P. v. Magallon

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Filed 5/29/19 P. v. Magallon CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MIGUEL ANGEL MAGALLON,
Defendant and Appellant.
E069524
(Super.Ct.No. RIF1602770)
OPINION
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Conditionally Reversed.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Robin Urbanski and Lise S.
Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Miguel Angel Magallon attacked his maternal uncle (the
victim) with a knife. A jury convicted Magallon of attempted murder and assault with a

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deadly weapon, found that the attempted murder was willful, deliberate and premeditated,
and found that he had personally inflicted great bodily injury. The trial court found true
recidivism-based enhancements relating to two prior convictions and sentenced Magallon
to an indeterminate sentence of 14 years to life plus a determinate sentence of nine years.
Magallon contends on appeal that (1) there was no substantial evidence that the
attempted murder was deliberate and premeditated1; (2) the trial court abused its
discretion by admitting evidence of uncharged acts of violence against other family
members; (3) the trial court should have stricken, rather than imposing and staying, a
prison prior enhancement that could not be applied to Magallon’s sentence because the
underlying conviction was also the basis for a serious felony prior enhancement; (4) the
case should be remanded for resentencing pursuant to the newly enacted Senate Bill No.
1393 (2017-2018 Reg. Sess.) (Senate Bill 1393); and (5) the case should be remanded for
a hearing to consider mental health diversion pursuant to the newly enacted Penal Code
section 1001.36.2
We hold as follows: (1) substantial evidence supports the conclusion that the
attempted murder was deliberate and premeditated; (2) the trial court did not commit
prejudicial error with respect to admission of uncharged acts evidence; (3) the trial court
should have stricken the prison prior enhancement that could not be applied to
Magallon’s sentence, rather than imposing and staying it; (4) the case should be
1 Magallon concedes that there was sufficient evidence that the attempted murder
was willful, that is, that he intended to kill the victim.
2 Further undesignated statutory references are to the Penal Code.

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remanded for resentencing pursuant to Senate Bill 1393; and (5) the case should be
remanded for a hearing to consider mental health diversion pursuant to section 1001.36.
We therefore conditionally reverse the judgment and remand with instructions.
I. FACTUAL AND PROCEDURAL BACKGROUND
The victim testified that on May 9, 2016, he came to Magallon’s mother’s house to
pick up Magallon’s maternal grandmother, who lived with the victim. The grandmother
was still eating a meal in the dining room. Magallon was there, and he appeared to be
nervous or upset. The victim went out to the backyard to talk to Magallon’s father while
waiting for the grandmother.
About 20 minutes later, the victim received a phone call and walked around the
side of the house toward the front yard to take the call. As he exited a side gate, he
encountered Magallon. Magallon grabbed the victim by the neck and said, “You’re not
welcome here.” The victim asked “why?” Magallon then stabbed the victim multiple
times using a folding knife with a four- or five-inch blade. The victim yelled for
Magallon’s father to call an ambulance.
After Magallon stopped stabbing the victim, he went back into the house, retrieved
his car keys, and left. The victim observed that Magallon was laughing as he got into his
car, and after the car started, Magallon made a “thumbs up” gesture to the victim.
Magallon’s father, responding to the victim’s call for help, witnessed Magallon getting
into his car and leaving. He heard Magallon tell the victim in a normal speaking voice
that “he had already told him not to show up at the house.”

