P. v. Palkovic

Filed 12/24/19 P. v. Palkovic 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
JOHN DAVID PALKOVIC,
Defendant and Appellant.
D074342
(Super. Ct. No. SCD273174)
APPEAL from a judgment of the Superior Court of San Diego County, Michael S.
Groch, Judge. Conditionally reversed and remanded with directions.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted John David Palkovic of attempted murder (Pen. Code, §§ 664,
187, subd. (a); count 1), assault with a semiautomatic firearm (Pen. Code, § 245, subd.

-- 1 of 16 --

2
(b); count 2), unlawfully taking and driving a motor vehicle (Veh. Code, § 10851, subd.
(a); counts 3, 4), reckless driving while evading police (Veh. Code, § 2800.2, subd. (a);
count 5), vandalism (Pen. Code, § 594, subd. (a)(b)(1); count 6), unlawful possession of a
firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 7), and unlawful possession of
ammunition (Pen. Code, § 30305, subd. (b)(1); count 8). It found true firearm
enhancements under Penal Code section 12022.5, subdivision (a) as to counts one and
two, and as to count one that Palkovic discharged a firearm in committing the crime (Pen.
Code,1 § 12022.53, subdivision (c)).
In bifurcated proceedings, Palkovic admitted he had suffered four prior prison
convictions (§§ 667.5, subd. (b), 668), one prior serious felony conviction (§§ 667, subd.
(a)(1), 668, 1192.7, subd. (c)), one violent felony prison prior conviction, and one prior
strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12).
The court sentenced Palkovic to a total determinate term of 33 years eight months
in prison, including a five-year term for the prior strike conviction.
Palkovic contends: (1) we should remand the case for the trial court to exercise its
discretion to grant him mental health diversion under recently enacted section 1001.36,
which allows courts to grant pretrial diversion to defendants who suffer from mental
disorders and whose mental disorders played a significant role in the charged offense;
and (2) on remand, the trial court should exercise its recently granted discretion to strike a
prior serious felony enhancement under sections 667, subdivision (a) and 1385,
1 Undesignated statutory references are to the Penal Code.

-- 2 of 16 --

3
subdivision (b). In supplemental briefing, Palkovic contends: (1) we should amend the
abstract of judgment because it misidentifies the crimes for which he was convicted in
counts 4, 5 and 7; (2) his trial counsel was ineffective for failing to request a mental
health diversion hearing under section 1001.36; and (3) under People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas), the fines, fees and assessments the trial court imposed
should be struck or stayed because the court made no finding of his ability to pay them.
We conclude the mental health diversion statutes apply retroactively to this case
and will exercise our discretion to address this contention. Therefore, we reverse the
judgment and remand the matter for the trial court to hold a hearing under section
1001.36 to determine Palkovic's eligibility for diversion. On remand, the court should
also exercise its discretion under sections 667, subdivision (a) and 1385, subdivision (b)
to either strike or reimpose the five-year prior serious felony enhancement. The People
concede and we agree the abstract of judgment should be amended. We decline to strike
the fines, fees and assessments because we conclude Palkovic forfeited this claim.
FACTUAL BACKGROUND
Because this appeal presents pure questions of law, we need not discuss in detail
the underlying facts of Palkovic's crimes. Suffice to say that in August 2017, while
Palkovic was in a stolen vehicle in a parking lot, a man approached him asking for a
cigarette. Palkovic pulled a handgun from his waist and pointed it at the man, who ran.
Palkovic pursued the man, firing five to seven rounds, but missed him. Two days later,
when police observed the stolen vehicle, they contacted Palkovic, but he fled, leading

-- 3 of 16 --

4
police on a chase. When the vehicle crashed, Palkovic initially ran, waving a handgun.
He later obeyed police orders and dropped the gun. Police arrested him.
In the context of Palkovic's motion to strike a prior strike conviction under People
v. Superior Court (1996) 13 Cal.4th 497 (Romero), Palkovic's treating psychiatrist
voluntarily submitted a report seeking a reduced sentence for him. She explained:
"[Palkovic] has NEVER been either evaluated or treated for PTSD despite the
overwhelming presence of diagnostic criteria and the evidence that patients with severe
trauma and PTSD (for which he meets criteria) are highly unlikely (less than 10
[percent]) to maintain recovery without pre- or co-occurring treatment of trauma."
At the July 12, 2018 sentencing hearing, defense counsel argued: "I think that the
most powerful thing in [the psychiatrist's] letter is that the last time [Palkovic] was in
prison, which was the more recent time, he did get some treatment, and it was that
treatment that was—I don't want to say new, but it addressed more of the issues that Mr.
Palkovic actually has which is PTSD and trauma. And given just a little bit of treatment,
he stayed out of prison for three years, and that's the longest he's been out of prison since
[he] was 19 years old, and I think that can show us some really good insight into Mr.
Palkovic's future prospects. I think that what that shows is that with continued treatment
and doctors who are now understanding rapport building and trauma and how to treat
those cases, I think that Mr. Palkovic can be a productive member of society, and I think
that he should be given that opportunity."
The court replied: "I agree that the lack of rehabilitation has been a long-standing
problem. It's slow to get addressed, but at least I think that a corner is turned on that, as

