P. v. Propps

Filed 5/8/19 P. v. Propps CA2/5
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER PROPPS,
Defendant and Appellant.
B281522
(Los Angeles County
Super. Ct. No. NA104701)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jesse I. Rodriguez, Judge. Conditionally
reversed with instructions.
Brian C. McComas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Noah P. Hill and Blythe J. Leszkay, Deputy
Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant and appellant Christopher
Propps (defendant) of second degree robbery based on evidence he
stole a watch, a cellphone, and recyclable cans from victim
Jayson Eugenio (Eugenio). We are asked to decide whether the
trial court erred in excluding certain trial testimony as hearsay
(including aspects of defendant’s own testimony); whether the
court wrongly permitted the prosecution to impeach defendant’s
testimony with rather old prior felony convictions; whether the
court wrongly denied defendant a pinpoint instruction on
eyewitness identification; whether the Three Strikes law
sentence the trial court imposed is too severe—either because the
trial court should have granted defendant’s Romero1 motion to
strike one of his prior convictions or because the sentence
imposed is unconstitutionally cruel or unusual; whether remand
is necessary to allow the trial court to consider exercising
recently conferred discretion to strike prior serious felony
conviction enhancements under Penal Code section 667,
subdivision (a)(1);2 and whether defendant is entitled to remand
for further proceedings to determine whether he is eligible for
diversion pursuant to section 1001.36.3
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero).
2 Undesignated statutory references that follow are to the
Penal Code.
3 We previously affirmed the judgment in this matter.
(People v. Propps (July 30, 2018, B281522) [nonpub. opn.].) After
our remittitur issued, defendant filed a motion to recall the
remittitur and permit supplemental briefing regarding these last
two issues. We granted the motion, construing it to include a
request for rehearing, and now issue this opinion.

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I. BACKGROUND
A. The Offense Conduct4
Eugenio, who suffered from an apparent learning
disability, attended special education classes at California State
University, Long Beach. When not in school, he at times
collected recyclable items from trash cans to make money.
Defendant collected recyclables in the same neighborhood
as Eugenio. Both men had previously seen each other around the
neighborhood, and defendant claimed to have caught Eugenio
“stealing” recyclables twice during the months leading up to the
robbery.
In the evening on July 9, 2016, Eugenio was walking down
Martin Luther King Jr. Avenue when a man he later identified as
defendant approached him. Eugenio was not wearing glasses.
While standing just two to twelve inches away from Eugenio,
defendant told Eugenio to hand over his phone and his watch.5
Eugenio gave defendant his phone and his watch, plus
recyclable cans he had collected, because he was afraid. When
defendant left with the items, Eugenio called the police. Long
Beach Police Department Officer Alberto Leon responded to the
call. Eugenio told Officer Leon the person who took his property
was a black man with a short “poofy” or afro hairstyle.
4 We state the facts in the light most favorable to the People.
(People v. Perez (2010) 50 Cal.4th 222, 229; People v. Cooper
(1979) 94 Cal.App.3d 672, 676, fn. 2.)
5 According to Eugenio, defendant was holding a knife when
he demanded Eugenio’s possessions. Later at trial, the jury
found the allegation that defendant was armed during the
commission of the robbery not true.

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B. Post-Robbery Altercation and Defendant’s Arrest
Eugenio continued to see defendant around the
neighborhood after defendant took his watch and the other items.
At one point, Eugenio encountered defendant in a nearby alley.
Defendant warned Eugenio not to come around that area any
more.
The next day, Eugenio collected recyclable cans outside a
doughnut shop located in the same area of the alley where
defendant had confronted him the day before. Defendant, who
was inside the doughnut shop, came outside when he saw
Eugenio.
Defendant approached Eugenio and “slapped . . . the shit
out of him.” The force of the blow was hard, knocking the
eyeglasses that Eugenio was wearing at the time to the ground
and leaving Eugenio with a small cut on the bridge of his nose.
Defendant cursed at Eugenio for taking recyclables out of the
trash can and then left the area. Eugenio walked away and
called the police.
Officer Benjamin Cobb of the Long Beach Police
Department responded to Eugenio’s call. After taking Eugenio’s
statement regarding what happened, Officer Cobb agreed to drop
Eugenio off at a nearby 7-Eleven. On the way, Eugenio told
Officer Cobb the man who slapped him had also robbed him two
weeks earlier, and before they reached the 7-Eleven, Eugenio
spotted defendant in an alley. Eugenio pointed defendant out to
Officer Cobb, and the officer stopped and detained defendant.6
6 Although Eugenio described the man who robbed him as
having short “poofy” hair a couple weeks earlier, defendant was
bald when Eugenio pointed him out to Officer Cobb.

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Another police car arrived after Officer Cobb apprehended
defendant, and Officer Cobb moved Eugenio from his patrol car to
the second car. When defendant saw Eugenio, defendant became
angry and started yelling; he exclaimed, “that little fucker was
stealing my recyclables” and added “that’s the second time that
he has done that.” Eugenio was about ten feet away from
defendant at the time, and Eugenio told Officer Cobb defendant
appeared to be wearing the watch he previously took from
Eugenio.
According to Officer Cobb, he took the watch from
defendant and, covering the watch so Eugenio could not see it,
asked Eugenio to describe it. Eugenio said his watch was a black
rubberized S-Shock brand watch with a scratch on the left side of
the face and blue paint on the bezel.7 Officer Cobb observed a
scratch on the left side of the watch face and paint on one of the
bezels. He returned the watch to Eugenio and informed
defendant he was under arrest for robbery.8 Police detectives
later interviewed defendant at the police station, but the
recording of the interview was muffled and largely inaudible.
The Los Angeles County District Attorney charged
defendant in a single-count information with second degree
7 At trial, Eugenio testified he knew it was his watch because
he had used a blue pen to mark two spots on the watch, and a
black pen to mark two other spots on the watch.
8 Officer Cobb was not able to identify the scratch on a photo
of the watch admitted as an exhibit at trial, but he explained his
inability was due to the “graininess” of the photo and the fact
that the scratch on the glass face of the watch was only visible if
held at an angle.

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robbery in violation of section 211. The information additionally
alleged defendant personally used a deadly and dangerous
weapon (a knife) in the commission of the offense and had
previously sustained two or more serious and/or violent felony
convictions.
C. Relevant Trial Proceedings
1. Overview
The prosecution called three witnesses during its case in
chief: Eugenio, Officer Cobb, and Officer Leon (the officer who
responded after Eugenio reported the robbery of his watch and
other items on July 9, 2016). Defendant testified on his own
behalf during the defense case.
As described in greater detail post, the trial court sustained
hearsay objections to portions of defendant’s testimony in which
he recounted a purported statement made by a non-testifying
officer when Eugenio was asked to identify his watch. The trial
court also sustained objections to portions of defendant’s
testimony regarding his post-arrest interview with detectives at
the police station.
In rebuttal, the prosecution called Long Beach Police
Department Detective Benjamin Vargas to testify; he
participated in defendant’s post-arrest interview and he
recounted, on direct examination, certain of defendant’s interview
statements that were offered to impeach defendant’s trial
testimony. During cross-examination, defense counsel attempted
to ask Detective Vargas about other statements defendant may
have made during the interview. As described in greater detail
post, the trial court sustained hearsay objections to some of those
questions.

