P. v. Reddick

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Filed 3/6/20 P. v. Reddick CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent,
v.
ANTONIO WAYNE REDDICK,
Defendant and Appellant.
C086057
(Super. Ct. No. 13F07409)
Defendant Antonio Wayne Reddick side-swiped a van stopped at a Sacramento
intersection waiting for the traffic signal to change. Rather than exchange information
with the van’s driver, defendant took off, running two red lights before crashing into
another car entering another intersection. The broadside collision claimed the lives of
defendant’s two passengers and caused serious injury to the driver of the other car.
Following a jury trial, defendant was convicted of two counts of gross vehicular
manslaughter while intoxicated, one count of driving under the influence of alcohol
and/or drugs causing injury, one misdemeanor count of hit and run with damage to

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property, and one misdemeanor count of driving without a valid driver’s license. The
trial court sentenced defendant to a lengthy third strike sentence.
Defendant appeals, challenging the denial of a pretrial motion to suppress
warrantless blood draw evidence, the sufficiency of the evidence of driving under the
influence, and the denial of a motion for discovery under Pitchess v. Superior Court
(1974) 11 Cal.3d 531 (Pitchess). Defendant also challenges his sentence as cruel and
unusual, and argues the trial court erred in calculating custody credits. Defendant
additionally argues remand is necessary to allow the trial court to exercise its newly
granted discretion under Senate Bill No. 1393 to strike a prior serious felony conviction
enhancement under Penal Code section 667, subdivision (a),1 consider whether defendant
would benefit from mental health diversion under section 1001.36, and determine
defendant’s ability to pay fines and assessments pursuant to People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas).
We conditionally reverse the judgment and remand for the trial court to conduct a
mental health eligibility hearing and exercise its discretion whether to strike the prior
serious felony conviction enhancement pursuant to section 667, subdivision (a).
Additionally, though neither party raises the issue, we have identified a sentencing error
in the oral pronouncement of judgment; namely, that the trial court improperly severed a
great bodily injury enhancement from the count (driving under the influence of alcohol
and/or drugs causing injury) to which it was attached. Accordingly, we shall also remand
for resentencing on the great bodily injury enhancement. In all other respects, we affirm.
1 Undesignated statutory references are to the Penal Code.

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I. BACKGROUND
A. The Accident
A.P. was waiting for a traffic signal at the intersection of Madison and Date
Avenues on November 4, 2013, at 10:50 p.m. As she waited for the light to change, a red
Neon struck the side of her van while attempting to squeeze between lanes of traffic. The
Neon ran the red light and drove down Madison Avenue. A.P. followed in an attempt to
obtain the Neon’s license plate number.
The Neon turned right onto Auburn Boulevard and pulled over to the side of the
road. A.P. pulled in behind, and the Neon took off at high speed. A.P. watched as the
Neon ran another red light and slammed into a blue Camry entering the intersection on a
green light from the Interstate 80 off-ramp. The Camry went into a ditch. The Neon,
which was either smoking or aflame, crashed into a tree.
Paramedics and police officers arrived at the scene and found defendant in the
Neon’s driver’s seat. A woman, later identified as Cherion Robinson, was unresponsive
in the front passenger seat. A man, later identified as Gregory Hunt, was lying on the
grass nearby, having been helped from the backseat by good Samaritans concerned about
the smoking vehicle. Robinson was pronounced dead at the scene. Hunt died as a result
of injuries sustained in the crash several days later. The driver of the Camry suffered five
broken ribs, a punctured lung, and a dislocated shoulder.
Defendant was extricated from the Neon and placed on a backboard with a
cervical collar. Paramedic Joshua Thompson observed that defendant was alert and
oriented, but combative. He noted that defendant was trying to rip off his cervical collar
and resisting attempts to administer an IV. Thompson wrote, “positive ETOH” in his
patient care report, meaning positive for alcohol. During the trial, Thompson testified he
would have made such a notation in response to either an admission or an odor of
alcohol.

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Defendant was transported to Mercy San Juan Hospital. Officer John Tennis of
the Sacramento Police Department made contact with defendant in the trauma room.
When Tennis arrived, defendant was strapped to a gurney, yelling, and attempting to kick
medical personnel who were trying to help him. Defendant was so combative that Dr.
David Beffa, the attending trauma surgeon, was unable to assess him. However, Dr.
Beffa observed that defendant’s speech was slurred. Dr. Beffa later explained that
defendant’s combativeness and slurred speech could have been a reaction to
polysubstance abuse. Dr. Beffa ordered sedation to calm defendant down.
Defendant was briefly sedated. When he awoke, he began kicking with such force
that Officer Tennis found it necessary to climb on top of the gurney to restrain his legs.
Dr. Beffa then gave an order to intubate him, a measure Dr. Beffa would later describe as
a “last resort” for patients so combative that medical personnel would otherwise not be
able to care for them.
Dr. Beffa examined defendant, who was now unconscious, and determined that he
needed surgery for a fractured ankle with exposed bone. A CAT scan showed no
evidence of any trauma to defendant’s brain.
Defendant’s blood was drawn at 12:29 a.m., while he was under sedation. A
toxicology screening test conducted at the hospital was positive for alcohol, THC, and
methamphetamine. Defendant’s blood was later tested by the Sacramento County
District Attorney’s Office. The tests showed that defendant’s blood alcohol level was .09
percent. Defendant’s blood also contained Delta-nine THC, the active ingredient in
marijuana, at a concentration of 8.9 nanograms per milliliter, and less than .05 milligrams
per liter of methamphetamine.
B. The Charges and Trial
Defendant was charged in a fourth amended information with two counts of gross
vehicular manslaughter while intoxicated (§ 191.5, subd. (a)—counts 1 and 2), one count
of driving under the influence of alcohol and/or drugs causing injury (former Veh. Code,

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§ 23153, subd. (a)—count 3), one count of driving with a blood alcohol level greater than
0.08 percent causing injury (Veh. Code, § 23143, subd. (b)—count 4), one count of
misdemeanor hit and run with damage to property (Veh. Code, § 20002, subd. (a)—count
5), and the infraction of driving without a valid driver’s license (Veh. Code, § 12500,
subd. (a)—count 6). As to counts 3 and 4, the information alleged that defendant
personally inflicted great bodily injury on the driver of the Camry. (§§ 12022.7, subd. (a)
& 1192.7, subd. (c)(8).) The information further alleged that defendant had suffered a
prior serious felony conviction (§ 667, subd. (a)), and two prior strike convictions. (§§
667, subd. (e)(2) & 1170.12, subd. (e)(2)). Defendant pled not guilty and denied the
enhancement allegations.
The matter was tried to a jury in May 2017. The central issue at trial was whether
defendant was under the influence of alcohol and/or drugs at the time of the collision. In
addition to the evidence described above, the prosecution relied on expert testimony
concerning the effects of alcohol and marijuana on the ability to operate a motor vehicle.
Criminalist Chris Fogelberg testified as an expert in forensic alcohol analysis and
the effects of alcohol on a person’s ability to operate a motor vehicle. Fogelberg opined
that a man of defendant’s height and weight with a blood alcohol level of .09 percent
would be too impaired to drive safely. However, Fogelberg acknowledged on cross-
examination that, in order to extrapolate that person’s blood alcohol level at 10:55 p.m.
(the time of the collision) from his blood alcohol level at 12:29 a.m. (the time of the
blood draw), he would have to assume that the alcohol was fully absorbed in the person’s
blood stream at the time of the collision. And, Fogelberg allowed, there was no way to
know whether alcohol was fully absorbed without knowing that person’s drinking
pattern, which Fogelberg had not been asked to consider.
Criminalist Craig Triebold testified as an expert in forensic alcohol analysis,
forensic toxicology, and the effects of alcohol and drugs on a person’s ability to operate a
motor vehicle. Triebold analyzed defendant’s blood sample and opined that defendant

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was a habitual user of marijuana, who probably ingested the drug within four to six hours
of the time the sample was collected. Triebold was unable to draw any conclusions as to
when defendant might have ingested methamphetamine, but noted that a concentration of
less than .05 milligrams per liter is “fairly low.”
Triebold explained that marijuana use may cause altered judgment and perception,
slowed reaction times, and problems with information processing and multitasking, all of
which can negatively affect a person’s ability to drive safely. However, Triebold
acknowledged that he could not draw definitive conclusions about a person’s ability to
drive from THC concentrations in the blood. Unlike alcohol, Triebold said, there is no
linear correlation between blood concentration of THC and degree of impairment, and
consequently, no consensus has emerged as to a concentration above which a person may
be presumed impaired. (Cf. Veh. Code, § 23610.)
When asked how the combination of marijuana and alcohol would affect a
person’s ability to safely operate a motor vehicle, Triebold responded, “I would say,
based on my training and experience, a person with a .09 percent blood alcohol
concentration, that alone I would expect to impair their driving, such that I don’t believe
they would be safe to operate a vehicle. There’s a lot of research on the combination of
alcohol and marijuana use in particular, that fairly consistently has shown that that
combination is particularly troublesome; that even low alcohol concentrations combined
with marijuana use, when put together, can cause a much greater magnitude of
impairment that more closely resembles a much higher alcohol concentration.” “So,
again,” Triebold added, “the .09 blood alcohol on its own, I would say this person would
be impaired for driving. Certainly, in combination with marijuana use, I would say that
would further solidify that opinion.” Given a hypothetical based on the facts of the case,
Triebold opined that a person with a blood alcohol level of 0.09 percent, who had also
consumed marijuana, would be impaired for the purposes of driving.

