P. v. Rios

Filed 3/18/19 P. v. Rios 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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.
GILBERT RIOS,
Defendant and Appellant.
D074698
(Super. Ct. No. BAF1600486)
APPEAL from a judgment of the Superior Court of Riverside County, Jeffrey J.
Prevost, Judge. Reversed and remanded with directions.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald E. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith White,
Tami Hennick, and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and
Respondent.

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A jury convicted Gilbert Rios of arson of an inhabited structure (Pen. Code, § 451,
subd. (b))1 and arson of property (§ 451, subd. (d)). In bifurcated proceedings, the trial
court found that Rios had been convicted of two prior serious felonies that were also
"strike" priors for purposes of the "Three Strikes" law. (§ 667, subds. (a), (c).) It also
found that Rios had suffered two prior prison terms and had not remained free of custody
or subsequent offense for a five-year period thereafter. (§ 667.5, subd. (b).)
The trial court sentenced Rios to a total term of 36 years to life in prison,
consisting of 25 years to life for Rios's conviction for arson of an inhabited structure
(§ 667, subd. (e)(2)(A)(ii)), 10 years for Rios's two prior serious felony convictions, and
one year for one of Rios's two prior prison terms. It imposed and stayed a 25-years-to-
life sentence for Rios's conviction for arson of property under section 654, and it imposed
and stayed a one-year term for his second prior prison term.
Rios appeals. He contends (1) the evidence does not support his conviction for
arson of an inhabited structure, (2) the court's jury instructions for that offense misstate
the law, (3) the evidence does not support the court's finding that he had not been free of
custody or subsequent offense for a five-year period after his two prior prison terms,
(4) the matter should be remanded to determine his eligibility for mental health diversion
under newly-enacted section 1001.36, and (5) the matter should be remanded for the trial
court to determine whether to exercise its newly-enacted discretion to strike the five-year
serious felony enhancements.
1 Further statutory references are to the Penal Code unless otherwise specified.

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We conclude Rios's contentions have merit, in part. The evidence does not
support the trial court's findings regarding his two prior prison terms, and the two newly-
enacted statutes on mental health diversion and prior serious felony enhancements are
retroactive and applicable in this matter. We therefore reverse the judgment with
directions to determine whether to grant mental health diversion under section 1001.36.
If the trial court grants diversion, it shall proceed under that statute. If the trial court does
not grant diversion, the court shall conduct a new trial on the prior prison term allegations
(if the People so elect). Following the new trial, or the expiration of the time to retry the
allegations, the trial court shall resentence Rios on his convictions and the court's prior
findings that are unaffected by this opinion, as well as any new findings based on the
potential retrial of the prior prison term allegations. As part of the resentencing, the court
should consider whether to exercise its newly-enacted discretion to strike Rios's prior
serious felony conviction enhancements.
FACTS
For purposes of this section, we state the evidence in the light most favorable to
the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins
(2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in
the following section.
Rios lived with several family members in a house in Banning, California. In
2007, Rios's mother died and left the house to Rios's sister. Rios and his other siblings
received only $20 from their mother's estate. Several years later, Rios's sister decided to
sell the house. She told Rios he would have to find another place to live and offered to

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help him purchase a trailer. Rios's sister eventually found a buyer for the house, and she
told Rios he needed to leave.
On April 12, 2016, Rios's sister went to the house to pick up a few of her things.
Rios was the only person still living there. He was angry about having to move out.
Rios's sister tried to talk to him, but he only yelled at her. He said, "I'm alive and I'm not
leaving." His sister left without her things "[b]ecause I knew when he was in that mood,
I couldn't deal with him."
That afternoon, Rios set fire to a stack of his sister's possessions in the carport of
the house near the wall. He used cardboard and a wooden door to feed the fire.
Neighbors saw clouds of smoke and flames almost up to the ceiling of the carport. Rios
was standing in the driveway with a water hose. He was spraying the concrete driveway,
not the fire. A neighbor yelled at him to put out the fire. Rios briefly sprayed the fire but
then turned back to the driveway. He was muttering to himself. At some point he said,
"If they're going to start this, I'm going to finish it." He also said, "She can't do this while
one of us is alive." Another neighbor grabbed the hose and directed it at the fire.
Police responded and put out the fire. In response to their questions, Rios initially
claimed that his sister had set the fire. But then he admitted he had. An officer said,
"You almost got the whole house on fire." Rios said, "Yeah. I messed up." Later, an
officer asked, "Why would you wanna burn the house down, though?" Rios responded,
"Would turn to ashes." Rios explained that he "[p]ut a match to the cardboard" and
wanted the "whole house" to burn down.