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2. Admissibility of defendant’s prior felony
convictions
Before defendant testified in his own defense, the trial
court held an Evidence Code section 402 hearing to determine
whether it would permit the prosecution to impeach defendant
with prior felony convictions he had sustained. The prosecution
argued it should be allowed to introduce three: a 1998 conviction
for assault with a firearm (§ 245, subd. (a)(2)), a 2004 conviction
for the same crime, and a 2004 conviction for possession or
purchase of cocaine for sale (Health and Saf. Code, § 11351.5).9
Defense counsel objected to the admission of the prior
convictions, arguing they should be excluded because they were
too old to be probative of credibility. Defense counsel further
argued that if the assault convictions were admitted, they should
be “sanitize[d]” such that the jury would understand neither
conviction was related to “some kind of theft.” The prosecution
contended it should be able to impeach defendant with all of the
convictions, notwithstanding their remoteness, because
defendant in the intervening years had violated parole and
committed other offenses—such that he had failed to stay out of
custody for any significant period of time.
The trial court ruled the prosecution could use all three
convictions to impeach defendant. The court, however, agreed
9 The prosecution also sought to introduce two prior felony
convictions for violation of Health and Safety Code section 11352.
The trial court denied the request as to those convictions because
there was some uncertainty regarding whether the prosecution
had met its burden of proof to demonstrate the convictions
constituted crimes of moral turpitude for impeachment purposes.

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with the defense that the jury should be told the assault
convictions were not theft-related.
When defendant testified, it was his attorney who brought
out the fact of defendant’s convictions on direct examination.
Defendant admitted he sustained each of the felonies, including
the two assaults that were “not theft related.”
3. Jury instructions
When discussing jury instructions, defense counsel asked
the trial court to add language to CALCRIM No. 315, the pattern
jury instruction on eyewitness identification. Specifically,
defense counsel asked that the court insert language, in the list
of circumstances a jury should consider when evaluating
eyewitness testimony, “that [Eugenio] had corrective lenses or
something of that nature, the lack of glasses that were testified
to.” The trial court declined because “[t]here was no inquiry,
period, to [Eugenio] as to why was he wearing glasses today and
not then; [i.e.,] are the glasse[s] for reading or distance.” The
court stated the parties would be permitted to argue the point to
the jury, but without a pinpoint instruction.
D. Verdict and Sentencing
The jury found defendant guilty of second degree robbery
but found the allegation that he used a deadly weapon in the
commission of the crime not true.
Prior to sentencing, defendant’s attorney filed a Romero
motion asking the trial court to dismiss at least one of
defendant’s prior “strike” convictions. The motion argued
dismissal was warranted because defendant would still receive a
lengthy sentence, because his prior strike convictions were

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remote in time, because he grew up in a chaotic home
environment that involved physical and emotional abuse, and
because he received only a negotiated sentence of one year on
probation for his 2004 strike conviction for assault with a
firearm. A psychiatric report detailing defendant’s personal and
psychiatric history was submitted as an exhibit to the Romero
motion. The report stated defendant has had periods of
depression, occasionally feels the television and radio are talking
to him or know what he is thinking, and has had episodes of
mania. It ultimately concluded defendant was not suffering from
psychosis but was suffering from chronic depression. The report
further stated defendant’s chronic depression and other factors
“played a significant role in the development of a criminal
lifestyle.”
At sentencing, the trial court stated for the record it
reviewed defendant’s motion and the prosecution’s opposition;
defense counsel also noted the court had stated off the record it
had reviewed the defense-submitted psychiatric report. The trial
court further noted it was “fully aware of all of its discretionary
powers” and had “consider[ed] both sides.”
The trial court denied the Romero motion, finding
defendant had spent about 80 percent of his life in prison, his
crimes were escalating, and it “just [did not] understand why
[defendant] would pick on this kid [i.e., Eugenio] for
this . . . . unless, respectfully speaking, [defendant] has a criminal
mind that he can take over a situation and not absolve himself
from it.” In making its ruling, the trial court discussed
aggravating and mitigating factors and noted, as to mitigating
factors, it did not “see any that [were] applicable
to . . . defendant . . . .”

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Having denied the Romero motion, the trial court imposed
a Three Strikes law 35-years-to-life prison sentence, ten years of
which was imposed as a result of the section 667, subdivision
(a)(1) impact of defendant’s 1998 and 2004 assault with a firearm
convictions.
II. DISCUSSION
Defendant’s various arguments for outright reversal are
unavailing. The trial court’s hearsay rulings were not an abuse
of its discretion because defendant cannot rely on the prior
inconsistent statement hearsay exception when the out-of-court
declarant did not testify at trial. Nor did the trial court abuse its
discretion in adhering to the customary order of proof at a
criminal trial and preventing the defense from eliciting, on
ostensible rule of completeness grounds, testimony from an
interviewing detective about defendant’s own post-arrest
statements. The trial court was likewise within its discretion to
admit evidence of defendant’s prior felony convictions for
impeachment; though old, they were part of a consistent pattern
of criminal activity that left defendant incarcerated or on parole
for the majority of his life following the oldest of the convictions
admitted. The trial court also properly declined to give the
pinpoint jury instruction requested by defendant because it was
not supported by substantial evidence—there was no testimony
about why Eugenio wore glasses and whether the absence of
glasses would have affected his ability to see the person who
robbed him.
As to the sentencing claims, the record demonstrates the
trial court stayed within the bounds of its discretion in denying
defendant’s Romero motion and defendant has not carried his

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burden to show the resulting sentence constitutes cruel or
unusual punishment. We nevertheless hold a remand to the trial
court is appropriate for two reasons. First, the trial court should
have the opportunity, if it so chooses, to exercise its discretion to
strike either or both of defendant’s prior serious felony conviction
enhancements pursuant to Senate Bill 1393. Second, because we
agree section 1001.36 applies retroactively and there is adequate
evidence in the record to suggest defendant may meet section
1001.36’s eligibility requirements, we will conditionally reverse
the judgment to permit the trial court to make a section 1001.36
determination.
A. The Trial Court Did Not Err in Striking as Hearsay
Defendant’s Testimony Concerning Eugenio’s
Identification of the Watch
Defendant asserts the trial court wrongly struck certain
portions of his testimony that related his account of what
happened when the responding police officers asked Eugenio if he
could identify the watch defendant was wearing when
apprehended. Although at bottom a challenge to the trial court’s
determination the testimony was hearsay, defendant frames the
argument in constitutional terms, asserting the court’s ruling
“violated appellant’s fundamental rights to testify, present a
defense, and challenge the prosecution’s case.” We reject the
constitutional framing and conclude the trial court’s evidentiary
rulings were not an abuse of discretion.10 (Taylor v. Illinois
10 Relatedly, we disregard any theories of admissibility raised
only in reply. (People v. Rangel (2016) 62 Cal.4th 1192, 1218-
1219.)