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C. The Verdict and Sentence
The jury reached a verdict after one day of deliberation. As indicated above, the
jury found defendant guilty of two counts of gross vehicular manslaughter while
intoxicated, one count of driving under the influence of alcohol and/or drugs causing
injury, one count of misdemeanor hit and run with damage to property, and one
misdemeanor count of driving without a valid driver’s license. The jury was unable to
reach a verdict on count 4, driving with a blood alcohol level greater than .08 percent
causing injury, and the trial court declared a mistrial on that count. With respect to count
3, the jury found true the allegation that defendant personally inflicted great bodily injury
on the driver of the Camry. In a bifurcated trial, the jury also found true defendant’s
prior serious felony conviction and two prior strike convictions.
Defendant appeared for sentencing on December 1, 2017. Prior to sentencing,
defendant filed a motion to strike one of the prior strike convictions pursuant to section
1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).2 The trial
court denied the motion, stating, inter alia, “I see from his history and the conduct in this
case a recklessness in [defendant] and inability to control his conduct, which causes me
to believe that he poses a danger to the community.” The trial court continued, “I will
also note that he has failed to successfully complete probation and parole in the past, so
that the leniency of having been placed on supervision and past incarcerations seems to
have done little to impress upon [defendant] the need to change his ways.” The trial
court concluded, “Further, the defense has provided me with no additional information
concerning the defendant, his life, what he does, job training he may have undertaken,
substance abuse treatment he may have completed or anything else in mitigation that
might [allay] the [c]ourt’s concerns that he constitutes a danger.” Accordingly, the trial
2 Defendant also filed a motion regarding the “strike status” of counts 1 and 2, which is
not relevant to any issue on appeal.

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court concluded that defendant’s criminal history placed him within the spirit of the
Three Strikes law.
The trial court then considered the sentencing objectives set forth in California
Rule of Court, rule 4.410, stating, “Among the factors I find most compelling is
protecting society, punishing the defendant, deterring the defendant and others from
criminal conduct by demonstrating consequences, and preventing the defendant from
committing new crimes by isolating him for a period of incarceration.” The trial court
found that, “the crimes in this case involve a high degree of callousness, that the
defendant has engaged in violent conduct indicating that he constitutes a danger to
society, that he was on parole when he committed these offenses, that he has served
several prior prison terms, and that his prior convictions as an adult and sustained
petitions as [a] juvenile are numerous.” Although the trial court found that defendant was
remorseful, and enjoyed some degree of community support, the court stated, “I fear,
however, that the support seems to not have helped him much in the past, and my concern
remains that he does constitute a danger.” Accordingly, the trial court selected a midterm
sentence of six years for count 1, doubled for the strike, with a consecutive one-third the
midterm of two years, doubled, for count 2, resulting in a total sentence of 16 years for
counts 1 and 2, before enhancements. The trial court then sentenced defendant to an
indeterminate sentence of 25 years to life for count 3. Although the great bodily injury
enhancement was attached to count 3, the trial court added three years for the great bodily
injury enhancement to the sentence for counts 1 and 2, together with five years for the
prior serious felony enhancement, resulting in a purported “aggregate determinate
sentence of 24 years, followed by an indeterminate sentence of 25 years to life.” The trial
court imposed various fines, fees, and assessments (described below), without objection.
This appeal timely followed.

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II. DISCUSSION
A. Motion to Suppress
Prior to trial, defendant brought a motion to suppress his blood test results, arguing
they were the result of an illegal search and seizure. The trial court conducted an
evidentiary hearing (described below) and denied the motion, finding that exigent
circumstances justified the warrantless blood draw. Defendant argues the trial court’s
ruling was erroneous because the prosecution failed to establish exigent circumstances.
We disagree.
1. Additional Background
The hearing on the motion to suppress centered around the testimony of Officer
Tennis, who ordered the blood draw.3 Tennis contacted defendant in the trauma room.
Upon arriving, he observed that defendant was not cooperating with medical personnel,
but was instead “yelling and kind of flailing about.” Although defendant’s arms were
strapped to a gurney, Tennis recalled that he was still trying to move them. Defendant
was also kicking.
Defendant was briefly sedated. When he awoke, Tennis said, “he got more upset.”
Tennis recalled that defendant struggled so violently that he climbed on top of the gurney
to hold his legs down. Defendant was then given another round of sedation, which
rendered him unconscious.
Tennis learned that defendant was on parole. He also learned that defendant was
being readied for surgery for trauma to the right ankle and possible internal bleeding. He
became concerned that he would soon lose the opportunity to obtain “a noncontaminated
3 The prosecution also relied on the testimony of Officer Michael Macias of the
California Highway Patrol and Officer Paul Fong of the Sacramento Police Department,
both of whom testified that they responded to the scene of the accident and observed
defendant being uncooperative or combative with first responders.

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felony blood sample.” Accordingly, Tennis asked a member of the hospital’s staff, who
was already drawing blood for diagnostic purposes, to draw two additional vials for use
in his investigation. Tennis later learned that the hospital’s toxicology report showed that
defendant had unspecified amounts of alcohol, THC, and methamphetamine in his blood
stream. Tennis was not aware of the results of defendant’s toxicology screen at the time
of the blood draw.
Following argument, the trial court denied the motion. The trial court assumed
without deciding that defendant’s status as a known parolee would not justify a
warrantless blood draw.4 The trial court acknowledged the absence of evidence of
objective signs of alcohol intoxication, but emphasized the seriousness of the accident,
noting that defendant’s car was wrapped around a tree, and one passenger (Robinson)
was already dead, and another (Hunt) was in serious distress at the time of the blood
draw. As for defendant, the trial court continued, he “was in medical stress and behaving
in a way that could be the result of pain, could be the result of substances, could be the
result of both.” Under the circumstances, the trial court concluded, “there’s at least
reasonable suspicion that substances might be involved in the mix here, and I think the
indication that a surgery was imminent and the defendant was being prepped for surgery
is a sufficient exigent circumstance under these circumstances to justify the taking of the
sample without trying to obtain a warrant.”
2. Analysis
The Fourth Amendment guarantees the right to be free from unreasonable searches
and seizures. (U.S. Const., 4th Amend.) Blood draws are searches under the Fourth
Amendment. (Schmerber v. California (1966) 384 U.S. 757, 767 (Schmerber); People v.
Meza (2018) 23 Cal.App.5th 604, 610 (Meza).)
4 We have not been provided with any information about defendant’s parole conditions.

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Warrantless searches are per se unreasonable, subject only to a few “ ‘specifically
established and well-delineated exceptions.’ ” (People v. Woods (1999) 21 Cal.4th 668,
674.) One such exception arises when exigent circumstances require prompt official
action. (Birchfield v. North Dakota (2016) 579 U.S. __, [136 S.Ct. 2160, 2173, 195 L.Ed.
560] (Birchfield) [“The exigent circumstances exception allows a warrantless search
when an emergency leaves police insufficient time to seek a warrant”]; see also Missouri
v. McNeely (2013) 569 U.S. 141, 149 (McNeely) [the exception arises when exigent
circumstances create a “ ‘compelling need for official action and no time to secure a
warrant’ ”].) For example, the exigent circumstances exception permits the warrantless
entry onto private property when there is an urgent need to provide aid to those inside,
when police are in hot pursuit of a fleeing suspect, and when police fear the imminent
destruction of evidence. (Kentucky v. King (2011) 563 U.S. 452, 460.)
When a defendant files a motion to suppress evidence seized in a warrantless
search, “the prosecution bears the burden to prove police conducted the search under a
valid exception to the Fourth Amendment’s warrant requirement.” (People v. Espino
(2016) 247 Cal.App.4th 746, 756.) On appeal from the denial of a motion to suppress,
we defer to the trial court’s express or implied factual findings if supported by substantial
evidence, but independently apply constitutional principles to the trial court’s factual
findings in determining the legality of the search. (People v. Redd (2010) 48 Cal.4th 691,
719.) Here, the underlying facts are not in dispute. Therefore, we need only inquire
whether the facts establish exigent circumstances excusing the absence of a warrant.
The U.S. Supreme Court has considered the extent to which drunk driving may
present an exigent circumstance justifying a nonconsensual warrantless blood draw in
several cases. In Schmerber, the defendant was hospitalized following an automobile
accident. (Schmerber, supra, 384 U.S. at pp. 758-759.) A police officer noticed signs of
intoxication, both at the scene of the accident and later at the hospital. (Id. at pp. 768-
769.) The officer ordered a blood draw to measure the defendant’s blood alcohol content.

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(Id. at pp. 758-759.) The defendant challenged the blood test as an unreasonable search
under the Fourth Amendment. (Ibid.) The court cautioned that search warrants are
“ordinarily required . . . where intrusions into the human body are concerned.” (Id. at p.
770.) Nevertheless, the court concluded that, under the “special facts” of that case, where
time had already been lost taking the defendant to the hospital and investigating the
accident, the officer “might reasonably have believed that he was confronted with an
emergency” that left no time to seek a warrant because “the percentage of alcohol in the
blood begins to diminish shortly after drinking stops.” (Id. at pp. 770; see id. at pp. 771-
772.) Accordingly, the court found no Fourth Amendment violation. (Id. at p. 772.)
Decades later, in McNeely, the high court clarified that the natural dissipation of
alcohol from the bloodstream does not constitute a per se exigency justifying warrantless,
nonconsensual blood draws in drunk driving cases. (McNeely, supra, 569 U.S. at p. 156.)
There, a police officer stopped the defendant for a traffic violation and observed several
signs of intoxication. (Id. at p. 145.) The defendant performed poorly on field sobriety
tests and refused to provide a breath sample. (Ibid.) The officer took the defendant to the
hospital, where he refused a blood test. (Id. at p. 146.) The officer then directed a
technician to take a blood sample over the defendant’s objection, without trying to obtain
a warrant. (Ibid.) The defendant successfully moved to suppress the results of the blood
test, and the Supreme Court affirmed, holding that the natural dissipation of alcohol in the
blood stream is not a per se exigency justifying warrantless blood draws in every drunk
driving case. (Id. at p. 165.)
The court explained that the natural dissipation of alcohol in the blood is one
circumstance to consider when evaluating exigency, but there may be other
circumstances showing the warrant process would not cause a significant delay in the
performance of the blood test, and when “officers can reasonably obtain a warrant before
a blood sample can be drawn without significantly undermining the efficacy of the
search, the Fourth Amendment mandates that they do so.” (McNeely, supra, 569 U.S. at

