P. v. Jackson

Filed 1/13/20 P. v. Jackson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
VANELLE VASHAN
JACKSON,
Defendant and Appellant.
B292752
(Los Angeles County
Super. Ct. No. BA461416)
APPEAL from the judgment of the Superior Court of Los
Angeles County. Michael A. Tynan, Judge. Affirmed with
directions.
Patricia S. Lai, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Steven D. Matthews and
Analee J. Brodie, Deputy Attorneys General, for Plaintiff and
Respondent.
* * * * * * * * * *

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Defendant and appellant Vanelle Vashan Jackson pled
guilty to one count of second degree robbery and admitted a prior
strike conviction. She was conditionally released to a residential
substance abuse treatment program. After absconding from the
program, defendant was detained and sentenced to a six-year
state prison term.
Defendant requested and was denied a certificate of
probable cause. She contends she is entitled to a remand for an
eligibility hearing for mental health diversion pursuant to Penal
Code section 1001.36 and that the lack of a certificate is no bar to
her so requesting. Defendant also contends the court violated her
rights by failing to hold an ability-to-pay hearing before imposing
statutory fines and assessments. She further argues the
$1,200 restitution fine was punitive and imposed in violation of
the amount agreed to in the plea negotiation, and that she is
entitled to three additional days of presentence custody credits.
We affirm defendant’s conviction and direct the superior
court on remand to reduce the restitution fine to the statutory
minimum amount of $300, to correct the presentence custody
credits to the total amount of 225 days and to prepare a modified
abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 26, 2017, defendant tried to leave a liquor
store with alcohol and cigarettes without paying. When the store
clerk attempted to stop her from leaving the store with the
merchandise, defendant hit the clerk several times about the
head and face and also bit his hand.
Defendant was identified outside the store by the victim, as
well as another witness, and arrested. She was charged with
one count of robbery (Pen. Code, § 211). It was also alleged

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defendant had suffered a prior robbery conviction which qualified
as a prior strike under the “Three Strikes” law and as a felony
enhancement.
In December 2017, defendant pled guilty to the robbery and
admitted the prior qualifying strike. The court accepted
defendant’s plea and waivers on the record. The parties
stipulated to a factual basis for the plea as set forth in the police
report of the incident. During the plea colloquy, defendant was
advised she would be required to pay the statutory minimum
fines and she acknowledged her understanding that the fines
were part of the negotiated agreement.
The court appointed Dr. Jack Rothberg to evaluate
defendant. Defendant was found suitable to participate in the
Substance Treatment and Re-Entry Transition program for
women. On January 24, 2018, the court ordered defendant
conditionally released to participate in the residential treatment
program.
Shortly thereafter, defendant absconded from treatment.
On February 21, 2018, the court issued a bench warrant. After
defendant was returned to custody, the court ordered various
continuances to allow counsel the opportunity to find another
suitable residential program for defendant. No alternative
program was found.
In August 2018, the court imposed a six-year state prison
term (a midterm of three years, doubled due to the strike prior).
The court awarded defendant total presentence custody credits of
222 days, inclusive of 23 days of residential treatment credits
(People v. Davenport (2007) 148 Cal.App.4th 240). Over the
prosecution’s objection, the court dismissed the felony
enhancement in the interests of justice. The court imposed a

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restitution fine in the amount of $1,200 (Pen. Code, § 1202.4,
subd. (b)), a $40 court operations assessment (Pen. Code,
§ 1465.8), and a $30 criminal conviction assessment (Gov. Code,
§ 70373). The court imposed and stayed a parole revocation fine
in the amount of $1,200 (Pen. Code, § 1202.45).
Defendant requested a certificate of probable cause based
on the grounds she received ineffective assistance of trial counsel,
causing her not to fully understand the terms of her plea
agreement. The court denied defendant’s request. This appeal
followed.
DISCUSSION
1. Mental Health Diversion (Pen. Code, § 1001.36)
Defendant contends she is entitled to a conditional reversal
and remand for an eligibility hearing pursuant to Penal Code
section 1001.36. Defendant argues not only that the new
provision should be applied retroactively to all cases not yet final
on appeal, but that she was not required to obtain a certificate of
probable cause to raise the issue on appeal. We reject both
contentions.
Defendant relies on People v. Frahs (2018) 27 Cal.App.5th
784 (Frahs), review granted December 27, 2018, S252220, for the
proposition that Penal Code section 1001.36 should be applied
retroactively. Several courts have followed Frahs: People v.
Weaver (2019) 36 Cal.App.5th 1103 (review granted Oct. 9, 2019,
S257049); People v. Burns (2019) 38 Cal.App.5th 776
(review granted Oct. 30, 2019, S257738); People v. Hughes (2019)
39 Cal.App.5th 886 (review granted Nov. 26, 2019, S258541).
Penal Code section 1001.36, which became effective
June 27, 2018, authorizes trial courts to grant certain eligible
defendants pretrial diversion into mental health treatment

