P. v. Scott

Filed 1/7/20 P. v. Scott 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
ELLIS BERNARD SCOTT,
Defendant and Appellant.
D074334
(Super. Ct. No. SCD272793)
APPEAL from a judgment of the Superior Court of San Diego County,
Laura W. Halgren, Judge. Reversed and remanded with directions.
David W. Beaudreau, 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, Arlene A. Sevidal and Andrew S.
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

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I.
INTRODUCTION
A jury found Scott guilty of assault with a deadly weapon. (Pen. Code, § 245,
subd. (a)(1).)1 The jury also found that Scott personally used a dangerous and deadly
weapon during the offense (§ 1192.7 (c)(23)). In a bifurcated proceeding, Scott admitted
having suffered three prior strike convictions (§§ 667, subds. (b)–(i), 668, 1170.12) and
two prior serious felony convictions (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and
also admitted having served three prior prison terms. (§ 667.5, subd. (b).)
The trial court sentenced Scott to 25 years to life plus 10 years in state prison.
Scott's sentence was comprised of 25 years to life pursuant to the Three Strikes law, plus
two consecutive five-year terms for the prior serious felony enhancements. The trial
court also imposed various fees, a restitution fine, and a parole revocation restitution fine.
Scott's primary claims on appeal are that the prosecutor committed prosecutorial
error during rebuttal closing argument by referring to evidence outside of the record, and
that defense counsel provided ineffective assistance in failing to object to the prosecutor's
argument. We conclude that Scott forfeited this claim of prosecutorial error by failing to
object to the prosecutor's argument, and that Scott's related ineffective assistance of
counsel claim fails for lack of prejudice.
Scott also requests that the matter be remanded for a hearing at which the trial
court may exercise its discretion to grant mental health diversion (§ 1001.36), in light of a
1 Unless otherwise specified, all subsequent statutory references are to the Penal
Code.

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retroactive change in the law. In addition, Scott requests that the matter be remanded to
permit the trial court to exercise its discretion with respect to whether to strike Scott's two
serious felony enhancements (§667, subd. (a)(1)) due to another retroactive change in the
law. Finally, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Scott
claims that the trial court erred in imposing a court operations fee, criminal conviction
fee, booking fee, and restitution fines without first determining his ability to pay.
We conclude that Scott is entitled to a remand for further proceedings in the trial
court, given changes in the law. We reverse the judgment and remand the matter to the
trial court with directions to conduct a mental health diversion eligibility hearing under
section 1001.36. If the trial court determines that Scott is ineligible for diversion, or, if
the court places Scott on diversion but he does not successfully complete diversion, then
the court shall reinstate Scott's conviction2 and resentence him. During any resentencing
proceedings, the trial court shall consider whether to exercise its discretion to strike either
or both of the prior serious felony enhancements (§ 667, subd. (a)(1)).3
2 In discussing the reinstatement of Scott's conviction throughout this opinion, we
intend to refer to the jury's finding of guilt on the underlying charge, the jury's true
finding on the personal use allegation, and the trial court's true findings on the strike,
serious felony, and prison prior allegations.
3 For reasons that we explain in part III.D, post, we reject Scott's Dueñas claim.

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II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's evidence
One summer afternoon in 2017, the victim, who was homeless, was at a park in
City Heights. The victim was seated on the ground next to several other people. On the
ground, next to the victim, was a golf club that the victim had brought to the park. The
victim testified that he brought the golf club to the park because he intended to use it to
threaten an individual who had been "messing with [his] sister."
Scott, who also was at the park, walked up to the group and approached the victim.
Scott picked up the golf club. Seconds later, Scott swung the club and struck the victim
in the head. Scott then swung the club at the victim a second time, striking the victim in
the face and on his arms. The victim had not said or done anything to Scott prior to being
hit.
A security guard at a recreation center located in the park saw Scott strike the
victim with the golf club. The security guard called 911. After striking the victim, Scott
was "ranting and raving" and appeared to be angry and upset. The guard did not see the
victim acting aggressively either before or after being struck with the club. Police arrived
at the scene minutes later and detained Scott.
Surveillance video of the incident was shown to the jury.

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B. The defense
Scott's former girlfriend, Maria Perez, testified that she was with Scott at the park
on the day of the incident.4 Scott went near the restrooms. While Scott was near the
restrooms, several people, including the victim, directed racial epithets at Scott. Perez
saw two people throw punches at Scott.
Scott testified that he was at the park on the day of the charged offenses and that
he went to use the restroom at the park. As he approached the restroom, he was
confronted by several men, including the victim. According to Scott, the victim swung
his fist at Scott, who backed away quickly. Another man with a tattoo indicating his
affinity for white supremacy asked Scott, "What's up now, motherfucker?" Scott backed
out of the bathroom.
A few minutes later, Scott approached the men with whom he had the encounter
by the restroom. The men continued to insult Scott. According to Scott, as he walked
by, someone said, "Get his ass now." Scott thought that the victim was going to grab the
golf club and hit Scott with it. Fearing an attack, Scott grabbed the club and struck the
victim with the club.
4 Due to her unavailability, Perez's prior testimony from a previous trial in the case
that resulted in a mistrial was read into the record at the trial.

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III.
DISCUSSION
A. Scott forfeited his claim of prosecutorial error; Scott's related claim of ineffective
assistance of counsel fails for lack of prejudice
Scott claims that the prosecutor committed prosecutorial error during his rebuttal
closing argument by referring to evidence outside of the record. In the alternative, Scott
claims that defense counsel provided ineffective assistance in failing to object to the
prosecutor's argument.
1. Factual and procedural background
During his closing argument, defense counsel argued that Scott had acted in self-
defense. During this argument, defense counsel stated the following:
"The fact that Mr. Scott didn't, you know, leave the park after this
happened and was cooperative with the police is also circumstantial
evidence that he was using self-defense.
"I mean, if he had really just randomly, or purposefully, decided that
he was going to take out [the victim], then why would he stay
around? Everyone knows there's a police station directly across the
street. It's only going to take [a] minute or two for them to respond.
If you actually are swinging this club maniacally at someone to
injure them and you have no legal excuse for doing so, you're not
going to stick around and wait for the police to come. You're going
to take off.
"That's not what Mr. Scott did. Again that's circumstantial evidence
that he was acting in self-defense."
During his rebuttal closing argument, the prosecutor responded to defense
counsel's argument by stating the following:
"Counsel was getting up here and saying, 'Well, yeah, he stayed at
the park so that shows he knew it was self-defense.' No.

