P. v. Wells

Filed 7/19/19 P. v. Wells CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RAELYN RENEE WELLS,
Defendant and Appellant.
D073814
(Super. Ct. No. SCD272957)
APPEAL from a judgment of the Superior Court of San Diego County, David M.
Rubin, Judge. Reversed and remanded with directions.
Lindsey M. Ball, under appointment by the Court of Appeal; Siri Shetty, under
appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn
Kirschbaum, Britton B. Lacy and Seth M. Friedman, Deputy Attorneys General, for
Plaintiff and Respondent.

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I
INTRODUCTION
A jury convicted Raelyn Renee Wells of assault with a deadly weapon with the
intent to inflict great bodily injury. The jury also found true allegations Wells personally
used a dangerous and deadly weapon and personally inflicted great bodily injury upon the
victim. (Pen. Code,1 §§ 245, subd. (a)(1), 1192.7, subd. (c)(8), 1192.7, subd. (c)(23),
12022.7, subd. (a).) Wells separately pleaded guilty to resisting an officer. (§ 148, subd.
(a)(1).)
The trial court sentenced Wells to five years in state prison.!1 (CT 104)! The
court also imposed a $300 restitution fine (§ 1202.4, subd. (b)); a matching $300 parole
revocation fine (§ 1202.45), which the court stayed; an $80 court operations assessment
(§ 1465.8); a $60 conviction assessment (Gov. Code, § 70373); and a $154 booking fee
(Gov. Code, § 29550).
Wells appeals, contending we must reverse her assault with a deadly weapon
conviction because the court abused its discretion in admitting into evidence body-worn
camera footage of her fleeing, which Wells asserts was unduly prejudicial and
cumulative. Wells additionally contends we must reverse her assault with a deadly
weapon conviction because the court erred in instructing the jury about mutual combat,
which Wells asserts was not supported by substantial evidence and undermined her case
for self-defense.
1 Further statutory references are to the Penal Code unless otherwise stated.

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While this appeal was pending, the Legislature enacted sections 1001.35 and
1001.36 (Stats. 2018, ch. 34, § 24), effective June 27, 2018, to authorize pretrial diversion
for defendants with mental disorders (mental health diversion statutes).2 Wells contends
the mental health diversion statutes apply retroactively to this case because the case is not
final, and she requests we conditionally remand the matter for the court to consider
whether to grant diversion to her.
Also while this appeal was pending, the appellate court in People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas) held the due process clauses of the federal and
state Constitutions preclude a court from imposing a nonpunitive fee or assessment
without first determining a defendant's ability to pay. (Id. at pp. 1164, 1168.) The
appellate court further held these due process clauses require a court to stay execution of
a mandatory punitive fine until the court determines the defendant has the ability to pay
the fine. (Id. at pp. 1164, 1172.) Based on the Dueñas decision, Wells contends we must
stay execution of the fines, fee, and assessments imposed by the court until the court
determines she has the ability to pay them.
We conclude the court did not err in admitting the body-worn camera footage into
evidence. We further conclude any error in instructing the jury on mutual combat was
harmless. However, we agree the mental health diversion statutes apply retroactively to
2 The Legislature subsequently amended section 1001.36, effective January 1, 2019,
to eliminate diversion eligibility for defendants charged with certain specified offenses, to
give the court the discretion to require defendants make a prima facie showing of
diversion eligibility, and to give the court the authority to address restitution for victims
of diverted offenses. (Stats. 2018, ch. 1005, § 1). All references to section 1001.36 are to
this version of the statute.

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this case and we reverse the judgment to allow the court an opportunity to conduct a
mental health diversion eligibility hearing. In light of the reversal of the judgment, we
decline to decide whether the court's imposition of the fines, fee, and assessments
violated Wells's due process rights. Instead, Wells may raise this issue with the court at
an appropriate time after the court considers the mental health diversion issue.
II
BACKGROUND
A
The victim, a homeless man, was lying down in a park when he heard a popping
noise that sounded like a starter's pistol or a cap gun. Wells approached the victim from
the direction of the popping noise and shined a bright light in his face.
The victim had a decorative staff, which he considered a prized possession.
Worried Wells was getting near the staff, the victim exclaimed, "Oh, [expletive], my
staff" and went to grab it. Wells replied, "Oh, yeah, [expletive] your staff," and stepped
on it. This led to a brief tussle in which the victim may have pushed or swung at Wells.
After the tussle, the victim gathered his things and moved. He then noticed an
unusual hot feeling in his lower back and wetness on his chest and stomach. Believing he
had been shot, the victim yelled for someone to call for help.
Paramedics arrived and took the victim, who was near death, to the hospital. He
had two stab wounds, one of which penetrated his chest, cut through his diaphragm,
damaged his spleen, and caused his belly to fill with blood.