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Firefighters arrived and began an investigation. They noticed charring on the
beams supporting the roof and damage to vinyl siding on the outside wall of the house.
The house itself was filled with smoke. Firefighters saw furniture inside the house; it
looked like someone was living there.
Later that day, a fire investigator questioned Rios further. Rios explained that his
sister was trying to get the house. He said, "I did nothing wrong. You know, just start a
fire so she'd move out. I did nothing wrong." But later the investigator asked, "Did you
want to burn the house?" Rios responded, "Yes. I wanted, you know, I still lived there,
that was part of the deal. If I couldn't live there she couldn't live there too." The
investigator asked why he set the fire outside the house, rather than on the inside. Rios
said, "I didn't think about it. She'd get more money either way." Then he said he hoped
his sister thought the fire was an accident, and it seemed more likely to be seen as an
accident if the fire were outside.
During the interview, Rios noticed there was a camera in the interview room. He
immediately said, "I didn't do nothing, man. [¶] . . . [¶] All I did was try to do was keep
my property where I lived." He said he lived in the house and "[a]ll my stuff was there."
He said, "I cooked there, I ate there and everything." He exclaimed, "God, I don't even
know what I've done," and "I was mad." He said he was only burning his own property
and did not intend to burn the house.
At trial, the investigator testified about the scene of the fire and his interview with
Rios. He opined that the fire was intentionally set and that it was arson.

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DISCUSSION
I
Sufficiency of the Evidence: Inhabited Structure
Rios contends the evidence does not support his conviction for arson of an
inhabited structure. "Our task is clear. 'On appeal we review the whole record in the
light most favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' "
(People v. Cravens (2012) 53 Cal.4th 500, 507.)
"In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we
look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence
'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient
substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008)
43 Cal.4th 327, 357 (Zamudio).)
Rios argues the evidence was insufficient to support the jury's implicit finding that
his house was an "inhabited structure" within the meaning of the arson statute. (§ 451,

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subd. (b).) " 'Inhabited' means currently being used for dwelling purposes whether
occupied or not." (§ 450, subd. (d).) It is not enough that "the purpose of the structure is
to serve as a dwelling." (People v. Jones (1988) 199 Cal.App.3d 543, 546 (Jones).) The
evidence must show that "someone had the present intent to use the house as a dwelling
at the time of the fire." (Id. at p. 549.) The statute "requires current inhabitation, i.e., that
the structure be inhabited at the present time. The present for purposes of arson is the
time the fire is set." (People v. Vang (2016) 1 Cal.App.5th 377, 386 (Vang).) The statute
reflects the intent of the Legislature to punish more severely a category of arson that
involves a higher risk of danger to human life, since inhabited structures are more likely
to be occupied by humans than other structures. (People v. Green (1983) 146 Cal.App.3d
369, 379.)
Viewing the record in the light most favorable to the verdict, as we must, we
conclude the evidence supports the jury's verdict. The evidence showed that Rios lived in
the house at the time of the fire. Rios's sister testified he was living there. Rios's
furniture was still in the house, and he repeatedly claimed the house as his home. The
jury could reasonably find that Rios was using the house for "dwelling purposes" at the
time of the fire. Indeed, Rios's counsel conceded this element during closing arguments.
He stated, "Inhabited structure. What does that mean . . . ? That someone was living at
the house. That someone was living at the house. You have enough evidence that my
client was still living at the house; okay? No issues there."
In his appellate briefing, Rios argues he could not have intended to use the house
as a dwelling at the time of the fire because he deliberately set fire to it. He relies heavily