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"Also look at — first of all, people do that all the time. That's how
the cops catch people.
"Beyond that, what — how reasonable is the evidence with his
testimony? That he's claiming that he is so scared that they're going
to kill him — look at his body language. Is he acting like someone
that's scared?
"Is it reasonable for someone who was truly threatened, who is truly
fearful for their life, to just hang out? That's not reasonable. That's
not reasonable because he was not in danger. He was not being
threatened. His behavior is inconsistent with someone who is fearful
for their life." (Italics added.)
2. Scott forfeited his claim of prosecutorial error
Scott contends that the italicized portion of the prosecutor's rebuttal argument
quoted in part III.A.1, ante, constituted prosecutorial error because there was no evidence
in the record supporting the prosecutor's statements.
a. Substantive law
"The use of deceptive or reprehensible methods to persuade the jury constitutes
[prosecutorial] misconduct."[5] (People v. Sanchez (2016) 63 Cal.4th 411, 475.) " ' "A
prosecutor's misconduct violates the Fourteenth Amendment to the United States
Constitution when it 'infects the trial with such unfairness as to make the conviction a
denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient
significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A
5 While courts often use the term prosecutorial misconduct, we refer to the claim as
raising one of purported prosecutorial error. (See People v. Potts (2019) 6 Cal.5th 1012,
1036 ["A claim of prosecutorial misconduct may have merit even absent proof that a
prosecutor had 'a culpable state of mind.' [Citation.] For this reason, '[a] more apt
description of the transgression is prosecutorial error' "].)

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prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless
violates California law if it involves 'the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.' " ' " (People v. Covarrubias (2016) 1
Cal.5th 838, 894.)
" ' "[S]tatements of facts not in evidence by the prosecuting attorney in his
argument to the jury constitute misconduct." ' " (People v. Rivera (2019) 7 Cal.5th 306,
382 (Rivera).)
b. Forfeiture
In People v. Forrest (2017) 7 Cal.App.5th 1074, 1081, the Court of Appeal
discussed well-established law regarding what a defendant must do in order to preserve a
claim of prosecutorial error for appellate review:
"To preserve a misconduct claim for review on appeal, ' "a defendant
must make a timely and specific objection and ask the trial court to
admonish the jury to disregard the improper argument." '
[Citations.] The underlying purpose of this requirement is to
' " 'encourage a defendant to bring errors to the attention of the trial
court, so that they may be corrected or avoided and a fair trial
had . . . .' " ' [Citation.] 'The objection requirement is necessary in
criminal cases because a "contrary rule would deprive the People of
the opportunity to cure the defect at trial and would 'permit the
defendant to gamble on an acquittal at his trial secure in the
knowledge that a conviction would be reversed on appeal.' " '
[Citation.]"
A claim of prosecutorial error is reviewable on appeal notwithstanding the lack of
a timely objection if an admonition would not have cured the harm resulting from the
prosecutor's remarks. (See, e.g., People v. Cunningham (2001) 25 Cal.4th at pp. 1000–
1001.)

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c. Application
Defense counsel made no objection at trial to the portion of the prosecutor's
rebuttal argument that Scott challenges on appeal, and Scott does not contend on appeal
that the asserted prosecutorial error could not have been cured by an admonition.
Scott requests that we exercise our discretion to consider his unpreserved claim
because his contention is "important" and provides "a textbook case" of misconduct. He
also argues that we should review his unpreserved claim because he received a lengthy
prison sentence under the Three Strikes law. Neither of Scott's arguments provides a
compelling basis for excusing Scott's forfeiture and we decline to exercise our discretion
to consider Scott's claim on appeal.6 However, we address below Scott's related claim
that his counsel rendered ineffective assistance in failing to object to the prosecutor's
rebuttal closing argument.
3. Scott fails to establish that he suffered prejudice from defense counsel's failure
to object to the prosecutor's argument, as is necessary to establish a claim of
ineffective assistance of counsel
Scott claims that defense counsel rendered ineffective assistance in failing to
object to the prosecutor's rebuttal closing argument quoted in part III.A.1, ante.
a. Relevant law governing ineffective assistance of counsel claims
To establish a claim of ineffective assistance of counsel, a defendant must show
that counsel's performance was deficient in that it "fell below an objective standard of
6 If we were to exercise our discretion to consider Scott's claim, we would conclude
that the prosecutorial error of which Scott complains was harmless, for the reasons
outlined in connection with our rejection of Scott's related ineffective assistance claim.

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reasonableness," evaluated "under prevailing professional norms." (Strickland v.
Washington (1984) 466 U.S. 668, 688 (Strickland); accord, People v. Ledesma (1987) 43
Cal.3d 171, 216.) The defendant must also show that it is reasonably probable that a
more favorable result would have been reached absent counsel's deficient performance.
(Strickland, supra, at p. 694.)
"[A] court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should be
followed." (Strickland, supra, 466 U.S. at p. 697.)
b. Application
The prosecutor's remark that "people do that [i.e., remain at crime scenes] all the
time," was improper because there was no evidence in the record with respect to this
issue. (See Rivera, supra, 7 Cal.5th at p. 335 [improper for prosecutor to make
" ' "statement[ ] of facts not in evidence" ' "].)
However, we need not determine whether defense counsel rendered ineffective
assistance in failing to object to the prosecutor's remark because we conclude that it is not
reasonably probable that Scott would have achieved a more favorable result even if
defense counsel had objected. (See Strickland, supra, 466 U.S. at p. 697 [claims of
ineffective assistance of counsel fail in the absence of a showing of prejudice].)
To begin with, the prosecutor's statement was a "brief and isolated remark,"
(People v. Cudjo (1993) 6 Cal.4th 585, 626.) The remainder of the prosecutor's opening