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Meanwhile, a responding police officer drove around looking for Wells. When the
officer spotted Wells walking in a nearby field, the officer activated his vehicle's lights,
got out, and asked her to come over towards him. She ran and the officer chased her.
During the chase, she discarded a backpack and slid under the garage door of an
apartment building. She ran through the garage and exited onto a street where she
discarded another backpack. She continued running until she was apprehended.
The officer retrieved both backpacks. One contained a handgun-style BB gun,
CO2 cartridges, and BB pellets. The other contained a flashlight and a seven-inch knife
sheathed and wrapped in a hoodie. Both Wells's and the victim's DNA were on the
knife's sheath and handle. The victim's DNA was also on the knife's blade.
B
Wells testified she was shooting her BB gun at some bushes when she decided to
lay her blanket down and go to sleep. She shined her flashlight around to see who was in
the area. The victim threatened, "I'm going to get you in your sleep," and she confronted
him. She then walked away and he threatened her again.
Wells and the victim began arguing. She did not step on his staff. During their
argument, the victim swung and hit her in the head. She swung back and "grazed" him.
The two physically struggled and, "at some point, the knife was introduced."
Within about 20 seconds, the victim pushed himself away and yelled that he had been
shot.
Wells subsequently ran from the police officer because she was afraid of being
shot and killed by the officer. She discarded the backpacks because they were heavy.

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III
DISCUSSION
A
1
Before trial, Wells indicated she would plead guilty to the resisting an officer
charge and stipulate to ownership of the backpacks. Consequently, she moved under
Evidence Code sections 350 and 352 to preclude any evidence of "anything that
happened after [she] left the scene of the confrontation with [the victim]." However, the
prosecutor moved to admit body-worn camera footage of Wells's flight from the police
officer. The prosecutor explained the footage of her running away and discarding the
backpacks was extremely probative of consciousness of guilt, particularly in light of her
self-defense claim.
After viewing the footage, the court excluded most of the it, but permitted the
prosecution to admit 60 seconds showing Wells's flight. The court found admitting the
remaining footage would be too time consuming.
2
Wells contends we must reverse her conviction for assault with a deadly weapon
because the court abused its discretion in admitting the body-worn camera footage of her
flight. She asserts the court should have excluded the evidence under Evidence Code
section 352 as unduly prejudicial and cumulative.
"A court may exercise its discretion to exclude relevant evidence 'if its probative
value is substantially outweighed by the probability that its admission will ... create

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substantial danger of undue prejudice.' (Evid. Code, § 352.) ' "A trial court's exercise of
discretion in admitting or excluding evidence ... will not be disturbed except on a
showing the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice." ' [Citation.]"
(People v. Jackson (2016) 1 Cal.5th 269, 330.) Wells has not made such a showing in
this case.
Here, the challenged flight evidence was not unduly prejudicial because it was not
time-consuming, inflammatory, confusing, or misleading. (Evid. Code, § 352.) The
evidence was 60 seconds in length and limited to footage of Wells running away from a
police officer and dropping her backpacks.
In addition, the court's decision to admit the challenged flight evidence was not
patently absurd because the evidence was probative of a defendant's consciousness of
guilt. (People v. Anderson (2018) 5 Cal.5th 372, 392; People v. Hill (1967) 67 Cal.2d
105, 120.) The court's decision to admit the evidence also was not arbitrary or
capricious because, in reaching its decision, the court considered the parties' arguments,
viewed the entirety of the flight footage, and then significantly limited the amount of
footage the prosecutor could show to the jury. Accordingly, Wells has not established the
court abused its discretion in admitting the evidence.
Given our conclusion, we need not address whether Wells forfeited this contention
by failing to properly preserve it and present it for appellate review. We also need not
address whether the asserted error was harmless.