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on Jones, supra, 199 Cal.App.3d 543. The defendant in Jones was evicted from a house
he rented, along with several other tenants. (Id. at p. 545.) The day after the eviction, the
defendant was seen entering and leaving the house several times. (Ibid.) Later the same
day, he set fire to the house. (Ibid.) The defendant was convicted of arson of an
inhabited structure. (Id. at p. 544.) On appeal, he argued the evidence was insufficient to
support the jury's finding that the house was inhabited. (Id. at p. 549.) The reviewing
court agreed. The only evidence of habitation concerned the former tenants, and the
evidence did "not support a finding any of the tenants intended to continue using the
house as a dwelling place." (Ibid.) For example, "[t]here was no evidence anyone slept
in the house after the eviction." (Ibid.) In the alternative, the court reasoned, "[e]ven if
defendant did spend the night in the house, setting fire to a house contravenes an intent to
use it for dwelling purposes." (Ibid.)
Rios claims that Jones stands for the general proposition that a defendant cannot,
as a matter of law, set fire to a house and also have the present intent to use it for
dwelling purposes. We disagree that Jones should be read so broadly.
Arson of an inhabited structure is a general intent crime. (People v. Atkins (2001)
25 Cal.4th 76, 84 (Atkins).) It requires that the act constituting arson be done " 'willfully'
and 'maliciously' " but does not require any particular intent concerning the structure
itself. (Id. at pp. 85-86.) " '[T]he terms "willful" or "willfully," when applied in a penal
statute, require only that the illegal act or omission occur "intentionally," without regard
to motive or ignorance of the act's prohibited character.' " (Id. at p. 85.) "Maliciously" is
defined by statute as "a wish to vex, defraud, annoy, or injure another person, or an intent

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to do a wrongful act, established either by proof or presumption of law." (§ 450,
subd. (e); see Atkins, at p. 85.) "[M]alice will be presumed or implied from the deliberate
and intentional ignition or act of setting a fire without a legal justification, excuse, or
claim of right." (In re V.V. (2011) 51 Cal.4th 1020, 1028; accord, Atkins, at pp. 88-89.)
A defendant may therefore act with any number of specific intents, or no specific
intent at all, and be convicted of arson of an inhabited structure. For example, a
defendant may commit arson out of anger or spite, for attention, to annoy another person,
or merely because he wanted to see something burn. Any of these intents may, under
appropriate factual circumstances, be consistent with a present intent to use the house as a
dwelling purpose. And, in any event, a defendant's actions and intents need not be fully
consistent for him to be convicted of a crime.
Arson, in particular, does not always lend itself to a sophisticated parsing of
intents. "In arson . . . there is generally no complex mental state, but only relatively
simple impulsive behavior. A typical arson is almost never the product of pyromania
[citations]. Instead, 'it often is an angry impulsive act, requiring no tools other than a
match or lighter, and possibly a container of gasoline.' [Citation.] 'Arson is one of the
easiest crimes to commit on the spur of the moment . . . it takes only seconds to light a
match to a pile of clothes or a curtain.' " (Atkins, supra, 25 Cal.4th at pp. 91-92.)
Revenge and vindictiveness are the principle motives for arson. (Id. at p. 92.)
Under some circumstances, like Jones, the act of setting fire to a structure may
confirm that the defendant has made the decision to abandon the structure and no longer
use it for dwelling purposes. But under other circumstances, a rational jury could find

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that the defendant had not abandoned the structure. His act of burning it may coexist
with an intent to use it for dwelling purposes. The defendant need not have ever
considered any relationship between the two.
Here, Rios gave a number of conflicting explanations for setting the fire. He said
he was angry with his sister, he wanted her to move out, he wanted to prevent anyone
else from living there, he wanted to "keep [his] property where [he] lived," he "[didn't]
even know what [he'd] done," he "messed up," he did not intend to burn the house, and he
wanted to burn the whole house down. Given these conflicting explanations, and the
undisputed evidence that Rios was living at the house at the time of the fire, the jury
could reasonably find that Rios had not made the decision to abandon the house. He
retained the present intent to use the house as a dwelling even as he set the fire. As one
court observed in the analogous context of burglary, "A formerly inhabited dwelling
becomes uninhabited only when its occupants have moved out permanently and do not
intend to return to continue or to resume using the structure as a dwelling." (People v.
Villalobos (2006) 145 Cal.App.4th 310, 320, italics added.) Rios had not moved out at
the time of the fire, and the jury could reasonably conclude he did not intend to do so.
The evidence supports the jury's verdict.2
2 Rios points out that the prosecutor, in closing arguments, referred to Rios's
statements about burning down the whole house. But "[i]t is elementary . . . that the
prosecutor's argument is not evidence and the theories suggested are not the exclusive
theories that may be considered by the jury." (People v. Perez (1992) 2 Cal.4th 1117,
1126; accord, People v. Clark (2011) 52 Cal.4th 856, 947.) We may only reverse for
insufficient evidence if there is no theory under which the evidence would support the
verdict. (Zamudio, supra, 43 Cal.4th at p. 357.)