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The victim received multiple stab wounds to the left chest, right shoulder, and left
forearm. A chest tube was necessary to drain blood and reexpand a collapsed lung. The
victim suffered nerve damage that limited mobility and reduced feeling in his left hand,
and he also has had limited mobility in his right arm and difficulty using his right hand
since the attack.
Magallon did not testify at trial or present any other form of affirmative defense.
Defense counsel conceded that the jury should find defendant guilty of assault with a
deadly weapon, but asked the jury to acquit on the attempted murder charge, arguing that
there was reasonable doubt as to whether Magallon intended to kill the victim, and
whether the attack was deliberate and premeditated.
The jury convicted Magallon of attempted murder (§§ 664, 187, subd. (a); count 1)
and assault with a deadly weapon (§ 245, subd. (a)(1); count 2), found that the attempted
murder was willful, deliberate and premeditated, and found true allegations as to both
counts that Magallon had personally inflicted great bodily injury (§ 12022.7, subd. (a)).
The trial court found true allegations relating to two prior convictions, both of which
were alleged to be prison priors (§ 667.5, subd. (b)), and one of which was also alleged to
be a strike prior (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and a serious felony
prior (§ 667, subd. (a)).
On count 1, the trial court sentenced Magallon to an indeterminate term of 14
years to life on count 1 (seven years to life, doubled by the strike prior), plus a
determinate term totaling nine years, consisting of three years for the great bodily injury
enhancement of count 1, five years for the serious felony prior, and one year for one of

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the prison priors. On count 2, the trial court imposed, but stayed pursuant to section 654,
a determinate sentence of nine years (the midterm of three years, doubled by the strike
prior, plus three years for the great bodily injury enhancement). The trial court also
imposed, but stayed, an additional one-year sentence for the prison prior allegation
relating to the same conviction used as a serious felony prior on count 1.
II. DISCUSSION
A. Premeditation and Deliberation
Magallon argues that there is insufficient evidence that the attempted murder was
premeditated and deliberate. We reject Magallon’s argument.
1. Additional Background
At trial, the victim described an event from three months before the attack, when
Magallon’s mother had invited the victim to spend the night at her house. The victim
then overheard Magallon tell his mother that he did not want to see the victim or her
other family members. The victim testified that he heard Magallon “making comments in
general about the family, that he wanted to kill us.” The victim also heard Magallon say
“that if I [the victim] stayed there, that he was going to stab me right there and then.”
The victim decided not to stay the night. He did return to Magallon’s mother’s house
several times before the attack, and on one of those occasions Magallon was present, but
they did not speak to each other.
Magallon’s mother testified that she was aware Magallon did not get along with
her brothers, including the victim. She believed that Magallon was angry at the victim

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for engaging in “gossip.” She confirmed that Magallon had told her that he did not want
the victim to come over to her house, and had threatened violence if he did come over.
Magallon’s biological daughter, who had been raised by Magallon’s parents (her
grandparents) and was 19 years old at the time of trial, also testified. The daughter stated
that she knew Magallon did not like the victim because “none of us really like [the
mother’s] family,” including the victim, because they engaged in “gossip.” She testified
that on about three occasions she had heard Magallon tell the mother to tell the victim not
to ever come back to the house. She also testified that Magallon always carried a folding
knife, which he would take out, “flick” open, and stare at when he “is mad or [there’s]
something that’s going on.” At trial, she denied that he did so “in a threatening manner.”
She testified that she had seen him use the knife for cooking and cutting fruit. In a
previous interview with police, however, which was played for the jury, she said she
thought Magallon would take the knife out “on purpose to scare me or my grandma or
just to show off like, ‘you know I have this.’”
At the close of the prosecution’s case-in-chief, Magallon requested that the court
dismiss count 1 pursuant to section 1118.1, arguing that there was no substantial evidence
of premeditation or deliberation to support a guilty verdict. The trial court denied the
motion.
2. Applicable Law
In the context of first degree murder or attempted murder, “‘premeditated’ means
‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined
upon as a result of careful thought and weighing of considerations for and against the