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p. 152.) For example, the circumstances might show that more than one officer was on
hand, such that one officer could take steps to secure a warrant while another transports
the suspect to a medical facility. (Id. at p. 153.) Similarly, the circumstances could show
that electronic communications and streamlined procedures are available to process
warrant applications for drunk-driving investigations quickly. (Id. at pp. 154-155.)
At the same time, the court acknowledged that warrant applications “inevitably
take some time,” and “improvements in communications technology do not guarantee
that a magistrate judge will be available when an officer needs a warrant after making a
late-night arrest.” (McNeely, supra, 569 U.S. at p. 155.) The court also recognized that
“a significant delay in testing will negatively affect the probative value” of a blood test.
(Id. at p. 152.) The court explained: “While experts can work backwards from the
[blood alcohol content] at the time the sample was taken to determine the [blood alcohol
content] at the time of the alleged offense, longer intervals may raise questions about the
accuracy of the calculation. For that reason, exigent circumstances justifying a
warrantless blood sample may arise in the regular course of law enforcement due to
delays from the warrant application process.” (Id. at p. 156.) “In short,” the court
concluded, “while the natural dissipation of alcohol in the blood may support a finding of
exigency in a specific case, as it did in Schmerber, it does not do so categorically.
Whether a warrantless blood test of a drunk-driving suspect is reasonable must be
determined case by case based on the totality of the circumstances.” (Ibid.)
More recently still, the court considered the application of the exigent
circumstances exception to warrantless blood tests on unconscious persons believed to
have been driving under the influence. (Mitchell v. Wisconsin (2019) __ U.S. __ [139
S.Ct. 2525, 204 L.Ed. 2d 1040] (Mitchell).) There, the defendant was arrested for drunk
driving and transported to the police station. (Id. at p. 2532.) On the way, the defendant,
already too intoxicated for field sobriety tests, grew so lethargic that he was unable to
perform a breath test. (Ibid.) The officer drove the defendant to a nearby hospital for a

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blood test. (Ibid.) The defendant lost consciousness en route and remained unconscious
while the sample was taken. (Ibid.) A plurality of the court concluded the exigent
circumstances rule “almost always” permits a warrantless blood test of unconscious
drivers. (Id. at p. 2531.) The plurality explained: “exigency exists when (1) [blood
alcohol content] evidence is dissipating and (2) some other factor creates pressing health,
safety, or law enforcement needs that would take priority over a warrant application.”
(Id. at p. 2537.) In the plurality’s view, both factors are met when a drunk-driving
suspect is unconscious. (Ibid.) Accordingly, the plurality concluded: “When police have
probable cause to believe a person has committed a drunk-driving offense and the
driver’s unconsciousness or stupor requires him to be taken to the hospital or similar
facility before police have a reasonable opportunity to administer a standard evidentiary
breath test, they may almost always order a warrantless blood test to measure the driver’s
[blood alcohol content] without offending the Fourth Amendment.” (Id. at p. 2539.)
From these cases, we gather that exigent circumstances exist when the natural
dissipation of alcohol from a person’s bloodstream combines with “some other factor” to
create an urgent need for immediate action that makes obtaining a warrant impractical.
(Mitchell, supra, 139 S.Ct. at p. 2537; see McNeely, supra, 569 U.S. at p. 153.) We next
consider whether the natural dissipation of alcohol from defendant’s bloodstream,
combined with his imminent need for surgery, created an exigency in the circumstances
of this case.
“To determine whether a law enforcement officer faced an emergency that
justified acting without a warrant,” we look “to the totality of circumstances.” (McNeely,
supra, 569 U.S. at p. 149.) “ ‘ “ ‘There is no ready litmus test for determining whether
[exigent] circumstances exist, and in each case the claim of an extraordinary situation
must be measured by the facts known to the officers.’ ” ’ ” (People v. Ovieda (2019) 7
Cal.5th 1034, 1041; see also People v. Duncan (1986) 42 Cal.3d 91, 97-98 [“ ‘As a
general rule, the reasonableness of an officer’s conduct is dependent upon the existence

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of facts available to him at the moment of the search or seizure which would warrant a
man of reasonable caution in the belief that the action taken was appropriate’ ”].)
Here, Officer Tennis was aware that a serious accident had occurred, which left
one of defendant’s passengers dead and another seriously injured. When Tennis arrived
in the trauma room, defendant was “yelling and kind of flailing about,” raising a
reasonable inference he was under the influence of something. By the time of the blood
draw, the police investigation had already been delayed for more than an hour as
defendant was transported to the hospital and subdued. Officer Tennis was informed that
defendant would soon undergo emergency surgery for trauma to his ankle and possible
internal injuries, leading to further delays. It was then that Tennis decided to proceed
without a warrant. We cannot say that Tennis acted unreasonably in the totality of the
circumstances.
Defendant’s surgery could have taken hours, during which time the concentration
of alcohol in his bloodstream would continue to decline. (McNeely, supra, 469 U.S. at p.
152.) Surgery also raised the possibility that other substances might be introduced into
defendant’s bloodstream, such as intravenous fluids, analgesics, or blood transfusions.
Any of these things could have raised doubts about the reliability of the blood test.
Under the circumstances, Officer Tennis reasonably believed he needed to act quickly
lest vital evidence be lost.
Meza, on which defendant relies, does not compel a contrary conclusion. There,
the investigating officer spoke with the defendant at the scene of the accident, observed
objective signs of alcohol intoxication, and determined that he should be arrested for
driving under the influence. (Meza, supra, 23 Cal.App.5th at pp. 606-607.) The
defendant was then transported to the hospital in an ambulance, which the officer
followed. (Id. at p. 607.) At the hospital, the officer communicated with the family of
the defendant’s passenger, engaged in casual conversation with the defendant, and
occupied herself with paperwork. (Id. at pp. 611-612.) She then directed a phlebotomist

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to perform a warrantless blood draw. (Ibid.) She did not attempt to prepare a warrant
application or enlist assistance from another officer to do so. (Id. at p. 612.) Under the
circumstances, the court found that the prosecution failed to establish an exigency.
Here, though numerous officers responded to the scene of the accident, none
appears to have developed probable cause to suspect defendant of driving under the
influence until Officer Tennis arrived at the trauma room, alone, sometime later. Far
from suggesting that officers could have applied for a warrant, but failed to do so, the
record before us suggests that Tennis arrived at the trauma room by himself, participated
in an extraordinary effort to subdue defendant (giving rise to probable cause), and then
learned that defendant required immediate surgery, all in short order, in the middle of the
night. Unlike the investigating officer in Meza, Tennis had no probable cause for a
warrant before arriving at the hospital, and no opportunity to obtain one afterwards.
The present case more closely resembles People v. Toure (2015) 232 Cal.App.4th
1096, on which the People rely. There, the investigating officer responded to the scene of
the accident and contacted the defendant in the cab of his truck, which smelled of
alcohol. (Id. at p. 1100.) The defendant was angry and combative, both at the scene, and
later, at the California Highway Patrol station, where he was subjected to a
nonconsensual, warrantless blood draw. (Id. at pp. 1098, 1101.) The court found the
defendant’s combative behavior delayed the police investigation, prevented officers from
conducting field sobriety tests, or learning when he consumed his last drink, and
threatened the destruction of blood alcohol evidence. (Id. at pp. 1104-1105.) Based on
the totality of the circumstances, the court concluded: “The situation facing the officers
was not one in which the sole consideration was the natural dissipation of alcohol in the
blood as the sole basis for finding an exigency. Instead, the delays involved in obtaining
a warrant . . . , the unavailability of information relating to when defendant stopped
drinking, in addition to the natural dissipation of alcohol in the blood, coupled with his
violent resistance, established exigent circumstances.” (Id. at p. 1105.) Likewise, in the

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present case, defendant’s combative behavior and need for imminent surgery combined
with the natural dissipation of alcohol in his bloodstream established an exigency
justifying the warrantless blood draw. Indeed, the circumstances here were, if anything,
more exigent than those in Toure, where the investigating officer’s exigency calculation
did not include the suspect’s need for immediate medical intervention.
Given the totality of the circumstances, we conclude that exigent circumstances
justified the warrantless blood draw. In light of our conclusion, we deem it unnecessary
to reach the People’s argument that the blood draw was independently justified by
defendant’s status as a known parolee. (Cf. People v. Jones (2014) 231 Cal.App.4th
1257, 1265 [nonconsensual warrantless blood draw of a defendant subject to a search
condition under post-release community supervision does not offend the Fourth
Amendment].)
B. Sufficiency of the Evidence
Defendant next challenges the sufficiency of the evidence to support the
convictions for gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)—
counts 1 and 2), and driving under the influence of alcohol and/or drugs causing injury
(former Veh. Code, § 23153, subd. (a)—count 3). Defendant’s argument begins with the
observation that the jury was unable to reach a verdict on whether defendant drove with a
blood alcohol level greater than 0.08 percent causing injury (Veh. Code, § 23143, subd.
(b)—count 4). From this uncontroversial premise, defendant reasons that: (1) the guilty
verdicts on the other DUI counts must have been based on Triebold’s opinion testimony
regarding the combined effects of marijuana and alcohol, about which (2) no scientific
consensus has emerged, and therefore (3) the trial court should have excluded the
testimony under the Kelly/Frye rule (People v. Kelly (1976) 17 Cal.3d 24, 30; Frye v.
United States (D.C. Cir. 1923) 293 F. 1013, 1014) and/or Evidence Code sections 801
and 802. Having thus dispatched Triebold’s testimony, defendant concludes that no
substantial evidence supports the jury’s finding that he was under the influence.