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II
Instructional Error
In a related argument, Rios contends the trial court's jury instructions misstated the
law. The court gave the form instruction on arson of an inhabited structure, CALCRIM
No. 1502, which included the following statement: "A structure is inhabited if someone
lives there and either is present or has left but intends to return." The court also gave a
pinpoint instruction requested by the prosecution: "You may conclude that the structure
was inhabited if, at the time of the incident at issue, the People have proven someone had
the present intent to inhabit the structure. You may not consider whether that individual
had the legal or possessory right under the law to be present on the property that he or she
intended to use as a dwelling. 'Someone' includes any person, including the defendant.
The fact that a tenant has no possessory right to the premises is of no consequence to the
crime of arson."
" 'In considering a claim of instructional error we must first ascertain what the
relevant law provides, and then determine what meaning the instruction given conveys.
The test is whether there is a reasonable likelihood that the jury understood the
instructions in a manner that violated the defendant's rights.' [Citation.] We determine
the correctness of the jury instructions from the entire charge of the court, not from
considering only parts of an instruction or one particular instruction." (People v. Smith
(2008) 168 Cal.App.4th 7, 13.) " 'Errors in jury instructions are questions of law, which
we review de novo.' " (People v. Fenderson (2010) 188 Cal.App.4th 625, 642.)

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Viewed as a whole, the court's instructions adequately convey the legal principles
relevant to the jury's determination whether the house was inhabited at the time of the
fire. By using the present tense term "lives," the instructions told the jury that the
structure had to be inhabited at the time of the fire. (See Vang, supra, 1 Cal.App.5th at
p. 386.) The pinpoint instruction reiterated that requirement. It told the jury that a person
had to have the "present intent" to inhabit the structure at the time of the fire in order for
the structure to be inhabited. (See Jones, supra, 199 Cal.App.3d at p. 549.)
Rios argues that the instructions misstate the law because they do not require a
finding that he intended to live in the house after he started the fire. He argues that the
relevant intent is "future intent," i.e., "the intent to live in the structure in the future." We
disagree that "future intent," as defined by Rios, is a correct statement of the law. As
Jones states, "In order to meet [their] burden, the People had to show someone had the
present intent to use the house as a dwelling at the time of the fire." (Jones, supra,
199 Cal.App.3d at p. 549, italics added.) A present intent, as used in Jones and the jury
instructions, necessarily involves the defendant's consideration of the future—but it is
viewed as of the time of the fire. (See Vang, supra, 1 Cal.App.5th at p. 386.) Rios
claims the instructions "did not convey the notion that the jury had to find beyond a
reasonable doubt that [he] had the intent to inhabit the structure in the future, after the
fire." But the prosecution was not required to show that Rios intended to live at the
house regardless of future events. It had to prove only that Rios intended to live there at

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the time he set the fire. As explained above, this intent may coexist with a general intent
to commit arson. Rios has not shown the court's jury instructions were erroneous.3
III
Sufficiency of the Evidence: Prior Prison Term Enhancements
Rios contends the evidence did not support the trial court's imposition of two prior
prison term enhancements under section 667.5, subdivision (b). Rios suffered a felony
conviction in April 2000, served time in prison, and was released from custody in
May 2002. Rios suffered another felony conviction in July 2004, served time in prison,
and was released from custody again in February 2011. The record does not reflect any
further offenses or prison terms until Rios committed the instant offenses in April 2016.
The statute provides, in relevant part, as follows: "[T]he court shall impose a one-
year term for each prior separate prison term . . . ; provided that no additional term shall
be imposed under this subdivision for any prison term . . . prior to a period of five years
in which the defendant remained free of both the commission of an offense which results
in a felony conviction, and prison custody . . . ." (§ 667.5, subd. (b).) "Thus, 'if a
defendant is free from both prison custody and the commission of a new felony for any
3 In addition, to the extent Rios contends the form jury instruction (CALCRIM
No. 1502) required clarification or explanation, he has forfeited any such contention by
failing to object to that instruction in the trial court. (See People v. Maury (2003)
30 Cal.4th 342, 426 [" 'Defendant's contention essentially is that the instructions given
needed amplification or explanation; but since he did not request such amplification or
explanation, error cannot now be predicated upon the trial court's failure to give them on
its own motion.' "].) Rios did object to the pinpoint instruction.

