P. v. Young

Filed 6/26/19 P. v. Young 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.
BARRICK YOUNG,
Defendant and Appellant.
B291756
(Los Angeles County
Super. Ct. No. YA097437)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Hector M. Guzman, Judge. Affirmed and
remanded with directions.
Robert F. Somers, 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, Assistant
Attorney General, Kenneth C. Byrne and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________

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INTRODUCTION
Defendant and appellant Barrick Young was convicted of
first degree burglary. He was sentenced to eight years for the
burglary, plus 10 years for two prior serious felony convictions.
After Young was convicted, the Legislature enacted Penal
Code section 1001.36,1 which created a pretrial diversion
program for defendants with mental disorders. While Young’s
case was pending on appeal, the Legislature also enacted
amendments to sections 1385 and 667, subdivision (a), which
gave trial courts discretion to dismiss sentencing enhancements
for prior serious felony convictions.
At the time of Young’s conviction, pretrial diversion for
mental health treatment was not available, and trial courts had
no authority to strike five-year enhancements for serious felony
convictions. We reject Young’s contention that section 1001.36
applies retroactively to his case but we agree sections 1385 and
667, subdivision (a) retroactively apply. Accordingly, we affirm
his conviction but we remand with directions to the trial court to
conduct a sentencing hearing at which it shall consider whether
to strike either or both prior serious felony enhancements.
FACTUAL AND PROCEDURAL BACKGROUND
On December 27, 2017 at approximately 12:15 a.m.,
Los Angeles County Sheriff’s Deputy Raymond Zavala was
dispatched to a residence to investigate a report of a prowler on
private property. After he arrived, Zavala approached the
detached garage and observed that the area around the door lock
was broken and the door frame was cracked. Zavala also
observed a shoe print on the door. Zavala entered the garage and
1 All further statutory references are to the Penal Code.

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saw Young going through some boxes. After Zavala ordered
Young to show his hands, Young took a glass pipe out of his front
shirt pocket, placed it on a box in front of him, and then put up
his hands. Young also had batteries, a lighter, and a charger in
his other hand.
According to victim Walter White, neatly stored items in
his garage had been strewn about the area by Young. White was
the only person with access to the garage, and he did not give
Young permission to enter. White testified the lighter, batteries,
and charger did not belong to him.
Young testified he had been homeless for five months and,
in the days leading up to December 27, he had been up for several
days smoking methamphetamine. Young stated he entered the
garage not to steal anything, but to sleep. He testified the items
in the garage were strewn about because he was trying to hide
his methamphetamine pipe. The batteries, charger, and lighter
belonged to him. Young testified he sometimes heard voices, for
which he was taking medication.
On May 16, 2018, after a bench trial, Young was convicted
of one count of first degree burglary. (§ 459.) The court also
found Young suffered two prior serious felony convictions
(§ 667, subd. (a)(1)) and two strikes under the Three Strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court also
found Young served five prior prison terms (§ 667.5, subd. (b)).
Sentencing was conducted on July 25, 2018. The court
granted Young’s Romero2 motion as to one of the two strike
priors. The court sentenced Young to an aggregate term of 18
years in prison, consisting of the middle term of four years for the
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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burglary, doubled due to the prior strike, plus two five-year
enhancements for two prior serious felony convictions. The court
struck the five enhancements for Young’s five one-year prior
prison terms.
Young timely appealed.
DISCUSSION
I. Mental Health Diversion Is Not Retroactive
Section 1001.36 authorizes pretrial diversion for defendants
with qualifying mental disorders such as schizophrenia, bipolar
disorder, and posttraumatic stress disorder. “ ‘[P]retrial diversion’
means the postponement of prosecution, either temporarily or
permanently, at any point in the judicial process from the point at
which the accused is charged until adjudication, to allow the
defendant to undergo mental health treatment.” (§ 1001.36,
subd. (c).)
A trial court may grant pretrial diversion under section
1001.36 if the court finds: (1) defendant suffers from a qualifying
mental disorder; (2) the mental disorder played a significant role
in the commission of the charged offense; (3) a qualified mental
health expert must opine that defendant’s symptoms will respond
to treatment; (4) defendant consents to diversion and waives his
or her speedy trial rights; (5) defendant agrees to comply with the
treatment as a condition of diversion; and (6) defendant will not
pose an unreasonable risk of danger to public safety, as defined
in section 1170.18, if he is treated in the community. (§ 1001.36,
subds. (b)(1)(A)–(F).) Pretrial diversion is not available to
defendants charged with murder, voluntary manslaughter,
certain enumerated sex offenses, and certain offenses involving
the use of weapons of mass destruction. (§ 1001.36, subds.
(b)(2)(A)–(H).)

