P. v. Merritt

Filed 3/12/20 P. v. Merritt CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND D. MERRITT,
Defendant and Appellant.
H046069
(Santa Clara County
Super. Ct. No. C1639645)
Defendant Raymond D. Merritt was convicted by jury trial of second degree
robbery (Pen. Code, §§ 211, 212.5, subd. (c))1 in March 2018, and the court found true
strike and serious felony allegations. He was sentenced on July 12, 2018 to nine years in
state prison, which included a five-year serious felony enhancement under section 667,
subdivision (a).
On appeal, defendant contends that a remand is required for the court to determine
(1) whether he is eligible for mental health diversion under section 1001.36, which took
effect in June 2018, after the jury’s verdict but before his sentencing hearing, and (2)
whether to strike the five-year serious felony enhancement under Senate Bill No. 1393,
which took effect in January 2019, after his sentencing hearing. We conclude that a
1 Subsequent statutory references are to the Penal Code.

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remand is required as to the serious felony enhancement but not as to his eligibility for
mental health diversion.
I. Facts
In June 2016, Mina Shehata was working as an assistant manager at a CVS store
in Santa Clara. On the morning of June 9, Shehata saw defendant with a bag next to a
locked display case containing tooth whiteners. The display case appeared to have been
pried open, and a row of merchandise was missing. Shehata asked defendant: “ ‘Can I
check your bag?’ ” Defendant said “ ‘No’ ” and started to walk toward the store’s exit.
Shehata, who was wearing a CVS shirt and name badge, stepped in front of
defendant and told him: “ ‘I need you to stop and check your bag.’ ” Again, defendant
refused. Defendant put his hands in front of him with clenched fists “in a boxer’s stance”
and said: “ ‘I am going to punch you if you don’t move.’ ” Defendant “moved his arm
like he was going to punch me in the face.” Shehata was “scared” and “had a feeling that
he would start punching me on the face.” Shehata stepped aside, and defendant walked
“straight to the front door.” Shehata followed him and saw him get into a parked car.
Shehata took a couple of photographs of the car and called his manager and the “loss
prevention person,” who told him to call the police.
The police arrived five minutes later. Shehata gave the police the photographs he
had taken of the car, which showed the car’s license plate number. At about noon that
day, the car was stopped by a sheriff’s deputy for a seat belt violation. Defendant was
driving the car. A bag in the front passenger seat of the car contained several boxes of
teeth whitening strips. Defendant “spontaneously” told a police officer at the scene of the
car stop that he “did do a theft” at “a CVS store.” “He said that he expected to get a
citation for the theft.” Defendant’s fingerprint was found on the CVS display case.

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II. Procedural Background
In August 2016, defendant was charged by information with robbery, and it was
further alleged that he had suffered a prior conviction that qualified as both a strike
(§§ 667, subds. (b)-(i), 1170.12) and a serious felony and that he had suffered two prison
priors (§ 667.5, subd. (b)).
The robbery count was tried to a jury. The jury was sworn on February 27, 2018,
and it returned a guilty verdict on March 2. Defendant waived his right to a jury trial on
the strike, prior serious felony, and prison prior allegations. The prosecution dismissed
the prison prior allegations, and the court found the remaining allegations true on
March 2. The sentencing hearing was originally calendared for June 2018.
Defendant filed a request that the court strike the strike finding. His request
described how he had become addicted to methamphetamine a decade earlier, at age 19.
He conceded that he “ha[d] not taken advantage of the services that could have been
provided to him while on probation in the past.” However, he claimed that he was now
motivated by the lengthy prison term he was facing to deal with his addiction, and he had
been accepted into a residential drug treatment program.
The probation report noted that defendant had seven misdemeanor cases pending,
including six counts of theft (§ 484), possession of burglary tools (§ 466), possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a)), leaving the scene of an
accident (Veh. Code, § 20002, subd. (a)), and driving without a license (Veh. Code,
§ 12500, subd. (a)). Defendant declined to speak with the probation officer about the
current offense. He told the probation officer that he had been smoking marijuana since
age 15 and began using methamphetamine at age 20. He had been spending $100 to
$200 a day for methamphetamine, and he “would steal, trade, or do anything to support
his addiction.” His strike prior was a robbery of a 12-year-old boy in a school parking
lot; defendant, at age 18, had been granted probation with a year in jail for that robbery
conviction. Although he was released from custody in that case in 2008, his criminal