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five-year period following discharge from custody or release on parole, the enhancement
does not apply.' " (People v. Buycks (2018) 5 Cal.5th 857, 889 (Buycks).)4
"Courts sometimes refer to [this] requirement, which exempts from the
enhancement defendants who have not reoffended for five years, as ' " 'washing out.' " '
[Citations.] ' "The phrase is apt because it carries the connotation of a crime-free
cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon
the error of his or her ways." ' [Citation.] 'According to the "washout" rule, if a
defendant is free from both prison custody and the commission of a new felony for any
five-year period following discharge from custody or release on parole, the enhancement
does not apply.' " (People v. Abdallah (2016) 246 Cal.App.4th 736, 742.)
The prosecution bears the burden of proving that the prior prison term
enhancements survive the washout rule. "[F]or the prosecution to prevent application of
the 'washout' rule, it must show a defendant either served time in prison or committed a
crime leading to a felony conviction within the pertinent five-year period." (People v.
Fielder (2004) 114 Cal.App.4th 1221, 1229 (Fielder).)
Rios argues that the prosecution did not present any evidence that he committed an
offense or served time in prison during the five-year period from February 2011 through
April 2016. In his view, therefore, the evidence was insufficient to support the trial
4 We note that the statute deems a county jail term imposed under section 1170,
subdivision (h) to be generally equivalent to a prison term for purposes of the sentencing
enhancement and washout rule. (§ 667.5, subd. (b).) However, following the convention
of the prior authorities, we will refer generally to "prison terms" for convenience when
discussing the statute. Any distinction is irrelevant to this appeal.

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court's findings that he suffered two prior prison terms and had not remained free of
custody or subsequent offense for a five-year period thereafter.
The Attorney General concedes that the evidence does not support the court's
findings regarding the second prior prison term, but he disputes Rios's view of the first
prior prison term. The Attorney General argues that the five-year washout period must
directly follow a defendant's release from prison. Here, because Rios reoffended within
five years of his release from custody in May 2002, the washout rule would not apply to
that prior prison term.
The Attorney General does not support his argument with any reasoned legal
analysis. The statute itself does not contain the limitation he suggests. It categorically
states, "[N]o additional term shall be imposed under this subdivision for any prison
term . . . prior to a period of five years in which the defendant remained free of both the
commission of an offense which results in a felony conviction, and prison custody . . . ."
(§ 667.5, subd. (b), italics added.) Thus, under the plain language of the statute, "any"
prison term that precedes the five-year washout period is not subject to the enhancement.
(See Buycks, supra, 5 Cal.5th at p. 889.)
The authorities cited by the Attorney General, with one exception, do not address
the situation here. (See People v. Tenner (1993) 6 Cal.4th 559, 563 [washout period not
at issue]; People v. Nobleton (1995) 38 Cal.App.4th 76, 84-85 [washout period applied to
single prior prison term; no other terms alleged]; People v. Elmore (1990)
225 Cal.App.3d 953, 960 [no washout period at all]; People v. Young (1987)

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192 Cal.App.3d 812, 816 [no washout period at all]; People v. Jackson (1983)
143 Cal.App.3d 627, 630-631 [no washout period at all].)
The one exception, Fielder, contradicts the Attorney General's interpretation of the
statute. In Fielder, the defendant served one prior prison term, reoffended within five
years and served a second prior prison term, but then (after some intervening legal
troubles) completed a five-year period with no evidence of another offense or an
additional prison term. (Fielder, supra, 114 Cal.App.4th at pp. 1233-1234.) The
reviewing court held that the washout period applied to both prior prison terms, even
though it did not directly follow either. (Id. at p. 1234.) Other authorities confirm this
interpretation of the statute. (See, e.g., People v. Kelly (2018) 28 Cal.App.5th 886, 900,
907 [a single five-year period washes out all previous prior prison terms]; People v.
Warren (2018) 24 Cal.App.5th 899, 914, 917 [same].)
Here, the prosecution did not present any evidence that Rios did not complete the
required five-year washout period from February 2011 through April 2016. The evidence
was therefore insufficient to sustain the trial court's finding that the washout period did
not apply to Rios's two prior prison terms. We note that, under such circumstances,
retrial of these allegations is not barred. (Fielder, supra, 114 Cal.App.4th at p. 1234.)
IV
Mental Health Diversion
After Rios was sentenced, the Legislature enacted Assembly Bill No. 1810, which
added section 1001.36 to the Penal Code. (Stats. 2018, ch. 34, § 24.) It took effect
immediately. (Id., § 37.) Section 1001.36 created a pretrial diversion program for certain

