Opinion
D078367
10-29-2021
THE PEOPLE, Plaintiff and Respondent, v. KEVIN IVAN MALETA, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, No. RIF1703871 Mac R. Fisher, Judge. Affirmed as modified.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
HALLER, Acting P. J.
An information filed in March 2019 charged defendant Kevin Ivan Maleta with assaulting Jane Doe by means of force likely to produce great bodily injury on July 17, 2017 (Pen. Code, § 245, subd. (a)(4), count 1); making criminal threats that would result in death or great bodily injury (§ 422, count 2); and brandishing a deadly weapon not in self-defense (§ 417, subd. (a)(1), count 3). The information further alleged that in the commission of the assault, Maleta personally inflicted great bodily injury on Doe. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).)
Further undesignated statutory references are to the Penal Code.
On July 1, 2019, Maleta requested mental health diversion under section 1001.36. The People opposed the request. On July 11, 2019, the trial court denied Maleta's motion, finding him statutorily ineligible because he posed an unreasonable risk of danger to public safety if treated in the community.
In January 2020, the jury found Maleta guilty on counts 1 and 3, and not guilty on count 2. The jury found true the great bodily injury enhancement attached to count 1. In July 2020, the trial court imposed the middle term of three years on count 1, exercised its discretion and struck the punishment for the great bodily injury enhancement, and imposed a 180-day jail term on count 3 to run concurrently with the term on count 1. The trial court also accepted Maleta's guilty pleas in two unrelated criminal matters, Riverside County Superior Court case Nos. RIM1811069 (RIM1069) and RIF2000030 (RIF0030), aggregated sentencing, and imposed an additional 8-month term to run consecutively to the term imposed in the instant case.
On appeal, Maleta contends that the trial court abused its discretion in denying his request for pretrial mental health diversion; the trial court erred in denying his motion to dismiss the charges in the instant case due to the failure of law enforcement to preserve what he claims was exculpatory evidence of his 911 call reporting the July 17 incident; that the evidence is insufficient to support the jury's true finding on the great bodily injury enhancement; and that remand is necessary for a new sentencing hearing because the trial court allegedly failed to consider his service-related posttraumatic stress disorder (PTSD) as a mitigating factor during sentencing. Finally, Maleta contends, and the People agree, that the abstract of judgment and sentencing minute order should be amended to show the trial court struck the punishment for the great bodily injury enhancement rather than merely staying such punishment.
As we explain, we agree with the parties that the abstract of judgment and sentencing minute order should be amended to show the trial court (1) struck the punishment on the great bodily injury enhancement; and (2) sentenced Maleta in case RIF0030 to an 8-month term to run consecutive to the sentence in the instant case. In all other respects, we affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Case-in-Chief
At about 8:00 a.m. on July 17, 2017, Doe parked her vehicle in the gym parking lot where she worked as a personal trainer and self-defense instructor. The gym is located in the city of Corona. As soon as Doe parked, she saw in her rearview mirror a vehicle pull up and stop behind her vehicle. Doe noticed the male driver making what she described to the jury as "aggressive gestures" with his hands. Doe identified the other driver in court as Maleta.
Once out of her vehicle, Doe saw defendant's driver-side window was open. Maleta yelled out his window," 'You fucking bitch, didn't you see me?'" Maleta continued to yell at Doe, calling her a" 'fucking dyke, '" a" 'brown bitch, '" and a" 'dirty bitch.'" He then rhetorically asked Doe," 'You want a dick? You want my dick, you fucking dyke?'" Doe saw Maleta pick up a knife. With the blade showing, he began waving it back and forth in a menacing manner, yelling from inside his vehicle," 'I'll fucking stab you, you bitch. I'm gonna stick my knife up your ass.' "
Doe became fearful. Maleta not only had a knife, but she noticed he was about "twice [her] size." Doe estimated their verbal confrontation lasted about one or two minutes. At some point Doe told Maleta that if he was a gym member, she would ask her manager to revoke his membership. She also told Maleta to "get the fuck out of there."
Doe told the jury Maleta became even more angry. He "aggressively" drove and parked his vehicle in an empty spot near her vehicle. Once parked, Maleta continued to insult Doe, including asking her if she had been "touched" by her "daddy." He then grabbed his crotch and asked Doe if she wanted "his dick." Doe again told Maleta to leave.
Maleta instead got out of his vehicle. Doe saw he was even larger than she had realized and was still holding the knife. Maleta lunged at her with both hands. Doe testified "everything happened so fast" she was unsure what he did with the knife. Maleta grabbed Doe in her chest area and swung her back and forth about four times, slamming her against the vehicles.
Maleta next threw Doe to the ground, straddled her, and with closed fists, began hitting her in the face and head. He picked her up by the shirt and again slammed her against a vehicle, breaking its side mirror. While she was pinned against the vehicle, he used both hands to squeeze her neck. Doe told the jury her vision started to blur, she felt faint, and she defecated on herself. Doe estimated Maleta strangled her for about 40 to 60 seconds.
Doe fought back. She struck Maleta on the face with a closed fist and "kneed him in the genitals." After kneeing Maleta, Doe and Maleta traded blows; Doe estimated she hit Maleta in the face about three times.
Doe saw a woman she recognized as a gym member, Maria H., approach and scream at Maleta to stop. Maleta pushed the woman aside. The woman's boyfriend then approached. Outnumbered, Maleta got into his vehicle and, as he drove away, used his hand to make a "gun gesture" that he pointed at Doe.
Doe's injuries included scrapes to and swelling in her knees; scrapes to her elbows; a cut inside her mouth; swelling around her nose; bruises and intense pain in her side, back, and body in general; and bruises and scratches to her neck area. Doe estimated it took more than two weeks for some of her injuries to heal; and she had difficulty speaking, eating, and drinking for about three weeks due to injuries to her throat. Because of physical pain from the attack, Doe was unable to exercise or work. Doe went to physical therapy for about a month; took medication for pain, anxiety, and depression for about four months; and sought counseling for emotional distress.