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and rebuttal closing arguments focused on the compelling evidence of Scott's guilt,
including video evidence of the incident, eyewitness testimony, and inconsistencies in
defense witnesses's statements.7 Further, the argument to which the prosecutor was
responding—i.e., defense counsel's contention that the fact that Scott remained at the
scene constituted circumstantial evidence that Scott had acted in self-defense—was a
very minor portion of defense counsel's closing argument.8
Further, the trial court instructed the jury as follows: "Nothing that the attorneys
say is evidence. In their opening and closing arguments, the attorneys discuss the case,
their remarks are not evidence." The court also instructed the jury that it was to decide
the case "only on the evidence that has been presented to you in this trial." Since we
"presume the jury followed these instructions," (People v. Avila (2009) 46 Cal.4th 680,
7 In addition, immediately after making the improper argument, the prosecutor
offered a second response to defense counsel's argument, which was rooted in the
evidence—i.e., that the fact that Scott stayed at the park was inconsistent with Scott's
testimony that he feared for his life at the time of the incident. The fact that the jury was
provided with a proper argument rooted in the evidence makes it less likely that they
rejected defense counsel's argument in reliance on the improper argument.
8 We reject Scott's unsupported assertion that "[t]he defense case on credibility
primarily rested on [the] inference" that Scott was credible because he had not fled the
park after the incident. Defense counsel argued that Scott was credible for numerous
other reasons, apart from Scott having remained at the park after his commission of the
charged offense. For example, defense counsel argued that the surveillance video of the
incident did not have audio and that both Perez and Scott testified that the victim's group
had threatened Scott. Defense counsel argued that Scott was more credible than the
victim because the victim had brought a golf club to the park for the purpose of attacking
someone who had been bothering the victim's sister. Defense counsel also maintained
that the fact that Scott had not "embellish[ed] the story" about the incident supported his
credibility. Contrary to Scott's contention on appeal, defense counsel's brief remark that
Scott remained at the park for a few minutes after the incident until police arrived did not
constitute a major portion of defense counsel's argument that Scott was credible.

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719), such instructions mitigated any potential for prejudice stemming from the
prosecutor's remarks. (Ibid. [rejecting claim of prosecutorial error premised on
prosecutor's argument "not supported by any facts in the record," in part because jury was
instructed that " '[s]tatements made by the attorneys during the trial are not evidence' "].)
In addition to the fact that the prosecutor's brief remark was a very minor part of
the trial, an assessment of the remainder of the trial supports the conclusion that Scott has
failed to establish prejudice from defense counsel's failure to object to the remark. While
Scott contends that this was a "close case," the record belies that contention. The People
presented compelling, if not overwhelming, evidence of Scott's guilt.
To begin with, at trial, the People played for the jury extremely inculpatory video
evidence of Scott committing the charged offense.9 People's Exhibit 3 is an
approximately 33-second-long video clip showing Scott striking the victim with the golf
club. In the video, a man, later determined to be Scott, walks over to a group of people at
9 The exhibits containing the videos have been transferred to this court.

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a park. The victim is sitting on the ground with a group of people. Scott reaches down
and picks up an object, later determined to be a golf club. Scott aggressively hits the
victim on the back of the head or neck area with the golf club. Seconds later, with the
victim still on the ground, Scott hits the victim with the club a second time. People from
the victim's group start to hurriedly walk and run away.
People's Exhibit 2 is an approximately eight-minute-long video clip depicting
approximately two and a half minutes before the commission of the charged offense, and
approximately five and a half minutes after its commission. For the entire two and a half
minutes before Scott hits the victim in the back of the head with a golf club, the victim is
seated on the grass. Approximately twenty seconds before the beating, Scott walks over
to the victim's group. Scott circles around the group briefly before picking up the golf
club and striking the victim with it. After the beating, Perez runs to Scott. Perez appears
to attempt to restrain Scott. Several individuals who had been near the victim at the time
of the beating begin to walk or run away from the area. Scott briefly walks toward these
individuals. Approximately 45 seconds after hitting the victim twice with the golf club,
Scott returns to the victim, who is now standing. Scott appears to hit the victim in the
face with his hand or fist. Scott can then be seen walking around the park until police
arrive at the scene approximately five and a half minutes after the offense.

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In addition to this video evidence, the victim and another eyewitness10 both
testified that Scott's beating of the victim with a golf club was unprovoked.11 Scott
acknowledged at trial that he had hit the victim with a golf club.
Further, we agree with the People that Scott's testimony that he acted in self-
defense after being assaulted by the victim near the restroom in the park a few minutes
before he struck the victim with a golf club lacked credibility, for numerous reasons. To
begin with, Scott did not tell police about the alleged incident in the restroom on the day
of the charged offenses, either at the scene or during an interview at the police station.
When asked at trial whether this would have been important information to tell the
police, Scott responded, "Yes. If I was a snitch, yes." Yet, Scott admitted at trial that he
did tell police that the victim had allegedly swung the golf club at him. During his
testimony at trial, Scott acknowledged that the victim had not in fact swung the golf club
at him.12 Further, even assuming that the jury were to have believed Scott's testimony
about the alleged assault in the restroom, a reasonable juror would not have found that
Scott's act in beating the victim with a golf club during a separate incident several
minutes later constituted self-defense.
10 The eyewitness was acquainted with the victim and had been seated near him at
the park at the time of the attack.
11 The victim, who was struck from behind, testified, "I think somebody hit me with
a stick or club or something."
12 The video clips shown at trial demonstrated that the victim had not swung the golf
club at Scott.

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To that end, we disagree with Scott's assertion that "the surveillance video did not
corroborate or contradict Scott's self-defense claim." The jury was instructed that, in
order for Scott to have acted in self-defense, he had to have believed that he was in
"imminent danger," and that the "immediate use of force was necessary to defend against
that danger." In addition, he must have used "no more force than was reasonably
necessary." The jury was also instructed that the "[r]ight to use force in self-defense
continues only as long as the danger exists, or reasonably appears to exist." Thus, even
assuming, strictly for the purpose of argument, that the jury believed Scott's testimony
that the victim had attempted to punch him in the restroom, it is not reasonably probable
that the jury would have found that Scott acted in self-defense in approaching the seated
victim several minutes after the alleged restroom incident,13 picking up a golf club,
violently striking the seated victim in the back of the head with the golf club, and striking
the victim in the head with the club a second time.
We are not persuaded that Perez's former testimony in which Perez testified that
Scott had been assaulted near the park restroom prior to Scott's use of the golf club,
supports a finding of prejudice. The People called a defense investigator as a witness at
this trial. The investigator testified that Perez had told him that the victim and Scott
13 At trial, when asked how long before the charged offense the alleged restroom
incident had occurred, Scott stated, "Well, from there, actions — things moved very, very
rapid after that. It was quickly. So I wouldn't — really time lapse I wouldn't know
whether it was two minutes, five, ten, I'm not sure, but it happened very quickly after
that." As noted in the text, the People showed a video at trial that showed the victim
seated on the grass of the park for the two and a half minutes prior to Scott's striking of
the victim with the golf club.

