P. v. Johnson

Filed 8/12/19 P. v. Johnson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL ALLEN JOHNSON,
Defendant and Appellant.
F075561
(Super. Ct. No. F12901158)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Timothy A.
Kams, Judge.
Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Paul E.
O’Connor, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant Paul Allen Johnson appeals the judgment of his conviction of second
degree murder. He contends the trial court erroneously allowed him to withdraw his plea

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of not guilty by reason of insanity. He also contends the trial court erred by declining to
strike a strike prior conviction pursuant to People v. Superior Court (Romero) (1996)
13 Cal.4th 497 (Romero). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 25, 2012, at approximately 3:30 a.m., a man out looking for recycling
found the body of Arthur McKown in an alley. The man called 911, and the Fresno
Police Department responded to the scene. McKown had approximately 39 stab wounds
to his body. The cause of death was the perforation of the right common carotid artery
and right external jugular vein due to multiple stab wounds to the neck. There was an
empty Canadian Mist bottle and an empty Olde English bottle next to the body.
Detective Jennifer Federico of the Fresno Police Department examined
surveillance footage from a McDonald’s located near the scene. The footage showed
McKown enter the McDonald’s around 7:00 p.m. on January 24, 2012. As McKown was
about to leave, a man later identified as appellant went into the restaurant and spoke to
McKown, and they left together. Federico also examined surveillance footage from a
liquor store located near the scene. The liquor store footage showed McKown and
appellant enter the store on January 24, 2012. McKown bought two bottles of Olde
English, and appellant bought a bottle of Canadian Mist. A police video camera captured
appellant and McKown walking toward the direction where McKown’s body was
eventually found. An unidentified third individual appeared to be talking to appellant in
this video footage.
While Federico was driving near the scene later on January 25, 2012, she saw a
man walking that she recognized from the video to be appellant. Detective Federico and
her partner got out of their vehicles and started approaching appellant, who was near
some dumpsters. Appellant started running toward them, so they drew their guns and
ordered him to stop and put his hands up. They detained appellant, and upon searching
him, found a pocket knife inside one of his pockets. They also found a box of knives

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near the dumpsters. An arresting officer smelled a strong odor of bleach emanating from
appellant.
Federico interviewed appellant’s mother, Helen Johnson, whom appellant lived
with. Johnson told Federico appellant came home at around 6:30 p.m. on January 24,
2012. She heard him get up but was not sure at the time if he went out. Johnson heard
appellant doing laundry and taking a shower at approximately 4:00 a.m. Neither
occurrence was unusual. Johnson told Federico that appellant had quite a few sharp
knives because he liked to collect them. She said appellant was drunk when he got home
on the 24th. Johnson recognized McKown as someone who would stop by and talk to
appellant.
The police conducted a search of appellant’s home. They located a pair of jeans
and blue flannel shirt in the laundry room consistent with what appellant was wearing in
the surveillance footage. A criminalist testified the clothing appeared to have
discoloration consistent with bleach stains. The criminalist also testified that when
bleach is used to clean, it can “degrade [DNA] to the point that it’s not detectable.”
The box of knives found near the dumpsters had appellant’s fingerprints on it.
Two of the knives from the box had bloodstains on them. McKown and appellant were
eliminated as contributors of the blood on one of the knives, and appellant’s blood type
was found on the other. McKown’s blood was found on a pair of headphones appellant
was wearing on the night of the incident. Appellant’s left boot had bloodstains on the
upper outside portion and bottom of the boot. The blood on the upper outside portion of
the boot was appellant’s blood, but neither appellant nor McKown were contributors to
the stain on the bottom of the boot. A plastic wrapper found in appellant’s laundry room
had McKown’s blood on it.
A jury convicted appellant of second degree murder and found true that appellant
personally used a weapon in the commission of the offense. In a bifurcated proceeding,
appellant admitted he had suffered a prior strike conviction. Appellant was sentenced to