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B
1
During trial, the court instructed the jury with CALCRIM No. 3471. This
instruction informed the jury: "A person who engages in mutual combat or who starts a
fight has a right to self-defense only if: [¶] 1. She actually and in good faith tried to stop
fighting; [¶] 2. She indicated, by word or by conduct, to her opponent, in a way that a
reasonable person would understand, that she wanted to stop fighting and that she had
stopped fighting; [¶] AND [¶] 3. She gave her opponent a chance to stop fighting.
"A fight is mutual combat when it began or continued by mutual consent or
agreement. That agreement may be expressly stated or implied and must occur before the
claim to self-defense arose. [¶] If the defendant meets these requirements, she then had a
right to self-defense if the opponent continued to fight."
Before the court gave the instruction, Wells filed a written opposition to the
instruction. She argued the court should not give the instruction because the instruction
was not supported by substantial evidence, was inconsistent with her defense, and would
be confusing to the jury. After hearing the parties' arguments, the court denied the
motion, finding the instruction was warranted because there was evidence from which a
jury could find Wells and the victim "squared off," tacitly agreeing to fight one another.
2
Wells contends we must reverse her conviction for assault with a deadly weapon
because the court erred in instructing the jury on mutual combat. She asserts the
instruction was not supported by substantial evidence and it undermined her case for self-

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defense. We review assertions of instructional error de novo. (See People v. Manriquez
(2005) 37 Cal.4th 547, 581, 584; People v. Cole (2004) 33 Cal.4th 1158, 1210.)
"Giving an instruction that is correct as to the law but irrelevant or inapplicable is
error." (People v. Cross (2008) 45 Cal.4th 58, 67, citing People v. Rowland (1992) 4
Cal.4th 238, 282.) Assuming, without deciding, the mutual combat instruction was
irrelevant or inapplicable in this case, "giving an irrelevant or inapplicable instruction is
generally ' "only a technical error which does not constitute ground for reversal." '
[Citation.]" (Cross, at p. 67.)
Moreover, among its instructions to the jury, the court used CALCRIM No. 200 to
inform the jury, "Now, you're going to find, some of these instructions may not even
apply, depending on your findings about the case. Therefore, do not assume just because
I give you a particular instruction, that I'm trying to suggest to you anything about the
facts. After you've decided what the facts are, follow the instructions that do apply to the
facts as you find them." Because of this instruction, "the jury is presumed to disregard an
instruction if the jury finds the evidence does not support its application." (People v.
Frandsen (2011) 196 Cal.App.4th 266, 278; People v. Olguin (1994) 31 Cal.App.4th
1355, 1381.) Wells has not rebutted this presumption or otherwise established it is
reasonably probable the trial result would have been more favorable to her if the court
had not given the mutual combat instruction. (People v. Guiton (1993) 4 Cal.4th 1116,
1130; People v. Watson (1956) 46 Cal.2d 818, 836.)

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C
1
While this appeal was pending, the Legislature enacted the mental health diversion
statutes. These statutes authorize pretrial diversion for defendants with mental disorders.
" '[P]retrial diversion' means the postponement of prosecution, either temporarily or
permanently, at any point in the judicial process from the point at which the accused is
charged until adjudication, to allow the defendant to undergo mental health treatment ...."
(§ 1001.36, subd. (c).) A court may grant pretrial diversion under section 1001.36 if the
court finds: (1) the defendant suffers from an identified mental disorder; (2) the mental
disorder played a significant role in the commission of the charged offense; (3) the
defendant's symptoms will respond to treatment; (4) the defendant consents to diversion
and the defendant waives his or her speedy trial rights; (5) the defendant agrees to
comply with treatment; and (6) the defendant will not pose an unreasonable risk of
danger to public safety, as defined in section 1170.18, if the defendant is treated in the
community. (§ 1001.36, subd. (b)(1).)
If the court grants pretrial diversion, "[t]he defendant may be referred to a program
of mental health treatment utilizing existing inpatient or outpatient mental health
resources" for "no longer than two years." (§ 1001.36, subd. (c)(1)(B), (3).) If the
defendant performs "satisfactorily in diversion, at the end of the period of diversion, the
court shall dismiss the defendant's criminal charges that were the subject of the criminal
proceedings at the time of the initial diversion." (§ 1001.36, subd. (e).)