Corona Police Officer Mike Madory contacted Doe in the gym parking lot within minutes of the incident. After a brief interview, he drove Doe to an "infield show-up" where she identified Maleta as her attacker. The following day, Officer Madory interviewed Doe at the police station. Officer Madory noticed during this follow-up interview that Doe's voice had changed, as it was more "raspy" than the day before, and that she appeared to have difficulty talking. Officer Madory and another officer urged Doe to seek medical attention.
Maria told the jury she was a member of the gym where Doe trained and taught classes, including to Maria's children. Maria and a friend were driving past the gym parking lot when Maria saw Doe arguing with a very large man, who Maria identified in court as Maleta. Concerned for Doe, Maria double parked her vehicle and approached the two, who then began "hitting each other."
Maria saw Maleta grab Doe by the shoulders and bang her head against Maria's vehicle, leaving a large dent on the passenger side door. Maleta also punched Doe "really bad," causing her to fall to the ground. He bent over Doe and continued striking her with closed fists on the face, shoulders, and upper body. At some point during the altercation, Maleta pinned Doe against a vehicle and put his hands around her neck for what Maria estimated was a few seconds.
Shortly after 9:00 a.m. on the day of the incident, Officer Maxwell Medeiros of the Corona Police Department responded to a traffic stop where Maleta had been contacted by another officer. Maleta appeared visibly upset, his shirt was ripped, and he had two small abrasions to his knees and a few markings on his chest area. Officer Medeiros recovered a "small black folding knife" from the passenger seat of Maleta's vehicle.
Officer Jose Juarez of the Corona Police Department was on duty at the time of the incident. He contacted Maria at about 9:00 a.m. She told the officer she saw a man (later identified as Maleta) exit his vehicle, which was parked behind Doe's, "grab[] [Doe] by the shoulders" and repeatedly strike Doe in the face.
Detective Christian Vaughan of the Riverside Police Department testified as a strangulation expert. He told the jury that in strangulation cases a person may suffer tissue swelling that can affect his or her voice box; that a person also may lose bowel and/or bladder control either while conscious or right before he or she is about to lose consciousness, as the body reacts to the loss of oxygen to the brain; and that a person may not even realize he or she has lost consciousness as it can be as quick as a "blink of an eye." He added it was not uncommon for a person to momentarily lose consciousness from strangulation and then recover, allowing that person to "engage in combat or fight back."
Detective Vaughn was presented with a set of hypothetical facts similar to those in the instance case, in which a 6 foot 5 inch, 235-pound male uses both hands to strangle the neck of a 5 foot 5 inch, 140-pound female for about 40 to 60 seconds, causing the female to defecate on herself during the encounter, and to have difficulty speaking, eating, and swallowing for about three weeks after strangulation. The detective opined that, because of the size difference between the two individuals, he would be "shocked" if the female in this hypothetical did not become unconscious or go "in and out of unconsciousness several times during that incident."
At trial, defendant testified he weighed 280 pounds.
Defense
Maleta told the jury that he was a member of the gym where Doe worked and that he had just finished his morning workout on July 17. As he was backing his vehicle out of a parking spot, he saw a vehicle come down the parking aisle at what he considered an unsafe speed. Maleta quickly applied his vehicle's brakes to avoid hitting the other vehicle, which parked about five spots away. He drove his vehicle and stopped behind the other vehicle, intending to tell its driver to slow down. Once stopped, he immediately recognized the other driver as one of the personal trainers of the gym.
When Doe was about three to five feet away from his vehicle, he asked if she had seen him backing out of the parking space when she passed by. Doe pretended not to hear Maleta. He repeated his question, and this time Doe said, "Get gone, bitch." Surprised by her attitude, Maleta responded, "So fuck me; right?" Maleta explained he made this comment because he felt Doe had been dismissive, treating him like a "school child."
Then, according to Maleta, "all hell broke loose."
Maleta testified that Doe went into a rage, "balled up her fists," "furrowed her brow" and yelled, "Let's handle this right now. I'll fuck you up right here. Get the fuck out of the car." Doe began to move closer to the driver's side window of Maleta's vehicle, imploring him to fight.
As Doe came closer, Maleta grabbed a knife he kept in his vehicle for "emergency situations" and put it near his hip. The knife was closed. Doe moved around the vehicle to the passenger side. After seeing Maleta with the knife, she yelled, "I'm going to shove that shit right up your fucking ass."
Doe began to insult Maleta about his weight, calling him a "fat fuck" among other names. In response, he began trash talking back, calling Doe a "dyke" and other derogatory names. Because Doe agreed they should talk to the gym manager, Maleta parked his vehicle.
Once parked, Maleta saw Doe come at him, her fists in a ball with tears running down her face. He made another insulting remark. Doe went to the driver's side window and before he could react, struck him in the left eye with a closed fist. Because Doe appeared ready to deliver another blow, Maleta opened his vehicle door and used his shoulder to forcefully push Doe back as he exited the vehicle. Doe stumbled into another vehicle, breaking one of its side mirrors.
Just then Maleta heard another female approach, screaming at them to stop fighting. The female, who Maleta identified in court as Maria, grabbed Doe around the waist in an attempt to hold Doe back. Doe squirmed out of Maria's grasp, and again came after Maleta.
To gain control of the situation, Maleta lunged at Doe, grabbed her shoulder, and pushed her in the neck area. He estimated his hands were against her neck for only about two to five seconds. He denied strangling Doe, or even putting his hands around her neck. He then took Doe to the ground, where she remained in a "fetal position."
Maleta denied punching Doe with his fists. He admitted slamming her into a parked vehicle, but claimed it happened only once. As he was leaving the gym parking lot, he slowed his vehicle, pointed at Doe, and told her she was going to lose her job for starting the fight, adding, "I got you bitch." He denied using his hand to make a "gun gesture." Shortly after leaving the gym parking lot he called 911.
Maleta sustained abrasions and a black eye in the fight. He denied starting the fight, claimed he had only acted in self-defense, and, although he admitted saying things to Doe that he probably should not have said, he felt he had done nothing wrong.