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a term of 15 years to life with the possibility of parole, doubled pursuant to Penal Code1
section 667, subdivision (e)(1), plus one year for the weapon enhancement.
DISCUSSION
I. Withdrawal of Insanity Plea
A. Relevant Background
On May 31, 2012, defense counsel requested appellant’s competency be evaluated
pursuant to section 1368.2 The court appointed Harold L. Seymour, Ph.D., to examine
appellant. In Seymour’s report, dated June 12, 2012, he recommended the court find
appellant competent to stand trial. On August 9, 2012, the court adopted the
recommendation in the report and found appellant competent to stand trial.
On January 8, 2013, defense counsel declared doubt as to appellant’s competency.
Defense counsel informed the court that although appellant had been previously
competent, his condition had worsened, and he was unable to cooperate with counsel.
Defense counsel represented that appellant had expressed the belief that all white men
shared the same DNA, the victim was his biological brother, and they had extraterrestrial
origins. Because there was DNA evidence against appellant, appellant’s belief hindered
defense counsel’s ability to discuss the evidence with appellant. The court appointed
Howard B. Terrell, M.D., to conduct another competency evaluation. In his report, dated
February 1, 2013, Terrell noted appellant came across as slightly paranoid and became
more bizarre and paranoid as the interview went on. Appellant reported to Terrell that
1 All further statutory references are to the Penal Code.
2 Section 1368 provides in pertinent part: “(a) If, during the pendency of an action
… a doubt arises in the mind of the judge as to the mental competence of the defendant,
he or she shall state that doubt in the record and inquire of the attorney for the defendant
whether, in the opinion of the attorney, the defendant is mentally competent…. [¶] (b) If
counsel informs the court that he or she believes the defendant is or may be mentally
incompetent, the court shall order that the question of the defendant’s mental competence
is to be determined in a hearing.”

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“Blacks” were kidnapping women, raping them, and dropping them off at the college to
make them look like normal women. Appellant reported that people were trying to
discover him doing something wrong and trying to make him look “awkward.”
Appellant told Terrell defense counsel was trying to buy his house, and Terrell reported
he spoke “with a paranoid theme and started talking in a rapid, non-stop, continuous
manner towards the end of the interview.” Terrell opined appellant had a psychotic
disorder. Terrell recommended the court find appellant mentally incompetent to stand
trial.
On February 14, 2013, the People requested the court order another competency
examination. The court appointed Luis H. Velosa, M.D. In Velosa’s report, dated
February 19, 2013, he reported appellant was quite distraught and anxious during the
interview. He opined appellant’s thinking process was impaired. Velosa opined
appellant suffered from psychosis with a recommendation to rule out schizoaffective
disorder. Velosa recommended the trial court find appellant not competent to stand trial.
On March 14, 2013, the trial court found appellant not competent to stand trial and
ordered involuntary antipsychotic medication.
On April 11, 2013, the court committed appellant to the trial competency program
at Atascadero State Hospital. He was admitted to the hospital on June 5, 2013.
Appellant regained competency, and the court reinstated the criminal proceedings on
October 7, 2013. In the report accompanying the certification of mental competency,
Courtney Carman, Psy.D., and David K. Fennell, M.D., E.J.D., noted appellant reported
he would like to plead not guilty, insisting he did not commit the crime. Their report
stated, “Although [appellant] seemed inflexible in his approach to his charge, there was
no evidence of paranoia or delusions driving this.” At the time of the writing of this
report, appellant expressed no delusional theories about real estate schemes or
conspiracies against him as he had in the past.

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6.
On January 16, 2014, appellant entered a not guilty by reason of insanity (NGI)
plea in addition to his not guilty plea. The court appointed Drs. Terrell and Velosa to
evaluate appellant’s sanity at the time of the offense pursuant to section 1027.3 Terrell
evaluated appellant on February 1, 2014. Terrell indicated that because appellant was
adamant he did not commit the crime, Terrell had no credible evidence to show appellant
did not understand the nature or wrongfulness of his actions. Terrell recommended the
court find appellant sane at the time of the homicide.
Velosa evaluated appellant on February 7, 2014. Velosa opined that, at the time of
the evaluation, appellant was free from any type of psychiatric symptoms which may
impair his concept of reality. Velosa diagnosed appellant with a psychiatric disorder best
classified as schizophrenia—paranoid type—in remission. Velosa expressly did not
opine as to whether or not appellant was legally sane at the time of the homicide because
appellant informed him he was planning to withdraw his insanity defense and plead not
guilty.
On February 20, 2014, the court stated it should not have appointed Drs. Terrell or
Velosa because both doctors had previously performed section 1368 evaluations on
appellant. Defense counsel informed the court appellant wanted to withdraw his insanity
plea and not talk to any more doctors. Defense counsel represented to the court, “I feel
strongly that [withdrawing appellant’s insanity plea is] a terrible decision. I think that’s
the proper defense for this case. [¶] … [¶] I am not just on the fence about this. I mean,
I really am convinced that this is the way to go. But I understand I am not in the driver’s
seat.” Defense counsel informed the court that Velosa suggested to her that appellant’s
competency be evaluated. The matter was put over a week so that defense counsel could
3 Section 1027, subdivision (a) provides in pertinent part: “When a defendant
pleads not guilty by reason of insanity the court shall select and appoint two, and may
select and appoint three, psychiatrists, or licensed psychologists … to examine the
defendant and investigate his or her mental status.”