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proposed course of action.’” (People v. Mayfield (1997) 14 Cal.4th 668, 767, overruled
on other grounds as stated in People v. Scott (2015) 61 Cal.4th 363, 390, fn.2.) “‘The
process of premeditation and deliberation does not require any extended period of time.
“The true test is not the duration of time as much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated judgment may
be arrived at quickly . . . .”’” (People v. Lee (2011) 51 Cal.4th 620, 636.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27, our Supreme Court “identified
three categories of evidence relevant to determining premeditation and deliberation;
(1) events before the murder that indicate planning; (2) a motive to kill; and (3) a manner
of killing that reflects a preconceived design to kill.” (People v. Gonzalez (2012) 54
Cal.4th 643, 663 [discussing People v. Anderson].) These factors “are not all required
[citation], nor are they exclusive in describing the evidence that will support a finding of
premeditation and deliberation.” (Ibid.) “It also is not necessary that any of these
categories of evidence be accorded a particular weight [citation], and it is not essential
that there be evidence of each category to sustain a conviction.” (People v. Gonzalez
(2012) 210 Cal.App.4th 875, 887.) Rather, these factors are intended “to aid reviewing
courts in assessing whether the evidence is supportive of an inference that the killing [or
attempted killing] was the result of preexisting reflection and weighing of considerations
rather than mere unconsidered or rash impulse.” (People v. Perez (1992) 2 Cal.4th 1117,
1125.)
We review an appellant’s challenge to the denial of a section 1118.1 motion under
the same standard as a challenge to the sufficiency of the evidence to support a

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conviction, looking at the “state of the evidence as it stood” at the time of the motion.
(People v. Houston (2012) 54 Cal.4th 1186, 1215.) Here, all the evidence presented at
trial had already been introduced when Magallon made his motion for acquittal.
“‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains 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. Edwards (2013) 57 Cal.4th
658, 715.) “We determine ‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” (Ibid.) “In so doing, a reviewing
court ‘presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’” (Ibid.) “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.)
3. Analysis
Applying the factors of People v. Anderson, supra, 70 Cal.2d 15, and reviewing
the evidence in the light most favorable to the judgment, sufficient evidence supports the
conclusion that the murders were the result of preexisting reflection and weighing of
considerations rather than a rash impulse. Magallon was not angry at the victim only on
the day of the stabbing; he had nursed a grudge for months. Three months before the

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stabbing, Magallon had demanded that the victim leave his mother’s house and
threatened to hurt him if he did not go, or if he showed up there again. Specifically,
Magallon threatened to stab the victim. When the victim encountered Magallon at the
side of the house, there was no new argument or other confrontation, he just grabbed the
victim by the neck and began stabbing him. It is reasonably inferred from this evidence
that the attack was not the product of a rash impulse, but rather the execution of a
preexisting plan to stab the victim if he came to Magallon’s mother’s house again.
Magallon argues that he could not have known in advance the victim would be
exiting the side gate to answer a phone call, so the attack could not have been the product
of a “preconceived design to kill.” (See People v. Gonzalez, supra, 54 Cal.4th at p. 663.)
He also emphasizes that his daughter testified he regularly carries a knife with him, and
there is no evidence that he specifically obtained the knife to carry out the stabbing. And
he points out that the victim had returned to Magallon’s mother’s house without incident
several times after the initial threats. We are not persuaded that this evidence
demonstrates the attack could not have been premeditated and deliberate. Even assuming
that the encounter at the side gate was a chance encounter, there is ample evidence from
which it is reasonable to infer that this was a moment when a previously formed plan—to
stab the victim if he came to Magallon’s mother’s house again—met opportunity.
We conclude the trial court did not err in denying Magallon’s motion for acquittal,
and the jury’s finding that the attempted murder was deliberate and premeditated was
supported by substantial evidence.

