P. v. Quiroz

Filed 8/27/19 P. v. Quiroz CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
GUILLERMO QUIROZ,
Defendant and Appellant.
B287491
Los Angeles County
Super. Ct. No. KA111747
APPEAL from an order of the Superior Court of
Los Angeles County, Mike Camacho, Judge. Affirmed.
Alex Green, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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A jury convicted defendant and appellant Guillermo Quiroz
of attempted voluntary manslaughter and assault by means of
force likely to produce great bodily injury. The jury found true
allegations that Quiroz personally used a dangerous and deadly
weapon—a heavy ceramic pot full of dirt—in the commission of
the attempted manslaughter, and that he personally inflicted
great bodily injury on the victim, Cody Andrew Ramirez. On
appeal, Quiroz contends the trial court erred in denying his
Miranda motion1 to exclude from the prosecution’s rebuttal
case statements he made when he and his attorney met with
detectives before his arrest. He also asks us conditionally to
reverse his conviction and to remand the case for the trial court
to consider his eligibility for pretrial mental health diversion
under Penal Code section 1001.36.2
We find no error in the trial court’s denial of Quiroz’s
Miranda motion and therefore affirm his conviction. We decline
to remand the case because, in our view, section 1001.36 is not
retroactive.
FACTS AND PROCEDURAL BACKGROUND
1. In a drunken melee at a wedding, Quiroz drops
a large, heavy ceramic planter near the prone
victim’s head
On January 30, 2016, Cody Ramirez and his fiancée Jamie
Hobbs went to a wedding at the DoubleTree hotel in Claremont.
Ramirez had a lot to drink and he was drunk. As the wedding
1 Miranda v. State of Arizona (1966) 384 U.S. 436.
2 Statutory references are to the Penal Code. References to
rules are to the California Rules of Court.

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was winding down, Ramirez and Hobbs went outside to the front
of the hotel.
Quiroz and his wife Nery Vanessa Miranda also were at the
wedding. Quiroz and Miranda knew Ramirez’s brother, who had
died, but they didn’t know Ramirez well. Quiroz had quite a bit
to drink and he was intoxicated. “[J]ust about everybody” was
drinking that night.
Around 11:45 p.m., Quiroz and Miranda decided to leave;
they went outside to have a cigarette first. Quiroz was talking
with Ramirez. Quiroz said something about Ramirez’s deceased
brother and Ramirez “got upset.” What happened next is in
dispute. According to Miranda, Hobbs “got irate,” “started
cursing,” and “socked” Quiroz in the face. Hobbs and Miranda
argued; Miranda claims Ramirez “charge[d]” at her, then
“grab[bed]” her and “pushe[d] [her] into a planter.” Ramirez
says he never “put hands on” anyone.
Hobbs’s friends took her inside the hotel “trying to just
calm her down.”
Dylan Webster was another guest at the wedding. By
11:30 p.m., he’d had four or five drinks and was “[d]efinitely
impaired.” Webster saw Miranda “get pushed.” He “decided . . .
to defend her” and hit Ramirez with his fist. Ramirez fell to
the ground. Webster kicked Ramirez in the head; Ramirez was
bleeding.3
Quiroz joined in. When Hobbs and her friends came back
outside, they saw Ramirez lying on the ground “and like all of
3 In a negotiated disposition, Webster pled to assault by
means of force likely to produce great bodily injury for two years,
to be served in local custody under realignment.