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defendants who suffer from mental disorders and meet the criteria specified in the statute.
(§ 1001.36, subd. (b).) If a defendant meets these criteria, the trial court may postpone
criminal proceedings against him to allow the defendant to undergo mental health
treatment. (§ 1001.36, subds. (a), (c).) If the defendant performs satisfactorily in
diversion, the trial court shall dismiss the criminal charges against him. (§ 1001.36,
subd. (e).)
Rios contends this newly-enacted statute applies retroactively to him. (See In re
Estrada (1965) 63 Cal.2d 740 (Estrada).) He points to evidence in the record that he
satisfies the criteria for mental health diversion, including that he suffers from a mental
disorder, his mental disorder was a significant factor in the commission of the charged
offenses, and his mental disorder is treatable. He argues he would be an "excellent
candidate" for diversion.
The Attorney General disagrees. He contends that the statute was intended to
operate only prospectively and, even if it were retroactive, Rios is not entitled to remand
because it would be futile.
A
We first consider the issue of retroactivity. " 'The Legislature ordinarily makes
laws that will apply to events that will occur in the future. Accordingly, there is a
presumption that laws apply prospectively rather than retroactively. But this presumption
against retroactivity is a canon of statutory interpretation rather than a constitutional
mandate. [Citation.] Therefore, the Legislature can ordinarily enact laws that apply
retroactively, either explicitly or by implication. [Citation.] In order to determine if a

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law is meant to apply retroactively, the role of a court is to determine the intent of the
Legislature, or in the case of a ballot measure, the intent of the electorate.' " (People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara).)
Under the Estrada rule, "[w]hen 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."
(Estrada, supra, 63 Cal.2d at p. 745.) The rule has been extended to statutory
amendments that have the effect of reducing the potential punishment for a class of
persons, not merely the actual punishment for a particular crime. (People v. Francis
(1969) 71 Cal.2d 66, 76 (Francis); see Lara, supra, 4 Cal.5th at pp. 307-308.)
" '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, supra, 4 Cal.5th at p. 308.)
In a recent opinion, Division Three of this court held that section 1001.36 applied
retroactively to cases not yet final on appeal. (People v. Frahs (2018) 27 Cal.App.5th
784, 791 (Frahs), review granted Dec. 27, 2018, S252220.) Frahs relied on the Supreme

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Court's recent discussion of the retroactivity of Proposition 57, which enacted certain
changes to the handling of juvenile criminal defendants. (Frahs, at p. 790, review
granted, citing Lara, supra, 4 Cal.5th 299.) Frahs reasoned, "Here, similar to
Proposition 57, the mental health diversion program under section 1001.36 does not
lessen the punishment for a particular crime. However, for a defendant with a diagnosed
mental disorder, it is unquestionably an 'ameliorating benefit' to have the opportunity for
diversion—and ultimately a possible dismissal—under section 1001.36. . . . [¶]
Applying the reasoning of the Supreme Court, we infer that the Legislature 'must have
intended' that the potential 'ameliorating benefits' of mental health diversion to 'apply to
every case to which it constitutionally could apply.' " (Frahs, at p. 791, review granted.)
The Attorney General contends Frahs was wrongly decided. He first points out
that the statute by its terms enacted only a pretrial diversion program that is available "at
any point in the judicial process from the point at which the accused is charged until
adjudication." (§ 1001.36, subd. (c).) He argues that this language shows the Legislature
intended the statute to apply only where criminal proceedings had not yet resulted in a
conviction, which would exclude defendants like Rios who were convicted before the
effective date of the statute. But, as Frahs explained, "The fact that mental health
diversion is available only up until the time that a defendant's case is 'adjudicated' is
simply how this particular diversion program is ordinarily designed to operate. Indeed,
the fact that a juvenile transfer hearing under 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

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convictions are not yet final on appeal." (Frahs, supra, 27 Cal.App.5th at p. 791, review
granted.)
We note additionally that the Attorney General's argument runs counter to other
accepted applications of the Estrada rule. For example, two new statutes that confer
discretion on a trial court to strike firearm enhancements "at the time of sentencing" have,
by their own terms, no application after sentencing has occurred. (§§ 12022.5, subd. (c),
12022.53, subd. (h).) But numerous courts have found that these statutes have retroactive
application. (See People v. Hurlic (2018) 25 Cal.App.5th 50, 56 [collecting cases].) The
Legislature's description of when an ameliorative change occurs procedurally (e.g.,
pretrial, during trial, at sentencing) does not necessarily indicate a legislative intent that
such a change is not retroactive.
The Attorney General also relies on certain legislative history materials that refer
to potential cost savings as a motivating factor for the enactment of section 1001.36. The
materials predict that certain defendants who would otherwise be referred to state mental
hospitals because they were incompetent to stand trial would enter the lower-cost mental
health diversion program. (See Assem. Floor Analysis of Assem. Bill No. 1810 (2017-
2018 Reg. Sess.) June 12, 2018, item 17.) The Attorney General argues that this focus on
cost savings is inconsistent with an intent to apply the statute retroactively, since
retroactive application would increase costs.
The Attorney General's argument overlooks a more persuasive statement of
legislative intent: the section of the statute that expressly recites the purpose of the
mental health diversion program. Section 1001.35 states, "The purpose of this chapter is

