P. v. Vindiola

Filed 3/27/20 P. v. Vindiola CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DAMIAN MANUEL VINDIOLA,
Defendant and Appellant.
H045815
(Santa Clara County
Super. Ct. No. C1769827)
Defendant Damian Manuel Vindiola pleaded no contest to attempted arson (Pen.
Code, § 455)1 and admitted that he had suffered a prior strike conviction (§§ 667,
subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)). After the
trial court granted defendant’s motion to dismiss the prior strike conviction, it suspended
imposition of sentence, and placed defendant on probation for three years. The trial court
also imposed various fines, probation costs, fees, and assessments.
On appeal, defendant contends that the case must be remanded for the trial court to
exercise its discretion to strike the prior serious felony enhancement and to determine
whether he is entitled to mental health diversion under section 1001.36. He also
challenges the imposition of fines (§§ 1202.4, 1202.44), probation costs (§ 1203.1b,
subd. (a)), a criminal justice administration fee (Gov. Code, §§ 29550, subd. (c), 29550.2,
1 All further statutory references are to the Penal Code unless stated otherwise.

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subd. (a)), a court operations assessment (§ 1465.8), and a criminal conviction assessment
(Gov. Code, § 70373). We affirm the order.
I. Statement of Facts2
On July 27, 2017, San Jose firefighters responded to a fire on the roof of a
bathroom at Welch Park. Defendant was standing on the roof by the fire. Defendant was
agitated and said, “ ‘Fuck the police,’ ” numerous times. Defendant stated that he had
started the fire, because he wanted an opportunity to talk with police. After defendant put
out the fire, he came down from the roof and was taken into custody. The fire charred a
nine-square-foot section of the roof.
II. Discussion
A. Prior Serious Felony Enhancement
Defendant contends that the case must be remanded for the trial court to exercise
its discretion to strike the prior serious felony enhancement.
While this appeal was pending, the Governor signed Senate Bill No. 1393, which
amended section 667, subdivision (a), and section 1385, subdivision (b), to allow a court
to exercise its discretion to strike a prior serious felony conviction for sentencing
purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the previous version of section 667, the
trial court was required to impose a five-year consecutive term for “[a]ny person
convicted of a serious felony who previously has been convicted of a serious felony . . . .”
(Former § 667, subd. (a).) 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).) Appellate courts have recognized the retroactive application of Senate
2 The statement of facts is based on the preliminary hearing transcript.

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Bill No. 1393. (People v. Sexton (2019) 37 Cal.App.5th 457, 473; People v. Garcia
(2018) 28 Cal.App.5th 961, 972-973.)
The Attorney General argues that defendant’s challenge to the prior serious felony
enhancement is not ripe for appellate review. We agree.
“ ‘[A] controversy is “ripe” when it has reached . . . the point that the facts have
sufficiently congealed to permit an intelligent and useful decision to be made.’
[Citation.]” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158,
171.) “The legal issues posed must be framed with sufficient concreteness and
immediacy so that the court can render a conclusive and definitive judgment rather than a
purely advisory opinion based on hypothetical facts or speculative future events.”
(Hayward Area Planning Assn. v. Alameda County Transportation Authority (1999) 72
Cal.App.4th 95, 102.)
Here, the trial court suspended the imposition of sentence and placed defendant on
probation. If defendant successfully completes probation, he will not be sentenced to a
prison term. If his probation is revoked, and if the trial court imposes a sentence that
includes a prison term for the serious felony enhancement, defendant may seek appellate
review of the sentence at that time. Thus, this issue is not ripe for appellate review.
B. Mental Health Diversion
Defendant contends that the case should be remanded to allow the trial court to
determine whether he is eligible for pretrial mental health diversion under section
1001.36. Effective June 27, 2018, section 1001.36 authorizes the trial court to grant
pretrial diversion to defendants who are diagnosed with a qualifying mental disorder and
meet other requirements. (§ 1001.36, subd. (a).) Defendant, who was sentenced on
April 27, 2018, argues that section 1001.36 applies retroactively to defendants whose