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them on top of him, like beating him.” Quiroz and Webster “were
by his face or by his head” and it “looked like they were stomping
or kicking his head.”
In the meantime, an Uber driver arrived at the hotel to
pick up a fare. While waiting in his car, the driver saw “a group
that was just arguing or having some type of altercation.” The
driver heard “loud talking”; it “seemed like . . . someone was
yelling”; “people were mad or arguing.” A man shoved another
man. “Then punches got thrown,” “[s]omeone got basically laid
out,” and the driver started recording with his cell phone. It was
“[b]asically like a knockout, he just fell to the ground.”
The Uber driver posted the video on social media. Ramirez
contacted him about the video. The cell phone video was played
for the jury at trial.
Quiroz and Miranda left “immediately.”
Claremont Police Department Detective Christopher Casas
arrived at the scene. He went into a bathroom at the hotel and
found Ramirez with “a lot of blood on his face” and clothing. Two
women were “trying to tend to him with paper towels.”
“Everybody was screaming and yelling.”
Casas called Quiroz and Miranda. Casas asked them how
the pot had been broken. According to Miranda, she told Casas
she “didn’t know about a pot.” According to Casas, they told him
“someone tripped over the pot.”
Ramirez was air-lifted to a hospital. He had a broken nose,
a four-centimeter cut to his forehead that required eight stitches,
and bruises on his scalp. He was discharged a few hours later.

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2. Quiroz and his attorney meet with police, present
Quiroz’s version of events, and answer questions
On January 31, 2016—the day after the incident—Quiroz
and his attorney, Babak “Bobby” Shamuilian, went to the police
station. Quiroz and Shamuilian met with two detectives and
a deputy district attorney. One of the detectives was Sergeant
Hector Tamayo. We have listened to the audio recording and
read the transcript of the meeting.
Tamayo told Quiroz and Shamuilian, “[s]it wherever you’d
like.” He introduced a deputy district attorney who was in the
room, Lisa El-Farra. Shamuilian gave El-Farra a card and each
told the other “[n]ice to meet you.” Tamayo said, “[H]ey, the
reason I called you is, is because on the day of the, of this incident
I guess you spoke to an officer and gave him a statement of your
version of what happened.” Quiroz said, “Um hum.” Tamayo
continued, “[B]ut there was a lot going on. So since then I’ve
talked to other people and gotten their, you know, statements
as to what happened and what not.” Shamuilian said, “Right.”
Tamayo went on: “And um so that’s why I called you, to see,
you know, if you wanted to talk to me or tell me anything about
it, or um, to ask if you had seen the video that’s out there.”
Shamuilian said he hadn’t seen the video but his client had.
Shamuilian told Tamayo he didn’t know “what the . . .
other guy’s claiming happened in the fight,” but Quiroz “was
really defending his wife,” who had been “attacked by . . . the
individual who is probably injured.” Shamuilian said Quiroz had
been hit and “kind of like was out of it”; then he “woke, kind of
gets up, there’s everything going on and picks up a, a flower pot
that his wife was kind of pushed into . . . and he slams it on the
ground, just to kind of make a loud noise and, shut up, guys, stop

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type of thing.” Shamuilian added, “I don’t know if someone’s
claiming that was used as a weapon or something like that.”
Tamayo said, “Yeah, well, from seeing the video, . . . it appears
to be, yeah.”
Shamuilian told Tamayo he’d “love to see the video.”
Tamayo asked Quiroz, “You’ve seen it already?” and Quiroz
answered, “Um hum.” Tamayo apparently played the video, then
asked Quiroz, “Is that the video that you saw?” Quiroz said,
“Um hum.” Tamayo asked, “Okay. So that’s you with the pot
right here?” Quiroz said, “Straight down on the ground.”
Apparently addressing his client, Shamuilian said, “I don’t
want you making any statements.”
Tamayo said, “Okay. So that’s one of the videos that we
have. And that’s pretty clear as to what happened.” Shamuilian
said, “Yeah.” Quiroz said, “I see a pot hitting the ground and
not moving. Just pot on the ground, that’s it.” Shamuilian told
Tamayo that Quiroz “recalls like during the . . . fight and stuff,
. . . other people were jumping in.” Quiroz—apparently referring
to the video—added, “You saw someone do a flying jump kick.”
Shamuilian continued, “Someone kicking him in the face and
stuff like that.” “[H]e was purely kind of trying to just defend
himself and his wife. [Then] . . . they were like chasing him and
. . . he was just trying to get out of there.”
A second detective asked Quiroz if he recognized anyone
in the video. Quiroz answered, “I don’t.” The detective said, “No.
Just you dropping the pot.” Quiroz responded, “Yeah cause that’s
what I remember after I got clocked, I said this fight needs to end
and I grabbed that pot and I threw it on the ground. Ding, ding,
loud noise, people expand [sic], it’s over.”