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(1988) 484 U.S. 400, 410 [“[t]he accused does not have an
unfettered right to offer testimony that is . . . otherwise
inadmissible under standard rules of evidence”]; Chambers v.
Mississippi (1973) 410 U.S. 284, 302; People v. Mickel (2016) 2
Cal.5th 181, 218-219; People v. Jones (2013) 57 Cal.4th 899, 957
[“[T]he routine application of provisions of the state Evidence
Code law does not implicate a criminal defendant’s constitutional
rights. [Citation.] Instead, because the trial court merely
excluded some evidence . . . and did not preclude defendant from
presenting a defense, any error would be one of state evidentiary
law only”]; see also People v. Waidla (2000) 22 Cal.4th 690, 725
[abuse of discretion standard of review applies].)
1. Additional background
During defendant’s testimony on re-direct, his attorney
asked him to describe what happened after the police detained
him and removed the watch he was wearing. Defendant
responded in narrative fashion: “I think one of the younger cops,
not the one testifying, asked him—told the other cop like how do
you know it is his watch. He said because he said there are
scratches all over the face. The older cop [not Officer Cobb]
looked at it. And the three cops went to the side and said there
are no scratches on this watch. And then he took it to him and
said, hey, man—” (Emphasis ours.) At this point, the
prosecution objected and the court sustained the objection and
struck the entire answer. Defense counsel did not protest the
ruling; indeed, she admonished her client, “you cannot say what
other people said, just [say] what you observed happen.”
Defense counsel proceeded to ask defendant a series of
targeted questions regarding the watch, and defendant answered

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the watch he was wearing had no scratches on its face, had no
“black marks” anywhere on it, but did have “a little blue mark
that they showed me after the fact,” which appeared to defendant
as if there had been “like some paint scraped on it.” Defense
counsel then again asked defendant to describe what the “older
cop” did once he took the watch off defendant’s arm. Defendant
responded, “He walked it up in the back of the patrol car and put
it in the guy’s face and said this watch don’t have no scratches on
it.” (Emphasis ours.) The court sustained its own objection to
this answer and called the attorneys to sidebar. The court
admonished defense counsel to prevent defendant from
volunteering inadmissible hearsay, adding “[h]e knows what he is
doing” and “[h]e is doing it on purpose.”
Defense counsel resumed questioning defendant and asked
what the police officers had done with the watch, this time
cautioning defendant he should not relate anything that anyone
else told him or that he overheard. Defendant testified one of the
officers took the watch, showed it to Eugenio and said something
to him, brought the watch back to defendant, and then ultimately
took the watch away from defendant.
2. Analysis
Defendant contends the trial court erroneously ruled his
testimony relating the purported statement that the watch had
no scratches was hearsay. In his view, the testimony falls within
the hearsay exception for inconsistent statements because the
testimony impeached Eugenio’s description of how he identified
the watch and Officer Cobb’s testimony that he did not show the
watch to Eugenio before asking him to identify it. (Evid. Code,
§ 1235 [“Evidence of a statement made by a witness is not made

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inadmissible by the hearsay rule if the statement is inconsistent
with his testimony at the hearing and is offered in compliance
with [Evidence Code] Section 770”]; see also Evid. Code, § 770
[out-of-court inconsistent statements by a witness “shall be
excluded” unless the witness is given an opportunity to explain or
deny the statement when testifying].) Defendant’s argument is
forfeited on appeal, and regardless, the trial court’s hearsay
ruling was not an abuse of discretion.
Evidence Code section 354, subdivision (a) states: “A
verdict or finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous
exclusion of evidence . . . it appears of record that: [¶] (a) The
substance, purpose, and relevance of the excluded evidence was
made known to the court by the questions asked, an offer of proof,
or by any other means[.]” Where testimony is excluded on
hearsay grounds, the proponent of the evidence must show the
testimony falls within an exception to the rule. (People v.
Livaditis (1992) 2 Cal.4th 759, 778.) During trial, defense
counsel made no attempt to demonstrate the purpose or
relevance of defendant’s objected-to answers, nor did counsel
invoke the inconsistent statements hearsay exception defendant
now relies on to assert error. The issue is therefore forfeited.
(People v. Ramos (1997) 15 Cal.4th 1133, 1178.)
Even putting the forfeiture aside, the argument is
meritless. Defendant never precisely identifies the statements by
either Eugenio or Officer Cobb that were supposedly inconsistent
with his own testimony on this point, and for good reason. The
hearsay statements defendant attempted to relate when
testifying (both of which were to the effect of “this watch don’t
have no scratches on it”) were, by defendant’s own admission,

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made by another officer (or officers) at the scene who did not
testify at trial. The necessary predicate for invoking the
inconsistent statements hearsay exception—that the declarant
who made the out-of-court statement first be given an
opportunity to affirm or deny making the statement (Evid. Code,
§ 770)—therefore went unsatisfied.
B. The Trial Court Did Not Err in Adhering to the
Customary Order of Proof and in Ruling on the
Admissibility of Defendant’s Post-Arrest Interview
Statements
1. Additional background
During defendant’s direct examination, he stated he bought
the watch in question months before his arrest for $15 at a “99
cent store, which is not a real 99 cent store.” He also testified,
among other things, that he spoke to detectives at the police
station after his arrest, told them the truth, and had been telling
the “same story since day one.” Up to this point during trial, the
prosecution had not yet introduced evidence concerning
defendant’s post-arrest statements.
On cross-examination, the prosecution asked a series of
follow-up questions about where defendant claimed to have
purchased the watch and how much it cost, as well as certain
questions about what defendant told the police in his post-arrest
interview. As to the post-arrest interview, the prosecution
specifically asked, for purposes of framing later impeachment,
whether defendant told the police detectives (1) he threatened to
harm Eugenio if he ever stole defendant’s recyclables again, (2)
he confronted Eugenio outside the doughnut shop and warned
him to stay away from the recyclables, and (3) Eugenio would lie