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There are many problems with defendant’s argument. Among the most obvious,
defendant failed to object to Triebold’s opinion on any of the grounds asserted here. As a
result, defendant has forfeited any claim that Triebold’s opinion was erroneously
admitted. (Evid. Code, § 353, subd. (a); People v. Ochoa (1998) 19 Cal.4th 353, 414
[defendant’s failure to object to scientific evidence on Kelly/Frye grounds in the trial
court results in forfeiture of the argument on appeal]; People v. Garlinger (2016) 247
Cal.App.4th 1185, 1193 [defendant’s failure to object to expert testimony under
Kelly/Frye or Evidence Code §§ 801 and 802 forfeits challenges to admissibility on
appeal].) Having forfeited the argument that Triebold’s opinion was inadmissible,
defendant cannot challenge the admissibility of the same opinion under the guise of a
challenge to the sufficiency of the evidence. Because the admissibility of Triebold’s
opinion is, at this point, beyond question, we must take that opinion into account in
considering the sufficiency of the evidence. Doing so, we conclude substantial evidence
supports defendant’s convictions for driving under the influence.
“In reviewing the sufficiency of the evidence, we must determine ‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’
[Citation.] ‘[T]he court must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We ‘ “presume
in support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.” ’ ” (People v. Davis (1995) 10 Cal.4th 463, 509.) “Before the
judgment of the trial court can be set aside for the insufficiency of the evidence, it must
clearly appear that on no hypothesis whatever is there sufficient substantial evidence to
support the verdict of the jury.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.) This
is not such a case.

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Defendant challenges only the sufficiency of the evidence that he was under the
influence of alcohol or drugs at the time of the collision, an element common to his
convictions for gross vehicular manslaughter while intoxicated, and driving under the
influence of alcohol and/or drugs causing injury.5 “ ‘To be “under the influence” within
the meaning of the Vehicle Code, the liquor or liquor and drug(s) must have so far
affected the nervous system, the brain, or muscles as to impair to an appreciable degree
the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious
person in full possession of his faculties. [Citations.]’ ” (People v. McNeal (2009) 46
Cal.4th 1183, 1192-1193.) The prosecution may prove a defendant is “under the
influence” by circumstantial evidence (People v. Dingle (1922) 56 Cal.App. 445, 447-
5 Section 191.5, subdivision (a) provides in pertinent part: “Gross vehicular
manslaughter while intoxicated is the unlawful killing of a human being without malice
aforethought, in the driving of a vehicle, where the driving was in violation of Section . . .
23153 of the Vehicle Code, and the killing was either the proximate result of the
commission of an unlawful act, not amounting to a felony, and with gross negligence, or
the proximate result of the commission of a lawful act that might produce death, in an
unlawful manner, and with gross negligence.”
Former Vehicle Code section 23153, subdivision (a), in effect at the time of the charged
offenses, provided in pertinent part: “It is unlawful for any person, while under the
influence of any alcoholic beverage or drug, or under the combined influence of any
alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by
law, or neglect any duty imposed by law in driving the vehicle, which act or neglect
proximately causes bodily injury to any person other than the driver.”
The current version of Vehicle Code section 23153, which became effective on January
1, 2014 (Stats. 2012, ch. 753, § 5), sets forth the proscriptions against driving under the
influence of alcohol, driving under the influence of drugs, and driving under the
combined influence of drugs and alcohol in three separate subdivisions. (See Veh. Code,
§ 23153, subd. (a) [proscribing driving under the influence of alcohol], subd. (f)
[proscribing driving under the influence of any drug], & subd. (g) [proscribing driving
under the combined influence of drugs and alcohol].)

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449, superseded by statute on another point in People v. Weathington (1991) 231
Cal.App.3d 69, 80 [car zigzagged, defendant staggered, talked loudly, and smelled of
alcohol]) and evidence of intoxication tests. (2 Witkin & Epstein, Cal. Criminal Law (4th
ed. 2012) Crimes Against Public Peace and Welfare, § 276, p. 996.)
Here, there was ample evidence from which the jury could reasonably conclude
that defendant was under the influence of drugs or alcohol. A.P. testified that defendant
was driving erratically, slamming into the side of her van as he attempted to squeeze into
the turning lane, taking off at high speed, and running two red lights before causing the
fatal collision. Paramedic Thompson testified that defendant was combative at the scene
and resisted efforts to render medical assistance, leading Thompson to believe he was
“positive ETOH,” meaning positive for alcohol. Dr. Beffa testified that he examined
defendant in the trauma room, and noted that his speech was slurred. Dr. Beffa also
testified that defendant was so combative that he required two rounds of sedation, one by
way of intubation, and his toxicology screen was positive for alcohol, marijuana, and
methamphetamine.
Criminalist Fogelberg testified that defendant’s blood sample, taken some 94
minutes after the collision, showed a blood alcohol concentration of 0.09 percent, above
the level at which all persons are presumed impaired for purposes of driving. Although
Fogelberg could not estimate defendant’s blood alcohol concentration at the time of the
accident without assuming full absorption, for which there was no evidence, there was
also no evidence that defendant consumed alcohol in the period immediately following
the crash. Thus, even assuming the alcohol was not fully absorbed at the time of the
collision (an assumption that suggests a possible explanation for the jury’s verdict on
count 4), a reasonable jury could still infer that defendant was driving under the influence
of alcohol. And Triebold, for his part, testified without objection that the combination of
marijuana and alcohol intensifies the intoxicating effects of each, causing “a much
greater magnitude of impairment that more closely resembles a much higher alcohol

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concentration.” Thus, there was substantial evidence from which the jury could conclude
that defendant was driving under the influence of drugs and alcohol. (See People v.
Gallardo (1994) 22 Cal.App.4th 489, 493-494 [substantial evidence supported the
conclusion that defendant was driving under the influence where he “burned rubber”
upon leaving a parking lot late at night, ran clearly visible stop signs, collided with
another vehicle, admitted drinking two beers, and had a blood alcohol level of .03
percent].) We therefore reject defendant’s challenge to the sufficiency of the evidence.
C. Ineffective Assistance of Counsel
Anticipating our forfeiture determination, defendant argues his trial counsel was
ineffective for failing to object to Triebold’s testimony under the Kelly/Frye rule and/or
Evidence Code sections 801 and 802. We agree with the People, there was no ineffective
assistance of counsel.
To establish ineffective assistance of counsel under federal and California
constitutional standards, a defendant must, by a preponderance of the evidence, prove:
(1) his trial counsel’s representation was deficient because it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) the deficiency
resulted in prejudice to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687;
People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) The defendant must affirmatively
prove that, but for counsel’s errors, defendant had a reasonable probability of a better
outcome, where a “ ‘reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ ” (People v. Maury (2003) 30 Cal.4th 342, 389.)
If the record “fails to disclose why counsel acted or failed to act in the manner
challenged, we will affirm the judgment unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory explanation.”
(People v. Maury, supra, 30 Cal.4th at p. 389.) Here, the record is silent as to why trial
counsel failed to object to Triebold’s testimony, but we need not look far for a reasonable
explanation.

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In People v. Bui (2001) 86 Cal.App.4th 1187 (Bui), another panel of this court
concluded that the Kelly/Frye rule does not apply to expert testimony concerning the
effects of methamphetamine on driving ability, as such testimony does not involve a
novel process or new scientific technique or device. (Id. at pp. 1195-1196.) The Bui
court also considered—and rejected—a challenge to the admission of the same expert’s
testimony under Evidence Code section 801. (Bui, supra, at pp. 1196-1197.) The court
found no abuse of discretion in the admission of the testimony, noting the expert’s
opinion was based on “scientific literature, statistical data, and an epidemiological study,
all of which are the type of matter that reasonably may be relied on by an expert in
forming an opinion.” (Id. at p. 1196.) To the extent that the defendant disagreed with the
expert’s conclusions, the Bui court concluded, he was free to cast doubt on them via
cross-examination or rebuttal by a defense expert. (Id. at p. 1196.) Given our holding in
Bui, competent counsel could reasonably determine that any objection to Triebold’s
testimony under the Kelly/Frye rule or Evidence Code sections 801 and 802 would most
likely be overruled. Counsel does not render ineffective assistance by not making an
objection that he or she reasonably determines would be meritless or futile. (See People
v. Lucero (2000) 23 Cal.4th 692, 732.) Defendant has not established that his counsel
acted deficiently by failing to object to Triebold’s testimony. (Strickland v. Washington,
supra, 466 U.S. at pp. 687-689.)
D. Denial of Pitchess Motion
Defendant contends the trial court erred in denying his Pitchess motion to obtain
Officer Tennis’s personnel records without conducting an in camera hearing. (Evid.
Code, § 1043 et seq.) We review the trial court’s denial of a Pitchess motion for abuse of
discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; accord Riske v.
Superior Court (2016) 6 Cal.App.5th 647, 657.) We perceive no abuse of discretion
here.

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1. Additional Background
Following the denial of his motion to suppress, defendant filed a Pitchess motion
seeking discovery of Officer Tennis’s personnel records. The motion was accompanied
by a declaration from defense counsel asserting that Tennis obtained defendant’s blood
sample without a warrant or consent. The declaration averred that Tennis had been
involved in an officer-involved shooting in July 2016, nearly three years after the charged
offenses. The declaration further averred that Tennis used excessive force and falsified
evidence or testimony in connection with the shooting.
The trial court heard argument on the motion in March 2017. At the hearing,
defense counsel elaborated that the decision to order a warrantless blood draw was
analogous to the alleged use of excessive force in the officer-involved shooting.6
Defense counsel also argued that Officer Tennis’s police report regarding the shooting
was inconsistent with his testimony at the hearing on the motion to suppress, and
surmised that Tennis had been accounting for the events leading up to the officer-
involved shooting. The trial court denied the motion as “fishing.”
2. Analysis
Section 832.7, subdivision (a) provides that the personnel records of a police
officer are “confidential,” and “shall not be disclosed in any criminal or civil
proceeding,” except in compliance with Evidence Code sections 1043 and 1046.
Evidence Code section 1043, subdivision (a) requires a party seeking discovery of officer
personnel records to file a motion seeking the documents, with notice to the government
agency that has custody or control over them. The motion must include “[a]ffidavits
showing good cause for the discovery or disclosure sought, setting forth the materiality
thereof to the subject matter involved in the pending litigation and stating upon
6 Defendant appears to abandon this argument on appeal.