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Shamuilian stated Quiroz was “not a bad guy” or a “trouble
maker,” had no criminal record, was a veteran who served in
Iraq, was in school, and was married with a child. Tamayo said,
“[T]he thing that’s disturbing is, you know, you got a guy that’s
sitting on the ground, he’s bleeding out and you’re dropping a pot
on his head. I mean . . . that’s the part that’s . . . pretty hard to
justify.” Shamuilian responded, “Of course.” He added, “I . . .
completely see your side.”
Tamayo said, “[W]hat about just saying hey stop, I’m gonna
call the police or something like that.” Quiroz responded, “Well
have you ever been in a fight with a wife and she throws a glass
behind the wall you’re at, to just kind of . . . scare you away?”
Tamayo said, “Yeah. Okay.” Quiroz continued, “Um maybe you
heard a case of that, but I kind of dropped the planter and you
know just trying to make my point, not to hurt anyone, but only
to make a, a point to say stop. . . . This has to end. That’s it.”
Quiroz said Ramirez and his wife got upset after Quiroz
mentioned Ramirez’s deceased brother and “next thing you know
the guy is throwing my wife into that planter on the ground . . . .”
Shamuilian said Quiroz “was defending his wife and himself
once, once he was attacked.”
Eventually Shamuilian said, “I think at this point we’re
kind of like, we’ve gone over the same stuff. . . . [W]e don’t make
any statements once, once there’s law enforcement involved.
Just a general, but I wanted to put it out there . . . .” Tamayo
responded, “Yeah. And . . . that’s the whole thing, is I mean if
there’s some kind of justification for this . . . .” Shamuilian said
he “fe[lt]” Quiroz did “have some justification.” He added, “That’s
why we’re down here so quickly, we’re trying to cooperate. We’re

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not trying to . . . hide the ball.” Shamuilian added they would not
“be making any further statements.”
Tamayo stated, “Okay. Um I appreciate you coming in, you
bringing him in. Um unfortunately you are going to be charged
with a crime, okay. Um so you are gonna have to go with me.”
The detectives then handcuffed Quiroz and led him away.
Shamuilian continued to speak with El-Farra for a minute
or two.
3. The charges and the Miranda hearing
The People charged Quiroz with attempted murder
(count 1) and assault by means of force likely to produce great
bodily injury (count 3).4 The People alleged that Quiroz
personally used a dangerous and deadly weapon—a “potted
plant”—in the attempted murder and that, as to both counts,
he personally inflicted great bodily injury on the victim.
Trial began on November 20, 2017. The next day, outside
the jurors’ presence, the court heard motions. Shamuilian filed
a trial brief raising 11 issues; Miranda was not one of them.5 The
4 In the original information, filed March 7, 2016, the People
charged Quiroz only with attempted murder. At the conclusion
of a trial in July 2017, the jury was unable to reach a verdict and
the court declared a mistrial. On August 8, 2017, the People
filed an amended information, adding a charge of assault with
a deadly weapon (count 2). (Although the charge was labeled
count 3, the prosecutor orally amended the information to allege
it as count 2.) On September 7, 2017, the People filed a second
amended information adding assault by means of force likely to
produce great bodily injury as count 3. On November 22, 2017,
the court dismissed count 2 on the People’s motion.
5 The record on appeal does not contain a prosecution trial
brief for the retrial. In the first trial, the prosecutor filed a brief