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explain to appellant the consequences of withdrawing his NGI plea and speak to Velosa.
Appellant told the court he was not guilty, so he did not see how withdrawing the plea
would have any effect on the outcome. The court informed appellant if he is found not
guilty in the guilt phase, there would not be a sanity phase of the trial. The court
encouraged appellant to talk to his attorney.
On February 27, 2014, defense counsel informed the court appellant would not be
withdrawing his dual plea because appellant understands he will have the opportunity to
present a defense during the guilt phase of the trial. The court asked defense counsel
whether she was able to discuss Velosa’s previous comment regarding appellant’s
competency with him and noted that Velosa appeared to find appellant competent in his
latest written report. Defense counsel responded, “No, I spent time with him. I think we
are as good as we’re going to get and he will move forward.” Defense counsel confirmed
she was not asking for an appointment regarding competency. The court appointed Paula
Willis, Ph.D., and Richard Kendall, Psy.D., to conduct section 1027 examinations.
Willis examined appellant on March 12, 2014. Appellant reported to Willis that
he met with McKown the night of McKown’s death. Appellant told Willis he did wash
blood out of his clothes and he knew how the blood got there but was not going to say.
He told Willis he did not kill McKown; two black men did. Willis opined that appellant
had a “severe clinical thought disorder.” Willis noted appellant experiences paranoid
delusions when not medication compliant. She believed his thoughts of what happened
the night of McKown’s death were not reality based. She opined that appellant did not
know or understand the nature and quality of his acts and was not able to distinguish right
from wrong at the time of the alleged crimes.
Kendall examined appellant on April 8, 2014. Kendall reported a more detailed
account of the events of the night of the incident than did Willis. Appellant reported to
Kendall that “two black guys stabbed” McKown. Appellant said he was sitting with
McKown drinking and the “black guys” approached. One went for McKown’s shopping

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cart, and one went for him. Appellant watched them do it and then left the scene.
Appellant first denied washing his clothes but then admitted that he did because he “got
stabbed by the black guys too.” Appellant said he got a lot of McKown’s blood on him.
Kendall asked appellant where was he stabbed by the assailants, and appellant admitted
they did not stab him. He stated he was not insane then or now. He said, “Look, I was
drunk that night.” Kendall opined appellant suffered from schizoaffective disorder.
Kendall stated there was no evidence that appellant was not able to understand the nature
and quality of his actions at the time of his offense because he was clearly aware
McKown was stabbed multiple times and died as a result. Appellant also noted he was
drunk at the time of the offense. Kendall opined appellant was capable of distinguishing
right from wrong at the time of the commission of the offense because appellant fled the
scene of the crime and attempted to avoid detection by washing his clothes with bleach to
mask the blood stains of the victim.
On February 26, 2015, defense counsel asked the court to appoint Dr. Terrell to
interview appellant for a section 1027 examination, as Terrell had previously indicated he
would allow her to be present. Terrell interviewed appellant on March 7, 2015, in the
presence of defense counsel. Appellant gave a similar account to Terrell that he gave to
Kendall. Terrell recommended the court find appellant legally sane at the time of the
alleged crime.
On May 14, 2015, defense counsel informed the court the defense had “chang[ed
their] posture” on whether appellant would be pleading not guilty by reason of insanity
based on the recent reports. Defense counsel stated:
“[Terrell’s] basis for stating that [appellant] was sane at the time that the
crime was committed is because he won’t admit that he committed the
crime and … the defense’s position is that his paranoia has created a world
in which he truly believes that these figures are responsible for things but
because of the way that the questions—I actually was present when …
Terrell did the second interview out of curiosity to see how these take place
and considering how important they are, they’re really rather short and I