-- 4 of 16 --

5
pointed out by [the psychiatrist]." The court also told Palkovic at sentencing: "I read
very carefully [the psychiatrist's] letter and thoughts and took them into consideration,
and frankly, I did deviate from what I was originally contemplating; so [the psychiatrist's]
efforts and the efforts of your attorney have mitigated your sentence. It still won't sound
like a low sentence, but I think [the psychiatrist] saved you about ten years, and so I want
you to know that. . . . I see the things that the doctor described and your attorney has
argued, and I do have empathy for what you experienced as a young person."
DISCUSSION
I. Pretrial Diversion for Mental Health
Palkovic contends section 1001.36 applies retroactively to this case and therefore
we should conditionally reverse and remand for the trial court to conduct a hearing to
determine his eligibility for pretrial diversion. The People argue Palkovic forfeited the
claim by failing to request mental health diversion in the trial court, the statute is not
retroactive in any event, and remand would be futile because the trial court would find
Palkovic to be a danger to society and thus deny his motion for mental health diversion.
Between Palkovic's conviction and the sentencing hearing, the Legislature enacted
sections 1001.35 and 1001.36 (Stats. 2018, ch. 34, § 24), effective June 27, 2018, which
authorize pretrial diversion for defendants with mental disorders (mental health diversion
statutes).2 Sections 1001.35 and 1001.36 authorize pretrial diversion for defendants with
2 The Legislature subsequently amended section 1001.36, effective January 1, 2019,
to eliminate diversion eligibility for defendants charged with certain specified offenses, to
give the court the discretion to require defendants to make a prima facie showing of

-- 5 of 16 --

6
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: (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." (§ 1001.36, subd. (e).)
As a canon of statutory interpretation, we generally presume laws apply
prospectively. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara).)
diversion eligibility, and to give the court the authority to address restitution for victims
of diverted offenses. (Stats. 2018, ch. 1005, § 1.) All references to section 1001.36 are to
this amended version.

-- 6 of 16 --

7
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. (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.' " (Lara, at p. 308.)
The Estrada rule applies to section 1001.36, which lessens punishment by giving
defendants the possibility of diversion and then dismissal of criminal charges. (People v.
Frahs (2018) 27 Cal.App.5th 784, 791 (Frahs), review granted Dec. 27, 2018, S252220.)
In addition, applying section 1001.36 retroactively is consistent with the statute's
purpose, which is to promote "[i]ncreased diversion of individuals with mental disorders

-- 7 of 16 --

8
to mitigate the individuals' entry and reentry into the criminal justice system while
protecting public safety." (§ 1001.35, subd. (a).)
The statute's definition of pretrial diversion, which indicates the statute applies at
any point in a prosecution from accusation to adjudication (§ 1001.36, subd. (c)), does
not compel a different conclusion. "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 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, rev. gr.)
Furthermore, we note the California Supreme Court decided Lara before the
Legislature enacted section 1001.36 and the Legislature is deemed to have been aware of
the decision. (See People v. Overstreet (1986) 42 Cal.3d 891, 897.) Had the Legislature
intended for the courts to treat section 1001.36 in a different manner, we would expect
the Legislature to have expressed this intent clearly and directly, not 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"].) Consequently, we conclude section 1001.36
applies retroactively to this case.
A defendant may forfeit a right in a criminal case by failing to timely assert the
right before the tribunal with jurisdiction to determine it. (People v. Trujillo (2015) 60

-- 8 of 16 --

9
Cal.4th 850, 856.) "However, neither forfeiture nor application of the forfeiture rule is
automatic. [Citation.] Competing concerns may cause an appellate court to conclude
that an objection has not been forfeited. [Citations.] Similar concerns may also cause an
appellate court to refrain from applying the forfeiture bar." (People v. McCullough
(2013) 56 Cal.4th 589, 593.) Even if forfeited, we exercise our discretion to address this
claim on the merits in the interest of judicial economy, as we will remand the matter on
another ground as discussed below. (See People v. Williams (1998) 17 Cal.4th 148, 161,
fn. 6.)
The mental health diversion statutes were enacted and took effect on the same day,
which was two weeks before Palkovic's sentencing. At the sentencing hearing, defense
counsel argued for a disposition that would take into account Palkovic's need for mental
health treatment. However, neither defense counsel in closing arguments nor the court in
its sentencing decision referenced the mental health diversion statutes. The prosecutor
also did not reference them in countering defense counsel's arguments.
Given the similarities between the relief sought by defense counsel and the relief
provided by the mental health diversion statutes, it is difficult to conclude Palkovic
relinquished his right to seek the relief provided by the statutes. Rather, we may
reasonably infer from the omission of any reference to the statutes at the sentencing
hearing that neither counsel nor the court was aware of them at the time. Courts
generally decline to apply the forfeiture rule to a right derived from recent, unanticipated
changes to the law. (See People v. Edwards (2013) 57 Cal.4th 658, 704-705; People v.