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prosecutor, James Perry, raised the issue of Quiroz’s statements
to police with the court. Perry stated Quiroz’s statements were
“obviously . . . party admissions.” He said there was no Miranda
issue with the statements Quiroz and his wife made to Casas on
the speakerphone the night of the fight.
Perry continued: “It’s really the second set of statements
that were made when the defendant and his attorney went to
the station.” Perry said Quiroz was not handcuffed nor was he
“told he was under arrest at the time.” He sat at the table with
his lawyer, two detectives, and a deputy district attorney. “He
made a number of statements during that interview that the
People may intend to elicit during the course of this trial should
we see fit.”
The court stated, “[G]iven what I’ve heard . . . in that
the defendant responded to a station in company of counsel,
may have been questioned or may have volunteered certain
information relevant, I don’t see how that would be a violation of
Miranda because, even though it was questions elicited perhaps
in response to interrogation type questions, I don’t think it was a
custodial setting.” The court asked Shamuilian if he “wish[ed] to
litigate whether or not it was a Miranda violation.” Shamuilian
responded it might be “appropriate” to “have a Miranda hearing
on that.”
The court asked for more details “as to how this statement
was received and under what circumstances.” Perry noted Quiroz
came down to the station with his attorney. He “wasn’t actually
addressing Quiroz’s statements to Casas that night but not his
statements in the meeting the next day. The prosecution did not
seek to introduce Quiroz’s statements to Tamayo in the first trial.

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placed under arrest until the very end of the proceeding.” There
were “no handcuffs” and “no guns present.” Perry said there
were “discussions between counsel and the detectives” and Quiroz
“interjected certain statements even after being told to be quiet
a couple of times by Mr. Shamuilian.”
The court discussed the legal definition of “custody.”
Shamuilian told the court police had been to Quiroz’s home “to
find him” so he offered to bring Quiroz down to the station even
though no warrant had been issued. Shamuilian said, “We were
basically going down to surrender him.” The court asked if
Shamuilian “on [his] own decided to just go ahead and take
[his] client to the station absent a formal invitation by law
enforcement.” Shamuilian answered, “It was implicit that
I should bring my client down to the station.”
The court asked Shamuilian if he told the detectives and
the prosecutor that Quiroz was “invoking a privilege against self-
incrimination.” Shamuilian said, “I think I made it clear from
the get-go that he wouldn’t be making any statements.” (The
transcript does not support that assertion. While, fairly
early on, Shamuilian told Quiroz, “I don’t want you making
any statements,” it was not until the end of the meeting that
Shamuilian told the detectives, “[W]e don’t [sic] be making any
further statements.” At that point, the detectives asked no
further questions.)
The court responded, “I get that”; “[i]t’s hands off” Quiroz
for law enforcement once “they know he’s represented.” But,
the court, continued, “The problem is that, when you voluntarily
bring your client to them and somehow a conversation begins
even though it was contrary to . . . your strategy and not having
your client make any statements, there seems to be some type of

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implicit waiver here when Mr. Quiroz is now answering questions
in the presence of you even though that’s contrary to your advice
perhaps to him in the first place.” The court noted, “This is really
unusual when we have counsel present at the time questioning is
occurring.” And—even if law enforcement had been told Quiroz
“is not going to make any statements”—“then counsel shows up
with his client and his client starts answering questions.”
The court heard further argument and then ruled.
The court noted Quiroz “certainly” was exercising his Sixth
Amendment right to counsel, and his Fifth Amendment rights
against self-incrimination had been asserted on his behalf.
“Yet, Mr. Quiroz on his own starts volunteering information.”
Moreover, the court said, “in this case, it really wasn’t a custodial
setting in my mind because the defendant voluntarily came
down, albeit with the understanding they may have to surrender.
I don’t think that transforms it into a custodial setting in and of
itself.” The court said it was “factoring in” that Quiroz “came in
with counsel as well as with a clear impression that his rights
were going to be protected, but he doesn’t have to take advantage
of those rights, which evidently he didn’t do contrary to your
advice, Mr. Shamuilian.” The court concluded Quiroz’s
statements in the meeting were admissible.
4. The prosecution introduces Quiroz’s statements
to impeach Quiroz’s expert at trial
Quiroz did not testify at trial. He called as witnesses a
number of family members and friends who testified to his
good character. He called Webster. He called an expert in
“photogrammetry” to testify about the distance of the broken
pot to where Ramirez was lying.