A three-count criminal complaint stemming from the July 17 incident was filed against Maleta on October 3, 2017. He was ordered to appear for arraignment on November 6, 2017. Following that hearing he was released on a bail bond and remained out of custody until January 2020, when he was convicted in the instant case.
II. DISCUSSION
A. Mental Health Diversion
1. Additional Background
On or about May 15, 2018, the trial court set a hearing to determine whether Maleta was eligible for Veteran's Court. That hearing was continued to allow probation to prepare a Veteran's Court Eligibility Report. After additional continuances, the trial court at an unreported hearing on August 17, 2018, ruled that Maleta was ineligible for Veteran's Court because of his "Violent History."
This report is not in the appellate record.
There is no other information in the record regarding the reason why defendant was denied admittance into this program.
a. Diversion Request and Opposition
On July 1, 2019, Maleta requested mental health diversion under section 1001.36. In his motion, Maleta argued he had made a sufficient prima facie showing of the minimum requirements of eligibility under section 1001.36; he was suitable for diversion; and he was willing to consent to diversion, to waive his statutory right to a speedy trial, and to comply with mental health treatment.
The People opposed Maleta's motion. The People conceded Maleta suffered from a qualifying mental disorder under section 1001.36, subdivision (b)(1)(A), based on "Progress Notes" from a social worker and "notes" prepared on July 27, 2017, by "Doctor Jessie Mabaquiao," in which he diagnosed Maleta with PTSD, "Major Depression," and "Anxiety."
However, the People argued Maleta failed to show his PTSD and/or depressive disorder "played a significant role" in the charged offense as required under subdivision (b)(1)(B) of section 1001.36. The People instead described the July 17 incident as "simple road-rage" that evolved into a violent assault of Doe by Maleta.
The People also argued Maleta failed to proffer any documentation from a qualified mental health expert to show his symptoms motivating the criminal behavior would respond to mental health treatment, as required by subdivision (b)(1)(C) of section 1001.36, or that, if treated in the community, he would not pose an unreasonable risk of danger to public safety, as required by subdivision (b)(1)(F) of the statute. On this latter point, the People included the facts from an additional incident that took place on September 26, 2017 (RIM1069).
On September 26, Maleta called the Corona Police Department 36 times over the course of about an hour and a half. Thirteen of those calls were made to the 911 emergency line. While speaking with dispatchers, Maleta was "vulgar, abusive, and insinuated threats against police officers. The defendant also made suicidal claims." Specifically, during some of these calls Maleta stated, "his fifteen-month-old son wanted to 'hurt a bunch of cops' and that he could see it 'in his eyes.' The defendant told dispatch his son had built an 'I.E.D.' (improvised explosive device) and wanted to 'fuck up a bunch of cops.' While on hold during one of the calls, the defendant is recorded trying to get his infant son to say the words 'Ammonium Nitrate' and 'Aluminum,' which are materials used in homemade explosives." Maleta in another call told a dispatcher that his son was the reason" 'why I don't go fucking down there and kill all of you motherfuckers.'" On September 17, 2018, the People charged Maleta in case RIM1069 with violating section 653x, subdivision (a).
Subdivision (a) of section 653x states in part: "A person who telephones or uses an electronic communication device to initiate communication with the 911 emergency system with the intent to annoy or harass another person is guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), by imprisonment in a county jail for not more than six months, or by both the fine and imprisonment."
The People in their opposition argued that, as a result of Maleta's "violent assault" against Doe on July 17, 2017, which involved the use of a weapon and resulted in her suffering great bodily injury, and his myriad threats of violence against police officers and dispatchers on September 26, 2017, Maleta posed a danger to the public.
b. Hearing
At the July 11, 2019 hearing on Maleta's request for mental health diversion, the court addressed the various factors in subdivision (b)(1) of section 1001.36 (discussed post) in determining whether Maleta made a prima facie showing of eligibility. The court found that Maleta was not charged with any offense that made him statutorily ineligible for diversion; that he had been diagnosed by a mental health profession with PTSD and depression, which qualified under the statute as mental health disorders; that his mental health disorders would likely respond to treatment; and that he had consented to diversion.
The court, however, refused to make a finding that Maleta's mental health disorders played a "significant role" in the commission of the charged crimes involving assault, causing great bodily injury, and making criminal threats. The court found it was not "qualified" to make that determination.
The court then turned to whether Maleta could be treated for his mental health disorders without posing an unreasonable risk of danger to the public as defined in section 1170.18 (discussed post). The court found Maleta had failed to make a showing of eligibility under this prong, noting:
"In reviewing the facts scenario which was set out in the People's responding papers, I find that the assault that Mr. Maleta . . . allegedly committed[] on the victim in this case was fairly severe. Again, he choked her to the point of unconsciousness, beat her, punching her, straddling her, slamming her up against a vehicle, breaking a mirror off of a car by slamming her up against the car. There were bystanders that witnessed [the] assault as well as spoke to police.
"It's for these reasons that I would find that Mr. Maleta does not qualify for mental health diversion. That under prong six it's my opinion that he does pose [an unreasonable] risk of danger to public safety. Specifically, the fact that he, I hesitate to call it [a] fact because it's still not a proven fact, but the allegation that he [choked] the victim to the point of unconsciousness, if that were a crime being litigated at a preliminary hearing, I could see myself holding on an attempt[ed] murder.
"So I believe that he does pose a risk of committing a super strike [under section 1170.18], namely murder. And then there were some other issues that were pointed out in the People's brief concerning a misdemeanor that is currently pending, some threats that Mr. Maleta made while he was on the phone with dispatch also indicating that he may be disposed to committing murder."
The court went on to find that, in addition to being ineligible for diversion, Maleta also was not suitable for the program because of the "nature of this crime." The court concluded: "So I'll find that the defense has not met its burden in terms of proving prima facie." The court then asked the parties if either wanted to be heard further on this matter. Both parties answered, "No, Your Honor."