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began to hit each other just before Scott swung a golf club at the victim. The investigator
also testified that Perez had never told him about a separate incident between Scott and
the victim occurring near the park restroom. The description of the incident that Perez
related to the investigator was inconsistent with her former testimony and was contrary to
video evidence that was shown to the jury.14 Further, as with Scott's testimony, even if
the jury believed that Perez had been truthful in testifying that Scott was assaulted near
the park restroom several minutes before he attacked the victim, the jury was unlikely to
find that Scott's later act in beating the seated victim in the back of the head with a golf
club constituted self-defense.
Thus, while we agree with Scott that the jury was required to make a "credibility
determination[ ]," it is clear that the jury determined that Scott's testimony was not
credible. In light of the evidence discussed above, it is not reasonably probable that the
jury would have reached a different determination as to Scott's credibility if defense
counsel had objected to the prosecutor's remark.
Finally, we are unpersuaded by Scott's claim that prejudice is demonstrated by the
fact that the jury in a prior trial was unable to reach a verdict. Scott fails to demonstrate
that the evidence presented at the two trials was materially similar. In fact, the evidence
presented at the trials was materially different, since neither Scott nor the victim testified
at the prior trial. Accordingly, the fact that the prior jury was unable to reach a verdict
does not demonstrate prejudice resulting from defense counsel's failure to object to the
14 Perez stated during her former testimony that she was unaware of the existence of
a video recording of the incident.

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prosecutor's remark in rebuttal closing argument. (See In re Richards (2016) 63 Cal.4th
291, 316 (conc. opn. by Corrigan, J.) ["Particularly when the split is 11 to one,[15] as it
was in the second trial here, the disagreement may be driven as much by the personality
of a juror, a uniquely held world view, or even some friction during deliberations, as by
any weakness in the underlying case"].)
Accordingly, we conclude that Scott has not demonstrated that he suffered
prejudice as a result of defense counsel's failure to object to the prosecutor's statement in
his rebuttal closing argument, and that he has therefore failed to establish a claim of
ineffective assistance of counsel.
B. Scott is entitled to have the trial court consider placing him on mental health
diversion under a newly-enacted statute that became effective before the judgment in
his case became final
Scott contends that, due to a change in the law, he is entitled to a conditional
reversal of the judgment and a remand to allow the trial court to determine whether to
place him on mental health diversion under newly-enacted section 1001.36. That statute
authorizes trial courts to permit qualifying defendants to participate in pretrial diversion
and to receive mental health treatment in lieu of prosecution. (Id., subd. (c).)
15 The record from the prior trial indicates that that the jury was split 11-1 in the
prior case, with eleven jurors favoring a verdict of guilt.

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1. Background regarding pretrial diversion
Sections 1001.35 and 1001.3616 authorize 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 court may grant pretrial diversion under
section 1001.36 if the court finds that: (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 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, as defined in section 1170.18, if the
defendant is treated in the community. (§ 1001.36, subd. (b)(1).)
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." (Id., subd. (e).)
16 Sections 1001.35 and 1001.36 were initially adopted in 2018 and became effective
June 27, 2018. (Stats. 2018, ch. 34, § 24, eff. June 27, 2018.) Section 1001.36 was
subsequently amended by way of a second statute, also adopted in 2018. (Stats. 2018, ch.
1005, § 1, eff. Jan. 1, 2019.)

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2. Retroactive application of the pretrial diversion statutes
Courts generally presume that laws apply prospectively. (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 in enacting the law.
(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, supra, at p. 308.)
We conclude that the Estrada rule applies to section 1001.36 because section
1001.36 makes an ameliorative change to the law in that it has the effect of potentially
lessening the punishment for an offense by providing a defendant the possibility of being

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placed on diversion and the dismissal of criminal charges upon successful completion of
a diversion program. (See e.g., People v. Frahs (2018) 27 Cal.App.5th 784, 791 (Frahs),
review granted Dec. 27, 2018, S252220.) In addition, a determination that section
1001.36 should be applied retroactively is consistent with the statute's stated 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).)
There is nothing in the statutory language that indicates that the Legislature did
not intend to extend the potential benefits of section 1001.36 as broadly as possible,
including to all defendants whose judgments are not final. Although the statute refers to
"pretrial diversion," (italics added) which is defined to mean the postponement of
prosecution at any point during the judicial proceeding, from accusation to adjudication
(id., subd. (c)), we do not interpret the reference to "pretrial diversion" as being a
sufficiently clear statement that the Legislature intended for the statute to apply only
prospectively. (See People v. Dehoyos (2018) 4 Cal.5th 594, 600 [" '[A]n amendatory
statute lessening punishment is presumed to apply in all cases not yet reduced to final
judgment as of the amendatory statute's effective date' [citations], unless the enacting
body 'clearly signals its intent to make the amendment prospective, by the inclusion of
either an express saving clause or its equivalent' "].) Rather, as the Frahs court
explained, "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

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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; but see, e.g., People v. Craine (2019) 35 Cal.App.5th
744 (Craine), review granted Sept. 11, 2019, S256671 [disagreeing with Frahs and
concluding that the fact that "pretrial diversion is literally and functionally impossible
once a defendant has been tried, found guilty, and sentenced," constitutes "a clear
indication the Legislature did not intend for section 1001.36 to be applied
retroactively"].)
The fact that the Supreme Court decided Lara before the Legislature enacted
section 1001.36 provides further support for our conclusion that the Legislature intended
section 1001.36 to apply retroactively; the Legislature is deemed to have been aware of
the Lara decision (see People v. Overstreet (1986) 42 Cal.3d 891, 897). If the
Legislature had intended for the courts to apply section 1001.36 in a manner different
from the statute addressed in Lara, we would have expected the Legislature to have
expressed this intent clearly and directly, rather than obscurely and indirectly. (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"].)