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If the trial court grants pretrial diversion and the
defendant performs “satisfactorily in diversion, at the end of the
period of diversion, the court shall dismiss the defendant’s
criminal charges that were the subject of the criminal
proceedings at the time of the initial diversion.” (§ 1001.36, subd.
(e).)
Here, the record reflects Young has a history of mental
health issues, including episodes of auditory hallucinations.
Young testified he took medication to treat the auditory
hallucinations and the probation report submitted to the court
reflects Young previously received mental health treatment from
the California Department of Corrections and Rehabilitation.
Additionally, Young was not charged with any of the disqualifying
offenses described above.
Young contends he should be considered for mental health
diversion under section 1001.36 because his case is not yet final
on appeal. He relies on the reasoning in People v. Frahs (2018)
27 Cal.App.5th 784 (Frahs), which held that section 1001.36
applies retroactively. More recently, the court in People v. Craine
(2019) 35 Cal.App.5th 744 (Craine), rejected the reasoning in
Frahs and held section 1001.36 does not apply retroactively to a
defendant who has been tried and sentenced. Our Supreme
Court has granted review of Frahs, and will have the final say on
the matter. (People v. Frahs, review granted Dec. 27, 2018,
S252220.) Except for expressing our agreement with the Craine
court’s careful and correct analysis, we have nothing to add. We
will follow Craine and reject Young’s contention.

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II. Discretionary Dismissal of The Five-Year
Enhancements Is Retroactive
While this case was pending on appeal, the Legislature
enacted amendments to sections 1385 and 667, subdivision (a)
giving trial courts discretion to dismiss punishment for prior
serious felony convictions. The amendments, which became
operative on January 1, 2019, are retroactive to cases not yet
final on appeal. (People v. Garcia (2018) 28 Cal.App.5th 961,
972.) A remand is required in such cases unless the record shows
it would not have exercised its discretion to lessen the sentence at
the time of sentencing. (People v. Johnson (2019) 32 Cal.App.5th
26, 69.)
The People acknowledge the amendments are retroactive to
Young’s case, but contend the case should not be remanded
because the court “clearly indicated” it would not have struck the
prior felony enhancements even if it had the discretion at the
time of sentencing. The crux of the People’s argument is that the
court did not exercise its discretion to impose the low term on the
burglary conviction, and only struck one of two of Young’s prior
strikes. The People also point to the court’s comment that there
was “no question” that a life term would be warranted in Young’s
case. We are not convinced.
With respect to the court’s comments, the People quote a
small portion of a fuller statement that, in proper context, reveals
the court was sympathetic to Young. The court began its
statement with a caveat that, “[i]f you look at Mr. Young’s record,
just the cold facts, in my mind there’s no question he warrants
the life term. He has a number of serious offenses in the past,
and once again, he faces another serious conviction.” The court
then explained that although some might be surprised the court

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only imposed a determinate 18-year sentence, “I have seen
Mr. Young in court. I’ve listened to him. He has always been
respectful at every court appearance. He has expressed remorse.”
The court commented it was “somewhat of a sad situation
because I honestly do feel he is trying, but he always seems to put
himself in a position where he’s back in court facing significant
time . . . [¶] . . . the other reasons why I showed mercy, is that
there are these stretches of time where [Mr. Young] doesn’t seem
to be getting himself in any serious trouble, but he always seems
to be somewhat on the edge of falling off and back into trouble.”
The court also observed that Mr. Young’s crimes had decreased in
severity since “the very beginning,” when he used a weapon and
was involved in some serious and violent offenses. The court
stated it was impressed with Mr. Young’s humility, respect for
the court, and desire to change. In other words, the court made
clear that while on paper Mr. Young’s criminal history could
justify a more severe sentence, the court believed mercy and
leniency were warranted based on a closer analysis of Mr.
Young’s record and due consideration of his more positive
attributes. We therefore cannot definitively conclude the court
would not have fashioned a more lenient sentence, or perhaps
have structured the sentence in a different way to maximize
parole consideration, if it had had the discretion to do so.
In any event, it is undisputed that the court had no
discretion at the time of Young’s sentencing and was compelled to
impose two five-year enhancements for two prior serious felony
convictions. Neither did the People nor Mr. Young’s trial counsel
have an opportunity to present arguments related to the
amended provisions. Accordingly, Mr. Young and his counsel did
not have a “ ‘full and fair opportunity to marshal and present the

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evidence supporting a favorable exercise of discretion.’ ”
(People v. Rocha (2019) 32 Cal.App.5th 352, 358, citing People v.
Rodriguez (1996) 17 Cal.4th 253, 258.) Thus, we will remand the
case for the trial court to conduct a new sentencing hearing to
determine whether to exercise its discretion to strike Young’s
prior felony enhancements.
DISPOSITION
The case is remanded for the trial court to conduct a new
sentencing hearing to consider whether to exercise its newly
authorized discretion under amended sections 1385 and 667,
subdivision (a), to dismiss the prior serious felony enhancements.
In all other respects, the judgment is affirmed.
BIGELOW, P. J.
I concur:
GRIMES, J.

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People v. Young
B291756
STRATTON, J., concurring in part and dissenting in part:
I dissent only from the majority’s holding that section
1001.36 does not apply retroactively. I would adopt the view of
People v. Frahs (2018) 27 Cal.App.5th 784, review granted, People
v. Frahs (December 27, 2018, S252220) and hold that section
1001.36 applies retroactively to all judgments not yet final on
appeal.
STRATTON, J.

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