2. Guiding Principles
In June 2018, the Legislature enacted section 1001.36, which "authorizes a pretrial diversion program for defendants with qualifying mental disorders. The statute defines' "pretrial diversion"' as 'the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment. . . .' [Citation.] The stated purpose of the diversion statute 'is to promote all of the following: [¶] (a) Increased diversion of individuals with mental disorders to mitigate the individuals' entry and reentry into the criminal justice system while protecting public safety. [¶] (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. [¶] (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.'" (People v. Frahs (2020) 9 Cal.5th 618, 626 (Frahs).)
Subdivision (a) of section 1001.36 gives trial courts discretionary authority to grant pretrial diversion "if the defendant meets all of the requirements" specified in subdivision (b)(1) of the statute. (§ 1001.36, subd. (a); see Frahs, supra, 9 Cal.5th at p. 624.) Subdivision (b)(1) sets forth the following six eligibility criteria:
Section 1001.36, subdivision (a) states: "On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in paragraph (1) of subdivision (b)."
"(A) The court is satisfied that the defendant suffers from a [qualifying] mental disorder . . . .
Section 1001.36, subdivision (b)(1)(A) states in full: "The court is satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence of the defendant's mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant's medical records, arrest reports, or any other relevant evidence."
"(B) The court is satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense. . . .
Subdivision (b)(1)(B) of this statute states in full: "The court is satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense. A court may conclude that a defendant's mental disorder was a significant factor in the commission of the charged offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant's mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant's mental disorder substantially contributed to the defendant's involvement in the commission of the offense."
"(C) In the opinion of a qualified mental health expert, the defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment.
"(D) The defendant consents to diversion and waives the defendant's right to a speedy trial....
"(E) The defendant agrees to comply with treatment as a condition of diversion.
"(F) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant's violence and criminal history, the current charged offense, and any other factors that the court deems appropriate."
The Legislature amended section 1001.36 a few months after its enactment "to specify that defendants charged with certain crimes, such as murder and rape, are ineligible for diversion." (Frahs, supra, 9 Cal.5th at p. 627; see § 1001.36, subd. (b)(2)(A)-(H).) As noted by the trial court in this case, none of Maleta's charged offenses are subject to this amendment.
Section 1001.36, subdivision (b)(3) gives trial courts the discretion to require the moving defendant to make a prima facie showing of eligibility:
"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 showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate."
"If the defendant makes a prima facie showing that he or she meets all of the threshold eligibility requirements and the defendant and the offense are suitable for diversion, and the trial court is satisfied that the recommended program of mental health treatment will meet the specialized mental health treatment needs of the defendant, then the court may grant pretrial diversion. [Citations.] The maximum period of diversion is two years. [Citation.] If the defendant is subsequently charged with an additional crime, or otherwise performs unsatisfactorily in the assigned program, then the court may reinstate criminal proceedings. [Citation.] 'If the defendant has performed 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' and 'the arrest upon which the diversion was based shall be deemed never to have occurred.'" (Frahs, supra, 9 Cal.5th at p. 627.)
We review a trial court's ultimate decision whether to grant mental health diversion for an abuse of discretion. (See Frahs, supra, 9 Cal.5th at p. 626 [noting diversion under section 1001.36 is discretionary, not mandatory, even if all the requirements are met]; People v. Moine (2021) 62 Cal.App.5th 440, 448 (Moine) [applying the abuse of discretion standard of review to the trial court's decision whether to grant a request for mental health diversion]; cf. People v. Oneal (2021) 64 Cal.App.5th 581, 589 [recognizing that a trial court's determination "whether the defendant's disorder played a significant role in the commission of the charged offense" is "a quintessential factfinding process" subject to review for substantial evidence].)
" [A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) But "[a] court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard [citations], or bases its decision on express or implied factual findings that are not supported by substantial evidence." (Moine, supra, 62Cal.App.5th at p. 449.)
3. Analysis
Maleta argues the trial court erred in two main respects. First, the trial court was obligated to make a finding on whether Maleta's mental disorders played a "significant role" in the commission of the two offenses. Second, the trial court abused its discretion in finding he posed an unreasonable risk of danger to public safety. On this latter point, Maleta argued this finding was inconsistent with his lack of a criminal record, and his being out on bond between November 2017 and January 2020, when he was convicted. Because we conclude substantial evidence supports the trial court's finding that Maleta posed an unreasonable risk of harm to public safety if treated in the community, we conclude the court properly exercised its broad discretion in finding he was ineligible for diversion. In light of our decision, we decline to reach Maleta's first claim of error on this issue.
As summarized ante, Maleta submitted the Progress Notes from an unnamed social worker and notes with diagnoses from Dr. Mabaquiao in support of his request for pretrial diversion. However, neither set of notes is included in the appellate record; nor is there any meaningful summary of the contents of these notes. Moreover, although Maleta faults the trial court for not making a decision on whether his mental disorders allegedly were a "significant factor" in the commission of the charged offenses (see § 1001.36, subd. (b)(1)(B)), we note defendant at no time, either before or during the eligibility hearing, asked the court to appoint a qualified mental health expert to render an opinion on this factor, or, for that matter, on any of the other factors, including whether he posed an unreasonable risk of danger to public safety, despite the fact it was his burden to establish eligibility for diversion. (See id., subds. (a) & (b)(1)(F); see also Evid. Code, § 730 [stating in part, "[w]hen it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required."].)
The focus of our inquiry in this case is on this sixth factor or prong. As noted, section 1001.36's definition of "unreasonable risk of danger to public safety" is supplied by reference to section 1170.18. (§ 1001.36, subd. (b)(1)(F) [stating the trial court must be "satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in [§] 1170.18"].) Section 1170.18, in turn, defines "unreasonable risk of danger to public safety" as "an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667." (§ 1170.18, subd. (c).) The violent felonies encompassed in this definition "are known as 'super strikes' and include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment." (People v. Jefferson (2016) 1 Cal.App.5th 235, 242.)