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22
We therefore conclude that section 1001.36 applies retroactively to Scott's case,
which was not final at the time section 1001.36 became effective.17
3. Scott is entitled to a conditional reversal and remand for the trial court to
consider whether to place him on diversion under section 1001.36
In Frahs, the court concluded that a conditional reversal and remand with
directions for the trial court to consider whether to place a defendant on diversion under
section 1001.36 is appropriate when the "the record affirmatively discloses that [the
defendant] appears to meet at least one of the threshold requirements." (Frahs, supra, 27
Cal.App.5th at p. 791.)
Scott filed a statement in mitigation and a Romero18 motion that stated as follows:
"Mr. Scott has accepted he does have mental health issues and that
self-medicating with illegal controlled substances leads to criminal
activity. Dr. David DeFrancesco diagnosed Mr. Scott with
depressive disorder and believes that being under the influence of
PCP at the time of the offense contributed to his paranoia and . . . if
Mr. Scott addresses his depression, abstains from controlled
17 We recognize that there is a split of authority concerning the retroactivity of
section 1001.36. (Compare, e.g., People v. Hughes (2019) 39 Cal.App.5th 886, 896,
review granted Nov. 26, 2019, S258541; People v. Burns (2019) 38 Cal.App.5th 776,
788–789 (Burns), review granted Oct. 30, 2019, S257738; and People v. Weaver (2019)
36 Cal.App.5th 1103, 1120–1122, review granted Oct. 9, 2019, S257049 [following
Frahs] with People v. Torres (2019) 39 Cal.App.5th 849, 855 and People v. Khan (2019)
41 Cal.App.5th 460, 493 [following Craine].) For the reasons stated in the text, we
follow Frahs.
18 (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) [concluding
that trial courts may exercise their discretion to dismiss a prior strike conviction pursuant
to section 1385].)

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23
substances, and surrounds himself with a positive support network,
he can avoid future problems."19
Scott's statement in mitigation / Romero motion also provided:
"Mr. Scott suffers from a combination of mental health and
substance abuse issues. He has been hearing voices and becoming
increasingly paranoid over the past two years. He has, however,
shown an ability to remain law abiding when he receives proper
treatment. Dr. Francesco diagnosed him with depressive disorder
and opined that proper mental health and substance abuse treatment
will assist Mr. Scott integrating back to society."
In addition, the probation report in this case states as follows:
"[Scott] has never been diagnosed with any psychological
disorders[20] however, he suspects he does suffer from bipolar
disorder or schizophrenia. He has reoccurring nightmares, he hears
'disturbing things,' and sleep is 'problematic' for him. He suffers
from 'paranoia and suspicion.' He went to a local clinic to receive
mental health service, but departed to Oklahoma City in 2017 before
he was seen by a specialist."
Thus, there are statements in the record indicating that Scott may "suffer[ ] from
an identified mental disorder," (§ 1001.36, subd. (b)(1)(A)) . . . [that] would respond to
mental health treatment." (Id., subd. (b)(1)(C).) Accordingly, we conclude that the
record indicates that Scott may meet at least one of the threshold requirements for
19 Scott's statement indicated that he had separately filed Dr. Francesco's
psychological evaluation with the trial court. Although Scott's appellate counsel failed to
ensure that Dr. Francesco's evaluation was transmitted to this court, the People do not
dispute that Scott's description of the evaluation is inaccurate.
20 The probation report does not discuss Dr. Francesco's evaluation. The probation
report was filed June 25, 2018. Scott's statement in mitigation (which refers to Dr.
Francesco's evaluation) was filed on June 22, 2018.

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24
granting diversion, and that a condition reversal and remand under Frahs is therefore
proper.
4. The People's arguments against conditional reversal and remand are not
persuasive
The People contend that, even if this court concludes that section 1001.36 applies
retroactively,21 this court should nevertheless refuse to remand the matter to the trial
court, for several reasons. First, the People argue that Scott forfeited any challenge to the
trial court's failure to order diversion. In support of this contention, the People note that
the law amending section 1001.36 to authorize diversion first became effective on June
27, 201822—two days prior to June 29, 2018 Scott's sentencing—and that Scott did not
request that the court place him on diversion at sentencing. Relatedly, the People contend
that the trial court was "presumably aware of the new law" when it sentenced Scott. We
elect to exercise our discretion to consider Scott's claim notwithstanding any possible
forfeiture. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 (Williams) [stating
that an appellate court generally has discretion to consider unpreserved claims].)
The People also contend that Scott is "statutorily ineligible" to be placed on
diversion because he received a sentence pursuant to the Three Strikes law, which
rendered him ineligible for probation or a suspended sentence. (See § 667, subd. (c)
["Notwithstanding any other law, if a defendant has been convicted of a felony and it has
21 The People do not contend that section 1001.36 does not apply retroactively
pursuant to Estrada.
22 (See Stats. 2018, ch. 34, § 24, eff. June 27, 2018.)

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25
been pled and proved that the defendant has one or more prior serious or violent felony
convictions as defined in subdivision (d) . . . . [¶] . . . [¶] (2) Probation for the current
offense shall not be granted, nor shall execution or imposition of the sentence be
suspended for any prior offense"].) This argument fails for the fundamental reason that
the remedy prescribed by Frahs is a conditional reversal of the judgment and a remand to
permit the trial court to grant diversion and thereby avoid the imposition of a sentence.
(Frahs, supra, 27 Cal.App.5th at p. 796.) Thus, if we were to grant Scott relief under
Frahs, Scott would not in fact have a Three Strikes sentence. As the Frahs court
explained, in determining whether to grant diversion, the trial court must "treat the matter
as though [Scott] had moved for pretrial diversion after the charges had been filed, but
prior to their adjudication." (Id. at p. 792, italics added.) Thus, the fact that the trial
court sentenced Scott pursuant to the Three Strikes law in this case does not render him
ineligible for pretrial diversion under section 1001.36.23 (See Burns, supra, 38
Cal.App.5th at p. 789 [rejecting argument that remand under section 1001.36 "would be
23 In Frahs, the defendant was sentenced pursuant to the Three Strikes law, and the
court nevertheless conditionally reversed the judgment and remanded:
"If the trial court finds that Frahs suffers from a mental disorder,
does not pose an unreasonable risk of danger to public safety, and
otherwise meets the six statutory criteria (as nearly as possible given
the postconviction procedural posture of this case), then the court
may grant diversion. If Frahs successfully completes diversion, then
the court shall dismiss the charges. However, if the court determines
that Frahs does not meet the criteria under section 1001.36, or if
Frahs does not successfully complete diversion, then his convictions
and sentence shall be reinstated. The judgment shall include the
prior 'strike' conviction, . . . ." (Frahs, supra, 27 Cal.App.5th at p.
792, italics added.)