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B. Uncharged Acts
Magallon contends that the trial court abused its discretion by admitting evidence
of uncharged acts of violence by Magallon against his daughter and other family
members. We find no abuse of discretion.
1. Additional Background
At trial, over defense objection, the prosecution elicited testimony from
Magallon’s daughter that Magallon had committed uncharged acts of violence against her
and other family members. Specifically, at trial, Magallon’s daughter testified
reluctantly—only after being threatened with contempt of court—that Magallon had
twice become violent with her. She conceded that on one occasion, Magallon had pushed
her against a wall hard enough to dent the wall. On another occasion, she intervened in
an argument between Magallon and her grandfather (Magallon’s father) to prevent the
grandfather from being injured. During that incident, Magallon spit on the daughter, and
also pushed her.
The prosecution also played for the jury a recording of an earlier interview
Magallon’s daughter gave to police. In the recording, she described the two incidents in
some additional detail. In one incident, when she was 17, she and Magallon were
arguing; she did not recall about what, but commented that “[w]e don’t get along at all.”
She stated that “he had pushed me against the wall and my grandma had to get in the
middle . . . I made a dent in the wall because he’s so strong.” The other incident began as
a dispute between Magallon and his father, about Magallon’s lack of a job and failure to
help around the house. The daughter stated that Magallon “got in my grandpa’s face,”

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and “I didn’t want them to fight so I got in the middle . . . .” After an exchange of words,
Magallon spit at his daughter, and she responded by throwing a drink at him. He then
grabbed her arm.
Also, as noted above, both during trial and in the recorded interview, Magallon’s
daughter stated that Magallon always carried a knife. In the recorded interview, she
stated that he would “flick” the knife open “on purpose to scare me or my grandma or
just to show off like, ‘You know I have this.’”
During closing arguments, defense counsel contested the prosecution’s theory that
the stabbing was premeditated and deliberate in part as follows: “So we heard that my
client always carries a knife . . . So it’s not like he said, I’m going to kill him. I need to
get an implement to go do it. . . . He always had it on him. His daughter said that he
carried it clipped in his shorts. He uses it to cut oranges. He may pull it out and look at it
when he’s in an argument—right?—that kind of thing. But he always had it on him . . . .”
In its rebuttal closing argument, the prosecution responded to defense counsel’s
remarks in relevant part as follows: “This man wasn’t using that knife to cut oranges. He
was using it to terrorize his own family, his own mother, father, daughter. They were—
he was terrorizing them with his knife. Whenever he was angry, he would flip it out.
That’s the kind of man he is. That’s what he was doing. It’s no different with [the
victim].”
The trial court instructed the jury regarding the uncharged acts using CALCRIM
No. 375, in relevant part as follows: “The People presented evidence of other behavior
by the defendant that was not charged in this case that the defendant committed other acts

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of aggression against other family members. . . . [¶] . . . [¶] If you decide that the
defendant committed the uncharged acts, you may, but are not required to, consider that
evidence for the limited purpose of deciding whether the defendant had a motive to
commit the offenses alleged in this case. [¶] . . . [¶] Do not consider this evidence for
any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad
character or is disposed to commit crime.”
2. Applicable Law
“Evidence of defendant’s commission of other crimes, civil wrongs or bad acts is
not admissible to show bad character or predisposition to criminality, but may be
admitted to prove some material fact at issue such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident.” (People v. Cage
(2015) 62 Cal.4th 256, 273; see Evid. Code, § 1101.) “Under Evidence Code section
352, the probative value of the proffered evidence must not be substantially outweighed
by the probability that its admission would create substantial danger of undue prejudice,
of confusing the issues, or of misleading the jury.” (People v. Cole (2004) 33 Cal.4th
1158, 1195.)
“Other crimes evidence is admissible to establish two different types or categories
of motive evidence.” (People v. Spector (2011) 194 Cal.App.4th 1335, 1381 (Spector).)
The first category involves an uncharged act that “‘supplies the motive for the charged
crime; the uncharged act is cause, and the charged crime is effect.’” (Ibid.) The second
category involves an uncharged act that “‘evidences the existence of a motive, but the act
does not supply the motive . . . . [T]he motive is the cause, and both the charged and