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activity continued unabated from then until the current offense. He sustained another
felony conviction and 18 misdemeanor convictions, including battery on a cohabitant,
sexual battery, reckless driving, and leaving the scene of an accident, during the
following eight years. His performance on probation was “poor.” Defendant served a
32-month prison term in 2009 for a felony vehicle theft conviction. He told the probation
officer that he was “crying for help as he needs to address his drug addiction.”
At defense counsel’s request, the sentencing hearing was continued to
July 12, 2018. At the commencement of the July 12 hearing, the court disposed of five
of defendant’s pending misdemeanor cases. Defendant waived his rights and pleaded no
contest to six counts of petty theft, possession of burglary tools, reckless driving, and
leaving the scene of an accident. The drug possession case was dismissed, and
defendant’s sentences for the misdemeanor convictions were deemed served.
The court then proceeded to the robbery case. Defendant’s trial counsel asked the
court to consider defendant’s “mental health condition at the moment. [¶] He’s currently
receiving anti-psychotic medication in custody. He’s been reporting auditorial
hallucinations, anxiety. And apparently this has been going on for a couple of years but
has gotten steadily worse over the last few years, after the death of his mother, and
second, the outcome of this case. [¶] I have received medical records from the jail
confirming the medication and the symptoms that he has been experiencing. [¶] The
reason I wanted to add that to the record, Your Honor, is that I believe that this is another
factor that would be useful for the Court to consider when considering whether to follow
the request I had made for grounds of probation.” “[Defendant] was hoping that the
Court would consider an alternative that would allow him to treat that issue [(his mental
health situation)] along with his drug addiction issues. [¶] He is concerned about how
this could develop. He really wants to knock it on the head and start dealing with this
now. And that’s one of the reasons, Your Honor, I had requested that he be given the
opportunity to take part in treatment.”

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The probation officer told the court that during defendant’s prior grants of
probation he had “no success with probation and probation services” and “continually
failed to meet with probation.” He would not even fill out the required paperwork, and
“he never completed any of his probation orders, and was, in turn, committing new
offenses.”
The court observed that “it is encouraging that you are seeking treatment in the
jail. It sounds like there are a number of issues that would be helpful for you to get
treatment.” However, “based on the unbroken record of criminal conduct and variety of
kinds,” the court refused to strike the strike in order to make a grant of probation
possible. The court also rejected defendant’s claim that imposing a nine-year prison term
would be “cruel and unusual punishment.” The court sentenced defendant to the four-
year (doubled) lower term for the robbery count and a consecutive five-year term for the
prior serious felony enhancement. Defendant timely filed a notice of appeal.
III. Discussion
A. Mental Health Diversion
Defendant, relying on People v. Frahs (2018) 27 Cal.App.5th 784 (Frahs), review
granted December 27, 2018, S252220, asserts that a remand is required in this case for
the trial court to consider whether to grant mental health diversion under section 1001.36
because “section 1001.36 retroactively applies to all non-final cases.” He argues:
“Because section 1001.36 was enacted after Merritt was charged, the trial court did not
know of its discretion to order Merritt’s case diverted. The failure of the court to exercise
this discretion was prejudicial to Merritt because he qualified for diversion based on his
condition and its relationship to his crime.”
Section 1001.36, which took effect in June 2018, gives trial courts discretion to
grant pretrial diversion to eligible defendants who suffer from specified mental health
conditions. (§ 1001.36.) In Frahs, section 1001.36 had not taken effect until Frahs’s