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26
futile because the 'Three Strikes' law bars suspending a striker's sentence (§ 667, subd.
(c)(2))" because "[t]he Frahs procedure conditionally reverses both the convictions and
the sentence"].)
Finally, the People contend that "the trial court already rejected [Scott's] mental
health defense." (Boldface omitted.) In support of this contention, the People maintain
that the trial court was "not convinced [Scott's] actions would not 'happen in the future
and other public members would be in danger.' " The People also argue that "it is not
conceivable" that the trial court would grant diversion on remand given the lengthy
prison sentence that the court imposed. However, the trial court made this observation
about Scott's dangerousness and imposed Scott's sentence without, as Scott argues, "a
fully developed factual record concerning section 1001.36, subdivision (b)(1)'s eligibility
criteria." Scott is entitled to a remand during which the trial court may consider whether
to grant diversion on a fully developed record.
In short, we conclude that the People have not presented any persuasive arguments
against permitting the trial court to determine whether to grant Scott diversion. In
remanding the case, we express no view as to whether the trial court should ultimately
conclude that Scott qualifies for diversion under section 1001.36 or, if he does qualify,
whether the court should exercise its discretion to place Scott on diversion. We conclude
only that section 1001.36 applies retroactively, and that it is for the trial court to
determine in the first instance whether the statute applies and if so, whether to exercise its
discretion to place Scott on diversion under the statute.

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27
C. If the trial court declines to place Scott on diversion after holding a mental diversion
eligibility hearing under section 1001.36, or if the court places Scott on diversion but
Scott fails to successfully complete diversion, then the court shall reinstate Scott's
conviction and resentence Scott; in imposing sentence, the court shall consider
whether to exercise its discretion to strike either or both of the serious felony
enhancements (§ 667, subd. (a)(1)), in light of the law as amended effective
January 1, 2019
Scott claims that the matter should be remanded so that the trial court may
consider whether to exercise its discretion to strike his two prior serious felony
enhancements under section 667, subdivision (a)(1), as amended by Senate Bill No. 1393
(S.B. 1393), chapter 1013. The People concede that the amended law applies
retroactively to Scott's case, but contend that remand is not required because the record
indicates that the trial court would not have sentenced Scott differently under the new
law.
1. The change in the law
On September 30, 2018, the Governor signed S.B. 1393 which became effective
on January 1, 2019. S.B. 1393 amended sections 667, subdivision (a) and 1385,
subdivision (b) to allow a trial court to exercise its discretion to strike or dismiss a prior
serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1–2.)
Under previous versions of these statutes, a trial court was required to impose a five-year
consecutive term for "any person convicted of a serious felony who previously has been
convicted of a serious felony" (former § 667, subd. (a)(1)), and the court had no
discretion "to strike any prior conviction of a serious felony for purposes of enhancement
of a sentence under Section 667." (Former § 1385, subd. (b).)

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28
2. The change in the law applies retroactively
Scott contends that S.B. 1393 applies retroactively to all cases or judgments of
conviction in which a five-year term was imposed at sentencing, based on a prior serious
felony conviction, provided that the judgment of conviction was not final at the time S.B.
1393 became effective on January 1, 2019. The People concede that the law applies
retroactively to Scott's case.
In People v. Garcia (2018) 28 Cal.App.5th 961 (Garcia), another division of this
district held that "it is appropriate to infer, as a matter of statutory construction, that the
Legislature intended [S.B.] 1393 to apply to all cases to which it could constitutionally be
applied, that is, to all cases not yet final when [S.B.] 1393 becomes effective on January
1, 2019." (Id. at p. 973.) We agree with the Garcia court's analysis, as well as with its
conclusion, and we therefore accept the People's concession that the amendments of S.B.
1393 apply retroactively to Scott's case.
3. Upon any resentencing, the trial court shall determine whether to exercise its
discretion to strike one or both of the serious felony enhancements
Scott argues that remand is required to permit the trial court to determine whether
to exercise its discretion to strike one or both of Scott's serious felony enhancements.
" '[W]hen the record shows that the trial court proceeded with
sentencing on the . . . assumption it lacked discretion, remand is
necessary so that the trial court may have the opportunity to exercise
that sentencing discretion at a new sentencing hearing." (People v.
McDaniels (2018) 22 Cal.App.5th 420, 425.) Remand is not
required, however, if "the record shows that the trial court clearly
indicated when it originally sentenced the defendant that it would
not in any event have stricken [the previously mandatory]
enhancement." (Ibid.)

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29
The People contend that remand is not required on this issue because the record
demonstrates that the trial court would not have stricken the five-year enhancements,
even if it had possessed discretion to do so. In support of this contention, the People note
that, at sentencing, the court declined to strike any of Scott's prior strikes, and made
several comments concerning Scott's dangerousness and his prior violent history.
The trial court did make a number of comments discussing Scott's serious criminal
record in denying Scott's request to strike two of his prior strikes.24 However, unless the
record contains a clear indication that the trial court would not have stricken the prior
serious felony conviction enhancements, remand is required. On that issue, the record is
silent.
In sum, after carefully reviewing the record, we see no clear indication that the
trial court would not have stricken the serious felony enhancements if it had been
authorized to do so. We therefore conclude that, in the event that the trial court declines
to place Scott on diversion after holding a mental health diversion hearing under section
1001.36 (see pt. III.B, ante), or if the court grants Scott diversion but he fails to
successfully complete the diversion, the trial court shall reinstate Scott's conviction and
resentence him. Upon any resentencing, the court shall consider whether to exercise its
24 Scott requested that the trial court strike two of his three prior strikes, and impose
an 18-year determinate sentence.

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30
discretion with respect to whether to strike either or both of the five-year prior serious
felony enhancements.25
D. The trial court did not violate Scott's right to due process in imposing various fees
and a restitution fine without determining his ability to pay
Scott contends that the trial court violated his right to due process in imposing a
$40 court operations fee, a $30 criminal conviction fee, a $154 booking fee and a $300
restitution fine without first determining his ability to pay.
1. Factual and procedural background
Prior to Scott's sentencing, the probation officer filed a probation report
recommending that the trial court impose a $10,000 restitution fine (§ 1202.4, subd. (b))
and an accompanying $10,000 (§ 1202.45) parole revocation restitution fine. The
probation officer also recommended that the court impose a "Court Security Fee pursuant
to [section] 1465.8 in the amount of $40," an "Immediate Critical Needs Account (ICNA)
fee pursuant to [Government Code section] 70373 in the amount of $30," and a "Criminal
Justice Administration Fee pursuant to [Government Code section] 29550.1 in the
amount of $154.00"
At sentencing, the trial court imposed the following fines and fees:
"The restitution fine I'll set at the statutory minimum of 300, plus
300 to be stayed unless parole or supervision is revoked.
"Court security fee, 40; critical needs fee, 30; administration fee,
154."
25 We emphasize that we do not intend to suggest that the trial court should exercise
its discretion to strike the enhancements at issue here; we make no comment as to the
propriety of such a decision.

