strik[e] the strike . . . so
that he can move on." The court responded, "I understand that. It's just something the
math in this case is with or without the strike. There's . . . the 5-year [serious felony]
prior. There's not a lot to be done here." Defense counsel then suggested the court
reduce the felony robbery conviction to a misdemeanor burglary conviction. The court
appreciated counsel's "creativity," but explained, "Even if I could, I wouldn't under the
circumstances . . . ."
The court denied Abt's Romero motion "for a variety of reasons, including the
number of convictions he has, the length of time between the first conviction and the
current conviction, the frequency of them, and [the assault with a deadly weapon on a
peace officer] itself is of a nature that . . . would really . . . reduce the Court's discretion to
strike that strike."
The court found Abt ineligible for probation, but added that "even if probation
were allowed, it would not be appropriate in that he doesn't seem to be amenable." The

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court was "mindful" that "there does need to be some component of mental health here,"
but not via probation because "[w]e can't manage him locally" inasmuch as "[w]e don't
have the resources for him . . . ."
The court then "move[d] on to the question of what is this case . . . really worth?"
The court recalled that pretrial plea negotiations involved a six-year sentence, and the
probation officer initially recommended a 10-year sentence before realizing she had
overlooked the serious felony prior. The court then explained:
"The Court, when it read the [probation] report originally, thought
10 years was fair. The Court continues to think that 10 years is fair,
is the right, just result based on what the Court heard. [¶] . . . [¶] . . .
And just the interest of justice in terms of, I think, a term over 10
years in this case would not be . . . fair, would not reflect the conduct
that occurred here, even with his record. So the Court picks 10
years."
The court explained how it arrived at 10 years. The court began with the lower
term of two years (doubled to four years for the strike prior) on the robbery conviction.
The court deemed the lower term appropriate in light of the "significant . . . mental health
component" and the fact that most of Abt's "long record" is "misdemeanor conduct." The
court then added "the mandatory consecutive of 1 year" for the personal use
enhancement. Finally, the court added "the serious felony prior, which is a consecutive 5
years." The court imposed, but stayed, the prison priors.
After the court pronounced sentence, Abt requested to be released on bail, pending
appeal. The court denied the request "[u]nder all of the circumstances confronting the
Court, namely, he's now a sentenced prisoner looking at double digits, namely, 10 years,
his record, [and] his noncompliance when he was on probation . . . ."

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DISCUSSION
I. Mental Health Diversion
Abt contends the newly enacted mental health diversion statutes apply
retroactively and that he has made a showing of potential eligibility sufficient to warrant
a remand. We agree.
A. The Diversion Legislation
Effective June 27, 2018—after Abt was sentenced—the Legislature added two
new sections to the Penal Code (§§ 1001.35, 1001.36) that authorize trial courts to grant
"pretrial diversion" to defendants diagnosed with qualifying mental disorders. (See Stats.
2018, ch. 34, § 24.) "Section 1001.36 gives trial courts the discretion to grant pretrial
diversion if the court finds: (1) a qualified mental health expert has recently diagnosed
the defendant with a qualifying mental disorder; (2) the mental disorder was a significant
factor in the commission of the charged offense; (3) the defendant's symptoms will
respond to treatment; (4) the defendant consents to diversion and waives his or her
speedy trial rights; (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." (People v. Cawkwell (2019) 34 Cal.App.5th 1048, 1053; § 1001.36, subd.
(b)(1)(A)-(F).)5
5 Shortly after section 1001.36 was enacted, it was amended to (1) eliminate
diversion eligibility for defendants charged with certain offenses; (2) allow the trial court
"[a]t any stage of the proceedings" to "require the defendant to make a prima facie
showing that the defendant will meet the minimum requirements of eligibility for
diversion and that the defendant and the offense are suitable for diversion"; and (3) to