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about being robbed and assaulted because defendant threatened
to beat Eugenio up if he stole recyclables again.11
When the time came for defense counsel’s redirect
examination, she asked defendant what he told detectives about
where he obtained the watch in question. Defendant responded:
“I don’t remember if they asked me where I got the watch. I don’t
remember if they asked me ‘cause I told them what the hell
would I steal a cheap ass phone for.” The prosecution objected to
the answer and the court sustained the objection and ordered the
answer stricken. Defense counsel then attempted to ask several
additional questions concerning defendant’s post-arrest
statements: (1) “Did you talk to them [the detectives] about how
Mr. Eugenio had stolen recycling on more than one occasion?”; (2)
“Did any of [the detectives] ask you for any further information
about details about when or where this theft took place?”; (3) “Did
you give the officers details about where and when this—” The
trial court sustained hearsay objections to each of these questions
and ordered any answers given by defendant stricken.
Later, outside the presence of the jury, defense counsel
briefly argued the hearsay objections should have been overruled.
She explained her understanding was that the prosecution would
be calling one of the interviewing detectives to impeach
defendant’s trial testimony, and she stated she wanted to have
her client testify as to what he said during the post-arrest
interview because the prosecution’s cross-examination questions
11 Defendant’s answer to the first of these questions was “no,”
his answer to the second was a qualified “no” (defendant
admitted he slapped Eugenio and warned him to “stay out of my
people yards”), and his answer to the third was an unequivocal
“no.”

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were “not direct quotes from an audio recording of this
interview.” Defense counsel maintained she had “the right to
attempt to rehabilitate if [defendant’s] going to be
impeached . . . . [and] that’s what I was attempting to do.” The
trial court stated it would not change its ruling but made clear
the defense would be permitted to recall defendant to testify, if it
so chose, after the prosecution presented its rebuttal case.
The prosecution called Detective Vargas as a rebuttal
witness, and he testified to his recollection of statements
defendant made during his post-arrest interview. According to
Detective Vargas, defendant admitted he told Eugenio outside
the doughnut shop that if he ever attempted to steal his
recyclables again, he (defendant) would beat Eugenio up;
defendant denied he ever hit Eugenio; and as to the watch,
defendant said he purchased it for $5 and it had blue coloring on
one of the bezels because it was paint that rubbed off from a
bicycle he owned. Detective Vargas also testified defendant
became “a little evasive, a little upset” when asked further
questions about the bicycle and from whom he purchased the
watch.
On cross-examination, defense counsel asked Detective
Vargas whether defendant said “why would I start robbing people
at 40 years old” during the post-arrest interview. The
prosecution objected on hearsay grounds and the trial court
sustained the objection. Defense counsel then argued the
objection at sidebar, contending “whenever there is a statement
made to the police, I can ask questions about everything he said.
The hearsay statements that were allowed in on the side of the
prosecution—I’m allowed under the rule of completeness
everything said to the officers now can come in.” The trial court

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adhered to its ruling, explaining the statement the defense
sought to elicit was hearsay and not subject to the rule of
completeness because “the People didn’t get into that area.”
2. Analysis
Defendant seeks reversal based on the trial court’s
evidentiary rulings during his own testimony and Detective
Vargas’s testimony. As to the former, he believes the trial court
should have exercised its discretion to depart from the customary
order of proof at trial so as to permit him to testify to the out-of-
court statements he made during his post-arrest interview
because the “prosecution should have introduced evidence of the
interrogation as part of [its own] case-in-chief.” As to the latter,
defendant reprises the rule of completeness argument he made in
the trial court.12 Defendant’s arguments on both points are
unpersuasive.
a. the order of proof
The statutorily prescribed order of proof in a criminal trial
is well-known: the prosecution presents its case first, the defense
presents any evidence it wishes to present next, and both sides
may then “respectively offer rebutting testimony only.” (§ 1093,
subds. (c)-(d).) Trial courts have discretion to vary from this
order of proof, and we will not reverse a judgment unless a court’s
decision to adhere to or depart from the customary order of proof
constitutes a “palpable abuse” of that discretion. (People v.
12 Defendant does not argue the “why would I start robbing
people at 40 years old” remark would qualify as a prior consistent
statement.

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Demond (1976) 59 Cal.App.3d 574, 587; see also People v. Case
(2018) 5 Cal.5th 1, 46 [“‘The order of proof rests largely in the
sound discretion of the trial court, and the fact that the evidence
in question might have tended to support the prosecution’s case-
in-chief does not make it improper rebuttal. [Citations.] It is
improper for the prosecution to deliberately withhold evidence
that is appropriately part of its case-in-chief, in order to offer it
after the defense rests its case and thus perhaps surprise the
defense or unduly magnify the importance of the evidence.
Nevertheless, when the evidence in question meets the
requirements for impeachment it may be admitted on rebuttal to
meet the evidence on a point the defense has put into dispute’”].)
The trial court did not abuse its discretion by opting not to
vary from the statutorily prescribed order of proof to, as
defendant now suggests, provisionally admit his hearsay
testimony concerning his own statements during the post-arrest
interview subject to a later motion to strike. Although defendant
complains the prosecution did not admit evidence of the post-
arrest interview during its own case-in-chief, the record indicates
that was by agreement of the prosecution and defense to avoid an
issue as to whether the statement would be admissible under
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) if offered by
the prosecution as affirmative evidence of guilt (rather than
impeachment evidence).13 (See generally Harris v. New York
13 During trial, the court and the parties discussed whether it
would be necessary to hold evidence admissibility hearings (Evid.
Code, § 402) concerning certain matters. Addressing counsel, the
trial court stated “there were two 402’s . . . . one was about the
defendant’s prior convictions, and the other was about the
possibility of the defendant’s prior out of court statements.”

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(1971) 401 U.S. 222, 225-226.) Defendant cannot now protest the
sequence in admitting evidence that he stipulated to below. (See
People v. Race (2017) 18 Cal.App.5th 211, 219, fn. 4.) Moreover,
even if defendant had not agreed to the order of proof of which he
now complains, the trial court still did not abuse its discretion by
adhering to customary procedure. (People v. Mayfield (1997) 14
Cal.4th 668, 762 [no abuse of discretion where court allowed
prosecution to use the defendant’s out-of-court “statement in
rebuttal, even though it was known to the prosecution before trial
and could have been used during the prosecution’s case-in-
chief”].) The questions asked of defendant during the defense
case called for hearsay at that juncture and the court rightly
precluded them while making clear defendant would be
permitted to retake the witness stand in a defense rebuttal case if
he so desired. That is how it should be done.
b. the rule of completeness
Evidence Code section 356, which codifies the “rule of
completeness,” provides in relevant part that “[w]here part of
[a] . . . conversation . . . is given in evidence by one party, the
whole on the same subject may be inquired into by an adverse
party; . . . when a . . . conversation . . . is given in evidence, any
other act, declaration, conversation, or writing which is necessary
to make it understood may also be given in evidence.”
Defense counsel responded, “The 402 regarding the statements.
[¶] We will not have to have a Miranda hearing after
discussion.” The court clarified, asking, “That is resolved
between the two of you?” Defense counsel responded “[y]es.”