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Quiroz also called Dr. Deborah Miora, a clinical and
neuropsychologist. Miora had evaluated Quiroz and concluded
he suffered from Post-Traumatic Stress Disorder (PTSD). Miora
testified “[o]ne of the hallmarks” of PTSD is “a fight/flight
reaction.” That reaction, Miora said, “is not consistent” with the
human capacity “to think about our behavior, to make decisions,
deliberating about them, to weigh the consequences of our
behavior. So, when in a [PTSD] mode, the person isn’t thinking.”
She continued, “[I]t’s like being an animal. When an animal is
frightened, they react. They don’t think.”
Defense counsel gave Miora a hypothetical: He asked her
to consider a person with PTSD who has no violence in his past,
is intoxicated, and “is exposed to an experience where a loved one
or a family member is being assaulted in [his] presence.” Would
that person, counsel asked, “think like the rest of us under those
circumstances?” Miora answered, ”If activated at that brain-
based level and experiencing threat or danger, that individual is
going to be most likely to react from that fight/flight triggered
aspect of the human brain that I was talking about and that’s
unfortunately where thought goes out the window.”
On cross-examination the prosecutor asked Miora, “If
somebody specifically made a statement that they knew what
their actions were under the circumstances and they made
those decisions for a specific reason, that would undermine your
opinion today; correct?” Miora responded, “Not necessarily. We
often say and believe what we say but evidence may show to the
contrary. That’s one of the . . . great sort of mysteries about
human nature . . . . We can have things going on at different
levels and really believe them and they aren’t necessarily so.”

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On rebuttal, the prosecutor called Detective Tamayo.
Tamayo testified he met with Quiroz and his attorney on
January 31, 2016. The recording of the meeting was played
for the jury.
5. The verdicts and sentence
On December 7, 2017, the jury acquitted Quiroz of
attempted murder. It convicted him on the lesser charge of
attempted voluntary manslaughter as well as assault by means
of force likely to produce great bodily injury. The jury found true
the allegations that Quiroz used a dangerous or deadly weapon
and personally inflicted great bodily injury on the victim.
Quiroz’s counsel filed a motion asking the court to grant
him military diversion for veterans under sections 1170.9 and
1170.91 and rules 4.413 and 4.414. The court denied the motion,
stating, “the court . . . certainly cannot find that this is an
unusual case that would warrant probation.”
The court sentenced Quiroz to five years and six months in
the state prison. The court chose the low term of 18 months for
attempted voluntary manslaughter, citing as mitigating factors
Quiroz’s “service to the country, as well as the posttraumatic
stress disorder that he suffers as a result.” The court added three
years for the infliction of great bodily injury and one year for
Quiroz’s use of a deadly weapon. The court stayed the sentence
on count 3 under section 654.
DISCUSSION
1. The trial court did not violate Quiroz’s Fifth
Amendment rights by admitting his statements
to police
Quiroz contends he “went to the police station under the
compulsion of arrest” and was therefore in custody. Quiroz

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asserts he could not have waived his Miranda rights because
police never advised him of those rights. The Attorney General
argues Quiroz was not in custody.
We find no Miranda violation. Quiroz came to the police
station with his lawyer, sat in an interview room with his counsel
by his side, and chimed in while his counsel presented his side of
the story in an effort to persuade the detectives not to file charges
against Quiroz.
a. Quiroz’s insistence that he picked up the pot
and dropped it to end the altercation was
a defense strategy he and his counsel chose
and presented to the jury
At the outset, we note Quiroz’s Miranda argument rests
on an inaccurate premise. He asserts the prosecution used the
statements he made during the meeting “both [to] attack Dr.
Miora’s testimony that a person with PTSD is not thinking but
only reacting as a result of his triggered fear . . . and then to
hammer away during closing argument that appellant’s
statement showed that he knew what he was doing when he
dropped the pot rather than simply reacting as a result of his
PTSD.”6 But it was Quiroz who first raised the contention that
he intentionally dropped the pot to get everyone to stop fighting
and disperse. In his opening statement, defense counsel
Shamuilian told the jurors, “[I]t’s disorder. [Quiroz’s] pleas of
trying to get it to end have not worked. That’s all that he wants.
At this point he just wants to get out of there. . . . Mr. Quiroz
didn’t bring any weapons to this wedding. . . . While he’s out
6 Quiroz makes this argument only as to the attempted
voluntary manslaughter count, not on the assault count.