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reasonable belief that the governmental agency identified has the records or information
from the records.” (Id., subd. (b)(3).) If the defendant establishes good cause, the trial
court must conduct an in camera review of the requested documents to determine what
information, if any, should be disclosed. (People v. Gaines (2009) 46 Cal.4th 172, 179.)
Appellate courts have applied a two-step analysis for evaluation of whether a
defendant has shown good cause for discovery. First, “a showing of good cause requires
a defendant seeking Pitchess discovery to establish not only a logical link between the
defense proposed and the pending charge, but also to articulate how the discovery being
sought would support such a defense or how it would impeach the officer’s version of
events.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021.) Second, the
defendant must show “a specific factual scenario of officer misconduct that is plausible
when read in light of the pertinent documents.” (Id. at p. 1025.) As our Supreme Court
has explained, “a plausible scenario of officer misconduct is one that might or could have
occurred.” (Id. at p. 1026.) Put another way, “a scenario is plausible because it presents
an assertion of specific police misconduct that is both internally consistent and supports
the defense proposed to the charges.” (Ibid.; accord Garcia v. Superior Court (2007) 42
Cal.4th 63, 72 [a defendant must “describe an internally consistent factual scenario of
claimed officer misconduct”].) Depending on the circumstances of the case, a
defendant’s “simple denial of accusations in the police report” may be enough, or a
defendant may present “an alternative version of what might have occurred.” (Garcia v.
Superior Court, supra, at p. 72; accord Warrick, supra, at p. 1026.)
Here, defense counsel’s declaration was neither a “simple denial of accusations in
the police report” nor “an alternative version of what might have occurred.” (Garcia v.
Superior Court, supra, 42 Cal.4th at p. 72; Warrick, supra, 35 Cal.4th at p. 1026.) The
declaration did not propose any defense to the charged offenses nor articulate how the
requested discovery would support any such defense. Instead, so far as Officer Tennis
was concerned, the declaration simply averred: “Without consent or a warrant, Officer

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Tennis obtained a blood sample from [defendant].” Thus, the declaration merely alluded
to defendant’s argument that the warrantless blood draw constituted an unlawful search
and seizure. That argument, which had already been adjudicated by the time the Pitchess
motion was heard, had no obvious connection to any other defense theory, and defense
counsel readily acknowledged that he could not articulate any theory of admissibility for
evidence concerning Tennis’s alleged role in the officer-involved shooting.7 The trial
court reasonably determined that defendant failed to show good cause for discovery of
Tennis’s personnel records.
Defendant argues that Senate Bill No. 1421 (2017-2018 Reg. Sess.) and Assembly
Bill No. 748 (2017-2018 Reg. Sess.) compel discovery of Officer Tennis’s personnel file.
Effective January 1, 2019, Senate Bill No. 1421 amended sections 832.7 and 832.8 to
provide public access to certain officer personnel records without the necessity of
bringing a Pitchess motion. (See Stats. 2018, ch. 988, §§ 2 & 3, eff. Jan. 1, 2019; see
also § 832.7, subd. (a).) Assembly Bill No. 748, which also became effective January 1,
2019, amends the California Public Records Act (Gov. Code, § 6250 et seq.) to require
agencies to produce video and audio recordings of “critical incidents,” defined as
incidents involving the discharge of a firearm at a person by a peace officer, or incidents
in which the use of force by a peace officer results in death or great bodily injury. (See
Stats. 2018, ch. 960, § 1, eff. Jan. 1, 2019; see also Gov. Code, § 6254, subd. (f)(4)(C)(i)-
(ii).)
7 We assume without deciding that records reflecting events or transactions postdating
the charged offenses are, in theory, discoverable by means of the Pitchess procedure.
(But see Evid. Code, § 1045, subd. (b)(1) [excluding information consisting of
complaints concerning conduct occurring more than five years before the event or
transaction that is the subject of the litigation in which discovery or disclosure is sought
from the definition of relevant information].)

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Defendant does not argue that Senate Bill No. 1421 or Assembly Bill No. 748
apply retroactively, or otherwise authorizes posttrial discovery, and we will not make
such arguments for him. We therefore reject the claim of error without considering the
effects of the new laws, if any, on existing Pitchess jurisprudence. (See generally
Association for Los Angeles Deputy Sheriffs v. Superior Court of Los Angeles County
(2019) 8 Cal.5th 28, 46 [noting that “Senate Bill 1421 does not ‘affect the discovery or
disclosure of information contained in a peace or custodial officer’s personnel file
pursuant to Section 1043 of the Evidence Code.’ [Citation.] Nor does it “supersede or
affect the criminal discovery process outlined in Chapter 10 (commencing with
[Evidence Code] Section 1054) of Title 6 of Part 2, or the admissibility of personnel
records pursuant to subdivision (a), which codifies the court decision in Pitchess”].)
E. Senate Bill No. 1393
Defendant argues that Senate Bill No. 1393 requires remand so the trial court may
consider whether to exercise its newly authorized discretion to strike the prior serious
felony conviction enhancement. We agree.
At the time of defendant’s sentencing hearing on December 1, 2017, section 1385,
subdivision (b) provided: “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.” (former § 1385, subd. (b).) This provision was deleted by Senate Bill No. 1393,
which was enacted on September 30, 2018, and became effective on January 1, 2019.
(Stats. 2018, ch. 1013, § 2.) As amended, section 1385, subdivision (b) gives the trial
court discretion to dismiss or strike a prior serious felony conviction for sentencing
purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) As a result, the trial court
is no longer prohibited from striking prior serious felony convictions during sentencing.
The People agree that Senate Bill No. 1393 applies retroactively to defendant’s
case, which was not yet final as of January 1, 2019. (See People v. Garcia, supra, 28
Cal.App.4th at pp. 971-972 [Senate Bill No. 1393 “applies retroactively to all cases or

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judgments of conviction in which a five-year term was imposed at sentencing, based on a
prior serious felony conviction, provided the judgment of conviction is not final when [it]
becomes effective on January 1, 2019”].) However, the People contend that remand is
unwarranted because the trial court’s statements at the sentencing hearing show the court
would not have exercised its discretion to strike the prior serious felony conviction
enhancement even if it had the discretion to do so. We do not share the People’s
certainty.
Senate Bill No. 1393 is similar to Senate Bill No. 620 (2017-2018 Reg. Sess.),
which amended section 12022.53, subdivision (h) to provide that “[t]he court may, in the
interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss
an enhancement otherwise required to be imposed by this section.” (Stats. 2017, ch. 682,
§ 2; see also People v. McDaniels (2018) 22 Cal.App.5th 420, 424; People v. Billingsley
(2018) 22 Cal.App.5th 1076, 1079.) In McDaniels, the court held that a remand for
resentencing under Senate Bill No. 620 was required “unless the record show[ed] that the
trial court clearly indicated when it originally sentenced the defendant that it would not in
any event have stricken a firearm enhancement.” (McDaniels, supra, at p. 425.) In other
words, “if ‘ “the record shows that the trial court would not have exercised its discretion
even if it believed it could do so, then remand would be an idle act and is not
required.” ’ ” (Ibid; see also Romero, supra, 13 Cal.4th at p. 530, fn. 13.) Here, the
record does not clearly indicate the trial court would have declined to exercise its
discretion to strike defendant’s prior serious felony conviction enhancement.
Although the trial court denied defendant’s Romero motion and remarked upon the
seriousness of his current crimes and extensive criminal record, the court also found that
defendant accepted responsibility for his actions and appeared to be genuinely
remorseful. Based on these findings, the trial court exercised its discretion to select the
midterm sentence for count 1, and one-third the midterm for count 2, resulting in a lower
aggregate sentence than that requested by the prosecutor or recommended by the

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probation department. We cannot say, on the record before us, that the trial court would
not exercise its discretion to strike the five-year enhancement for defendant’s prior
serious felony conviction, if presented with the opportunity to do so. We therefore
remand to allow the trial court to decide whether to exercise its discretion to strike the
five-year enhancement imposed under section 667, subdivision (a), and if it does so, to
resentence defendant. We express no opinion as to how the trial court should exercise its
discretion on remand.
F. Pretrial Mental Health Diversion
Next, defendant argues that section 1001.36, which allows pretrial mental health
diversion, applies retroactively to his case, and requires remand for a diversion hearing.
The People respond that section 1001.36 operates prospectively only.
Courts of Appeal are divided on the question of retroactivity, which is now
pending before the Supreme Court. (Compare People v. Frahs (2018) 27 Cal.App.5th
784, 791, review granted Dec. 27, 2018, S252220 (Frahs) [§ 1001.36 applies
retroactively] and People v. Weaver (2019) 36 Cal.App.5th 1103, 1121, review granted
Oct. 9, 2019, S257049 with People v. Craine (2019) 35 Cal.App.5th 744, 760, review
granted Sept. 11, 2019, S256671 [§ 1001.36 does not apply retroactively] and People v.
Torres (2019) 39 Cal.App.5th 849, 856 [same].) Our Supreme Court will soon have the
last word on the subject. In the meantime, we agree with the reasoning of Frahs and
Weaver and conclude that section 1001.36 applies retroactively to cases, like defendant’s,
which were not final on appeal when the statute became effective on June 27, 2018.
The Frahs court adopted a conditional reversal and remand procedure which
requires the trial court to “conduct a mental health diversion eligibility hearing under the
applicable provisions of section 1001.36.” (Frahs, supra, 27 Cal.App.5th at p. 792.)
Following Frahs, we shall conditionally reverse the judgment and remand the matter to
the trial court to allow it to conduct a mental health diversion eligibility hearing under
section 1001.36. If, on remand, the trial court determines that defendant is ineligible for