"Section 1001.36's reliance on the definition of dangerousness in section 1170.18, necessarily encompasses the list of super-strike offenses found at section 667, subdivision (e)(2)(C)(iv). By requiring an assessment of whether the defendant 'will commit a new violent felony' within the meaning of section 667, subdivision (e)(2)(C)(iv), a trial court necessarily must find the defendant is 'likely to commit a super-strike offense.' (People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310 [reviewing a dangerousness finding under § 1170.18].) Thus, the risk of danger is narrowly confined to the likelihood the defendant will commit a limited subset of violent felonies." (Moine, supra, 62 Cal.App. 5th at p. 450.)
In determining the risk of danger, section 1001.36 contemplates the trial court will consider the opinions of the district attorney, the defense, and qualified mental health experts, as well as the defendant's violence and criminal history, the current charged offenses, and any other factors the court deems appropriate. (§ 1001.36, subd. (b)(1)(F).)
See footnote 9 ante.
Maleta relies on Moine to support his argument the trial court erred in the instant case when it found he posed an unreasonable risk of danger to the public if treated for his mental health disorders in the community. In Moine, the defendant had been charged with (1) assault when he and another patient got into a fist fight in the waiting room of an urgent care facility, and subsequently (2) making criminal threats in another medical provider's waiting room when he threatened to shoot "everybody" because he was upset that a referral to a psychiatrist had not been approved. (Moine, supra, 62 Cal.App.5that pp. 444-445.) The defendant sought mental health diversion under section 1001.36. Attached to his motion was a "medical report by a court-appointed psychiatrist, Joel P. Leifer, MSW, Ph.D." (Moine, supra, at p. 446.) Dr. Leifer's report referenced a forensic assessment prepared by another psychiatrist, Dr. Knape, who had been appointed under Evidence Code section 730. (Moine, supra, at p. 446.) Both Drs. Leifer and Knape opined that the defendant posed a" low risk for future assault.'" (Ibid.)
The trial court in Moine denied the defendant's request for diversion, noting that it assumed the facts in the charged offenses were true, that the defendant had engaged in two acts of violence against others, and that the defendant therefore posed a danger to the public. Immediately following its ruling, the trial court confirmed that the defendant would remain out of custody and on bail. (Moine, supra, 62 Cal.App.5th at p. 447.)
The Moine court reversed the trial court's denial of pretrial diversion based on the lack of evidence of dangerousness of the defendant, and remanded for the trial court to conduct a new hearing to consider his eligibility for mental health diversion. (Moine, supra, 62 Cal.App.5th at p. 452.) In so doing, the Court of Appeal noted that "[n]one of [defendant's past convictions involved a violent felony, let alone a super-strike felony. (See § 667, subd. (e)(2)(C)(iv).) The pending charges, while involving allegations of violence and threats of violence, are not super-strike offenses. There is nothing in the record to indicate the prosecution presented evidence to suggest [the defendant] was likely to commit such an offense in the future, and the circumstances of the pending charges did not support such an inference. To the contrary, two psychiatrists determined that he posed a low risk for future assault." (Moine, supra, at pp. 450-451; cf. People v. Hall (2016) 247 Cal.App.4th 1255, 1265 [affirming denials of resentencing under section 1170.18's "dangerousness" prong where the petitioners had long criminal histories involving violent felonies].)
Finally, the court in Moine supported its decision by noting that the defendant's criminal history consisted only of misdemeanors, and that the trial court had released the defendant into the community on bond for more than two years because he was "not likely to cause 'great bodily harm to others.'" (Moine, supra, 62 Cal.App.5th at p. 451, quoting Cal. Const., art. I, § 12, subds. (b) & (c).)
We conclude Moine is factually distinguishable, and therefore, does not inform our decision in the instant case. First and foremost, unlike the facts in Moine where two experts opined the defendant was a low risk to commit a future assault, no such expert reports exist in the instant case. In fact, as we have noted, the record here is bereft of information from an expert-whether appointed by the court and/or retained by the defense-regarding Maleta's dangerousness, including whether he posed a danger to the public if treated in the community.
Second, Moine is also factually distinguishable because the defendant's assaultive conduct in that case was limited to a "fist fight" in an urgent care center, whereas Maleta was charged with the assault of Doe by means of force likely to produce great bodily injury, which count included the enhancement that he personally inflicted great bodily injury on her. Initially, we note the trial court properly considered the pending criminal charges arising from both the July 17 incident in the gym parking lot, and from the September 26 incident in which Maleta made myriad phone calls to the Corona Police Department threatening harm to officers and dispatchers, in determining Maleta was likely to commit a super-strike offense if he received mental health treatment in the community. (See § 1001.36, subd. (b)(1)(F) [noting a court in making this determination may consider "the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant's violence and criminal history, the current charged offense, and any other factors that the court deems appropriate" (italics added)].)
As summarized ante, in the July 17 charged offense, it was alleged that Maleta violently attacked Doe; that before the attack, he allegedly called her a "fucking dyke" and a "brown bitch" among other insulting names; that while insulting her, he brandished a knife and waved it back and forth in a threatening manner while saying, "I'll fucking stab you, you bitch" and "I'm going to stick my knife up your ass."
Once the assault began, it was alleged Maleta slammed Doe multiple times into parked vehicles, breaking the side mirror of one of the vehicles. He also threw her to the ground and punched her in the face at least three times. Most concerning, it was alleged that for about 40 to 60 seconds Maleta squeezed Doe's neck with enough force that she began to feel faint, and ultimately defecated on herself as a result of losing consciousness from oxygen deprivation. Finally, as he was leaving the parking lot after the assault, Maleta allegedly gestured with his hand as if he was pointing a gun at Doe.
What's more, a few months after the July 17 incident, Maleta made numerous threatening phone calls to the Corona Police Department emergency call center, including one in which he said his young son was the only reason "why I don't go fucking down there and kill all of you motherfuckers," and another when he talked about "Ammonium Nitrate" and I.E.D.'s and how he wanted to "fuck up a bunch of cops."