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there, the only thing that he sees that he could do to try to make
a distraction or a loud noise to make it break up, he sees a pot.
He picks it up; he slams it down as hard as he can to make the
loudest noise he can. Ding ding ding, it’s over. Let’s just move
on, guys.” That statement closely parallels what Quiroz told the
detectives in the meeting: “I said this fight needs to end and I
grabbed that pot and I threw it on the ground. Ding, ding, loud
noise, people expand [sic], it’s over.”
Later in his opening statement, Shamuilian said, “The
evidence will show that [Quiroz] did not want to kill Cody
Ramirez. . . . [His] intent was to break up the fight. And his
other efforts to kind of deescalate this situation didn’t work.”
To be sure, Shamuilian also talked about Quiroz’s PTSD.
He told the jurors, “The evidence will show that this was a
triggered reaction. And the PTSD may help you guys understand
what may have been going on in [Quiroz’s] mind at the time.”
Shamuilian also spoke at length about self-defense and defense
of others. He told the jury, “You’re going to hear evidence about
self-defense and defense of another. You’re going to hear that
Mr. Ramirez attacked Vanessa Miranda. She was in imminent
danger of suffering great bodily injury.” Later Shamuilian said,
“[Quiroz] was defending himself and his wife.”
Even though the trial court found no substantial evidence
of self-defense or defense of another—as Ramirez was “already
on the ground” when Quiroz dropped the pot—it ultimately
instructed the jury on those principles.
In his closing argument, Shamuilian harkened back to his
opening statement: “He’s trying to get everyone to just back off,
break it up, move on. . . . And his pleas to stop and break it up
in every other method are not successful.” Later, discussing the

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jury instruction on provocation that “would have caused a normal
average person to act out rashly,” Shamuilian told the jurors,
“He acted rationally. He’s trying to end this thing and move on
with his night.”
Shamuilian also argued Quiroz was defending his wife.
Citing Miora’s testimony, Shamuilian then said, “[t]he evidence
showed this was a triggered reaction like fight-or-flight.” “A
person going through a PTSD episode doesn’t think like the rest
of us and would not be able to formulate the specific intent to
kill.” Shamuilian blended his defense-of-another argument with
his PTSD argument: “He didn’t have the intent, wasn’t able to
formulate the specific intent required to convict for an attempted
murder and its lesser included charges. He was acting in defense
of his wife.”
The prosecutor conceded Quiroz has PTSD. But he noted
Quiroz and his wife told Casas that night—before anyone knew
the Uber driver had videotaped the incident—that “no pot
was thrown.” The prosecutor also said, “But then we have
defendant’s statement later at the station . . . oh, I threw it on
the ground. I was just trying to get everybody to scatter.”
b. In any event, Quiroz was not in custody
when he volunteered his version of events
to detectives
An interrogation is custodial for purposes of requiring
advisements under Miranda when a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way. (People v. Moore (2011) 51 Cal.4th 386, 394-395.)
In Miranda jurisprudence, “ ‘custody’ is a term of art that
specifies circumstances that are thought generally to present a
serious danger of coercion.” (Howes v. Fields (2012) 565 U.S. 499,