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was rather disappointed but it is what it is so at this point we’re
withdrawing our not guilty by reason of insanity and just having a not
guilty so we will have one trial, a guilt phase trial only.”
Defense counsel told the court she spoke to appellant and explained her “strategic
dilemma.” She stated his position has always been that he did not commit the crime, so
he is “very comfortable with just having a guilty phase trial.” The court then called a
short recess so that it could “grab some material on revoking or withdrawing an NGI
plea.” When back on the record, the court said:
“My reading of the law, [defense counsel] is [appellant] has to personally
enter an NGI plea and he also has to also personally agree to withdraw that
plea. So … I’m required—[appellant], I’m not trying to give you a hint
about what you should or shouldn’t do but I want to make sure you
understand the consequences of withdrawing a not guilty by reason of
insanity plea. Currently you have entered a plea of not guilty by reason of
insanity and I believe you were told at the time you entered that plea that if
you were found not guilty by reason of insanity, you could be committed to
a hospital for the rest of your life on that not guilty by reason of insanity
plea. [D]o you understand that?”
Appellant responded that he did. The court went on: “If you withdraw this not guilty by
reason of insanity plea today and you’re convicted of the charge, you won’t be going to a
hospital, you’ll be going to State Prison. Do you understand that?” Appellant responded
that he did. The court then said, “And either party want [appellant] advised of any other
direct or indirect consequences of the withdrawal of a not guilty by reason of insanity
plea …?” Defense counsel responded,
“No and I did go and speak to him, actually I stayed, I did two times that I
spent time with him on this issue, I stayed after Dr. Terrell did the interview
assessment and we spoke because it was clear to me what his opinion was
going to be and then after … I got it in writing, I went and spoke to
[appellant] again about what I thought he should do strategically so we’ve
spoken twice and both times I’ve asked him if he had any questions and all
along, he, you know, stated he wasn’t responsible and he wants to go
forward with the not guilty.”

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10.
The court again asked appellant if he understood the consequences of withdrawing
the not guilty by reason of insanity plea. Appellant responded that he did and wished to
withdraw the plea. Counsel told the court she concurred with the withdrawal of the plea.
The court asked defense counsel, “You’re not happy with the evaluation by Dr. Terrell?”
Defense counsel responded: “No because I think it’s short sighted but I’m not the
Medical Doctor and I think there should be some allowance for someone being so ill
that—I don’t think they should have to give an admission to be considered, you know,
insane at the time of the crime, it seems—I just—I think it’s more complex than that but
I’m stuck with what I have to work with here and I think what we have, it would be wiser
for us to go forward with just a guilt phase. The court then allowed appellant to withdraw
his insanity plea.
B. Analysis
Appellant argues his due process rights were violated because the trial court did
not do enough to insure his withdrawal of his insanity plea was knowing, intelligent, and
voluntary. Specifically, appellant contends the trial court had a duty to obtain waivers of
his “right to a jury trial on the issue of sanity or any of the rights he was giving up by
withdrawing the insanity plea.” Accordingly, he argues, the matter should be remanded
for a sanity trial or appellant’s demonstration of competence to withdraw his insanity
plea. We disagree.
A defendant may withdraw an insanity plea at any time before trial of that issue.
(People v. Love (1937) 21 Cal.App.2d 623, 626.) “[N]either the trial court nor defense
counsel can compel a competent defendant to present an insanity defense, no matter how
strong the available evidence of the defendant’s insanity at the time of the charged acts.”
(People v. Bloom (1989) 48 Cal.3d 1194, 1222.)
The procedure for accepting a withdrawal of a not guilty by reason of insanity plea
is set forth in People v. Redmond (1971) 16 Cal.App.3d 931:

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“(1) The trial court should reassure itself that a defendant at the time he
seeks to withdraw his insanity plea is presently sane, i.e., that he is capable
of understanding the nature and purpose of the proceedings against him,
that he comprehends his own status and condition with reference to such
proceedings, and that he is able to assist his attorney in the conduct of his
defense. ([] §§ 1367-1368; [citations].) (2) If defendant is found to be
presently insane, the solution is obvious. ([] §§ 1370, 1367.) (3) If
defendant is found to be presently sane, then a series of questions should be
propounded to such defendant and to his counsel and the answers thereto be
made of record to meet requirements of Boykin v. Alabama (1969) 395 U.S.
238; In re Tahl (1970) 1 Cal.3d 122, [citation]; and People v. West (1970)
3 Cal.3d 595, insofar as they might be applicable to the situation presented.
(4) If the court be satisfied that such defendant is making a free and
voluntary choice with adequate comprehension of the consequences, then
withdrawal of the plea should be permitted.” (People v. Redmond, supra,
16 Cal.App.3d at pp. 938–939, italics added.)
“In the absence of doubt about a defendant’s competence, a trial court has no sua sponte
duty to inquire further into the reasoning behind the defendant’s decision.” (People v.
Gamache (2010) 48 Cal.4th 347, 377.)
The trial court followed the above procedure in the present case. To the extent
appellant is arguing the court erred by not ordering a competency hearing, his argument
has no merit. “When a competency hearing has already been held and the defendant has
been found to be competent to stand trial, ‘a trial court is not required to conduct
[another] competency hearing unless “it ‘is presented with a substantial change of
circumstances or with new evidence’ ” that gives rise to a “serious doubt” about the
validity of the competency finding.’ ” (People v. Kaplan (2007) 149 Cal.App.4th 372,
383–384.) Here, appellant’s request to withdraw his insanity plea was consistent with his
position toward the case for many months. The request does not constitute evidence that
would require further competency examinations. Little had changed since defense
counsel had informed the trial court that there were no issues that needed to be raised
with regard to appellant’s competence on February 27, 2014. The record supports the
trial court was satisfied as to appellant’s present competency.