We note Maleta's lack of criminal history prior to these two incidents. We also note that he was not charged with a super-strike offense prior to seeking pretrial diversion in this case, and that he was allowed to remain out of custody and on bail for more than two years after he was charged in the July 17 incident. We nonetheless conclude there is substantial evidence in the record to support the trial court's finding that Maleta's alleged assault of Doe was "fairly severe" and that based on this incident and the September 26 incident, he was capable of committing the super-strike offense of attempted murder if treated in the community. We also note Maleta was found to be ineligible for Veteran's Court in August 2018 because of his" [v]iolent [h]istory." In sum, although reasonable minds might differ as to whether to grant Maleta pretrial diversion, we are not persuaded that the trial court's decision in this case to deny his request was an abuse of discretion.
Defendant also relied on People v. Williams (2021) 63 Cal.App. 5th 990 (Williams) to support his claim the trial court erred in finding he posed an unreasonable risk of danger to the public. For reasons similar to those in Moine, we find Williams inapposite in the instant case because there was uncontroverted evidence that the defendant posed a low risk to public safety based on the opinions of two mental health professionals, and based on the nature of the offenses themselves, which did not involve assaultive conduct and great bodily injury to the victim. (Id. at pp. 998, 1003.)
B. Failure to Preserve Exculpatory Evidence
1. Additional Background
During in limine motions, Maleta requested the charges from the July 17 incident be dismissed because the state had failed to retain the recording of the 911 call he made to dispatch shortly after the incident. Maleta argued he made exculpatory statements during this call, as he told the dispatcher that he acted in self-defense and that he was the victim in the incident. In support of his motion to dismiss, Maleta relied on a document from the Riverside County District Attorney's Office dated December 12, 2019, which stated the recordings of the 911 calls he and Doe had made within minutes of the incident had been "purged after 1 y[ea]r." In support of his request for dismissal, Maleta cited among other authorities California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood).
The People opposed Maleta's motion. The People noted that the recordings of the 911 calls made by the parties had been purged in July 2018 pursuant to the Corona Police Department's one-year retention policy; that the People had requested the 911 recordings of the two calls "multiple times"; and that they had obtained the "dispatch logs" regarding those two calls, which evidence they had turned over to the defense. The People also noted that on January 28, 2018, months before the recordings of the 911 calls were purged, they had "ordered all photos, audio, and video associated with Corona Police Department report number 17-8029"; and that in response, they had received "several disks of bodycam video, video interviews, and photographs" which were turned over to the defense. Finally, the People noted that a dispatch supervisor was available to testify regarding the audio retention policy of the Corona Police Department.
The notes from the dispatch logs are not in the appellate record.
The People therefore argued Maleta's motion to dismiss should be denied because there was no evidence (1) of bad faith by the Corona Police Department in purging the recordings of the 911 calls pursuant to its one-year retention policy; and (2) the 911 recordings might be expected to play a significant role in his case. The People further argued evidence other than the audio of the calls was available, including from the notes in the dispatch logs.
According to the People, those notes showed two calls were placed to 911 within a few minutes of each other on July 17. In one of the calls, Doe reported she had been "assaulted by an unknown male at the gym, that he used a knife, and that he fled in a green Saturn." In another call, Maleta reported that he was "punched by a female trai[ner] through his car window in a parking lot and that he did not need medical attention."
The trial court denied Maleta's motion. In so doing, it ruled the parties could introduce evidence that both Doe and Maleta had called 911 to report the July 17 incident but they could not testify to the content of those calls, as that constituted inadmissible hearsay. Thus for purposes of this appeal, it appears the trial court tacitly found there was no due process violation based on the state's failure to preserve evidence of the parties' 911 calls.
2. Guiding Principles
"The federal constitutional guarantee of due process imposes a duty on the state to preserve 'evidence that might be expected to play a significant role in the suspect's defense.'" (People v. Montes (2014) 58 Cal.4th 809, 837.) Whether the loss of evidence rises to the level of a due process violation is governed by the principles set forth by the United States Supreme Court in Trombetta and Youngblood. (People v. Alvarez (2014) 229 Cal.App.4th 761, 771 (Alvarez).)
Under Trombetta, the state must preserve evidence only if the evidence possesses exculpatory value that was apparent before it was destroyed and if the evidence is of a type not obtainable by other reasonably available means. (Trombetta, supra, 467 U.S. at pp. 488-489.) As an alternative to establishing the apparent exculpatory value of the lost evidence, Youngblood provides that a defendant may show that" 'potentially useful'" evidence was destroyed by the state as a result of bad faith. (Youngblood, supra, 488 U.S. at p. 58; People v. Duff (2014) 58 Cal.4th 527, 549 (Duff) [noting that if evidence" 'might have exonerated the defendant,' [citation] the proscriptions of the federal Constitution are narrower; 'unless a criminal defendant can show bad faith on the part of the [state], failure to preserve potentially useful evidence does not constitute a denial of due process of law'"], quoting Youngblood, supra, at pp. 57-58.)
"Thus, there is a distinction between Trombetta s, 'exculpatory value that was apparent' criteria and the standard set forth in Youngblood for 'potentially useful' evidence. If the higher standard of apparent exculpatory value is met, the motion [to dismiss] is granted in the defendant's favor. But if the best that can be said of the evidence is that it was 'potentially useful,' the defendant must also establish bad faith on the part of the police or prosecution." (Alvarez, supra, 229 Cal.App.4th at p. 773.)
A trial court's findings under Trombetta and Youngblood are factual, and we review them for substantial evidence. (People v. Carter (2005) 36 Cal.4th 1215, 1246 (Carter); Alvarez, supra, 229 Cal.App.4th at p. 776.)