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508-509.) Custody consists of a formal arrest or a restraint on
freedom of movement of the degree associated with a formal
arrest. (Moore, at p. 395; People v. Leonard (2007) 40 Cal.4th
1370, 1400.) When there has been no formal arrest, the question
is how a reasonable person in the defendant’s position would
have understood his situation. (People v. Boyer (1989) 48 Cal.3d
247, 271.) All of the circumstances of the interrogation are
relevant to this inquiry, including the location, length, and form
of the interrogation, the degree to which the investigation was
focused on the defendant, and whether any indicia of arrest were
present. (Ibid.)
When reviewing a trial court’s ruling on a claimed Miranda
violation, we accept the court’s resolution of disputed facts and
inferences and its credibility evaluations if substantial evidence
supports them. We independently determine from those facts
whether the challenged statements were illegally obtained,
applying federal constitutional standards. (People v. Jackson
(2016) 1 Cal.5th 269, 339; People v. Bacon (2010) 50 Cal.4th 1082,
1105.) A statement obtained in violation of a suspect’s Miranda
rights may not be admitted to establish guilt in the prosecution’s
case-in-chief. (Jackson, at p. 339; People v. Peevy (1998) 17
Cal.4th 1184, 1193-1196.)
The trial court was right when it said this is an unusual
set of facts. Neither Quiroz nor the Attorney General has cited a
case—nor have we found one in our own research—that presents
circumstances such as these. Shamuilian took Quiroz to the
police station. After the fact, he said he took him there to
surrender. But the tenor and content of the exchange at the
meeting reflects an effort by Shamuilian—with Quiroz chiming
in—to give the detectives Quiroz’s side of the story and convince

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them he was a good person whose wife was attacked by a drunk,
combative man and who dropped the pot to bring an end to the
altercation.
It is true the detectives never told Quiroz he was free to
leave, and at the end of the meeting they arrested him. Of course
we don’t know whether the detectives had decided to arrest
Quiroz before the meeting even began. But any such decision
does not mean Quiroz was in custody. The determination
of custody “depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either
the interrogating officers or the person being questioned.”
(Stansbury v. California (1994) 511 U.S. 318, 323-324 [officer’s
subjective belief whether person is a suspect, undisclosed to that
person, is irrelevant for Miranda purposes]; People v. Stansbury
(1995) 9 Cal.4th 824, 830 [reconsidering issue without regard to
uncommunicated subjective impressions of police and concluding
defendant was not in custody].) The test is how a reasonable
person in the suspect’s position would have understood his
situation. (Berkemer v. McCarty (1984) 468 U.S. 420, 442.)
Quiroz arrived at the station with his attorney, he was not
handcuffed, and the detectives displayed no guns. (Cf. People v.
Kopatz (2015) 61 Cal.4th 62, 78, 80 [defendant taken in police car
to detective bureau for questioning was not in custody; among
other factors, “[t]he officers did not handcuff defendant or display
any weapons”].) The interview itself was investigatory and not
“ ‘hostile, menacing, or accusatory.’ ” (Id. at p. 81, quoting People
v. Zamudio (2008) 43 Cal.4th 327, 345.) The detectives did not
ask Quiroz accusatory, confrontational, or persistent questions.
(Cf. People v. Saldana (2018) 19 Cal.App.5th 432, 459.) Tamayo
began by saying he’d heard from others what happened and

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called Quiroz “to see . . . if you wanted to talk to me or tell
me anything about it.” Quiroz pointed out the pot had gone
“[s]traight down [to] the ground,” suggesting he did not throw
the pot at or near Ramirez. Quiroz continued to volunteer
information, as did Shamuilian, in an apparent effort to convince
the police and prosecutor not to file charges or arrest Quiroz.
“Any statement given freely and voluntarily without any
compelling influences is, of course, admissible in evidence. . . .
Volunteered statements of any kind are not barred by the Fifth
Amendment.” (Miranda, supra, 384 U.S. at p. 478.) Quiroz had
his attorney with him throughout the meeting. Quiroz simply
did not face the sort of physical or psychological coercion that
underlies the Miranda rule.
2. Quiroz is not entitled to a conditional remand
In a supplemental brief, Quiroz asks us to reverse his
conviction conditionally and to remand the case to the trial court
so he can request pretrial mental health diversion. The Attorney
General opposes Quiroz’s request, arguing the newly enacted
statute on which he relies is not retroactive. We agree.
Effective June 27, 2018, the Legislature created a pretrial
diversion program for defendants with diagnosed and qualifying
mental disorders. (§ 1001.36, subd. (b)(1)(A).) The statute
defines pretrial diversion as “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 . . . .” (§ 1001.36, subd. (c).) Here, of course,
Quiroz’s case has been adjudicated. He has been in prison
since early 2018.
The language and legislative history of the statute make
clear section 1001.36 provides only for a pretrial diversion