-- 9 of 16 --

10
Black (2007) 41 Cal.4th 799, 810; People v. Turner (1990) 50 Cal.3d 668, 703.) We
decline to do so here.
The People contend remanding the case to allow the court to exercise its discretion
under the mental health diversion statutes would be futile because the court would
inevitably find Palkovic poses an unreasonable risk of danger to public safety.
We find this contention unpersuasive because the purpose of the provision is to
determine whether a defendant is potentially eligible for diversion. (See Sen. Rules
Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 215
(2017-2018 Reg. Sess.) as amended Aug. 23, 2018, p. 2 [the prima facie showing
provision authorizes a court to request a prima facie hearing where defendants must show
they are potentially eligible for diversion].) Whether the court will be satisfied that
treating Palkovic in the community will not pose an unreasonable risk of danger to public
safety is unanswerable until Palkovic has had an opportunity to develop the requisite
expert evidence. Further, the court has not had an opportunity to consider whether he
would be an appropriate candidate for mental health diversion. Our remand will provide
both Palkovic and the court these opportunities.
The People also contend that Palkovic is statutorily ineligible for mental health
diversion because he suffered a prior strike conviction, which the court declined to strike.
They point out too that section 667, subdivision (c)(2) prohibits a defendant with a prior
strike from receiving a suspended sentence. This court addressed this issue in People v.
Burns (2019) 38 Cal.App.5th 776, 789, review granted October 30, 2019, S257738,
which we cite for its persuasive value (Cal. Rules of Court, Rule 8.1115(e)(1)). We

-- 10 of 16 --

11
reasoned: "[T]he People misconstrue the conditional reversal procedure in Frahs[, supra,
27 Cal.App.5th 784, rev. gr]. . . . The Frahs procedure conditionally reverses both the
convictions and the sentence for an eligibility hearing under section 1001.36. [Citation.]
Conditional reversal thus restores the case to its procedural posture before the jury verdict
for purposes of evaluating [appellant's] eligibility for pretrial mental health diversion. At
that point, [appellant] faced a mere allegation of a prior strike, which was insufficient to
preclude a suspended sentence or diversion." The same applies here. Moreover, as we
proceed to discuss, the court will have an opportunity to exercise its discretion to decide
whether to strike Palkovic's prior strike.
II. Senate Bill No. 1393
The People concede and we agree this matter should be remanded to allow the trial
court to exercise discretion newly granted it by Senate Bill No. 1393 to strike his serious
felony prior conviction used to support the five-year enhancement under section 667,
subdivision (a)(1). Before Senate Bill No.1393's adoption, the law prohibited courts from
striking felony priors used for purposes of the section 667 enhancement. (Former § 1385,
subd. (b).) However, effective January 1, 2019, Senate Bill No. 1393 removed that
prohibition. Palkovic contends Senate Bill No. 1393 is retroactive and applies to all cases
not yet final as of its effective date, such as this case.
Absent evidence to the contrary, statutory amendments that reduce the punishment
for a crime or vest in trial courts the discretion to impose a lesser penalty, such as Senate
Bill No. 1393, apply to all defendants whose judgments are not final as of the
amendment's effective date. (Estrada, supra, 63 Cal.2d 740, 742; People v. Garcia

-- 11 of 16 --

12
(2018) 28 Cal.App.5th 961, 972.) When it enacted Senate Bill No. 1393, the Legislature
did not indicate it intended the legislation to apply prospectively only. (Garcia, at p.
972.) The act thus applies retroactively to this case.
We are required to remand in instances such as this "unless 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] . . . enhancement" even if it had such discretion.
(People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) The record here contains no
such "clear" indication. We thus remand for the court to consider striking the serious
felony prior conviction that supports the enhancement imposed under section 667,
subdivision (a)(1).
III. Imposition of Fines, Fees, and Assessments
At sentencing, the trial court imposed a court operations assessment of $320 (Pen.
Code, § 1465.8, subd. (a)(1)), a court facilities assessment of $240 (Gov. Code, § 70373),
a $2,000 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a $2000 parole revocation
fine (Pen. Code, § 1202.45). The court stayed the latter fine.
Palkovic for the first time on appeal challenges the court's imposition of those
fines and assessments based on his inability to pay relying on Dueñas, supra, 30
Cal.App.5th 1157.
In Dueñas, the defendant at sentencing objected on due process grounds to the trial
court's imposition of a $30 court facilities assessment (Gov. Code, § 70373), a $40 court
operations assessment (Pen. Code, § 1465.8), and a statutory minimum $150 restitution
fine (Pen. Code, § 1202.4, subd. (b)(1)). (Dueñas, supra, 30 Cal.App.5th at p. 1162.)