3. Analysis
a. Trombetta
As noted, both Doe and Maleta called 911 within minutes of each other to report the July 17 incident. From the descriptions in the dispatch notes, each party blamed the other for causing the incident. Importantly for purposes of this issue, that was also the case at trial: Doe testified Maleta was the aggressor and she merely acted in self-defense; and Maleta testified Doe was the aggressor and he was the victim. The recordings of the parties' statements to dispatch were thus merely duplicative of the trial testimony heard and considered by the jury in resolving this dispute. As such, we conclude substantial evidence supports the trial court's tacit finding that the 911 recordings lacked exculpatory value that was apparent before this evidence was destroyed. (See Carter, supra, 36 Cal.4th at p. 1246.)
Moreover, we separately conclude substantial evidence also supports the tacit finding that this destroyed evidence was reasonably available by other means-in this case, through the parties' trial testimony and/or the dispatch notes. For this additional reason, we reject Maleta's claim the state violated his right to due process of law under Trombetta by failing to preserve evidence of the 911 recordings.
b. Youngblood
Because the most that can be said of the 911 recordings is that they were" 'potentially useful'" to Maleta's claim of self-defense, it was incumbent on him to show bad faith by the state in failing to preserve such evidence. (See Duff, supra, 58 Cal.4th at p. 549; Youngblood, supra, 488 U.S. at p. 58.) However, Maleta does not argue on appeal that the state acted in bad faith in failing to preserve the 911 recordings. And for good reason.
The record shows the calls were purged in due course as a result of the one-year retention policy of the Corona Police Department. The record further shows the People undertook reasonable efforts to preserve this evidence months before it was destroyed, when it ordered "all photos, audio, and video" associated with the Corona Police Department's report of the incident. (Italics added.) We therefore conclude that, even if evidence of the 911 recordings was" 'potentially useful'" to Maleta's case, substantial evidence supports the finding the state did not act in bad faith in failing to preserve the recordings. (See Carter, supra, 36 Cal.4th at p. 1246; Alvarez, supra, 229 Cal.App.4th at p. 776 [noting the negligent destruction of, or failure to preserve, potentially exculpatory evidence, without evidence of bad faith, does not give rise to a due process violation], citing Youngblood, supra, 488 U.S. at p. 58.) We thus reject this claim of error.
C. Substantial Evidence Supports the True Finding on the Great Bodily Injury Enhancement
Maleta next contends there was insufficient evidence that he inflicted great bodily injury on Doe to sustain the great bodily injury enhancement on count 1. (See § 12022.7, subdivision (a).)
Subdivision (a) of section 12022.7 states: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years."
1. Guiding Principles
" '[G]reat bodily injury' means a significant or substantial physical injury." (§ 12022.7, subd. (f).)" 'It is an injury that is greater than minor or moderate harm.'" (People v. Wyatt (2012) 55 Cal.4th 694, 702.) "[T]o be significant or substantial the injury need not be so grave as to cause the victim' "permanent," "prolonged," or "protracted"' bodily damage." (People v. Cross (2008) 45 Cal.4th 58, 64.) "[S]ome physical pain or damage, such as lacerations, bruises, or abrasions is sufficient for a finding of'great bodily injury.'" (People v. Washington (2012) 210 Cal.App.4th 1042, 1047 (Washington).) A loss of consciousness that does not require medical treatment can be sufficient to establish "serious bodily injury" under section 243 (People v. Wade (2012) 204 Cal.App.4th 1142, 1149); and there is abundant decisional authority acknowledging that "serious bodily injury" and "great bodily injury" are "essentially equivalent." (People v. Johnson (2016) 244 Cal.App.4th 384, 391-392.)
"It is well settled that the determination of great bodily injury is essentially a question of fact, not of law.' "Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding." '" (People v. Escobar (1992) 3 Cal.4th 740, 750; see People v. La Fargue (1983) 147 Cal.App.3d 878, 886-887 [noting the "term 'great bodily injury' has been used in the law of California for over a century without further definition and the courts have consistently held that it is not a technical term that requires further elaboration"], cited with approval in Escobar, supra, at p. 750, fn. 3.)
2. Analysis
As summarized ante, substantial evidence supports the jury's finding that Doe sustained "great bodily injury" within the meaning of section 12022.7, subdivision (a). Doe suffered swelling and abrasions to both knees after Maleta threw her to the ground during the attack. She also had a cut inside her mouth due to Maleta punching her face; bruises to her side, back, and other parts of her body due to Maleta repeatedly throwing her against a vehicle with enough force to break the vehicle's side mirror; bruises on and trauma to her neck that made it difficult for her to eat, drink, and speak for nearly three weeks; and lost consciousness as a result of Maleta strangling her with his hands for about 40 to 60 seconds. This evidence is more than sufficient to support the jury's true finding that Doe suffered a "significant or substantial physical injury" in the attack by Maleta. (See § 12022.7, subd. (f); Washington, supra, 210 Cal.App.4th at p. 1047 [noting "lacerations, bruises, or abrasions is sufficient for a finding of 'great bodily injury' "].) We thus reject this claim of error.
D. Defendant's Service-related Mental Health Issues Were Considered at Sentencing
Maleta next contends he is entitled to be resentenced because in sentencing him, the trial court failed to consider his service-related PTSD as a mitigating factor as required by sections 1170.9 and 1170.91 (discussed post).
1. Additional Background
Following his conviction in the instant case, the People filed a sentencing brief that included not only case RIM 1069 (making criminal threats), but also case RIF0030. Case RIF0030 arose from an incident that took place on December 22, 2019, just a few weeks before the trial in the instant action. During the December 22 incident, Maleta allegedly chest-bumped a man inside a department store, resisted arrest, and, while being transported to the jail for processing, made threatening remarks to a police officer.
The People argued that Maleta was presumptively ineligible for probation because of the jury's true finding on the great bodily injury enhancement (see § 1203, subd. (e)); and that this was not an unusual case which, in the interest of justice, warranted probation. However, particularly relevant to this claim of error, the People in their sentencing brief noted one of the factors the trial court should consider in addressing whether the presumption of ineligibility had been overcome was "evidence that the defendant suffers from PTSD from his time in the military."