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to promote all of the following: [¶] (a) Increased diversion of individuals with mental
disorders to mitigate the individuals' entry and reentry into the criminal justice system
while protecting public safety. [¶] (b) Allowing local discretion and flexibility for
counties in the development and implementation of diversion for individuals with mental
disorders across a continuum of care settings. [¶] (c) Providing diversion that meets the
unique mental health treatment and support needs of individuals with mental disorders."
Retroactive application of section 1001.36 would promote at least the first and third
purposes. Cost savings are not mentioned. We therefore cannot say sufficient "contrary
indications" exist that would prevent normal application of the rule that the Legislature
intends ameliorative changes to extend as broadly as possible. (See Lara, supra,
4 Cal.5th at p. 308.)
For the foregoing reasons, we agree with Frahs. Section 1001.36 applies
retroactively to defendants, like Rios, whose cases are not yet final on appeal. (Frahs,
supra, 27 Cal.App.5th at p. 791, review granted.)
B
The Attorney General further contends, even if section 1001.36 is retroactive, Rios
has not made a sufficient showing that he would be entitled to the benefit of the statute
and any remand would be futile. The Attorney General notes that section 1001.36
requires a defendant to satisfy six criteria before a trial court may order pretrial diversion.
These criteria are summarized as follows: (1) the defendant must suffer from a
qualifying mental disorder; (2) the mental disorder must have been a significant factor in
the commission of the charged offense; (3) in the opinion of a qualified medical expert,

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the defendant's symptoms of the mental disorder motivating the criminal behavior would
respond to mental health treatment; (4) the defendant consents to diversion and waives
his or her right to a speedy trial; (5) the defendant agrees to comply with treatment as a
condition of diversion; and (6) the defendant will not pose an unreasonable risk of danger
to public safety, defined as an unreasonable risk that the petitioner will commit a new
violent felony specified by statute, if treated in the community. (§§ 1001.36,
subd. (b)(1)(A)-(F), 1170.18, subd. (c).)
The Attorney General appears to accept that Rios has made a threshold showing of
three of the criteria: He has been diagnosed with a qualifying mental disorder, the
disorder was a significant factor in the charged offense, and his symptoms would respond
to treatment. The Attorney General argues, however, that Rios has not shown he would
agree to treatment (because he has been noncompliant in the past) or that he would not be
an unreasonable risk to public safety. The Attorney General points to the trial court's
comments at sentencing, in denying Rios's request to dismiss his prior strike under
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, that Rios should be
incarcerated. The court stated, "[Rios] represents a danger to the community and to his
family and that a lengthy period of incarceration is, I think, unfortunately, the only
manner in which society's prepared to deal with the type of danger that he represents" and
"I think that he does need to be incarcerated for a substantial period of time to protect
society." The Attorney General asserts that a remand for diversion consideration would
be "futile" because there is no possibility the trial court would exercise its discretion to
grant mental health diversion. (See People v. McVey (2018) 24 Cal.App.5th 405, 419.)

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The showing required by Rios at this stage is not immediately apparent. In Frahs,
the defendant appeared to meet only one of the requirements (a diagnosed mental
disorder), but the court held he had made a sufficient showing on appeal to warrant
remand. (Frahs, supra, 27 Cal.App.5th at p. 791, review granted.) A court's decision to
grant pretrial diversion appears to be discretionary. (See § 1001.36, subd. (a) ["On an
accusatory pleading . . . the court may . . . grant pretrial diversion . . . ."], italics added.)
But certain threshold requirements must be satisfied, not all of which involve discretion.
(See § 1001.36, subd. (b)(1)(A)-(F).)
We need not articulate here a general standard applicable to all situations. Taking
the Attorney General's argument on its own terms, we disagree that Rios has not made a
sufficient showing of eligibility or that remand in this matter would be futile. As noted,
Rios has made threshold showings on three of the six diversion criteria. Two of the
remaining criteria require Rios to consent to diversion and agree to comply with
treatment. Since those requirements involve decisions by Rios, we may accept his pursuit
of diversion in this appeal as an indication that he would consent to diversion and agree
to treatment. Past noncompliance with treatment does not foreclose the reasonable
probability that Rios would agree to attempt treatment again in diversion.
The final criterion requires the trial court to be "satisfied that the defendant will
not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if
treated in the community." (§ 1001.36, subd. (b)(1)(F).) As noted, in this context, this
requirement means that the defendant cannot pose an unreasonable risk that he or she will
commit a new violent felony specified by statute. (Ibid.; see § 1170.18, subd. (c); see