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“The purpose of Evidence Code section 356 is to avoid
creating a misleading impression. [Citation.] It applies only to
statements that have some bearing upon, or connection with, the
portion of the conversation originally introduced. [Citation.]
Statements pertaining to other matters may be excluded.”
(People v. Samuels (2005) 36 Cal.4th 96, 130; see People v. Zapien
(1993) 4 Cal.4th 929, 959.) Although “‘the courts do not draw
narrow lines around the exact subject of inquiry’” (People v.
Harris (2005) 37 Cal.4th 310, 334), courts will not find error in
excluding evidence proffered under the rule of completeness if the
evidence introduced leaves no misleading impression (People v.
Pearson (2013) 56 Cal.4th 393, 460-461 (Pearson)). We review a
trial court’s determination of whether or not to admit evidence
under Evidence Code section 356 for abuse of discretion. (See
People v. Pride (1992) 3 Cal.4th 195, 235.)
There was no abuse of discretion here. Defendant
complains he was unable to ask Detective Vargas whether he
said, during his post-arrest interview, “why would I start robbing
people at 40 years old?” The prosecution’s questions to Detective
Vargas on direct examination (and its cross-examination
questions posed to defendant himself) concerned defendant’s
statements regarding his history of interactions with Eugenio,
whether he hit or threatened Eugenio, where defendant
purchased the watch, and how the blue paint may have come to
be on the watch. That testimony did not address the same
subject as defendant’s reported rhetorical question—which
appeared to address defendant’s motive (or lack thereof) for the
crime and sought to improperly relate a self-serving assertion he
had never robbed anyone—and there is no support in the case
law for the position defendant advanced in the trial court,

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namely, that “[w]henever there is a statement made to the police,
[the defense] can ask questions about everything he said.”
(People v. Perry (1972) 7 Cal.3d 756, 787 [“‘The rule [of
completeness] is not applied mechanically to permit the whole of
a transaction to come in without regard to its competency or
relevancy’”], overruled on other grounds in People v. Green (1980)
27 Cal.3d 1.)
Furthermore, the utterance defendant contends the trial
court wrongly excluded was entirely unnecessary to avoid leaving
the jury with a misleading impression of defendant’s position
during his post-arrest interview. (See Pearson, supra, 56 Cal.4th
at pp. 460-461 [defendant’s recorded statements expressing
remorse for murder not admissible under Evidence Code section
356 because the excerpt introduced by the prosecution without
the expressions of remorse was not misleading].) It would have
been quite clear to the jury—from testimony received without
objection—that defendant generally denied robbing Eugenio
during his post-arrest interview with police detectives.
Admitting defendant’s “why would I start robbing people at 40
years old” statement would have added nothing; indeed, the
rhetorical form of the statement means it has little assertive
content at all. Admitting the statement was accordingly
unnecessary to give the jury a fair picture of the post-arrest
interview and it would not have impacted the jury’s deliberations
on defendant’s guilt. (People v. Arias (1996) 13 Cal.4th 92, 156-
157.)

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C. The Trial Court Did Not Abuse Its Discretion by
Admitting Evidence of Defendant’s Prior Convictions
Subject to the trial court’s discretion under Evidence Code
section 352, a witness’s prior felony convictions for crimes of
moral turpitude are admissible to impeach the witness. (Evid.
Code, § 788; People v. Green (1995) 34 Cal.App.4th 165, 182
(Green).) “When determining whether to admit a prior conviction
for impeachment purposes, the court should consider, among
other factors, whether it reflects on the witness’s honesty or
veracity, whether it is near or remote in time, whether it is for
the same or similar conduct as the charged offense, and what
effect its admission would have on the defendant’s decision to
testify. (People v. Beagle (1972) 6 Cal.3d 441, 453[ (Beagle)];
[ ]Green[, supra,] 34 Cal.App.4th[ at p.] 183[ ].)” (People v. Clark
(2011) 52 Cal.4th 856, 931.) We review a trial court’s decision to
admit prior felony convictions for impeachment purposes for
abuse of discretion. (Green, supra, at pp. 182-183.)
Defendant argues the three felony convictions the trial
court permitted the prosecution to use for impeachment purposes
(the 1998 and 2004 convictions for assault with a firearm and the
2004 conviction for possession or purchase of cocaine for sale)
should have been excluded—chiefly because of their age relative
to the 2017 trial. In our view, the trial court was within its
discretion to permit impeachment with all of the prior
convictions.
It is well established that “convictions remote in time are
not automatically inadmissible for impeachment purposes. Even
a fairly remote prior conviction is admissible if the defendant has
not led a legally blameless life since the time of the remote prior.”
(People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) That is

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the circumstance here: Defendant has engaged in behavior that
has repeatedly landed him back in custody since his 1998
conviction. He violated the terms of his parole in 2001 and 2002,
and he was arrested in 2003 for the crimes that led to his 2004
convictions and resulted in a ten-year prison sentence. In
addition, though the trial court did not admit it for impeachment
purposes, defendant also suffered another felony conviction in
2014 for a drug offense. Defendant thus spent all of the time
following his 1998 conviction in and out of custody, and given
these circumstances, the convictions were not so remote as to
require exclusion of the prior convictions.14 (See, e.g., People v.
Carpenter (1999) 21 Cal.4th 1016, 1055-1056 [17-year old prior
14 None of the other factors identified in Beagle suggest the
trial court abused its discretion. Defendant’s prior convictions for
assault with a deadly weapon and possession of a controlled
substance for sale are both considered crimes of moral turpitude
for impeachment purposes. (People v. Thomas (1988) 206
Cal.App.3d 689, 700 [assault with deadly weapon]; People v.
Castro (1985) 38 Cal.3d 301, 317 [possession for sale].) Assault
and possession for sale are not substantially similar to robbery,
especially since defendant’s assault convictions were “sanitized”
to clarify they did not involve theft. And defendant’s prior
convictions—which he knew in advance would be admitted at
trial—did not dissuade him from testifying.
Relatedly, we reject defendant’s argument that the trial
court failed to “fully sanitize” the prior convictions it permitted
the prosecution to use. The defense asked only that the court
require the jury to be told the assault convictions were not theft-
related, the trial court agreed, and defendant’s trial counsel made
clear the prior convictions were not theft-related when eliciting
her client’s admission to having sustained the convictions. No
more was required.