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mental health diversion pursuant to section 1001.36, or if defendant commits another
crime or does not successfully complete diversion, then the court must reinstate
defendant’s convictions and the true findings on his sentencing enhancements. (Frahs,
supra, at pp. 792, 796.)
G. Cruel and Unusual Punishment
As noted, defendant was sentenced as a third strike offender to a purported
“aggregate determinate sentence of 24 years, followed by an indeterminate sentence of 25
years to life.8 Defendant argues that his sentence amounts to cruel and unusual
punishment in light of his mental illness. The People respond that defendant has forfeited
the issue by failing to raise it in the trial court. We are inclined to agree with the People.
(See People v. Baker (2018) 20 Cal.App.5th 711, 720 [cruel and unusual punishment
claim is fact specific and forfeited if not raised in the trial court]; People v. Johnson
(2013) 221 Cal.App.4th 623, 636 [forfeiture of cruel and unusual punishment claim].)
But even assuming the claim was not forfeited, it would not succeed on the record before
us.
The Eighth Amendment of the U.S. Constitution prohibits “cruel and unusual
punishments,” and has been read to contain a “ ‘narrow proportionality principle’ ” that
forbids extreme sentences that are grossly disproportionate to the crime. (Ewing v.
California (2003) 538 U.S. 11, 20, italics added; see Harmelin v. Michigan (1991) 501
U.S. 957, 997 (conc. opn. of Kennedy, J.).) California’s prohibition on “cruel or unusual
punishment” (Cal. Const., art. I, § 17, italics added) has been read to bar any sentence
“ ‘so disproportionate to the crime for which it is inflicted that it shocks the conscience
8 As we have suggested, the oral pronouncement of judgment was technically erroneous.
We discuss the error at greater length momentarily. It is immaterial to the present
discussion.

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and offends fundamental notions of human dignity’ ” (People v. Boyce (2014) 59 Cal.4th
672, 721, quoting In re Lynch (1972) 8 Cal.3d 410, 424, italics omitted).
California courts examine three criteria in assessing disproportionality: (1) the
nature of the offense and offender, with emphasis on his danger to society; (2) the penalty
imposed compared with the penalties for more serious crimes in California; and (3) the
punishment for the same offense in other jurisdictions. (People v. Christensen (2014)
229 Cal.App.4th 781, 806-807.) Of these, defendant focuses solely on the first, omitting
any discussion of the second and third criteria. We view defendant’s omission as a
concession that his sentence withstands constitutional scrutiny under the second and third
criteria, and likewise focus on the nature of the offense and offender, with an emphasis
on his danger to society.
Our Supreme Court has repeatedly rejected claims that a defendant’s mental
illness “ ‘place him in a category of offenders for whom capital punishment cannot be
imposed,’ regardless of the circumstances of the crime.” (People v. Boyce, supra, 59
Cal.4th at p. 721 [rejecting claim that death penalty was disproportionate in light of
defendant’s schizotypal disorder and subaverage intelligence]; see also People v. Hajek &
Vo (2014) 58 Cal.4th 1144, 1251, overruled on other grounds in People v. Rangel (2016)
62 Cal.4th 1192, 1216 [rejecting claim that death penalty was disproportionate in light of
defendant’s bipolar and cyclothymic disorders].) In so doing, the court has also
distinguished many of the cases on which defendant relies, most of which involve
persons with intellectual disabilities (see Atkins v. Virgina (2002) 536 U.S. 304 [holding
that the Eighth Amendment prohibits imposition of the death penalty on persons with
intellectual disabilities]) or persons who were juveniles at the time of their offenses (see,
e.g., Roper v. Simmons (2005) 543 U.S. 551 [the Eighth Amendment prohibits imposition
of the death penalty on persons who were juveniles]). We need not cover the same
ground. It is enough to note that no categorical rule exempts mentally ill offenders from
the application of the death penalty. (Boyce, supra, at p. 722.) Instead, in assessing the

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constitutionality of a death sentence on a mentally ill defendant, the court instructs that
“we examine the circumstances of the offense, including the defendant’s motive, the
extent of his involvement in the crime, the manner in which it was committed, and the
consequences of his acts, as well as the defendant’s age, prior criminality, and mental
capabilities.” (Id. at p. 721.) We shall apply the same approach here.
Defendant was solely responsible for the current offenses. He got behind the
wheel of a car after consuming alcohol and marijuana, drove recklessly down city streets,
side-swiping A.P., running two red lights, and causing a terrible accident that killed
Robinson and Hunt, and seriously injured the driver of the Camry. Although defendant
has expressed remorse, his criminal history suggests the current offenses are merely the
latest chapter in an ongoing struggle to conform his conduct to society’s rules.
Defendant’s criminal history begins with a juvenile adjudication for carjacking
(§ 215) in 2000, when he was 17 years old. He then earned a misdemeanor conviction
for making criminal threats (§ 422) in 2004, a felony conviction for theft and unlawful
taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)) in 2005, and another
misdemeanor conviction for battery on a spouse or cohabitant (§ 243, subd. (e)) in 2006.
He then incurred two prior strike convictions, for robbery and attempted robbery (§§
664/211), both involving violence against the victims, in 2008, followed by a felony
vandalism conviction (§ 594, subd. (b)(1)) in 2011, and the current offenses in 2013. As
the trial court observed, defendant’s current offenses and criminal history evince a pattern
of escalating violence, callousness, and disregard for the wellbeing of others, all of which
support the conclusion that he poses a serious danger to society.
Defendant has served numerous jail and prison commitments and repeatedly
violated probation and parole. Indeed, defendant appears to have been subject to
continuous supervision by the criminal justice system for his entire adult life, and he was
on parole at the time of the fatal accident. As the trial court observed, defendant’s

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ongoing criminality indicates that he has failed to learn from his past offenses, with tragic
results.
Along the way, defendant has compiled an extensive mental health history, which
includes an apparent diagnosis of bipolar disorder in 2010. Although defendant may
suffer from significant mental health challenges, nothing in the record suggests they were
a mitigating factor under California Rules of Court, rule 4.423, a mental or physical
condition that significantly reduced culpability.9 Nor does any evidence suggest that
defendant’s mental condition played a role in his decision to drive under the influence.
(People v. Boyce, supra, 59 Cal.4th at p. 720 [“Although defendant offered evidence of
his schizotypal disorder and subaverage intelligence, there was no evidence that either
condition played any role in the killing”].) On the record before us, the trial court
reasonably concluded, and we agree, that defendant’s current offenses and criminal
history reflect a pattern of serious and violent recidivism of the type the three strikes law
was designed to address. Defendant does not challenge the three strikes scheme as
unconstitutional, and we would reject such a challenge in any event. (See generally
Ewing v. California, supra, 538 U.S. at pp. 24-31 [rejecting constitutional challenge to
third strike sentence of 25 years to life for stealing three golf clubs]; People v. Romero
(2002) 99 Cal.App.4th 1418, 1422-1423 [rejecting constitutional challenge to third strike
sentence of 25 year to life for stealing a magazine].) We likewise reject defendant’s
claim that his sentence was disproportionate in light of his mental illness.
9 Defendant was examined by two court-appointed psychologists pursuant to section
1027 before trial. Both determined that the current offenses were not caused or
aggravated by defendant’s mental condition. Defendant does not appear to have asked
the trial court to revisit the psychologists’ written reports at sentencing.

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H. Fines, Fees, and Assessments
The trial court imposed various fines, fees, and assessments, including a restitution
fine of $10,000 (§ 1202.4), a parole revocation fine of $10,000 (§ 1202.45), which the
court stayed, restitution to the California Victim Compensation Board in the amount of
$9,658.11 (§ 1202.4, subd. (f)), additional restitution in amounts to be determined, a $200
court operations assessment (§ 1465.8), a $150 court facilities assessment (Gov. Code, §
70373), a $283.22 main jail booking fee (Gov. Code, § 29550.2), and a $61.75 main jail
classification fee (Gov. Code, § 29950.2). Relying on Dueñas, defendant argues the
imposition of these fines, fees, and assessments without an ability-to-pay hearing was a
violation of his right to due process and equal protection. The People respond that
defendant forfeited his Dueñas challenge by failing to object in the trial court. We agree.
In Dueñas, the defendant was an indigent, homeless mother of two young children
who was convicted of driving on a suspended license and sentenced to probation.
(Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) At her sentencing hearing, she
objected that she was unable to pay the minimum statutory fees and fines and asked the
trial court to set a hearing to determine her ability to pay. (Id. at p. 1162.) The trial court
struck some fees, but imposed the court facilities and court operations assessments, ruling
they were mandatory regardless of her inability to pay. (Id. at p. 1163.) On appeal, the
Dueñas court found it was a violation of constitutional due process to impose the court
assessments required by section 1465.8 and Government Code section 70373, neither of
which was intended to be punitive, without finding that the defendant has the ability to
pay them. (Dueñas, supra, at p. 1168.) The court also found that, although a restitution
fine imposed under section 1202.4 was considered additional punishment for defendant’s
crime, that fine posed constitutional concerns because the trial court was precluded from
considering ability to pay when imposing the minimum fine authorized by the statute.
(Dueñas, supra, at pp. 1170-1171.) To avoid the constitutional problem, the court held
that section 1202.4 requires a trial court to impose a minimum fine regardless of ability to