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uncharged acts are effects. Both crimes are explainable as a result of the same motive.’”
(Ibid.) “The probativeness of other-crimes evidence on the issue of motive does not
necessarily depend on similarities between the charged and uncharged crimes, so long as
the offenses have a direct logical nexus.” (People v. Demetrulias (2006) 39 Cal.4th 1,
15.)
On appeal, we review the trial court’s admission of other crimes evidence for
abuse of discretion. (People v. Cole, supra, 33 Cal.4th at p. 1195.) Even assuming an
abuse of discretion, the judgment will not be reversed unless it is reasonably probable
that a result more favorable to the defendant would have resulted absent the error. (Ibid.)
“To determine what the ‘jury is likely to have done in the absence of’ [erroneously
admitted] evidence, we consider the relative strength of ‘the evidence supporting the
existing judgment’ as compared to ‘the evidence supporting a different outcome.’”
(People v. Jandres (2014) 226 Cal.App.4th 340, 360.)
3. Analysis
We find no abuse of discretion in the trial court’s admission of evidence that
Magallon always carried a knife, and sometimes pulled it out and “flicked” it in a
threatening manner. Magallon’s behavior, as described by his daughter, arguably
amounted to uncharged prior assaults, but, as discussed above, the evidence was relevant
to the prosecution’s theory that Magallon planned to stab the victim if he returned to

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Magallon’s mother’s house.3 As such, it was admissible under Evidence Code section
1101, subdivision (b), subject to the trial court’s discretion under to Evidence Code
section 352. And Magallon has articulated no specific argument that the trial court
abused its discretion in this respect.
Evidence of the two incidents when Magallon became physically violent with his
daughter requires a different analysis. There is nothing in the record suggesting that
either of these two incidents supplied the motive for the charged crime. (See Spector,
supra, 194 Cal.App.4th at p. 1381.) There is also nothing in the record supporting the
conclusion that the uncharged incidents involving Magallon’s daughter and the stabbing
of the victim were all caused by the same underlying motive. (Ibid.) Magallon was,
according to both his mother and daughter, angry with the victim for engaging in
unspecified “gossip.” There is no indication that the two uncharged incidents involving
the daughter had anything to do with “gossip.”
The People, echoing the reasoning of the trial court, argue that the two incidents
between Magallon and his daughter share the same motive as the attack on the victim in
the sense that he “reacted in anger and aggression with family members when he did not
like what they were saying or doing.” At this level of abstraction, however, motive
effectively collapses into propensity—Magallon’s tendency to get violent when angry at
3 We do not consider here whether the prosecutor’s remarks during rebuttal
closing arguments, arguing that Magallon was the “kind of man” who used a knife to
“terrorize” his family, were inappropriate. No objection was raised below, and on appeal
Magallon has not separately raised a claim of prosecutorial misconduct based on the
prosecutor’s closing remarks, only mentioning the comments in support of his argument
that the admission of the uncharged acts evidence was prejudicial error.

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his family. That cannot be what “motive” means in the context of section 1101,
subdivision (b), and the People have not presented, and we have not discovered, any case
authority that reads the term so broadly. (Cf. Spector, supra, 194 Cal.App.4th at p. 1381
[collecting examples of prior acts showing shared motive with charged acts].)
We conclude that evidence of the two incidents when Magallon became physically
violent with his daughter was not admissible as evidence of motive under section 1101,
subdivision (b). Nevertheless, we conclude that the trial court’s error was not prejudicial.
We find no reasonable probability that Magallon would have obtained a more
favorable result at trial if evidence of the two incidents when he became violent with his
daughter had been excluded from trial. Magallon did not dispute at trial that he stabbed
the victim; defense counsel conceded that his actions were “[a]bsolutely assault with a
deadly weapon,” causing great bodily injury. The evidence that Magallon intended to kill
the victim was circumstantial, but strong. It is at least challenging, under any
circumstances, for a defendant to convince a jury that someone might stab someone
multiple times in the chest without intending to kill. Here, in addition, Magallon had
previously expressed that he wanted to kill his mother’s family, including the victim.
The evidence of premeditation and deliberation, which we reviewed above, was also
circumstantial, but strong.
Moreover, neither the prosecution nor the defense made any express reference to
the two incidents during argument. Although in rebuttal arguments, responding to a
specific remark by defense counsel, the prosecution’s comments touched on Magallon’s