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If the 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).)
B. Retroactivity
Abt contends the mental health diversion statutes apply retroactively to his case
under precedent holding that ameliorative amendments to criminal statutes generally
apply retroactively, absent a contrary expression of legislative intent. (See In re Estrada
(1965) 63 Cal.2d 740, 745; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307.)
The Attorney General counters that, by its own terms, section 1001.36 does not apply
retroactively because it provides for "pretrial diversion" (§ 1001.36, subd. (c), italics
added), and Abt's case is posttrial.6 We agree with Abt.
In Frahs, supra, 27 Cal.App.5th 784 (rev. gr. December 27, 2018, No. S252220),
the Fourth District, Division Three, held that section 1001.36 applies retroactively to all
nonfinal judgments. (Id. at p. 791.) The California Supreme Court has granted review in
make certain technical changes (e.g., changing the phrase "played a significant role" to
"was a significant factor" [italics added]). (Stats. 2018, ch. 1005 (Sen. Bill No. 215), § 1,
eff. Jan. 1, 2019.) These amendments have no bearing on the issues in this appeal.
6 We grant the Attorney General's request that we take judicial notice of certain
legislative history materials and dictionary definitions.

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Frahs. Because our Supreme Court will soon have the final word, we will keep our
discussion brief. Suffice to say, our court has followed Frahs, and we continue to find its
reasoning persuasive. (See People v. Aguayo (2019) 31 Cal.App.5th 758, 760 (Aguayo)
["we conclude the mental health diversion legislation applies retroactively"], rev. gr. May
1, 2019, No. S254554.)7 Accordingly, we conclude the mental health diversion statutes
apply retroactively to Abt's case.
C. Sufficient Showing of Eligibility to Warrant Remand
The Attorney General contends that even if the mental health diversion statutes
apply retroactively, remand would be futile because Abt would not be able to establish he
is eligible for diversion. The record does not support this contention sufficiently to
preclude remand.
The Attorney General argues Abt would be unable to obtain "the opinion of a
qualified mental health expert" that his "symptoms . . . would respond to mental health
treatment." (§ 1001.36, subd. (b)(1)(C).) In support, the Attorney General cites Dr.
Rice's observations that "it is extremely unlikely that [Abt] would be able to comply with
conditions of probation" or "any treatment recommendations." The Attorney General
also cites Abt's history of "fail[ing] to complete" mental health and substance abuse
7 We certified our opinion in Aguayo, supra, 31 Cal.App.5th 758 for partial
publication. Our conclusion that the mental health diversion statutes apply retroactively
appears in the published portion; however, our analysis supporting this conclusion
appears in the unpublished portion. The California Supreme Court granted review in
Aguayo on an unrelated issue.

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treatment programs. We are not persuaded that Dr. Rice's observations in these regards
necessarily preclude the trial court from finding diversion appropriate.
The Attorney General's reliance on Dr. Rice's observations about probation are
misplaced because Abt is not asking for a grant of probation. And although Dr. Rice
observed Abt may have difficulty complying with "treatment recommendations," she also
observed he "needs to be continued to be treated for his mental health issues and
substance abuse problems in a highly structured, highly monitored environment." The
trial court is better situated than we to determine in the first instance the suitability and
availability of mental health treatment options.
The Attorney General also argues Abt would be unable to persuade the trial
court that he "will not pose an unreasonable risk of danger to public safety . . . if treated
in the community." (§ 1001.36, subd. (b)(1)(F).) In support, the Attorney General cites
the fact the court has "implicitly concluded on three occasions" (italics added) that Abt
would pose a danger—when denying his Romero motion, when indicating the court
would not grant Abt probation even if he were eligible, and when denying bail pending
appeal.
We will leave it to the trial court on remand to make explicit any such finding.
On a full record, the trial court is better situated than we to determine whether the mental
health treatment options available under the applicable diversion program will adequately
protect public safety while Abt is being treated. In this vein, Abt represents in his reply
brief that he is seeking only inpatient treatment.