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felony convictions admissible where the defendant had been
“incarcerated most of the intervening time”].)
Defendant additionally argues the trial court erred by
ruling on the admissibility of the convictions “[w]ithout
[r]eference to Evidence Code, [s]ection 352.” The governing rule
is that “‘a court need not expressly weigh prejudice against
probative value or even expressly state that it has done so, if the
record as a whole shows the court was aware of and performed its
balancing functions under Evidence Code section 352.’
[Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 438.)
Defendant is correct in observing the trial court never
expressly referenced Evidence Code section 352, but the record
adequately reveals the court was aware of and performed the
requisite balancing. The trial court noted for the record it was
aware of the Beagle factors and stated it “fully underst[ood] and
agree[d] that one of the stronger elements of denying the People’s
request to use prior convictions of moral turpitude for
impeachment is . . . the remoteness of it, the age of the defendant
at the time of the incident . . . [and] conviction.” The trial court
noted remoteness “is combined with other factors as to whether
or not there are future convictions that are of the same type or
more aggravated than the initial conviction vis-à-vis the
remoteness and/or whether or not the person has conducted a life
free of crime or of some other crime and sometimes in particular
the type of crime that it was in the future.” The court explained
it had a problem with defense counsel’s request to exclude the
convictions because defendant had committed several felonious
crimes of moral turpitude and continued engaging in criminal
activity after his older convictions. The court also indicated it
had determined the prior convictions were “not connected” to the

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current offense and there was not, in this situation, a nexus
between the prior assaults and the robbery charge.
The record the court made is the functionally adequate
equivalent of the requisite Evidence Code section 352 analysis (as
to undue prejudice, the only Evidence Code section 352
consideration defendant invokes). (People v. Mendoza, supra, 78
Cal.App.4th at p. 925 [“‘Sections 788 and 352 of the Evidence
Code control the admission of felony convictions for
impeachment. Together, they provide discretion to the trial judge
to exclude evidence of prior felony convictions when their
probative value on credibility is outweighed by the risk of undue
prejudice. [Citation.]’ (People v. Muldrow (1988) 202 Cal.App.3d
636, 644[ ].) In exercising its discretion, the trial court must
consider four factors identified by our Supreme Court
in . . . Beagle . . .”].) Reversal is unwarranted.
D. The Trial Court Properly Denied Defendant’s Request
for an Eyewitness Testimony Pinpoint Instruction
“A defendant is entitled to a pinpoint instruction, upon
request, only when appropriate. [Citation.] ‘Such instructions
relate particular facts to a legal issue in the case or “pinpoint” the
crux of a defendant’s case, such as mistaken identification or
alibi. [Citation.] They are required to be given upon request
when there is evidence supportive of the theory, but they are not
required to be given sua sponte.’ [Citations.]” (People v.
Gutierrez (2009) 45 Cal.4th 789, 824.) For a pinpoint instruction
to be appropriate, it must be accurate, non-argumentative, non-
duplicative, and supported by substantial evidence. (People v.
Bolden (2002) 29 Cal.4th 515, 558-559.) We independently

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review whether a pinpoint instruction should have been given.
(People v. Manriquez (2005) 37 Cal.4th 547, 584.)
CALCRIM No. 105, the general instruction regarding
witness testimony, instructed jurors that “[a]mong the factors”
they could consider in judging the credibility and believability of
a witness was, “How well could the witness see, hear, or
otherwise perceive the things about which the witness testified?”
The jury instruction defendant wanted the court to modify for
pinpoint purposes, CALCRIM No. 315, further advised the jury
that in evaluating “eyewitness testimony identifying the
defendant” the jury was to consider certain questions including,
“How well could the witness see the perpetrator?” and “What
were the circumstances affecting the witness’s ability to observe,
such as lighting, weather conditions, obstructions, distance, and
duration of observation?” As he did in the trial court, defendant
argues language should have been added to the CALCRIM No.
315 instruction to make reference to Eugenio’s “lack of glasses” at
the time of the charged robbery.
Because the requested pinpoint instruction was not
supported by substantial evidence, the trial court did not err in
refusing to give it. As the trial court correctly emphasized, there
was no testimony at trial that shed any light on why Eugenio
wore glasses some days but not others, whether the glasses were
prescription or cosmetic, and if prescription, whether Eugenio
wore them to compensate for some unknown degree of difficulty
in seeing things far away or nearby. In light of Eugenio’s
testimony that defendant was two to twelve inches away during
the robbery, the absence of further inquiry about his glasses
means there was no reason to pinpoint the glasses issue for the
jury in an instruction. At best, adding the language the defense

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requested to the pattern instruction would have been
argumentative; at worst, it would have been misleading or
invited speculation.
E. There Was No Cumulative Error at Trial
Defendant contends the cumulative effect of the various
purported errors of which he complains deprived him of due
process and a fair trial. Having failed to establish multiple
errors, defendant’s cumulative error claim is meritless. (See, e.g.,
People v. Sattiewhite (2014) 59 Cal.4th 446, 491; People v.
Edwards (2013) 57 Cal.4th 658, 767.)
F. The Court Did Not Abuse Its Discretion by Denying
Defendant’s Romero Motion
Under section 1385, subdivision (a), and in furtherance of
justice, a trial court may strike or dismiss an allegation under the
Three Strikes law that a defendant has previously been convicted
of a serious or violent felony. (Romero, supra, 13 Cal.4th at pp.
529-530.) In doing so, “the court . . . must consider whether, in
light of the nature and circumstances of [the defendant’s] present
felonies and prior serious and/or violent felony convictions, and
the particulars of his background, character, and prospects, the
defendant may be deemed outside the [Three Strikes] scheme’s
spirit, in whole or in part, and hence should be treated as though
he had not previously been convicted of one or more serious
and/or violent felonies.’ [Citation.]” (People v. Carmony (2004) 33
Cal.4th 367, 377 (Carmony).) A court must state its reasons for
dismissing a strike conviction (§ 1385, subd. (a)), but a court is
not required to “‘explain its decision not to exercise its power to

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dismiss . . . .’ [Citation.]” (Carmony, supra, at p. 376, italics
added.)
We review a trial court’s decision to refrain from dismissing
a prior felony conviction allegation under section 1385 for abuse
of discretion. (Carmony, supra, 33 Cal.4th at p. 375.) Defendant
bears the burden of establishing the trial court’s decision was
irrational or arbitrary; that reasonable minds might differ is not
enough. (Id. at pp. 375-376, 378.) Absent such a showing, we
presume the trial court acted to achieve lawful sentencing
objectives. (Id. at pp. 376-377.) “‘[W]here the record
demonstrates that the trial court balanced the relevant facts and
reached an impartial decision in conformity with the spirit of the
law, we shall affirm the trial court’s ruling . . . .’ [Citation.]” (Id.
at p. 378.)
As already summarized, defendant has a substantial
criminal history that spans nearly 20 years, from 1996 to 2016.
Defendant committed his first offense (burglary) at 19 years old,
and he committed his first felony offense (assault with a firearm,
which led to the 1998 conviction) a year later. After his release
on parole from this first felony conviction, defendant twice
violated the terms of his parole and sustained additional felony
assault and drug-related convictions that ultimately resulted in a
10-year prison sentence. And he committed the robbery offense
of conviction here within a year of being released from a five-year
prison sentence for a subsequent 2014 conviction for transport or
sale of a controlled substance. The longest period of time
defendant has been free from custody since 1998 is one year and
three months.
The offense of conviction, though not especially serious in
light of the property taken, does bear hallmarks of aggravation