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Finding appellant presently competent, the trial court made an adequate inquiry
under the circumstances as to whether appellant was making a free and voluntary choice
with adequate comprehension of the consequences. The trial court inquired about and
considered defense counsel’s concerns regarding Terrell’s report. This discussion
informed the trial court of appellant and defense counsel’s justification for withdrawing
the plea. In addition to appellant’s strong conviction that he did not commit the crime,
defense counsel explained the plea was being withdrawn in light of the strength of the
insanity evidence. Though defense counsel expressed concern that Terrell concluded
appellant was sane simply because he did not admit guilt, there was strong evidence on
the record that would undermine the defense’s insanity case. Two of the three evaluators
had deemed appellant sane at the time of the offense. Kendall pointed to facts beyond
appellant’s insistence of innocence, to support his conclusion appellant was sane at the
time of the offense. These facts included appellant’s ability to account what happened
the night of the incident, including noting he was drunk, and that appellant fled the scene
and washed his clothes of McKown’s blood. The Atascadero State Hospital staff noted
appellant continued to insist he was innocent after his other paranoid and delusional
thoughts had subsided. This insistence of innocence was noted by the Atascadero staff as
not being driven by “paranoia or delusions.”
Moreover, the trial court advised appellant that a consequence of withdrawing his
plea was that if he was convicted he would not be going to a hospital but to prison.
Defense counsel advised the court she had recently spoken to appellant twice about trial
strategy and gave him opportunities to ask questions. The court confirmed with appellant
that he understood the consequences of withdrawing the insanity plea, and appellant said
he did. Counsel concurred with the decision to withdraw the plea and declined further
advisements from the court. As we have stated, even in the face of overwhelming
insanity evidence, the court cannot compel a presently competent defendant to present an
insanity defense. (See People v. Bloom, supra, 48 Cal.3d at p. 1222.)

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13.
We do not find any further advisements would have been necessary, and appellant
is vague as to what other inquiries or advisements were required. Appellant suggests
Boykin-Tahl advisements should have been given. Boykin-Tahl rights refer to a criminal
defendant’s constitutional privilege against compulsory self-incrimination, right to a jury
trial, and right to confront his or her accusers. (Boykin v. Alabama, supra, 395 U.S. at
p. 243.) Each of these three rights “must be specifically and expressly enumerated for the
benefit of and waived by the accused prior to acceptance of his [or her] guilty plea.”
(In re Tahl, supra, 1 Cal.3d at p. 132, italics added.) Boykin-Tahl advisements are also
required to be given before a trial court accepts a defendant’s plea that is tantamount to a
guilty plea; for example, entering a solitary plea of not guilty by reason of insanity.
(See People v. Weaver (2001) 26 Cal.4th 876, 964.)
Appellant contends that under the circumstances of the present case, his
withdrawal of his not guilty by reason of insanity plea was tantamount to a guilty plea
because of the strength of evidence of culpability. We disagree. The evidence against
appellant was circumstantial, and appellant was able to advance his defense that he did
not commit the crime. Defense counsel made several arguments in her closing argument
disputing that the People had proven the elements beyond a reasonable doubt. Even if we
were to consider appellant’s withdrawal as tantamount to a guilty plea, it is not clear
which of the Boykin-Tahl rights appellant is contending he was waiving by way of the
withdrawal of his plea. It has been held that in the context of a withdrawal of a plea,
advisement of the waiving of the privilege against self-incrimination need not be given.
(People v. Huffman (1977) 71 Cal.App.3d 63.)4 As for appellant’s constitutional right to
4 “The inquiry by the court satisfied all the dictates of In re Tahl, [supra,] 1 Cal.3d
122, except that the defendant was not informed of the privilege against self-
incrimination. Such inquiry is not called for under these circumstances. When one
pleads guilty, one abandons the right to trial by jury, confrontation and also waives his
privilege against self-incrimination. The withdrawal of a plea, however, involves the first
two rights but has nothing whatsoever to do with self-incrimination. The defendant was