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31
There is a check mark in a box on the minute order, next to the words "CRIM
JUSTICE ADMIN FEE ([Government Code section] 29550 et seq.]," and the figure $154
appears after those words.26 Scott did not object to the imposition of the fines and fees.
2. Governing law
a. Relevant statutory law
i. Court operation, conviction, and criminal justice administration
fees
Section 1465.8 provides in relevant part:
"(a)(1) To assist in funding court operations, an assessment of forty
dollars ($40) shall be imposed on every conviction for a criminal
offense . . . ."
Government Code section 70373 provides in relevant part:
"(a)(1) To ensure and maintain adequate funding for court facilities,
an assessment shall be imposed on every conviction for a criminal
offense . . . . The assessment shall be imposed in the amount of
thirty dollars ($30) for each misdemeanor or felony . . . ."
Government Code section 29550.1 provides in relevant part:
"Any city, special district, school district, community college
district, college, university, or other local arresting agency whose
officer or agent arrests a person is entitled to recover any criminal
justice administration fee imposed by a county from the arrested
person if the person is convicted of any criminal offense related to
the arrest. A judgment of conviction shall contain an order for
payment of the amount of the criminal justice administration fee by
the convicted person, and execution shall be issued on the order in
26 We interpret this statement to mean that the trial court imposed a $300 restitution
fine (§ 1202.4, subd. (b)), a $300 parole revocation restitution fine (§ 1202.45), a $40
court operations fee (§ 1465.8), a $30 criminal conviction fee (Gov. Code, § 70373), and
a $154 criminal justice administration (booking) fee (Gov. Code, § 29550.1.)

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32
the same manner as a judgment in a civil action, but the order shall
not be enforceable by contempt."27
ii. Restitution fines
Section 1202.4 provides in relevant part:
"(b) In every case where a person is convicted of a crime, the court
shall impose a separate and additional restitution fine, unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record.
"(1) The restitution fine shall be set at the discretion of the court and
commensurate with the seriousness of the offense. If the person is
convicted of a felony, the fine shall not be less than three hundred
dollars ($300) and not more than ten thousand dollars ($10,000). If
the person is convicted of a misdemeanor, the fine shall not be less
than one hundred fifty dollars ($150) and not more than one
thousand dollars ($1,000).
"(2) In setting a felony restitution fine, the court may determine the
amount of the fine as the product of the minimum fine pursuant to
paragraph (1) multiplied by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.
"(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record. A defendant's inability to pay shall not
be considered a compelling and extraordinary reason not to impose a
restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the
minimum fine pursuant to paragraph (1) of subdivision (b). . . .
"(d) In setting the amount of the fine pursuant to subdivision (b) in
excess of the minimum fine pursuant to paragraph (1) of subdivision
(b), the court shall consider any relevant factors, including, but not
limited to, the defendant's inability to pay, the seriousness and
gravity of the offense and the circumstances of its commission, any
27 Scott refers to fees imposed pursuant to Government Code section 29550.1 as
"booking" fees.

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33
economic gain derived by the defendant as a result of the crime, the
extent to which any other person suffered losses as a result of the
crime, and the number of victims involved in the crime. Those
losses may include pecuniary losses to the victim or his or her
dependents as well as intangible losses, such as psychological harm
caused by the crime. Consideration of a defendant's inability to pay
may include his or her future earning capacity. A defendant shall
bear the burden of demonstrating his or her inability to pay. Express
findings by the court as to the factors bearing on the amount of the
fine shall not be required. A separate hearing for the fine shall not
be required."
Section 1202.45, subdivision (a) provides, "In every case where a person is
convicted of a crime and his or her sentence includes a period of parole, the court shall, at
the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,
assess an additional parole revocation restitution fine in the same amount as that imposed
pursuant to subdivision (b) of Section 1202.4."
b. Relevant case law
In Dueñas, supra, 30 Cal.App.5th 1157, 1164, the court held that due process
precludes a trial court from "imposing" certain fees and fines when sentencing a criminal
defendant in the absence of a determination that the defendant has a "present ability to
pay" those fees and fines. Specifically, Dueñas held that "due process of law requires [a]
trial court to . . . ascertain a defendant's present ability to pay before it imposes" (1) court
facilities and court operations fees (under § 1465.8 and Gov. Code, § 70373,
respectively), or (2) a restitution fine (under § 1202.4). (Dueñas, supra, 30 Cal.App.5th
at pp. 1164, 1167, 1172.)
More recently, however, another Court of Appeal opinion questioned whether
"Dueñas's expansion of the boundaries of due process" to provide an additional

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34
"protection not conferred by either [of Dueñas's] foundational pillars" is a "correct
interpretation," and ultimately concluded that it is not. (People v. Hicks (2019) 40
Cal.App.5th 320, 327 (Hicks), review granted Nov. 26, 2019, S258946.) In considering
the issue, the Hicks court noted that Dueñas rests on "two strands of due process
precedent," (id. at p. 326) the first of which "secures a due process-based right of access
to the courts," (id. at p. 325) and the second of which "erects a due process-based bar to
incarceration based on the failure to pay criminal penalties when that failure is due to a
criminal defendant's indigence rather than contumaciousness." (Ibid.) Hicks explains,
neither of these strands "dictate[s]" (id. at p. 326) Dueñas's result. In fact, Dueñas
appears to be at odds with the Supreme Court's decision in In re Antazo (1970) 3 Cal.3d
100 (Antazo), on which Dueñas relies for the proposition that "a state may not inflict
punishment on indigent convicted criminal defendants solely on the basis of their
poverty." (Dueñas, supra, 30 Cal.App.5th 1166.) However, in Antazo, the Court
expressly declined to hold that "the imposition upon an indigent offender of a fine [or]
penalty assessment, either as a sentence or as a condition of probation, constitutes of
necessity in all instances a violation of the equal protection clause." (Antazo, supra, at
pp. 116, 104–105, italics added.) The Hicks court explained, "By adopting an across-the-
board prohibition on the very imposition of assessments and fines on indigent defendants,
Dueñas prohibits a practice that Antazo sanctioned (albeit under a different constitutional
provision)." (Hicks, supra, at p. 327.)
For this reason, and also based on the Hicks court's conclusion that Dueñas "is
inconsistent with the purposes and operation of probation," the court in Hicks concluded