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also § 667, subd. (e)(2)(C)(iv).) "These violent felonies are known as 'super strikes' and
include murder, attempted murder, solicitation to commit murder, assault with a machine
gun on a police officer, possession of a weapon of mass destruction, and any serious or
violent felony punishable by death or life imprisonment." (People v. Jefferson (2016)
1 Cal.App.5th 235, 242.)
While the trial court concluded that Rios's period of incarceration should not be
reduced by dismissing his prior strike, that conclusion requires a different analysis than a
court's consideration of mental health diversion. Mental health diversion does not simply
allow a defendant to avoid incarceration; it requires him or her to receive treatment
designed to alleviate the symptoms of his or her mental disorder. The trial court here had
no opportunity to consider whether Rios's risk of dangerousness would be mitigated by
treatment or whether he would meet the high standard of dangerousness in this statute (an
unreasonable risk that he would commit a "super strike" felony) while undergoing
treatment. We note that none of Rios's current or past convictions is listed as a "super
strike" under the statute. (See § 667, subd. (e)(2)(C)(iv).)
Under these circumstances, we cannot say the trial court's comments clearly
indicated that it would not order mental health diversion if it had been aware it was an
option. Remand for consideration of that issue would not be futile. (See People v.
McDaniels (2018) 22 Cal.App.5th 420, 425, 428.) Even if we were to employ a higher
standard, that Rios must show it was reasonably probable that he would be granted
diversion (see, e.g., People v. Scott (1994) 9 Cal.4th 331, 355), we would conclude Rios
had made a sufficient showing for the reasons we have already discussed. He has made a

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showing that he satisfies three of the six criteria, and two of the others are within his
control. And, given the high standard for a finding of dangerousness, Rios's history
(including his lack of "super strike" convictions) shows he could potentially satisfy that
criterion too.
We therefore reverse the judgment with directions for the trial court to consider
diverting Rios under section 1001.36. (Frahs, supra, 27 Cal.App.5th at p. 792, review
granted.) We express no opinion on the merits of that determination or any criterion
thereunder.
V
Prior Serious Felony Enhancements
The Legislature enacted another statute after Rios was sentenced, Senate Bill
No. 1393, which removed the statutory prohibition on striking the five-year prior serious
felony enhancement under sections 667, subdivision (a) and 1385. (Stats. 2018, ch. 1013,
§§ 1-2.) It became effective on January 1, 2019. (See Cal. Const., art. IV, § 8, subd. (c),
par. (1); Gov. Code, § 9600, subd. (a).)
Rios contends this statute, as well, should be applied retroactively under Estrada,
as Division Two of this court recently held. (People v. Garcia (2018) 28 Cal.App.5th
961, 971-972.) The Attorney General concedes the issue. (See Francis, supra, 71 Cal.2d
at pp. 75-76.) We agree with Garcia and accept this concession. If the trial court does
not order diversion under section 1001.36, it will need to resentence Rios, which would
include consideration of its newly-enacted discretion to strike his prior serious felony
enhancements.

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DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with
directions to hold a hearing under section 1001.36 to determine whether to grant
diversion under that statute.
If the trial court grants diversion, it shall proceed in accordance with that statute.
If Rios performs satisfactorily in diversion, the court shall dismiss the charges.
(§ 1001.36, subd. (e).)
If the trial court does not grant diversion, or it grants diversion but Rios does not
satisfactorily complete diversion (§ 1001.36, subd. (d)), then the court shall reinstate his
convictions, conduct a new trial on the prior prison term enhancement allegations (if the
People so elect), and resentence Rios consistent with this opinion.
GUERRERO, J.
I CONCUR:
McCONNELL, P. J.
I CONCUR IN THE RESULT:
HUFFMAN, J.

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