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a jury trial and right to confront his accusers, he was afforded those rights during the guilt
phase of his trial. Under the circumstances of the present case, there were no Boykin-
Tahl advisements that would have been appropriate to give.
We do not agree with appellant’s assertion that because there was disagreement as
to appellant’s sanity at the time of the offense, the trial court was required to give Boykin-
Tahl advisements. Appellant relies on a quote from People v. Gamache, supra,
48 Cal.4th at page 376 to support this assertion: “If the trial court has no doubt about a
defendant’s present competence, and if the experts who have examined the defendant are
unanimous in finding him or her sane at the time of the crime, a trial court may freely
accept a defendant’s withdrawal of an insanity plea.” This being true does not also mean
that disagreement between experts regarding a defendant’s sanity at the time of the crime
somehow triggers the court to give Boykin-Tahl advisements. Appellant does not cite any
case law, nor can we find any, which directly supports his proposition. As we have
discussed, the Boykin-Tahl advisements would have been inappropriate under the
circumstances of the present case. Thus, we cannot find the court erred by not giving
them.
We also disagree with appellant’s suggestion that because appellant had been
previously found incompetent, there was “doubt” as to his present competence. “Doubt”
in this context is a term of art, which requires the court to order further proceedings.
(§ 1368.) Because the trial court did not order any proceedings pursuant to section 1368,
it clearly had no doubt with regard to appellant’s present competence. And, as we have
discussed, the trial court committed no error by not ordering further competency
proceedings. We find the trial court made an adequate inquiry into whether appellant
was making a knowing and voluntary withdrawal of his insanity plea.
not requested to speak at all by reason of the withdrawal of this plea. The advisements
given were adequate.” (People v. Huffman, supra, 71 Cal.App.3d at p. 81.)

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15.
Respondent is correct that the right to a jury sanity trial and the right to cross-
examine witnesses therein are statutory rights, not constitutional rights. (See §§ 1026,
1027.) Appellant has not cited, nor have we found, any case authority which requires us
to find express waivers of those rights on the record, as is required for Boykin-Tahl rights.
We can infer from the record that appellant’s trial counsel explained that his insanity plea
would have afforded him a jury trial and a right to cross-examine witnesses and that by
withdrawing his plea, he was foregoing those rights.
Even if we were to assume the trial court erred by not obtaining express waivers of
certain rights from appellant, any error was harmless. Because the rights appellant was
giving up were statutory, rather than constitutional, and appellant has not met his burden
of showing appellant’s due process rights were violated, the standard of harmlessness is
not the more stringent Chapman5 standard as appellant suggests, but any error in
advisements the court made must be measured by the Watson6 standard: whether it is
reasonably probable the outcome would have been more favorable to appellant absent the
error. To the extent the trial court made any error by failing to advise appellant of his
right to a sanity trial by jury, there is no reasonable probability the outcome would have
been different absent the error. Appellant was adamant he did not commit the crime and
did not want to advance any evidence as to his mental state. There is no doubt in our
mind that advisements of his right to a jury trial and right to cross-examine witnesses
would not have made any difference based on this record. It is clear from the record
appellant knew he could have a jury trial on insanity and that if he withdrew his plea, that
trial would not occur. It can be inferred from the record that counsel went over the
consequences of withdrawing the plea with him thoroughly. Finally, appellant’s decision
5 Chapman v. California (1967) 386 U.S. 18.
6 People v. Watson (1956) 46 Cal.2d 818.