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program designed to prevent the needs and costs associated with
trial and incarceration. The Legislature enacted the program to
mitigate the entry and reentry of individuals with mental health
disorders into the criminal justice system. (§ 1001.35, subd. (a).)
Diversion after trial, sentencing, and incarceration would not
serve that purpose. Moreover, the Legislature limited the mental
health treatment to a maximum of two years before criminal
proceedings are reinstated or the charge dismissed. (§ 1001.36,
subd. (c)(3).) This time limitation is consistent with the nature
and purpose of a pretrial diversion program. Within two years,
a court can determine whether a defendant has performed
satisfactorily in diversion to earn dismissal of his charges, but if
he does not perform well criminal proceedings can resume within
a reasonable period of time.
The Legislature’s analysis states the new legislation would
“grant[ ] courts the ability to divert those suffering from mental
illness into treatment at an early stage in the proceedings.
[Assembly Bill No.] 1810 seeks to reduce recidivism rates
for mentally ill defendants, and to avoid unnecessary and
unproductive costs of trial and incarceration.” (Sen. Rules Com.,
Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 215 (2017-
2018 Reg. Sess.) pp. 2-3, as amended Aug. 23, 2018.)
In People v. Frahs (2018) 27 Cal.App.5th 784 (Frahs),
the Fourth District Court of Appeal held section 1001.36 to be
retroactive. On December 27, 2018, our Supreme Court granted
review on its own motion and denied a request for depublication.
(Frahs, review granted on specified issues Dec. 27, 2018,
S252220.) The Court designated the issues: “Does Penal Code
section 1001.36 apply retroactively to all cases in which the
judgment is not yet final? Did the court of appeal err by

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remanding for a determination under Penal Code section
1001.36?” (Ibid.)
On May 23, 2019, the Fifth District Court of Appeal
reached the opposite conclusion from Frahs in People v. Craine
(2019) 35 Cal.App.5th 744 (Craine).7 On July 1, 2019, in an
opinion certified for partial publication, the Sixth District
disagreed with Craine and agreed with Frahs. (People v. Weaver
(2019) 36 Cal.App.5th 1103, petn. for review filed Aug. 1, 2019.)8
Until our high court decides the issue, we must decide this
case with the statutory language and legislative history available
to us. We respectfully find the Craine court’s analysis more
persuasive. Accordingly, we deny Quiroz’s request for a
conditional reversal and remand.
7 The Fifth District also held section 1001.36 not to be
retroactive in an earlier unpublished case: People v. Rocco
(Jan. 22, 2019, F074772) [nonpub. opn.]. On April 24, 2019,
the Supreme Court issued a “grant and hold” order in that case.
(Ibid., review granted Apr. 24, 2019, S254264.)
8 In four unpublished cases, three other divisions of our
Second District have concluded section 1001.36 is retroactive.
(See People v. Knight (Apr. 23, 2019, B284886) [nonpub. opn.],
review granted July 10, 2019, S256081; People v. Williams
(Apr. 29, 2019, B290706) [nonpub. opn.], review granted July 10,
2019, S255686; People v. Propps (May 8, 2019, B281522) [nonpub.
opn.], review granted July 17, 2019, S256322; People v. Phillips
(June 4, 2019, B286715) [nonpub. opn.].) The Knight case was
a two-to-one decision with a vigorous dissent.

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DISPOSITION
We affirm Guillermo Quiroz’s conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.

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