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because it is, at bottom, an attack on a vulnerable victim. In
light of the evidence in the record regarding Eugenio’s apparent
learning disability and the trivial nature of what provoked
defendant’s robbery of (and assault on) Eugenio, we agree with
the trial court that it is hard to “understand why [defendant]
would pick on this kid for this.” Defendant’s attitude toward the
attack on Eugenio (as revealed during his trial testimony), in
combination with his prior history, also leaves us convinced his
prospects for the future are unfortunately poor.
Defendant’s response to all this, i.e., that the trial court
improperly ignored mitigating factors detailed in his psychiatric
evaluation, rings hollow. The record is clear that the court
reviewed all the papers submitted in connection with the motion,
including the psychiatric report. Although the trial court was not
required to provide an explanation of its reasons for denying the
Romero motion at all (Carmony, supra, 33 Cal.4th at p. 376), “the
fact that the court focused its explanatory comments on
[defendant’s criminal history] does not mean that it considered
only that factor” (People v. Myers (1999) 69 Cal.App.4th 305, 310
(Myers)).
The trial court’s decision to deny defendant’s Romero
motion was not an abuse of discretion. (Carmony, supra, 33
Cal.4th at pp. 378-379; Myers, supra, 69 Cal.App.4th at pp. 309-
310.)
G. Defendant’s Sentence Did Not Constitute Cruel or
Unusual Punishment
Defendant contends his sentence of 35 years to life amounts
to cruel and/or unusual punishment under both the United States

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and California Constitutions. (U.S. Const., 8th Amend.; Cal.
Const., art. I, § 17.)
1. Forfeiture
The issue of whether a sentence is cruel and unusual
punishment is a fact intensive inquiry under state and federal
law that is based on the nature and facts of the crime and
offender and is forfeited if not raised in the trial court. (People v.
Kelley (1997) 52 Cal.App.4th 568, 583 (Kelley); People v. DeJesus
(1995) 38 Cal.App.4th 1, 27; People v. Weddle (1991) 1
Cal.App.4th 1190, 1196; see also Solem v. Helm (1983) 463 U.S.
277, 287 [question of disproportionate punishment cannot be
considered in the abstract] (Solem).) Although defendant filed a
Romero motion urging the trial court to exercise its discretion to
dismiss his prior strikes, he never claimed a Three Strikes
sentence would violate the constitutional prohibitions against
cruel or unusual punishment. Defendant has thus forfeited the
issue. (Kelley, supra, at p. 583.) Even if defendant’s claims were
not forfeited, however, they would not succeed on the record
before us.
2. Federal Constitution
Under the Eighth Amendment to the United States
Constitution (applicable to the states via the Fourteenth
Amendment), a “‘narrow proportionality principle . . . applies to
noncapital sentences.’” (Ewing v. California (2003) 538 U.S. 11,
20 (plur. opn. of O’Connor, J.) (Ewing), quoting Harmelin v.
Michigan (1991) 501 U.S. 957, 996-997 (Harmelin).) This
constitutional principle “‘forbids only extreme sentences that are
“grossly disproportionate” to the crime.’” (Id. at p. 23, quoting

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Harmelin, supra, at p. 1001.) Objective factors guiding the
proportionality analysis include “(i) the gravity of the offense and
the harshness of the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the sentences imposed
for commission of the same crime in other jurisdictions.” (Solem,
supra, 463 U.S. at p. 292.) Only in the rare case where the first
factor is satisfied does a reviewing court consider the other two
factors. (People v. Baker (2018) 20 Cal.App.5th 711, 733; People
v. Reyes (2016) 246 Cal.App.4th 62, 82-83.) Recidivism has
traditionally been recognized as a proper ground for increased
punishment. (Ewing, supra, at p. 25 (plur. opn. of O’Connor, J.).)
Here, as already described, appellant’s current crimes and
his pattern of criminal (often violent) behavior supported his
lengthy sentence. Defendant, however, argues the gravity of his
offense is not commensurate with the severity of the penalty, and
he points to his psychiatric report that recommends he receive
treatment; he also emphasizes the offense of conviction (as
distinguished from his prior assaults) did not involve a weapon,
serious injury, the taking of property with significant value, or
the loss of that property. Even taking these points into account,
we cannot say defendant’s sentence is grossly disproportionate or
shocking in light of the facts of his current offense and, more
importantly, his recidivism. (See, e.g., Lockyer v. Andrade (2003)
538 U.S. 63, 66-68, 77 [trial court validly imposed Three Strikes
sentence of 50 years to life for two felony “wobbler” petty theft
convictions with a prior and three prior residential burglaries];
Ewing, supra, 538 U.S. at pp. 19, 30-31 (plur. opn. of O’Connor,
J.) [Three Strikes sentence of 25 years to life upheld for grand
theft of three golf clubs worth $1,200 with three prior burglary
and one prior robbery conviction]; see also People v. Martinez

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(1999) 71 Cal.App.4th 1502, 1511-1512 [citing Rummell v. Estelle
(1980) 445 U.S. 263, 265-266] (Martinez).)
3. California Constitution
Article I, section 17 of the California Constitution
proscribes “[c]ruel or unusual punishment.” Although this
language is construed separately from the federal constitutional
ban on “cruel and unusual punishment” (People v. Carmony
(2005) 127 Cal.App.4th 1066, 1085), the method of analysis is
similar: the reviewing court considers “the nature of the offense
and/or the offender, with particular regard to the degree of
danger both present to society”; a comparison of “the challenged
penalty with the punishments prescribed in the same jurisdiction
for different offenses”; and a comparison of “the challenged
penalty with the punishments prescribed for the same offense in
other jurisdictions . . . .” (In re Lynch (1972) 8 Cal.3d 410, 425-
427.) The purpose of this analysis is to determine whether the
punishment is “so disproportionate to the crime for which it is
inflicted that it shocks the conscience and offends fundamental
notions of human dignity.” (Id. at p. 424.)
For the reasons already summarized, this is not the rare
case where the sentence is so disproportionately harsh as to
shock the conscience or to offend fundamental notions of human
dignity. (See People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631.)
Defendant’s “comparison of [his] ‘punishment for his current
crimes with the punishment for other crimes in California is
inapposite since it is his recidivism in combination with his
current crime[ ] that places him under the three strikes law.’”
(People v. Sullivan (2007) 151 Cal.App.4th 524, 571.) And
defendant’s argument that the recidivist statutes in other