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pay, but that execution of the fine must be stayed until the defendant’s ability to pay is
determined. (Dueñas, supra, at p. 1172.)
In this case, the trial court imposed the same court facilities and court operations
assessments that were imposed in Dueñas, as well as other, more substantial, fines and
fees. Unlike the defendant in Dueñas, however, defendant did not request a hearing
regarding his ability to pay any fines or fees, or object to them on any factual or legal
ground. Thus, he forfeited his claim that the fines should not have been imposed on him.
(People v. McCullough (2013) 56 Cal.4th 589, 596-598 [appellate forfeiture rule applies
to challenge to the sufficiency of evidence supporting a booking fee under Government
Code section 29550.2, subdivision (a)]; People v. Avila (2009) 46 Cal.4th 680, 729
[forfeiture rule applies to defendant’s claim that restitution fine amounts to an
unauthorized sentence based on his inability to pay]; People v. Nelson (2011) 51 Cal.4th
198, 227 [claim that trial court erroneously failed to consider ability to pay a restitution
fine forfeited by failure to object]; People v. Acosta (2018) 28 Cal.App.5th 701, 705
[forfeiture rule applies to fines, penalty assessments, and administrative fees pursuant to
§ 290.3].)
Defendant argues his failure to object should not result in a forfeiture because
Dueñas had not been decided at the time of his sentencing hearing. Defendant’s
argument misconstrues the nature of the forfeiture in this case. Forfeiture does not result
from defendant’s failure to anticipate the substantive due process analysis announced in
Dueñas (but criticized in People v. Hicks (2019) 40 Cal.App.5th 320, 325-326, review
granted Nov. 26, 2019, S258946), but rather from his failure to request a hearing or
otherwise dispute his ability to pay. In contrast to Dueñas, defendant’s ability to pay was
a statutory consideration with respect to some of the most significant fees and fines
imposed, including the $10,000 restitution fine. (See § 1202.4, subd. (d) [outlining
factors the trial court must consider when setting the amount of a restitution fine above
the $300 statutory minimum, including the defendant’s “inability to pay”]; see also Gov.

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Code, § 29550.2, subd. (a) [specifying that a judgment of conviction shall contain an
order for payment of the amount of the booking fee “[i]f the person has the ability to
pay”].) Unlike the defendant in Dueñas, he had a statutory right to an ability-to-pay
hearing that he failed to exercise, thereby forfeiting his claim that such a hearing was
required.10 We therefore reject defendant’s request that we remand for an ability to pay
hearing.
I. Custody Credits
Finally, defendant argues the trial court erred in failing to award him custody
credits for the 180 day period from November 9, 2013, to March 26, 2014, during which
he was incarcerated for a parole violation. Defendant fails to demonstrate error.
Section 2900.5 governs the award of presentence custody credits. That section
provides, in pertinent part: “(a) In all felony and misdemeanor convictions, either by plea
or by verdict, when the defendant has been in custody . . . all days of custody of the
defendant, including days . . . credited to the period of confinement pursuant to Section
4019, . . . shall be credited upon his or her term of imprisonment . . . . [¶] (b) For
purposes of this section, credit shall be given only where the custody to be credited is
attributable to proceedings related to the conduct for which the defendant has been
convicted. Credit shall be given only once for a single period of custody attributable to
multiple offenses for which a consecutive sentence is imposed.” (§ 2900.5, subds. (a)-
(b).)
Our Supreme Court has interpreted section 2900.5, subdivision (b) to mean, “a
prisoner is not entitled to credit for presentence confinement unless he shows that the
10 People v. Santos (2019) 38 Cal.App.5th 923, on which defendant relies, is similarly
distinguishable. There, the defendant objected to the proposed restitution fine based on
his indigence. (Id. at p. 933.) The trial court reduced the fine to the statutory minimum,
and the court of appeal concluded that the Dueñas issue had been preserved. (Ibid.)
Here, by contrast, defendant made no such objections.

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conduct [that] led to his conviction was the sole reason for his loss of liberty during the
presentence period.” (People v. Bruner (1995) 9 Cal.4th 1178, 1191 (Bruner).) Thus,
presentence custody credits should be denied towards a new term when such custody is
“attributable to a parole revocation caused in part, but not exclusively, by the conduct that
led to the new sentence.” (Id. at pp. 1182-1183.) To be entitled to presentence custody
credits, a defendant must establish that “the conduct [that] led to the sentence was a
dispositive, or ‘but for’ cause of the presentence custody.” (Id. at p. 1180.)
The Court of Appeal for the Fourth Appellate District considered “how the Bruner
‘but for’ test should be applied when a defendant engages in a course of illegal conduct,
such as drunk driving, that encompasses certain independent acts, none of which would
be illegal per se, but each of which happens to be a separate ground for a parole violation,
such as driving (without parole officer permission), or consuming alcoholic beverages in
any amount” in People v. Stump (2009) 173 Cal.App.4th 1264, 1271. The defendant in
Stump violated the terms of his parole in three ways: (1) by driving under the influence
of alcohol or drugs; (2) by violating a special condition prohibiting alcohol consumption;
and (3) by violating a special condition prohibiting the operation of a motor vehicle
without a parole officer’s approval. (Id. at p. 1267.) The court found that the defendant
had not shown that “but for” having driven under the influence of alcohol, he would not
have been held in custody for the period in question. (Id. at p. 1266.) The court
explained: “In the case before us, the conduct for which defendant was arrested gave rise
to two drunk driving charges (violations of Veh. Code, § 23152, subds. (a), (b).) It is not
the case that ‘but for’ a drunk driving charge defendant would have been free of parole
revocation custody. He still would have been held for driving, which is not necessarily a
crime in and of itself but may be, and was here, a parole violation. Likewise, he still
would have been held for consuming alcohol, which is not necessarily a crime in and of
itself but may be, and was here, a parole violation. [¶] [] ‘section 2900.5 did not intend
to allow credit for a period of presentence restraint unless the conduct leading to the

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sentence was the true and only unavoidable basis for the earlier custody.’ (Bruner,
supra, 9 Cal.4th at p. 1192.) Here, the conduct of driving under the influence of alcohol,
for which defendant was sentenced in the underlying action, was not the ‘only
unavoidable basis’ for the custody. The act of driving without permission was a basis for
the earlier custody. The act of drinking alcohol, irrespective of driving, was a basis for
the earlier custody. ‘ “Section 2900.5 does not authorize credit where the pending
proceeding has no effect whatever upon a defendant’s liberty.” ’ ” (Id. at p. 1273.)
As noted, we have been provided with no information concerning the terms of
defendant’s parole. Although defendant argues his parole revocation is “based entirely
on the charges in the present case,” the record before us does not allow us to determine
whether he would have been in custody “but for” the conduct that led to the instant
convictions. We therefore conclude that defendant has failed to demonstrate he is
entitled to the claimed credits.
J. Sentencing Error
As noted, the trial court sentenced defendant to a midterm sentence of six years for
count 1, doubled for the strike, with a consecutive one-third the midterm of two years,
doubled, for count 2, resulting in a total sentence of 16 years for counts 1 and 2, before
enhancements. The trial court then sentenced defendant to an indeterminate sentence of
25 years to life for count 3. Although the great bodily injury enhancement was attached
to count 3, the trial court added three years for the great bodily injury enhancement to the
sentence for counts 1 and 2, together with five years for the prior serious felony
enhancement, resulting in a purported “aggregate determinate sentence of 24 years,
followed by an indeterminate sentence of 25 years to life.”
The trial court erred in separating the great bodily injury enhancement from count
3. The three year sentence for the great bodily injury enhancement should have been
added to the indeterminate sentence for count 3, resulting in an aggregate determinate

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sentence of 21 years, followed by an indeterminate sentence of 28 years to life. We
remand for resentencing on the great bodily injury enhancement.
III. DISPOSITION
The judgment is conditionally reversed. The matter is remanded to the trial court
with directions to hold a diversion eligibility hearing under section 1001.36. If the trial
court finds defendant eligible under that statute, it may grant diversion. If defendant then
satisfactorily performs in diversion, the trial court shall dismiss the charges. (§ 1001.36,
subd. (e).) However, if the trial court does not grant diversion, or the court grants
diversion but defendant fails to satisfactorily complete it (§ 1001.36, subd. (d)), then the
court shall reinstate defendant’s convictions and conduct further sentencing proceedings
as appropriate.
The trial court is further directed to decide, at a hearing at which defendant has the
right to be present with counsel, whether it will exercise its discretion to strike the prior
serious felony conviction enhancement imposed pursuant to section 667, subdivision (a).
If the trial court decides to strike the enhancement, defendant shall be resentenced and the
abstract of judgment amended accordingly and forwarded to the Department of
Corrections and Rehabilitation. If the trial court decides not to strike the enhancement,
defendant’s original sentence shall remain in effect.

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Finally, the trial court is directed to resentence defendant on the great bodily injury
enhancement, prepare an amended abstract of judgment and forward a certified copy to
the Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
/S/
RENNER, J.
I concur:
/S/
RAYE, P. J.

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1
BUTZ, J., Concurring and Dissenting.
I concur in all parts of the Discussion except the majority’s analysis in part F.
(Maj. opn. ante, at pp. 28-29.) As to part F, I dissent.
A jury convicted defendant in May 2017 of two counts of gross vehicular
manslaughter while intoxicated, one count of driving under the influence of alcohol
and/or drugs causing injury, one count of misdemeanor hit and run with damage to
property, and one misdemeanor count of driving without a valid driver’s license. (Maj.
opn. ante, at pp. 1-2.) The underlying incident occurred in early November 2013, more
than six years ago. Defendant was sentenced on December 1, 2017, to a lengthy third
strike sentence.
Effective June 27, 2018, the Legislature created a “pretrial” diversion program for
defendants with diagnosed and qualifying mental disorders such as schizophrenia, bipolar
disorder, and posttraumatic stress disorder (PTSD). (Pen. Code, § 1001.36.)11 Defendant
contends the judgment must be conditionally reversed and the matter remanded to the
trial court to determine whether he is eligible for diversion under section 1001.36. In
support of his contention, defendant relies on the retroactivity rules of In re Estrada
(1965) 63 Cal.2d 740 (Estrada) and People v. Superior Court (Lara) (2018) 4 Cal.5th
299 (Lara), as explained in People v. Frahs (2018) 27 Cal.App.5th 784, review granted
December 27, 2018, S252220 (Frahs). The majority agrees the statute operates
retroactively and that defendant is entitled to a conditional reversal to make his case for
diversion. I respectfully disagree.
Courts are divided as to whether section 1001.36 applies retroactively to cases not
yet final on appeal under Estrada and Lara. (Compare Frahs, supra, 27 Cal.App.5th
784, rev. granted, People v. Weir (2019) 33 Cal.App.5th 868, review granted June 26,
11 Undesignated statutory references are to the Penal Code.