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cases are not yet final on appeal. The Attorney General responds that the statute is not
retroactive.
The Courts of Appeal are split on whether section 1001.36 is retroactive, and the
retroactivity issue is currently pending before the California Supreme Court in People v.
Frahs (2018) 27 Cal.App.5th 784, review granted December 27, 2018, S252220. This
court is also split on whether section 1001.36 is retroactive. (People v. Lipsett (2020) 45
Cal.App.5th 569 (Lipsett) [not retroactive]; People v. Khan (2019) 41 Cal.App.5th 460,
review granted Jan. 29, 2020, S259498 (Khan) [not retroactive]; People v. Weaver (2019)
36 Cal.App.5th 1103, review granted Oct. 9, 2019, S257049 [retroactive].) We agree
with the reasoning in Lipsett and Khan and conclude that section 1001.36 does not apply
retroactively to cases, such as the present case, in which the defendant has already been
convicted and sentenced. Accordingly, we reject defendant’s contention.
C. Fines, Costs, Fees, and Assessments
Defendant contends: the restitution fines (§§ 1202.4, 1202.44) should be stricken,
because the trial court did not orally impose them; there was insufficient evidence to
support the implied finding that he was able to pay probation costs (§ 1203.1b, subd. (a))
and a criminal justice administration fee (Gov. Code, §§ 29550, subd. (c), 29550.2,
subd. (a)); and the trial court violated his due process rights by imposing a court
operations assessment (§ 1465.8) and a criminal conviction assessment (Gov. Code,
§ 70373).
At the conclusion of the sentencing hearing, the trial court stated that the order
was modifiable by Department 61. This court requested supplemental briefing as to
whether defendant had sought modification of the order. The Attorney General and
defendant have provided a minute order in this case that shows the trial court modified

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the terms and conditions of defendant’s probation by deleting the fines, probation costs,
the fees, and assessments and by declaring that defendant had a “zero” balance.
“ ‘ “[T]he duty of this court, as of every other judicial tribunal, is to decide actual
controversies by a judgment which can be carried into effect, and not to give opinions
upon moot questions or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.” ’ [Citation.]” (Eye Dog
Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)
Since defendant is no longer required to pay the fines, costs, fees, and
assessments, this court has lost the ability to grant effective relief. Accordingly, the issue
is moot.
III. Disposition
The order is affirmed.

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_______________________________
Mihara, J.
I CONCUR:
______________________________
Elia, Acting P. J.
People v. Vindiola
H045815

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BAMATTRE-MANOUKIAN, J., Concurring and dissenting.
I respectfully dissent from my colleagues’ determination that newly enacted
Penal Code section 1001.36,1 which created a pretrial diversion program for certain
offenders with diagnosed mental disorders, does not apply retroactively to all cases not
yet final on appeal.
As the majority indicates, courts including this one are divided regarding
whether section 1001.36 applies retroactively. (Compare, e.g., People v. Khan (2019)
41 Cal.App.5th 460, review granted Jan. 29, 2020, S259498, and People v. Craine
(2019) 35 Cal.App.5th 744, review granted Sept. 11, 2019, S256671, with People v.
Weaver (2019) 36 Cal.App.5th 1103, review granted Oct. 9, 2019, S257049 (Weaver),
and People v. Frahs (2018) 27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220
(Frahs).) Based on the California Supreme Court’s guidance in People v. Superior Court
(Lara) (2018) 4 Cal.5th 299, I agree with the reasoning in Weaver and Frahs and I am
compelled to conclude that section 1001.36 applies retroactively to all nonfinal
judgments. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
1 All further statutory references are to the Penal Code.

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BAMATTRE-MANOUKIAN, J.
People v. Vindiola
H045815

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