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Wells contends the mental health diversion statutes apply retroactively to this case
because the statutes have an ameliorative effect on punishment. The People contend
these statutes do not apply retroactively because the Legislature did not intend them to
apply retroactively. The California Supreme Court is currently reviewing this issue.
(People v. Frahs (2018) 27 Cal.App.5th 784, 791 (Frahs), review granted Dec. 27, 2018,
S252220.) Pending further guidance from the Supreme Court, we agree with Wells.
2
As a canon of statutory interpretation, we generally presume laws apply
prospectively. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara ).)
However, the Legislature may explicitly or implicitly enact laws that apply retroactively.
(Ibid.) To determine whether a law applies retroactively, we must determine the
Legislature's intent. (Ibid.)
" 'When the Legislature amends a statute so as to lessen the punishment it has
obviously expressly determined that its former penalty was too severe and that a lighter
punishment is proper as punishment for the commission of the prohibited act. It is an
inevitable inference that the Legislature must have intended that the new statute imposing
the new lighter penalty now deemed to be sufficient should apply to every case to which
it constitutionally could apply. The amendatory act imposing the lighter punishment can
be applied constitutionally to acts committed before its passage provided the judgment
convicting the defendant of the act is not final.' " (Lara, supra, 4 Cal.5th at p. 307,
quoting In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) " 'The Estrada rule rests on
an inference that, in the absence of contrary indications, a legislative body ordinarily

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intends for ameliorative changes to the criminal law to extend as broadly as possible,
distinguishing only as necessary between sentences that are final and sentences that are
not.' [Citations.]" (Lara, at p. 308.)
The Estrada rule applies to the mental health diversion statutes because they
lessen punishment by giving defendants the possibility of diversion and then dismissal of
criminal charges. (Frahs, supra, 27 Cal.App.5th at p. 791.) In addition, applying the
mental health diversion statutes retroactively is consistent with their purpose, which is to
promote "[i]ncreased diversion of individuals with mental disorders to mitigate the
individuals' entry and reentry into the criminal justice system while protecting public
safety." (§ 1001.35, subd. (a).)
The statutes' definition of pretrial diversion, which indicates they apply at any
point in a prosecution from accusation to adjudication (§ 1001.36, subd. (c)), does not
compel a different conclusion. "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. Indeed, the fact that a juvenile
transfer hearing under Proposition 57 ordinarily occurs prior to the attachment of
jeopardy, did not prevent the Supreme Court in Lara, supra, 4 Cal.5th 299, from finding
that such a hearing must be made available to all defendants whose convictions are not
yet final on appeal." (Frahs, supra, 27 Cal.App.5th at p. 791; but see People v. Craine
(2019) 35 Cal.App.5th 744, 760 ["section 1001.36 does not apply retroactively to
defendants whose cases have progressed beyond trial, adjudication of guilt, and
sentencing"].)

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The statutes' legislative history also does not compel a different conclusion. The
statutes were part of an omnibus bill addressing more than a dozen diverse healthcare-
related concerns. One of the concerns pertained to criminal defendants with mental
disorders that prevent them from being competent to stand trial. (See Stats. 2018, ch. 34,
§§ 25–27 [amending §§ 1370, 1370.01, 1372].) Another of the concerns pertained to
criminal defendants with certain mental disorders that played a significant role in their
crimes. (See Stats. 2018, ch. 34, § 24 [adding §§ 1001.35 & 1001.36].) The bill's
handling of these two concerns intersected in at least one key respect: the bill added a
provision authorizing a court, after finding a defendant mentally incompetent to stand
trial and before transporting the defendant for treatment to restore competency, to grant
the defendant diversion under section 1001.36 if the defendant is otherwise eligible for
such diversion. (§ 1370, subd. (a)(1)(B)(iv)–(v).) In other words, a defendant found
mentally incompetent to stand trial need not be restored to competency before being
considered a candidate for diversion under section 1001.36.
This aspect of the bill evidences an intent to streamline mental health treatment for
criminal defendants who are both mentally incompetent to stand trial and eligible for
mental health diversion. Indeed, this intent is reflected in a legislative committee report,
which described the bill's actions as including the implementation of "a mental health
diversion program with a focus on reducing the number of Incompetent to Stand Trial
referrals to the Department of State Hospitals." (Assem. Com. on Budget, Conc. in Sen.
Amends. to Assem. Bill No. 1810 (2017-2018 Reg. Sess.) as amended June 12, 2018,
p. 7.) This aspect of the bill does not address the retroactivity of the statute and,