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35
that "due process does not speak to [the] issue [of how best to balance the competing
interests of indigent defendants and an operable court and victim restitution system]
and . . . Dueñas was wrong to conclude otherwise." (Hicks, supra, 40 Cal.App.5th at p.
329, italics added.)
3. Application
We find the Hicks court's analysis of the due process issue to be persuasive, and
agree in particular with its determination that "[h]ow best to balance these competing
interests—and what alternatives are best used to keep funding the courts and to continue
providing some measure of restitution and solace to our state's crime victims—is a
question to which . . . the federal and California Constitutions do not speak and thus have
left to our Legislature." (Hicks, supra, 40 Cal.App.5th at p. 329.)28
For this reason, we adopt the holding in Hicks that "[n]either strand [of due
process precedent] bars the imposition of [the] assessments and the . . . restitution fine" in
a defendant's case in the absence of a finding that the defendant is unable to pay the fines
and fees imposed. (Hicks, supra, 40 Cal.App.5th at p. 329.)29 Like the defendant in
28 The People contend that Scott forfeited his claim by failing to object at sentencing
to the trial court's imposition of the fines and fees. We exercise our discretion to consider
Scott's claim on the merits, notwithstanding any possible forfeiture. (See Williams,
supra, 17 Cal.4th at p. 161, fn. 6 [reviewing courts have discretion to excuse forfeiture].)
29 While the Dueñas court did not address a Government Code section 29550.1
booking fee, Scott contends that "Dueñas's due process holding applies equal[ly] to the
booking fee, requiring this court to strike it." Thus, our rejection of Dueñas applies
equally to Scott's claim that the court erred in imposing a booking fee without
determining his ability to pay the fee.

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36
Hicks, Scott has not, to date, been denied access to the courts or been incarcerated as a
result of the imposition of these financial obligations.
Accordingly, we reject Scott's contention that the trial court violated his right to
due process in imposing a $40 court operations fee, a $30 criminal conviction fee, a $154
booking fee and a $300 restitution fine without determining his ability to pay.
IV.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with
directions to conduct a mental health diversion eligibility hearing under section 1001.36.
If the court determines that Scott qualifies for diversion, then the court may grant
diversion. If Scott successfully completes diversion, then the court shall dismiss the
charges against him.
If the court determines that Scott is ineligible for diversion or determines that
Scott is eligible for diversion but exercises its discretion to not place Scott on diversion,
or if the court places Scott on diversion but he fails to successfully complete diversion,
then the court shall reinstate Scott's conviction. The court shall thereafter resentence
Scott. During any resentencing proceedings, the trial court shall consider whether to
exercise its discretion to strike either or both of the serious felony enhancements (§ 667,
subd. (a)(1)), in light of the law as amended effective January 1, 2019.

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37
Upon the completion of any resentencing, the trial court shall forward a certified
copy of the new abstract of judgment to the Department of Corrections and
Rehabilitation.
AARON, J.
I CONCUR:
HALLER, Acting P. J.

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GUERRERO, J., concurring in part.
I concur in all portions of the majority opinion with the exception of
section III(D), where the majority addresses the merits of Scott's claim that the trial court
violated his due process rights by imposing various fees and a restitution fine without
determining his ability to pay, and concludes that Scott's due process rights were not
violated.
Scott bases his due process claim on the Court of Appeal's decision in People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The Dueñas court observed that
"[i]mposing unpayable fines on indigent defendants is not only unfair, it serves no
rational purpose, fails to further the legislative intent, and may be counterproductive."
(Id. at p. 1167.) The court therefore held that "due process of law requires the trial court
to conduct an ability to pay hearing and ascertain a defendant's present ability to pay
before it imposes court facilities and court operations assessments under Penal Code
section 1465.8 and Government Code section 70373." (Id. at p. 1164.) It also held that
"although Penal Code section 1202.4 bars consideration of a defendant's ability to pay
unless the judge is considering increasing the fee over the statutory minimum, the
execution of any restitution fine imposed under this statute must be stayed unless and
until the trial court holds an ability to pay hearing and concludes that the defendant has
the present ability to pay the restitution fine." (Ibid.)
The validity of Dueñas is unsettled, and some courts have disagreed with its legal
analysis and conclusions. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 94, 96,

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2
review granted Nov. 13, 2019, S257844 (Kopp);1 People v. Gutierrez (2019)
35 Cal.App.5th 1027, 1038 (conc. opn. of Benke, J.); People v. Hicks (2019)
40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946.)
Given the procedural posture of this case—where the matter must be remanded for
the reasons explained by the majority—and the fact that our Supreme Court will resolve
the split in authority as to whether Dueñas was correctly decided, I would allow Scott to
assert his claim on remand rather than address the merits of his contentions at this stage.
I would further require Scott to "bear[] the burden of proving an inability to pay" at any
resentencing proceedings (Kopp, supra, 38 Cal.App.5th at p. 96; accord, People v. Santos
(2019) 38 Cal.App.5th 923, 934; People v. Castellano (2019) 33 Cal.App.5th 485, 490),
and instruct the trial court not to "limit itself to considering only whether [Scott has] the
ability to pay at the time" of the hearing. (Kopp, at p. 96; see People v. Staley (1992)
10 Cal.App.4th 782, 783 [" '[A]bility to pay' . . . does not require existing employment or
cash on hand. Rather, a determination of ability to pay may be made based on the
person's ability to earn where the person has no physical, mental or emotional
impediment which precludes the person from finding and maintaining employment once
his or her sentence is completed."]; People v. Jones (2019) 36 Cal.App.5th 1028, 1035
[future prison wages support ability to pay determination]; People v. Johnson (2019)
35 Cal.App.5th 134, 139-140 [same].)
1 The Supreme Court has limited review in People v. Kopp, supra, 38 Cal.App.5th
47, review granted, to the following questions: "(1) Must a court consider a defendant's
ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which
party bears the burden of proof regarding the defendant's inability to pay?"

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3
In all other respects, I agree with the majority.
GUERRERO, J.

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