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case was pending on appeal. (Frahs, supra, 27 Cal.App.5th at p. 787.) In contrast, in
this case, section 1001.36 took effect before the trial court imposed defendant’s sentence.
Defendant asserts that a remand is still required because “it appears the trial court was
unaware of its discretion to” grant diversion under section 1001.36.
The Courts of Appeal are split on whether section 1001.36 is retroactive, and the
retroactivity issue is currently pending before the California Supreme Court in Frahs.
This court is also split on whether section 1001.36 is retroactive. (People v. Lipsett
(Feb. 21, 2020, H045282) __ Cal.App.5th __ [2020 Cal.App. Lexis 141] [not
retroactive]; People v. Khan (2019) 41 Cal.App.5th 460, review granted Jan. 29, 2020,
S259498 [not retroactive]; People v. Weaver (2019) 36 Cal.App.5th 1103 [retroactive],
review granted Oct. 9, 2019, S257049.) This case potentially raises an additional issue
that no published case has yet expressly analyzed: Did section 1001.36 apply
prospectively to a defendant who had already been found guilty by a jury but had not yet
been sentenced when section 1001.36 took effect? If it did, we would need to decide
whether the record before us supports defendant’s claim that the trial court was unaware
of its discretion to grant diversion. However, the resolution of this case does not require
us to address these issues because the record in this case establishes that, even if section
1001.36 were retroactive or applied prospectively to a defendant found guilty prior to its
enactment but not yet sentenced, the trial court in this case clearly would not have
granted defendant diversion if it had understood that it had the discretion to do so.
A remand is not necessary if “the record ‘clearly indicate[s]’ that the trial court
would have reached the same conclusion ‘even if it had been aware that it had such
discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) This is
true because “remand is not appropriate when it would be an idle act.” (People v.
Jefferson (2019) 38 Cal.App.5th 399, 409 (Jefferson).)
The sole issue at defendant’s sentencing hearing was whether the court was
willing to strike defendant’s strike to permit a grant of probation so that defendant could

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enter a residential treatment program and obtain treatment for his mental health
conditions. Indeed, defendant argues on appeal that his trial counsel “sufficiently raised
the issue that Merritt should be placed in a treatment program instead of prison for
treatment of his mental health issues in both his pleading papers and in argument at
sentencing . . . .”
Not only was this issue “sufficiently raised” at the sentencing hearing, but the trial
court also resolved it. Although the trial court acknowledged that it would be “helpful”
for defendant to “get treatment,” it expressly rejected facilitating such treatment due to
defendant’s “unbroken record of criminal conduct and variety of kinds.” The trial court’s
ruling clearly indicates that it would not have been willing to grant diversion for the very
same reason. Therefore, the record in this case “ ‘clearly indicate[s]’ ” (Gutierrez, supra,
58 Cal.4th at p. 1391) that remand “would be an idle act” (Jefferson, supra, 38
Cal.App.5th at p. 409) because the trial court would not have granted diversion if it had
believed it had that option.
The trial court’s express rationale for rejecting defendant’s argument for mental
health treatment instead of prison was indisputably supported by the record. Since
reaching adulthood, defendant had committed crime after crime after crime. Neither his
numerous grants of probation nor his prior prison term had encouraged him to take
advantage of the services offered by the probation department to him on multiple
occasions throughout the last decade. His performance on probation was uniformly poor.
The trial court’s sentencing decision clearly established that it was unwilling to risk the
safety of the community in order to facilitate treatment for a person who had consistently
rejected every service he had ever been offered in the past and had continued to commit
dangerous offenses without pause. Under these circumstances, a remand for the court to
consider diversion for mental health treatment would be pointless because it is
inconceivable that the court would grant what it has already expressly considered and
rejected.

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B. Serious Felony Enhancement
Defendant contends, and the Attorney General concedes, that a remand is required
for the trial court to have the opportunity to exercise its discretion to strike the serious
felony enhancement under a statutory amendment that took effect after defendant was
sentenced but was retroactive to all non-final cases. They are correct. (People v.
Garcia (2018) 28 Cal.App.5th 961, 971.) Consequently, we will order a remand for that
purpose.
III. Disposition
The judgment is reversed, and the matter is remand for the limited purpose of
permitting the trial court to exercise its discretion as to whether to strike the serious
felony enhancement. If the court strikes the enhancement, it shall resentence defendant.
If it declines to strike the enhancement, it shall reinstate the judgment.

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_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Elia, Acting P. J.
_____________________________
Bamattre-Manoukian, J.
People v. Merritt
H046069

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