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use of his knife to “terrorize” his family, the prosecutor made no mention of the two
incidents when Magallon became physically violent with his daughter.4
Taking into account all the evidence presented at trial, we are not persuaded that
there is any reasonable likelihood that the exclusion of the improperly admitted
uncharged acts evidence would have resulted in a verdict more favorable to Magallon.
We conclude that he has failed to demonstrate any prejudicial error with respect to the
admission of uncharged acts evidence.
C. Prison Prior Enhancement
It is well established that a single prior conviction cannot support enhancement of
a defendant’s sentence under both section 667, subdivision (a) (serious prior felony) and
section 667.5, subdivision (b) (prison prior). (People v. Jones (1993) 5 Cal.4th 1142,
1150-1153.) Where allegations under both enhancement provisions are found true based
on a single underlying conviction, “the greatest enhancement, but only that one, will
apply.” (Id. at p. 1150.)
The parties dispute, however, what the trial court should do at sentencing where,
as here, there is an enhancement finding that must go “unused.” (People v. Lopez (2004)
119 Cal.App.4th 355, 364 (Lopez).) The People contend that the trial court properly
imposed, but stayed, the prison prior enhancement based on the same underlying
4 Additionally, it is questionable whether exclusion of the evidence of Magallon’s
physically violent behavior toward his daughter would have benefitted the prosecution or
the defense. Arguably, it shows a pattern of rash and impulsive violence towards his
family, which might cut against the argument that Magallon’s attack on the victim was
premeditated and deliberate. The jury instructions, however, required the jury to consider
the uncharged acts of aggression only in relation to motive, and not any other purpose.

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conviction that the trial court had already used as the basis for the serious prior felony
enhancement of count 1. Magallon contends the extraneous prison prior enhancement
should have instead been stricken. We find Magallon has the better side of the dispute.
In Jones, supra, 5 Cal.4th 1142, the Supreme Court remanded with directions to
strike a prior prison term enhancement that was based on the same underlying offense as
a prior serious felony enhancement. (Id. at p. 1153.) Most appellate opinions have since
relied on Jones to strike prior prison term enhancements that are based on the same
underlying offense as a prior serious felony enhancement. (E.g., People v. Perez (2011)
195 Cal.App.4th 801, 805.) Our Supreme Court recently reaffirmed this approach.
(People v. Anderson (2018) 5 Cal.5th 372, 426 [citing Jones, striking unused
enhancement]; see also People v. Langston (2004) 33 Cal.4th 1237, 1241 [noting that a
“trial court may not stay the one-year enhancement, which is mandatory unless
stricken”].)
At least one case has held that an unused prior prison term enhancement should be
stayed, rather than stricken. (People v. Brewer (2014) 225 Cal.App.4th 98 (Brewer).) In
so holding, Brewer relied primarily on Lopez, supra, 119 Cal.App.4th 355, and the
Supreme Court’s opinion in People v. Gonzalez (2008) 43 Cal.4th 1118. (Brewer, supra,
at pp. 104-106.) Lopez held that the multiple victim special circumstance under the
habitual sexual offender law (§ 667.71) should be stayed when the trial court sentences
the defendant under the alternative sentencing scheme of the One Strike law (§ 667.61).
(Lopez, supra, at pp. 364-366.) The One Strike law expressly prohibited striking the
special circumstance finding. Accordingly, Lopez declined to follow Jones and instead