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We express no view on whether Abt ultimately will be able to make a prima
facie showing of eligibility on remand. Nor do we express any view on how the trial
court should exercise its discretion if the court finds him eligible. We grant remand
merely to afford Abt the opportunity to make the required showing, and for the trial court
to exercise its newly vested discretion.
II. Personal Use Enhancement
Although the sentence enhancement for personally using a deadly or dangerous
weapon in the commission of a felony purports to be mandatory (§ 12022, subd. (b)(1)),8
the courts have held that trial courts retain discretion to strike the enhancement in the
interests of justice. (People v. Jones (2007) 157 Cal.App.4th 1373, 1378-1379, 1381-
1382; see § 1385.) Abt requests that we remand for resentencing because the trial court's
reference to the enhancement as "mandatory" during the sentencing hearing indicates the
court may have misunderstood it retained the discretion to strike the personal use
enhancement.9 (See People v. Brown (2007) 147 Cal.App.4th 1213, 1228 ["Generally,
when the record shows that the trial court proceeded with sentencing on the erroneous
assumption it lacked discretion, remand is necessary so that the trial court may have the
opportunity to exercise its sentencing discretion at a new sentencing hearing."].) The
Attorney General agrees remand for resentencing is appropriate. So do we.
8 Section 12022, subdivision (b)(1) states: "A person who personally uses a deadly
or dangerous weapon in the commission of a felony . . . shall be punished by an
additional and consecutive term of imprisonment in the state prison for one year, unless
use of a deadly or dangerous weapon is an element of that offense." (Italics added.)
9 The probation report also characterized the enhancement as "mandatory."

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III. Serious Felony Prior
Abt contends we should remand for resentencing for an additional reason: to allow
the trial court the opportunity to exercise its newly vested discretion to strike the five-
year serious prior felony enhancement. We agree.
When the trial court sentenced Abt to a consecutive five-year term under section
667, subdivision (a) for his serious felony prior conviction (assault with a deadly weapon
on a peace officer), the court was required to impose this term.10 (§§ 667, former subd.
(a)(1), 1385, former subd. (b).) But while this appeal was pending, the Governor signed
into law Senate Bill No. 1393, which amended sections 667 and 1385 to give trial courts
discretion to strike or dismiss five-year serious felony prior enhancements in the
"furtherance of justice." (See Stats. 2018, ch. 1013, §§ 1-2; People v. Garcia (2018) 28
Cal.App.5th 961, 971.) The new law took effect on January 1, 2019, and we have held it
applies retroactively to all nonfinal judgments. (See People v. Jimenez (2019) 32
Cal.App.5th 409, 426; see Garcia, at p. 971.)
The Attorney General concedes these legislative amendments apply retroactively,
but contends remand is "unwarranted because the trial court clearly indicated that it
would not have dismissed the enhancement even if it had discretion to do so." (Bolding
and capitalization omitted.) (See People v. McVey (2018) 24 Cal.App.5th 405, 419
[holding remand futile when trial court applied upper term to sentence for firearm
enhancement citing several aggravating factors that far outweighed mitigating factors and
10 The trial court acknowledged this when it stated "[t]here's not a lot to be done
here" in light of "the 5-year [serious felony] prior."

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stated upper term was the "only appropriate sentence"].) In support, the Attorney General
cites the fact the trial court denied Abt's Romero motion and stated it would have denied
Abt probation even were he not absolutely ineligible. We are not persuaded.
Although the trial court was not as lenient as it theoretically could have been, nor
was it as harsh as it could have been. Abt faced a potential 19-year sentence. The
probation officer recommended a 14-year sentence, and the prosecutor recommended a
12-year sentence. Yet, the trial court exhibited leniency by imposing only a 10-year
sentence. In doing so, the court recognized the "significant . . . mental health component"
and the fact that most of Abt's "long [criminal] record" is "misdemeanor conduct." We
cannot say with the certainty required to deny a remand for resentencing that the trial
court would not have exercised its newly vested discretion in fashioning an even more
lenient sentence.
Accordingly, we conclude Abt is entitled to a remand for resentencing to allow the
trial court the opportunity to exercise its newly vested discretion with respect to imposing
the five-year serious prior felony enhancement. We express no view on how the trial
court should exercise its discretion.
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 Abt qualifies for diversion under section 1001.36, the court
may grant diversion. If Abt successfully completes diversion, the trial court shall dismiss
the charges in accordance with section 1001.36, subdivision (e).

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However, if the court determines Abt does not qualify for diversion, or if the court
grants diversion but Abt does not successfully complete it, the court shall reinstate the
judgment of conviction and resentence Abt. At any such resentencing, the trial court is
directed to consider whether to exercise its discretion in connection with the personal use
and serious felony prior enhancements. Upon resentencing, the trial court is directed to
issue a new abstract of judgment and to forward a certified copy to the Department of
Corrections and Rehabilitation.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
NARES, J.

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