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programs in lieu of criminal prosecution. (People v. Craine (2019)
35 Cal.App.5th 744, 749 (Craine), review granted Sept. 11, 2019,
S256671; see also Pen. Code, § 1001.36 [“the court may . . . grant
pretrial diversion to a defendant pursuant to this section if the
defendant meets all of the requirements specified in
paragraph (1) of subdivision (b)”].) The statute defines pretrial
diversion to mean “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).)
Craine, filed after the grant of review in Frahs, rejected the
reasoning of Frahs, holding that Penal Code section 1001.36 does
not apply retroactively where, as here, the charges against the
defendant have been adjudicated. Two other courts have followed
Craine: People v. Torres (2019) 39 Cal.App.5th 849 (review den.
Dec. 11, 2019, S258491), and People v. Khan (2019) 41
Cal.App.5th 460.
We believe Craine, Torres and Khan articulate the better
reasoned view given the plain statutory language creating a
mechanism for pretrial diversion. We adopt the careful and
correct analyses of Craine, Torres and Khan in concluding that
Penal Code section 1001.36 does not apply retroactively to
defendant.
Defendant’s argument that she was not required to obtain a
certificate of probable cause is dependent on her contention that
Penal Code section 1001.36 should be applied retroactively.
Defendant contends she is not challenging the substance of the
plea but only seeking a benefit to which she is entitled under the
new law that went into effect after the entry of her plea.

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As we have already explained, we reject defendant’s
retroactivity argument. As such, defendant’s probable cause
argument is equally without merit. As our Supreme Court has
explained, “[f]or purposes of the certificate of probable cause
requirement, the critical question is whether [the defendant’s
challenge] to his sentence is in substance a challenge to the
validity of his plea.” (People v. Cuevas (2008) 44 Cal.4th 374, 381;
see also Pen. Code, § 1237.5.)
Defendant’s argument is without question an attack on the
validity of her 2017 plea agreement. She seeks to undo the
agreement and be allowed to participate in a mental health
program, as contemplated by Penal Code section 1001.36, in lieu
of criminal prosecution. Defendant has not shown that any valid
exception to the certificate of probable cause requirement is
applicable here.
2. Imposition of Statutory Fines and Fees
Defendant also contends she is entitled to a remand for a
hearing on her ability to pay the statutory fines and assessments.
Defendant forfeited her objection by failing to object on this
basis in the trial court and also by consenting during the plea
colloquy to imposition of the fines. (People v. Frandsen (2019)
33 Cal.App.5th 1126, 1153-1155 [finding forfeiture where no
objection raised in trial court to imposition of court operation
assessment, criminal conviction assessment and restitution fine];
see also People v. Avila (2009) 46 Cal.4th 680, 729 [finding
forfeiture where the defendant failed to raise ability-to-pay
objection to imposition of restitution fine under Pen. Code, former
§ 1202.4].)
We further reject defendant’s alternative argument her
trial counsel was ineffective for failing to raise a constitutional

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objection to the imposition of the fines. The fines and
assessments were imposed pursuant to clear statutory authority.
Defendant has not demonstrated any basis for finding her
counsel was ineffective for failing to raise constitutional
objections to the fines similar to those set forth in People v.
Dueñas (2019) 30 Cal.App.5th 1157. Dueñas not only involved
unique factual circumstances not applicable here, but the validity
of its analytical framework has been questioned by numerous
courts: see, e.g., People v. Allen (2019) 41 Cal.App.5th 312, 326-
329 (review den. Jan. 2, 2020); People v. Kingston (2019) 41
Cal.App.5th 272, 279-282; People v. Hicks (2019) 40 Cal.App.5th
320, 326-329 (review granted Sept. 14, 2019, S258946); People v.
Caceres (2019) 39 Cal.App.5th 917, 926-929 (review den. Jan. 2,
2020).
3. Correction of Sentencing Errors
Finally, defendant argues the court erred by imposing a
restitution fine in an amount four times the agreed-upon
minimum, and by failing to award the correct number of
presentence custody credits. Respondent concedes these errors
and that the appropriate remedy is for this court to reduce the
fines to the statutory minimum and order correction of the
custody credits.
We agree. The record supports that during the plea
colloquy, it was contemplated by the parties that the minimum
statutory fines would be imposed. When the fines were
ultimately imposed eight months later by a different judge, that
fact was apparently not noted in the record and the court
imposed a restitution fine four times the statutory minimum.
Therefore, the restitution fine, and corresponding parole
revocation fine, should be reduced to the agreed-upon $300.

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There also appears to have been a calculation error in the
number of presentence custody credits. Defendant was entitled
to 176 days of custody credits, 23 days of custody credits for time
spent in a residential treatment program, and 26 days of conduct
credits. On remand, the court shall prepare a modified abstract
of judgment correctly noting total presentence credits of 225 days.
DISPOSITION
The judgment of conviction is affirmed. On remand, the
superior court is directed to reduce the restitution fine and parole
revocation fine to $300 each, and to award total presentence
custody credits of 225 days. The superior court shall prepare and
transmit a new abstract of judgment to the Department of
Corrections and Rehabilitation.
GRIMES, Acting P. J.
I CONCUR:
WILEY, J.

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STRATTON, J., Concurring and Dissenting.
I would remand to allow the trial court to exercise its
discretion to determine whether appellant is eligible for mental
health diversion under Penal Code section 1001.36. I continue to
believe Penal Code section 1001.36 is retroactive under the
authority of People v. Frahs (2018) 27 Cal.App.5th 784, 789–790,
review granted, December 27, 2018, S252220. Applying People v.
Hurlic (2018) 25 Cal.App.5th 50, I would also find appellant is
not required to obtain a certificate of probable cause to press her
appeal that the newly-enacted mental health diversion statute
applies to her non-final judgment.
In all other respects, I concur with the majority opinion.
STRATTON, J.

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