-- 12 of 16 --

13
The defendant in Dueñas was a probationer who suffered from cerebral palsy, was
indigent, homeless, and the mother of young children. The court agreed to, and held, a
separate inability to pay hearing as requested by the defendant. (Id. at p. 1161.)
The trial court at that hearing considered the defendant's "uncontested declaration
concerning her financial circumstances, determined that she lacked the ability to pay the
previously-ordered attorney fees, and waived them on the basis of her indigence. The
court concluded that the $30 court facilities assessment under Government Code section
70373 and $40 court operations assessment under Penal Code section 1465.8 were both
mandatory regardless of [her] inability to pay them" (Dueñas, supra, 30 Cal.App.5th at p.
1163), and that she failed to show " 'compelling and extraordinary reasons' required by
statute (Pen. Code, § 1202.4, subd. (c)) to justify waiving [the $150] fine. The trial court
rejected Dueñas's constitutional arguments that due process and equal protection required
the court to consider her ability to pay these fines and assessments . . . ." (Dueñas, at p.
1163.)
In reversing, the Dueñas court concluded 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" (Dueñas, supra, 30 Cal.App.5th at
p. 1164); and 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

-- 13 of 16 --

14
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 application of Dueñas has been addressed in several recent cases.3 In People
v. Castellano (2019) 33 Cal.App.5th 485, the same division of the Second Appellate
District that decided Dueñas applied its holding to a defendant who had been assessed
various court fees and the statutory minimum restitution fine. (Castellano, at pp. 488-
489.) In doing so, the court explained that a defendant must "in the first instance contest
in the trial court his or her ability to pay the fines, fees and assessments to be imposed
and at a hearing present evidence of his or her inability to pay the amounts contemplated
by the trial court." (Id. at p. 490.) It held, however, that the defendant's failure to object
to the fine and fees before Dueñas, supra, 30 Cal.App.5th 1157 was decided was not a
forfeiture of the issue because Dueñas was "a newly announced constitutional principle
that could not reasonably have been anticipated at the time of trial." (Castellano, at p.
489.) More recently in People v. Johnson (2019) 35 Cal.App.5th 134, the court agreed
with Castellano on the forfeiture issue, commenting "we are hard pressed to say [the
Dueñas] holding was predictable and should have been anticipated." (Johnson, at p. 138,
fn. omitted.)
In People v. Gutierrez (2019) 35 Cal.App.5th 1027, this court concluded the
appellant's challenge to the fees and fines was forfeited in part because "even before
3 Because we resolve this issue on forfeiture grounds, we express no opinion on
whether Dueñas was correctly decided.

-- 14 of 16 --

15
Dueñas[, supra, 30 Cal.App.5th 1157] a defendant had every incentive to object to
imposition of a maximum restitution fine based on inability to pay because governing law
as reflected in the statute (§ 1202.4, subd. (c)) expressly permitted such a challenge."
(Gutierrez, at p. 1033.) Applying that reasoning, we conclude that as Palkovic's fines
exceeded the statutory minimum, he had every incentive to object to them. We also
stated in Gutierrez, "As a practical matter, if Gutierrez chose not to object to a $10,000
restitution fine based on an inability to pay, he surely would not complain on similar
grounds regarding an additional $ 1,300 in fees." (Ibid.) The same applies here. As
Palkovic did not object to the $2,000 restitution fine on inability to pay grounds, he
would not complain on similar grounds to the much lower amount of fines and fees
imposed. We conclude Palkovic's challenge to the fees, fines and assessments is
forfeited.

-- 15 of 16 --

16
DISPOSITION
The judgment is conditionally reversed. The case is remanded to the superior
court with directions to conduct a mental health diversion eligibility hearing under
section 1001.36. If the court determines that Palkovic qualifies for diversion, the court
may exercise its discretion to grant diversion, and if Palkovic successfully completes
diversion, the court shall dismiss the charges.
If the court determines that Palkovic is ineligible for diversion or that Palkovic is
not an appropriate candidate for diversion despite qualifying under the statute, or if the
court places Palkovic on diversion but he fails to successfully complete diversion, then
the court shall reinstate Palkovic's convictions and conduct further sentencing
proceedings as appropriate. At any resentencing, the trial court shall exercise its
discretion with respect to whether to strike or reimpose the five-year prior serious felony
enhancement, and amend the abstract of judgment to accurately reflect Palkovic's
convictions.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.

-- 16 of 16 --