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not to advance any mental health evidence at trial is further evidence that the advisements
would not have made a difference.
II. Denial of Appellant’s Romero Motion
Section 1385 gives the trial court authority to order an action dismissed, “in
furtherance of justice.” (§ 1385, subd. (a).) Under this authority, the court may vacate a
prior strike conviction for purposes of sentencing under the “Three Strikes” law, “subject,
however, to strict compliance with the provisions of section 1385.” (Romero, supra,
13 Cal.4th at p. 504.)
Appellant moved the trial court pursuant to Romero to strike his prior 2001
conviction for criminal threats. Appellant argued the criminal threats conviction was due
to mental illness. The criminal threats conviction arose from an incident where he
threatened his ex-partner with whom he shares a daughter that he would take their
daughter and kill her. When appellant’s ex-partner’s husband told appellant to stop
calling their home, appellant said, “[i]f I ever catch you hurting her, I’ll kill you.” The
probation report for that offense noted that the “Jail Expansion” team suggested appellant
needed a conservatorship.
The defense also presented testimony from appellant’s sister regarding appellant’s
history with mental health. Appellant’s sister testified that appellant had been diagnosed
with paranoid schizophrenia. She testified that when appellant was on his medication he
was pleasant to be around, and when he was not he was “not so much.”
At sentencing, the trial court denied appellant’s motion, stating:
“I acknowledge defense arguments. They are compelling, but I think more
compelling is [appellant’s] long history of criminal behavior extended
beyond the time that the strike occurred and up until the case before the
Court. So although there are some grounds to grant this motion, I think on
balance I am not persuaded that it would be in the interest of justice.”
Appellant now contends the trial court abused its discretion in denying his Romero
motion to strike his prior conviction. Our review of the decision to strike a prior

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conviction is deferential; we use the abuse of discretion standard. (People v. Carmony
(2004) 33 Cal.4th 367, 374 (Carmony).) Dismissal of a strike is a departure from the
sentencing norm. As such, in reviewing a Romero decision, we will not reverse for abuse
of discretion unless the defendant shows the decision was “so irrational or arbitrary that
no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.)
Reversal is justified where the trial court was unaware of its discretion to strike a prior
strike or refused to do so, at least in part, for impermissible reasons. (Id. at p. 378.)
Appellant has not met his burden of showing the trial court’s decision was “so irrational
or arbitrary that no reasonable person could agree with it.”
In ruling on a Romero motion, the trial court “must consider whether, in light of
the nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Here, the trial court considered the probation report, testimony from appellant’s
sister regarding his mental health issues, the intent and spirit of the law, and appellant’s
criminality. Despite its consideration of appellant’s mental health problems, the court
declined to exercise its discretion to strike the prior strike. The record supports the trial
court’s conclusion.
Appellant’s criminal behavior started in 1985 and comprised of several drug,
weapon, and vehicle related misdemeanors and three felonies. Appellant’s felonies
included arson to an inhabited structure in 2000, a violation of section 452, subdivision
(b), and his strike conviction in 2001, a violation of section 422. The current offense
involved great violence, as McKown was stabbed 39 times.
The probation report addressed appellant’s lengthy history with mental illness.
The report says appellant was first diagnosed with schizophrenia in the 1990’s. He

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“usually” took his prescribed medication, but there were times he did not. As of the
writing of the probation report, appellant was taking psychotropic medication. He has
been in approximately 20 psychiatric programs. In addition, appellant was in Kings
View for approximately six months when he was 17 years old and Eucalyptus Program in
Bakersfield for approximately one year in his 30’s. Appellant had been hospitalized with
regard to mental health issues on “20ish” previous occasions including 5150 holds. He
had been committed to Atascadero State Hospital on three to four occasions for court.
The probation officer commented, “While [appellant’s] mental health issues have been
noted, he has also been granted several attempts at remedying those issues with
psychiatric programs, over the years. Despite all the services afforded, [appellant] is now
before the Court for murder.” Though appellant’s history is peppered with Vehicle Code
violations and misdemeanors, his criminal behavior, as a whole, had escalated in
seriousness.
Appellant does not cite any authority—nor are we aware of any—that suggests a
court should grant a Romero motion where the defendant makes a showing that mental
illness played some role in his criminal history. In fact, in People v. Carrasco (2008)
163 Cal.App.4th 978 (Carrasco), where the defendant’s Romero motion was based on the
fact that he had “ ‘significant mental health history and issues’ ” and was “suffering from
the effects of long-term drug use” (id. at p. 992), the Court of Appeal rejected the
defendant’s claim that “the [trial] court erroneously found it lacked authority to consider
[his] mental condition as a factor” (id. at p. 993). In Carrasco, in denying the motion, the
trial court commented that case law did not authorize consideration of the defendant’s “
‘mental state, his mental condition, the reasons why he wanted to do these things.’ ” (Id.
at p. 993.) The appellate court explained, “The record reflects the trial court considered a
wide range of appropriate factors in passing sentence, particularly the nature and
circumstances of [the defendant’s] present and past convictions.” (Ibid.) Since the trial
court had expressly considered the defendant’s “background and character in ruling on