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jurisdictions demonstrate California’s Three Strikes law is
constitutionally cruel or unusual is unavailing. (Id. at pp. 572-
573; Martinez, supra, 71 Cal.App.4th at p. 1516; People v. Cline
(1998) 60 Cal.App.4th 1327, 1338.)
H. Remand is Appropriate Under Senate Bill 1393
When the trial court resentenced defendant, imposition of a
section 667, subdivision (a)(1) five-year enhancement for
sustaining a prior serious felony conviction was mandatory.
(Former § 1385, subd. (b) [“This section does not authorize a
judge to strike any prior conviction of a serious felony for
purposes of enhancement of a sentence under Section 667”].)
However, legislation that took effect on January 1, 2019, deleted
the provision of section 1385 that made the imposition of the
enhancement mandatory (along with related language in section
667 itself), thereby permitting trial courts to strike such
enhancements when found to be in the interest of justice. (Sen.
Bill No. 1393 (2017-2018 Reg. Sess.) §§ 1, 2.)
Defendant contends Senate Bill 1393 should apply
retroactively to his case under In re Estrada (1965) 63 Cal.2d
740. The Attorney General agrees. Both parties further agree a
remand to the trial court is appropriate so that the trial court
may have the opportunity to consider striking one or both of the
prior serious felony conviction enhancements it imposed as then
required by law. We concur and accept the Attorney General’s
concession. Remand is appropriate because the record provides
no clear indication the trial court would decline to exercise the
recently conferred discretion to reduce defendant’s sentence.
(Compare People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)

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I. Pretrial Mental Health Diversion
Effective June 27, 2018, the Legislature created a pretrial
diversion program for defendants who “suffer[] from a mental
disorder as identified in the most recent edition of the Diagnostic
and Statistical Manual of Mental Disorders, including, but not
limited to, bipolar disorder, schizophrenia, schizoaffective
disorder, or post-traumatic stress disorder . . . .” (§ 1001.36,
subd. (a).) “One of the stated purposes of the legislation [is] to
promote ‘[i]ncreased diversion of individuals with mental
disorders . . . while protecting public safety.’ (§ 1001.35, subd.
(a).)” (People v. Frahs (2018) 27 Cal.App.5th 784, 789 (Frahs)
review granted Dec. 27, 2018, S252220.) Section 1001.36,
subdivision (c) defines “pretrial diversion” as “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).)
Section 1001.36, subdivision (a), provides that a court may
grant pretrial diversion if a defendant meets six requirements,
namely, if (1) the court is satisfied the defendant suffers from a
qualifying mental disorder, as defined by the statute; (2) the
court is satisfied “the defendant’s mental disorder was a
significant factor in the commission of the charged offense”; (3) a
qualified mental health expert opines “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 court is satisfied “the defendant will not
pose an unreasonable risk of danger to public safety . . . if treated
in the community.” (§ 1001.36, subd. (b).)

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Defendant contends section 1001.36 should apply
retroactively and his case should be remanded so he can
demonstrate he is eligible for diversion under section 1001.36.
The Attorney General contends section 1001.36 should not apply
retroactively and further contends that even if it does, defendant
is ineligible for relief because he has not carried his burden to
demonstrate he is eligible.
Our Supreme Court has granted review in Frahs to decide
whether section 1001.36 applies retroactively. Because our
Supreme Court will soon have the final word, we will keep our
discussion brief. We agree with the outcome in Frahs, and as in
Frahs, defendant’s case is not yet final on appeal and the record
affirmatively discloses he appears to meet at least one of section
1001.36’s threshold eligibility requirements. We will therefore
order a narrow conditional reversal to permit the trial court to
determine whether defendant should benefit from diversion
under section 1001.36.15 (Frahs, supra, 27 Cal.App.5th at p. 791.)
15 The Attorney General argues defendant’s diagnosis of
“chronic depression” does not qualify for diversion because the
DSM-V does not specifically identify chronic depression as a
depressive order and the psychiatric report submitted prior to
sentencing does not sufficiently link defendant’s diagnosis to the
commission of the crime. Though the trial court may ultimately
agree with the Attorney General on these points, the evidence is
sufficient to warrant a remand. The trial court should make the
determination of whether there is a qualifying mental disorder
that contributed to the crime in the first instance, potentially
after receiving additional evidence. (§ 1001.36, subd. (b)(1)(B)
[stating court must be satisfied the defendant’s mental disorder
was a significant factor in the commission of the charged offense
“after reviewing any relevant and credible evidence”].)

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DISPOSITION
The judgment is conditionally reversed. The cause is
remanded to the trial court with directions to conduct a diversion
eligibility hearing under section 1001.36 and to consider whether
it wishes to exercise its discretion under the changes in law
worked by Senate Bill 1393. We express no view on whether such
discretion should be exercised.
If the trial court determines defendant is not eligible for
diversion, then the court shall reinstate the judgment, with any
modifications required as a result of any decision to exercise
Senate Bill 1393 discretion.
If the trial court determines defendant is eligible for
diversion but, in exercising its discretion pursuant to section
1001.36, subdivision (b)(1)(F), further determines diversion is not
appropriate under the circumstances, the court shall reinstate
The Attorney General additionally argues defendant cannot
show he does not pose an unreasonable risk of danger to public
safety, relying in significant part on the trial court’s decision to
deny defendant’s Romero motion. The inquiry before a trial court
on a Romero motion is whether a “defendant may be deemed
outside the [Three Strikes] scheme’s spirit,” (Carmony, supra, 33
Cal.4th at p. 377), not whether the defendant would pose an
unreasonable risk of danger to public safety (§ 1001.36, subd.
(b)(1)(F)). While the trial court may ultimately determine
defendant does pose such a danger, neither its decision to deny
his Romero motion, nor our conclusion that it did not abuse its
discretion in doing so, demonstrate defendant cannot show he
would not pose an unreasonable risk of danger.

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the judgment, with any modifications required as a result of any
decision to exercise Senate Bill 1393 discretion.
If the trial court determines defendant is eligible for
diversion and, in exercising its discretion, the court further
determines diversion is appropriate under the circumstances,
then the court may grant diversion. If defendant successfully
completes diversion, the court shall dismiss the charges in
accordance with section 1001.36, subdivision (e). If defendant
does not successfully complete diversion, the trial court shall
reinstate the judgment, again, with any modifications required as
a result of any decision to exercise Senate Bill 1393 discretion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.

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