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therefore, does not evidence an intent for the mental health statutes to be solely a pretrial
mental health diversion measure. As previously explained, the fact the statute is designed
to ordinarily operate pretrial does not preclude it from applying retroactively. (Frahs,
supra, 27 Cal.App.5th at p. 791, citing, e.g., Lara, supra, 4 Cal.5th 299.)
Our conclusion is bolstered by the fact the California Supreme Court decided Lara
before the Legislature enacted the mental health diversion statutes and the Legislature is
deemed to have been aware of the decision. (See People v. Overstreet (1986) 42 Cal.3d
891, 897.) Had the Legislature intended for the courts to treat the mental health diversion
statutes in a different manner, we would expect the Legislature to have expressed this
intent clearly and directly, not obscurely and indirectly. (See In re Pedro T. (1994)
8 Cal.4th 1041, 1049 [to counter the Estrada rule, the Legislature must "demonstrate its
intention with sufficient clarity that a reviewing court can discern and effectuate it"].)
Consequently, we conclude the mental health diversion statutes apply retroactively to this
case.
3
This conclusion does not, however, end our inquiry. Effective January 1, 2019,
section 1001.36 provides, "At any stage of the proceedings, the court may require the
defendant to make a prima facie showing that the defendant will meet the minimum
requirements of eligibility for diversion and that the defendant and the offense are
suitable for diversion. The hearing on the prima facie showing shall be informal and may
proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie

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showing is not made, the court may summarily deny the request for diversion or grant
any other relief as may be deemed appropriate." (§ 1001.36, subd. (b)(3), italics added.)
Based on this provision, the People contend remanding the case to allow the court to
exercise its discretion is unnecessary because Wells has not established she can make the
requisite prima facie showing.
We find this contention unpersuasive for two reasons. First, the prima facie
showing provision is discretionary, not mandatory. Second, the purpose of the provision
is to determine whether a defendant is potentially eligible for diversion. (See Sen. Rules
Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 215
(2017-2018 Reg. Sess.) as amended August 23, 2018, p. 2 [the prima facie showing
provision "[a]uthorizes a court to request a prima facie hearing where a defendant must
show they are potentially eligible for diversion"].)
In this case, the record indicates Wells is severely mentally ill and requires
medication to manage her mental illness. Indeed, the court specifically commented on
Wells's mental illness during the sentencing hearing and lamented it did not have the
discretion to craft a sentence that would assure Wells received mental health treatment.
All the court was able to do was recommend Wells be housed in a facility capable of
providing her psychiatric treatment.
Of course, at this juncture, the record cannot answer whether the court will be
satisfied Wells's mental illness was a significant factor in the commission of her crimes,
whether a qualified mental health expert will believe she will respond to treatment, and
whether the court will be satisfied treating her in the community will not pose an

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unreasonable risk of danger to public safety. (See § 1001.36, subd. (b)(1)(B), (C), & (F).)
Wells has not yet had an opportunity to develop the requisite expert evidence and the
court has not yet had an opportunity to consider whether she would be an appropriate
candidate for mental health diversion. By reversing the judgment and remanding the
matter for a mental health diversion eligibility hearing, which we conclude is the most
appropriate course, both Wells and the court will have these opportunities.
D
Finally, Wells contends the court's imposition of the fines, fee, and assessments
violated the due process clauses of the federal and state Constitutions and we must stay
execution of them until the court determines she has the present ability to pay them. In
light of the reversal of the judgment, we decline to decide this issue. Instead, Wells may
raise this issue with the court at an appropriate time after the court considers the mental
health diversion issue.
IV
DISPOSITION
The judgment is reversed. The cause is remanded to the superior court with
directions to conduct a mental health diversion eligibility hearing under section 1001.36.
If the court determines Wells qualifies for diversion, then the court may grant diversion.
If Wells successfully completes diversion, then the court shall dismiss the charges against
her.
If the court determines Wells is ineligible for diversion, or Wells does not
successfully complete diversion, then the court shall reinstate Wells's conviction,

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conduct further sentencing proceedings as appropriate, and forward a certified copy of
the resulting abstract of judgment to the appropriate corrections agency.
McCONNELL, P. J.
WE CONCUR:
AARON, J.
IRION, J.

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