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concluded that the correct procedure was to impose but stay the sentence under California
Rules of Court, rule 4.447. (Lopez, supra, at pp. 364-366.) In People v. Gonzalez, supra,
at page 1123, the Supreme Court held that a trial court must stay firearm enhancements
imposed under section 12022.5 after imposing a section 12022.53 firearm enhancement.
Gonzalez did not address Jones or California Rules of Court, rule 4.447, instead focusing
on interpreting the specific statutory provisions governing the firearms enhancements at
issue. (People v. Gonzalez, supra, at pp. 1125-1130.)
We find Brewer’s reliance on Lopez and People v. Gonzalez, supra, 43 Cal.4th
1118, unpersuasive. Both Lopez and Gonzalez involved statutory situations different
from Brewer and from this case. Striking the prior prison term enhancement has been the
procedure used by the Supreme Court in analogous circumstances, in Jones and, more
recently, People v. Anderson, supra, 5 Cal.5th 372. Although the Supreme Court did not
discuss its instruction to strike the prior prison term enhancement in either Jones or
Anderson, we do not assume that the instruction was given without consideration of the
proper manner to handle the situation.
We hold that the trial court should have stricken, rather than imposed and stayed,
the unused prior prison term enhancement.
D. Resentencing
Magallon contends that he is entitled to a remand so that he can be resentenced in
light of Senate Bill 1393. The People agree, as do we.
Effective January 1, 2019, Senate Bill 1393 amended sections 667, subdivision
(a), and 1385, subdivision (b), to allow a court in its discretion to strike or dismiss a prior

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serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under
the versions of these statutes in effect when the trial court sentenced Magallon, the court
was required to impose a five-year consecutive term for “any person convicted of a
serious felony” (former § 667, subd. (a)), and the court had no discretion “to strike any
prior conviction of a serious felony for purposes of enhancement of a sentence under
Section 667” (former § 1385, subd. (b)).
The People concede that the changes to the law enacted by Senate Bill 1393 apply
to judgments, like the one in this case, which were not final on January 1, 2019, when
Senate Bill 1393 went into effect. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
The matter therefore must be remanded to allow the trial court to resentence Magallon,
including considering whether to exercise its newly authorized discretion under amended
sections 667, subdivision (a), and 1385, subdivision (b), to dismiss the prior serious
felony conviction enhancement.
E. Mental Health Diversion
Magallon requests that the case be remanded for the trial court to consider mental
health diversion pursuant to section 1001.36. We agree that is the proper course of
action.
Effective June 17, 2018, the Legislature passed Assembly Bill No. 1810 (2018
Reg. Sess.), which added sections 1001.35 and 1001.36 to the Penal Code. (Stats. 2018,
ch. 34, § 24.) These statutes permit discretionary diversion of persons with qualifying
mental disorders that contributed to the commission of the charged offense. (See People
v. Frahs (2018) 27 Cal.App.5th 784, 789, review granted Dec. 27, 2018, S252220

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(Frahs).) In this context, “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 . . . .” (§ 1001.36, subd. (c).) With exceptions
not relevant here, the court may grant 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).)
The criminal proceedings against the defendant may be diverted for up to two
years while the defendant receives treatment at an approved treatment program.
(§ 1001.36, subds. (c)(1)(B), (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.” (Id., subd. (e).)
Our colleagues in Division Three of the Court of Appeal, Fourth Appellate
District, recently determined that the new mental health diversion statutes apply
retroactively, finding that the Legislature must have intended “the potential ‘ameliorating
benefits’ of mental health diversion to ‘apply to every case to which it constitutionally
could apply.’” (Frahs, supra, 27 Cal.App.5th at p. 791, quoting In re Estrada (1965) 63

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Cal.2d 740, 744-746; accord People v. Aguayo (2019) 31 Cal.App.5th 758, 845, 852
[following Frahs and conditionally remanding for consideration of mental health
diversion].) The People contend that Frahs was wrongly decided. Pending further
instruction from the California Supreme Court, which recently took review of Frahs on
its own motion, we reject the People’s contention.
“‘[I]n 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.’” (People
v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308 [discussing “Estrada rule” from In re
Estrada, supra, 63 Cal.2d 740].) The People find such contrary indications of legislative
intent in the limiting language of section 1001.36, subdivision (c), “at any point in the
judicial process . . . until adjudication.” (§ 1001.36, subd. (c).) We disagree. “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.)
Moreover, Lara was decided before the Legislature passed 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.) If the Legislature intended for the courts to treat section