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2
2019, S255212, People v. Weaver (2019) 36 Cal.App.5th 1103, review granted Oct. 9,
2019, S257049 (Weaver), People v. Burns (2019) 38 Cal.App.5th 776, review granted
Oct. 30, 2019, S257738, and People v. Hughes (2019) 39 Cal.App.5th 886, review
granted Nov. 26, 2019, S258541, with People v. Craine (2019) 35 Cal.App.5th 744, 749,
review granted Sept. 11, 2019, S256671 (Craine), People v. Torres (2019) 39
Cal.App.5th 849, and People v. Khan (2019) 41 Cal.App.5th 460, review granted Jan. 29,
2020, S259498.)12 As the majority appropriately acknowledges, the California Supreme
Court will have the last word on this subject. (Maj. opn. ante, p. 28.) Until that time, I
conclude, in agreement with Craine, that the statute does not have retroactive effect as to
cases, like this one, that had already reached the stage of conviction (whether by jury or
by plea) before the statute’s effective date.
Section 1001.36 provides that a trial court, “[o]n an accusatory pleading alleging
the commission of a misdemeanor or felony offense” (with exclusions not relevant here),
may grant “pretrial diversion” to a defendant who meets all of the requirements specified
in the statute. (§ 1001.36, subd. (a).) These include, among others, “a mental disorder
. . . including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder,
or [PTSD],” as established by “a recent diagnosis by a qualified mental health expert”
(§ 1001.36, subd. (b)(1)(A)), and proof to the court’s satisfaction that the mental disorder
“was a significant factor in the commission of the charged offense” or “substantially
contributed to the defendant’s involvement in the commission of the offense.”
(§ 1001.36, subd. (b)(1)(B).)
“ ‘[P]retrial diversion’ ” as used in the statute means “the postponement of
prosecution, either temporarily or permanently, at any point in the judicial process from
the point at which the accused is charged until adjudication.” (§ 1001.36, subd. (c).)
12 I may consider, as persuasive authority, the cases that have been granted review by
our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)

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Here, defendant was convicted and sentenced before the statute’s effective date.
The majority concludes that the statute applies to him because it should be given
retroactive effect. In support of their position, the majority relies on Frahs and Weaver.
(Maj. opn. ante, at pp. 28-29.) For the reasons given in Craine, I conclude that Frahs
was wrongly decided and the statute does not apply retroactively to persons, like
defendant, “who have already been found guilty of the crimes for which they were
charged.” (Craine, supra, 35 Cal.App.5th at p. 754, rev. granted.) Likewise, I disagree
with Weaver’s conclusion that section 1001.36 applies retroactively. (Weaver, supra, 36
Cal.App.5th at pp. 1120-1121 [“we see nothing in the text of section 1001.36 sufficient to
overcome the Estrada presumption”], rev. granted.)
The Frahs court decided whether section 1001.36 is retroactive by applying the
standard retroactivity rules of Estrada and Lara. In Estrada, the court held that when the
Legislature amends a criminal statute so as to lessen the punishment for the offense, it
must be inferred that the Legislature’s intent was to apply the lighter penalty to all cases
not yet final. (Estrada, supra, 63 Cal.2d at pp. 745, 748.) In Lara, the court extended
this rule to situations in which new legislation, though not lessening punishment,
provides an “ ‘ “ameliorating benefit” ’ ” for accused persons or constitutes an
“ ‘ameliorative change[] to the criminal law.’ ” (Lara, supra, 4 Cal.5th at pp. 308, 309.)
Taking these rules together, Frahs found that section 1001.36 confers an “ ‘ameliorating
benefit’ ” on a class of accused persons and therefore must be understood to work
retroactively. (Frahs, supra, 27 Cal.App.5th at p. 791, rev. granted.)13
13 Lara summarizes Estrada’s holding as follows: “ ‘The Estrada rule rests on an
inference that, in the absence of contrary indications, a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend as broadly as
possible . . . .’ ” (Lara, supra, 4 Cal.5th at p. 308, italics added.) Lara then concludes
that neither the language of the initiative under consideration (Proposition 57) nor the
ballot materials rebutted the inference that the initiative was intended to apply
retroactively. (Lara, at p. 309.)

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The Frahs court rejected the Attorney General’s argument that by expressly
restricting its scope to the “postponement of prosecution . . . at any point in the judicial
process from the point at which the accused is charged until adjudication” (§ 1001.36,
subd. (c)), the statute set a temporal limit on its retroactive effect. (Frahs, supra,
27 Cal.App.5th at p. 791, rev. granted.) The court reasoned: “The fact that mental health
diversion is available only up until the time that a defendant’s case is ‘adjudicated’ is
simply how this particular diversion program is ordinarily designed to operate.” (Ibid.)14
Concluding the issue could be resolved by applying Estrada and Lara to the plain
language of the statute, the Frahs court denied the Attorney General’s request for judicial
notice of the statute’s legislative history. (Frahs, at p. 789, fn. 2.)
In Craine, however, the court held that the Frahs analysis was flawed because it
did not pay sufficient attention to how section 1001.36, subdivision (c), defines the
timing of the “ameliorative benefit” it confers. In other words, Frahs did not properly
consider either the phrase “ ‘postponement of prosecution’ ” or the phrase “ ‘until
adjudication,’ ” instead relying only on a mechanical application of the Estrada and Lara
rules. (Craine, supra, 35 Cal.App.5th at pp. 754-756, rev. granted.)
As to the phrase “until adjudication” (§ 1001.36, subd. (c)), Craine pointed out
that “ ‘[t]he purpose of [diversion] programs [in the criminal process] is precisely to
avoid the necessity of a trial.’ [Citation.]” (Craine, supra, 35 Cal.App.5th at p. 755, rev.
In quoting Lara, the Frahs court omits the qualifying language I have italicized.
Thus, Frahs in effect mischaracterizes the Estrada/Lara rule as one that applies
automatically to all legislation conferring an “ameliorating benefit” on persons charged
with crimes, regardless of any “ ‘contrary indications’” (Lara, supra, 4 Cal.5th at p. 308)
in the legislation on its face or the legislative history (Frahs, supra, 27 Cal.App.5th at
p. 790, rev. granted).
14 Frahs did not address the first part of the statutory language quoted by the Attorney
General (which is misstated as “ ‘ “postponement or prosecution” ’ ”). (Frahs, supra,
27 Cal.App.5th at p. 791, italics added, rev. granted.)

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granted.) In other words, absent clear statutory language showing otherwise, it makes no
sense to say that a defendant can be given the benefit of “pretrial diversion” after a case
has already gone through trial to conviction (or its equivalent, a guilty or no contest plea).
(Id. at pp. 755-756.)
By the same token, the meaning of the phrase “the postponement of prosecution”
(§ 1001.36, subd. (c)) depends on the normal usage of “prosecution” in the criminal
process: “ ‘ “[t]he proceeding by which a party charged with a public offense is accused
and brought to trial and punishment. [Citations.]” ’ ” (Craine, supra, 35 Cal.App.5th at
pp. 755-756, rev. granted.) “A prosecution ‘commences when the indictment or
information is filed in the superior court and normally continues until . . . the accused is
“brought to trial and punishment” or is acquitted.’ ” (Id. at p. 756.)
Therefore, “[p]ursuant to the Legislature’s own terminology, pretrial diversion is
literally and functionally impossible once a defendant has been tried, found guilty, and
sentenced. Upon reaching this point of ‘adjudication,’ the ‘prosecution’ is over and
there is nothing left to postpone.” (Craine, supra, 35 Cal.App.5th at p. 756, rev.
granted.)
According to Craine, Lara is distinguishable because the ameliorative benefit
discussed there (the initial processing of accused juveniles in juvenile court, and trial in
adult court only upon transfer) did not create a temporal bar to retroactive relief, as does
section 1001.36. (Craine, supra, 35 Cal.App.5th at pp. 756-757, rev. granted.)
Craine also examines the legislative history of section 1001.36 (which Frahs
refused to consider) and finds that it points to the same conclusion. The history makes
clear that the statute was intended to make it possible to use early intervention wherever
possible, partly “ ‘to avoid unnecessary and unproductive costs of trial and
incarceration.’ ” (Craine, supra, 35 Cal.App.5th at pp. 758-759, italics omitted [quoting
Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen.
Bill No. 215 (2017-2018 Reg. Sess.) as amended Aug. 23, 2018, pp. 2-3], rev. granted.)

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As Craine points out: “Early intervention cannot be achieved after a defendant is
tried, convicted, and sentenced. The costs of trial and incarceration have already been
incurred. Moreover, because mental health diversion is generally only available for less
serious offenses, the reality is many defendants would already be eligible for parole or
some other form of supervised release by the time their cases were remanded for further
proceedings. Since mental health services are already available to parolees . . . , it is
hard to imagine the Legislature intended for additional court resources and public funds
to be expended on ‘pretrial diversion’ assessments at such a late juncture.” (Craine,
supra, 35 Cal.App.5th at p. 759, fn. omitted, rev. granted.)
For all the reasons stated in Craine, I disagree with Frahs and Weaver and find
that “pretrial diversion” under section 1001.36 is not available to defendant because he
has already been tried, convicted, and sentenced.
/S/
BUTZ, J.

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