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the motion,” its remarks about his mental condition amounted to “an acknowledgement
that the court could not give undue weight to an inherently speculative argument that
defendant’s mental state ‘made him do it.’ ” (Id. at pp. 993–994.)
“ ‘[W]here the record demonstrates that the trial court balanced the relevant facts
and reached an impartial decision in conformity with the spirit of the law, we shall affirm
the trial court’s ruling, even if we might have ruled differently in the first instance.’ ”
(Carmony, supra, 33 Cal.4th at p. 378.)
Given appellant’s criminal history, his inability to avoid criminal activity for a
substantial period of time, and his violent behavior, the trial court was well within its
discretion to find that appellant fell within the spirit of the Three Strikes law despite his
mental health history. Appellant has not shown that the trial court’s decision not to strike
the prior felony conviction allegation was arbitrary or irrational. In our opinion, this is
not an extraordinary case in which all reasonable people would agree that appellant falls
outside the spirit of the Three Strikes law. (See Carmony, supra, 33 Cal.4th at p. 378.)
Thus, we conclude the trial court did not abuse its discretion in declining to strike
appellant’s prior strike conviction.
III. Appellant’s November 15, 2018 Request for Limited Remand To Allow Him
to Apply for Mental Health Diversion Pursuant to Section 1001.36
On November 15, 2018, appellant filed a request for a limited remand to allow
him to apply for mental health diversion pursuant to section 1001.36. On January 15,
2019, this court deferred ruling on appellant’s request pending consideration of the
appeal on its merits and to the extent appellant requested a remand prior to consideration
of the appeal on its merits, denied the request. We now address his request.
Effective June 27, 2018, 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

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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.
(§ 1001.36, subd. (b)(1)(A)-(F).)
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, subd. (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).)
On September 30, 2018—about three months after enacting section 1001.36—the
Legislature amended the statute (as relevant here) to eliminate diversion eligibility for
defendants charged with certain offenses, including “murder or voluntary manslaughter.”
(§ 1001.36, subd. (b)(2)(A); Stats. 2018, ch. 1005, § 1.) This amendment took effect on
January 1, 2019. (Ibid.)
Appellant argues the initially enacted version of section 1001.36 applies
retroactively to him because it is ameliorative, citing People v. Frahs (2018) 27
Cal.App.5th 784, review granted December 27, 2018, S252220 (finding the statutes
retroactive), and urging us to apply the reasoning in People v. Superior Court (Lara)
(2018) 4 Cal.5th 299 (finding Proposition 57, which limited direct filing of juvenile cases
in criminal court, applied retroactively). He further argues the subsequent amendment
eliminating his eligibility cannot apply retroactively due to the ex post facto clauses of
the state and federal Constitutions. We reject appellant’s contention that the amendment

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violates the prohibition against ex post facto laws. Because we reject this contention, we
need not determine whether the statute otherwise applies retroactively.
The federal and California Constitutions prohibit the enactment of ex post facto
laws. (U.S. Const., art. I, §§ 9, 10; Cal. Const., art. I, § 9.) “A statute violates the
prohibition against ex post facto laws if it punishes as a crime an act that was innocent
when done or increases the punishment for a crime after it is committed.” (People v.
White (2017) 2 Cal.5th 349, 360.) The ex post facto prohibition ensures that people are
given “fair warning” of the punishment to which they may be subjected if they violate the
law; they can rely on the meaning of the statute until it is explicitly changed. (Weaver v.
Graham (1981) 450 U.S. 24, 28-29.)
When appellant committed his offense in 2012, the possibility of pretrial mental
health diversion did not exist. The initial version of section 1001.36 was not enacted
until almost six and a half years later in June 2018. Consequently, appellant could not
have relied on the possibility of receiving pretrial mental health diversion when he
committed his offense.
Moreover, the Legislature’s amendment of section 1001.36 to eliminate eligibility
for defendants charged with murder or voluntary manslaughter did not make an act
unlawful that was not formerly unlawful, nor did it increase the punishment for the
offense with which appellant was charged. (See People v. White, supra, 2 Cal.5th at
p. 360.) Appellant was subject to the same punishment when he committed his offenses
as he was after the Legislature narrowed the scope of defendants eligible for diversion.
Thus, the amendment does not violate the ex post facto clauses of the state or federal
Constitutions, and appellant is ineligible for mental health diversion.

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DISPOSITION
The judgment is affirmed.
_____________________
DE SANTOS, J.
WE CONCUR:
_____________________
SMITH, Acting P.J.
_____________________
MEEHAN, J.

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