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1001.36 as prospective, we would expect the Legislature to have expressed this intent
unambiguously. (See In re Pedro T. (1994) 8 Cal.4th 1041, 1049 [to counter Estrada
rule, the Legislature must “demonstrate its intention with sufficient clarity that a
reviewing court can discern and effectuate it”].) It did not.
The People also argue that the legislative history of section 1001.36 supports the
conclusion that it was intended to act only prospectively.5 We find nothing in the
legislative history, however, that is any more elucidating about the Legislature’s intent
regarding retroactivity than the statutory language, or that contradicts the analysis in
Frahs.
The People further argue that, even if section 1001.36 is retroactive, the case
should not be remanded for the trial court to consider mental health diversion because the
record indicates the trial court already implicitly found that Magallon does not suffer
from a qualifying disorder. We disagree.
After the jury returned its verdict, but prior to the bench trial on the prior
conviction allegations, defense counsel declared a doubt about Magallon’s competency.
Magallon was examined by three psychologists, two of whom opined that he was
5 The People have requested that we take judicial notice of the Assembly Floor
Analysis of AB 1810, which includes some discussion of the new mental health diversion
program. The People’s request for judicial notice is defective in that only the first page
of the document was included as an attachment, an excerpt that does not include the
portions cited by the People in briefing. The request for judicial notice is therefore
denied. Nevertheless, “[a] request for judicial notice of published material is
unnecessary. Citation to the material is sufficient.” (Quelimane Co. v. Stewart Title
Guaranty Co. (1998) 19 Cal.4th 26, 45, fn. 9.) We have therefore considered the
People’s arguments regarding legislative history raised in their briefing.

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competent. On the basis of the psychologists’ opinions, the trial court made a finding
that Magallon was competent, and the trial proceeded.
The trial court had no opportunity, however, to consider whether Magallon
suffered from a mental disorder that would qualify him for diversion pursuant to section
1001.36 when he attacked the victim. Indeed, the trial court’s comments on the record
regarding competency do not include any express finding as to whether Magallon
suffered from a mental disorder at any time. It is possible for a defendant to suffer from a
qualifying mental disorder and nevertheless be competent to stand trial. (Compare
§ 1001.36, subds. (b)(1)(A), (B) [requiring finding that the defendant “suffers from a
mental disorder as identified in the most recent edition of the Diagnostic and Statistical
Manual of Mental Disorders” that was “a significant factor in the commission of the
charged offense”] with People v. Buenrostro (2018) 6 Cal.5th 367, 389 [“incompetence
to stand trial ‘must arise from a mental disorder or developmental disability that limits
[the defendant’s] ability to understand the nature of the proceedings and to assist
counsel’”]; see § 1369, subd. (a).) We do not find it appropriate to equate the trial court’s
competency ruling with a finding that Magallon does not qualify for mental health
diversion, particularly given the divided expert opinion regarding his competency to
stand trial. Remand is appropriate to allow the trial court to consider the mental health
diversion issue in the first instance.

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III. DISPOSITION
The judgment is conditionally reversed. The cause is remanded to the superior
court with direction to conduct a hearing to consider mental health diversion under
section 1001.36.
If the court determines Magallon qualifies for diversion under section 1001.36, the
court may grant diversion. If Magallon successfully completes diversion, the trial court
shall dismiss the charges.
However, if the court determines that Magallon is ineligible for diversion, or
Magallon does not successfully complete diversion, the court shall reinstate his
convictions. If the convictions are reinstated, the trial court is directed to resentence
Magallon in accordance with this opinion, including by considering whether to exercise
its newly authorized discretion under amended sections 667, subdivision (a), and 1385,
subdivision (b), to dismiss the punishment for the prior serious felony convictions, and
striking, rather than staying, any prison prior enhancement that cannot be applied to
Magallon’s new sentence.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
MILLER
Acting P. J.
CODRINGTON
J.

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