Subdivision (e) of section 1203 states: "Except in unusual cases in which the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] ...[¶] (3) Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person has been convicted."
After comparing the circumstances in aggravation to those in mitigation and arguing the former significantly outweighed the latter, the People recommended Maleta be sentenced to state prison for 6 years (the middle term of 3 years on count 1, plus 3 years for the great bodily injury enhancement), and 180 days on count 3, to run concurrent to Maleta's sentence on count 1.
Maleta's probation report summarized an interview with him from March 2020. During the interview, Maleta stated that he served in the Army from 2007 to 2012, when he was honorably discharged. While serving in Afghanistan from 2009 to 2010, he "witnessed 'a lot of combat' and as he was a medic, he dealt with many casualties. Moreover, he lost many friends and had to 'put some in body bags.'" "In 2013, he was diagnosed with PTSD, depression, and anxiety. In 2014, he was diagnosed with a Traumatic Brain Injury and [he] recalled being diagnosed with Alcohol Induced Mood Disorder at an unknown time but received treatment in 2010 while in the [A]rmy."
Since his incarceration in the instant case, Maleta began attending the Veteran's Program, a 20-week program that helps veterans suffering from PTSD. Maleta reported the Veteran's Program "has helped him with his PTSD, guilt, and shame from things that occurred during his term in Afghanistan."
The probation report, like the People's sentencing brief, noted that Maleta was presumptively ineligible for probation and that it did not appear his case was unusual to warrant probation. Under "Additional Factors Considered," the probation report cited section 1170.9, subdivision (a). It noted, however, that although Maleta's military service was considered, "it appears the defendant has not accepted culpability or attributed his actions to [PTSD]. Additionally, the defendant was deemed not eligible for Veteran's Court on August 17, 2018." Thus, although the probation report noted Maleta's diagnosis of PTSD related to his military service, it concluded this "factor does not excuse . . . his conduct" toward Doe based on his "lack of accountability and remorse."
The probation report, also like the People's sentencing brief, recommended Maleta be sentenced in the instant case to 3 years on count 1, with an additional 3-year term for the great bodily injury enhancement, with any sentence on count 3 to run concurrent.
The issue of Maleta's PTSD and how, if at all, it would affect sentencing came on for hearing. The court entertained argument from counsel on whether there had to be "some causative relationship" between Maleta's PTSD and the offenses for which he was convicted in this the parties agreed Maleta suffered from PTSD. The trial judge acknowledged, "I am not a psychiatrist" in posing this question to counsel.
Defense counsel argued that if the court needed additional information to determine whether Maleta committed the offenses in this case as a result of suffering service-related PTSD, such additional information should come from a "doctor." Defense counsel added, "But the doctor has to get into the mind of Mr. Maleta in 2017 to determine if at that time he was suffering a symptom. That would be based on Mr. Maleta's discussion of the incident, I think. And Mr. Maleta and I have discussed the incident, and we do believe there's a link."
After additional argument, the court found that this was not an "unusual case" that warranted probation and that Maleta was "going to have a state prison sentence"; that with regard to case RIM1069 and RIF0030, it was inclined to run any sentence on these "trailing matters" concurrent to the instant case; and that it still had not decided whether to impose the 3-year enhancement under section 12022.7, subdivision (a). The court explained, "I'm trying to give you the benefit of my indicated. That's why I've asked the questions in the fashion I have. Because I believe this: This man suffers from PTSD. But right now, I think he should be in prison. Because right now, I think he's dangerous to others."
The court then reiterated that it wanted to resolve all pending criminal matters because it did not want to sentence Maleta in the instant case and have the trailing matters "stack on top of that consecutive terms of imprisonment which ends up with a considerable period of time for Mr. Maleta. [If] I am accepting that he suffers from [PTSD]. I'm just not using that as the basis for an unusual case to get it to probation. But I'm taking it into account as I try to come up with a fair disposition of all matters." The court then continued the sentencing hearing and noted the parties could file supplemental briefs in advance of that hearing.
Maleta in his supplemental sentencing brief asked the court to strike the section 12022.7, subdivision (a) bodily injury enhancement or stay punishment under section 654; to reduce case RIF0030 to a misdemeanor and strike the out-on-bail enhancement under section 12022.1; and to grant him probation and allow him to complete his Veteran's Program. Maleta included letters of support from family members, and his own multi-page handwritten letters in which he discussed his remorse for the July 17 incident, his family history, and his military service. Regarding his military service, Maleta detailed how he developed PTSD after three men he was assigned to protect had been killed.
The People in their supplemental sentencing brief argued the trial court should impose both the great bodily injury and the out-on-bail enhancements because Maleta posed a substantial danger to the public. In the instant case, the People again asked the court to sentence Maleta to 6 years in prison, which included 3 years for the section 12022.7, subdivision (a) enhancement. The People argued the severity of the attack against Doe and the injuries she suffered as a result warranted imposition of the great bodily injury enhancement, which would make Maleta's conviction on count 1 a "violent felony" pursuant to section 667.5, subdivision (c)(8).
Subdivision (c) of section 667.5 states in pertinent part: "Forthe purpose of this section, 'violent felony' shall mean any of the following: [¶] ... [¶] (8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977 . . . ."
In case RIF0030, the People argued the trial court should sentence Maleta to 2 years 8 months and run that sentence consecutive to any sentence in the instant case. The People noted that Maleta committed the offenses in case RIF0030 "in a public place against complete strangers while out on bail for strikingly similar behavior."
At the outset of the continued sentencing hearing, Maleta pled guilty in case RIF0030 (§§ 69, 148, subd. (a)(1), and 242) and in return the court dismissed the out-on-bail enhancement (§ 12022.1) on the People's motion. Maleta also pled guilty in case RIM 1069. (§ 653x, subd. (a).) In the instant case, the court reiterated that Maleta was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(3) because of the true finding on the great bodily injury enhancement, and that this was not an unusual case.
For the instant case, the court imposed the middle term of 3 years on count 1, exercised its discretion under section 1385, subdivision (b)(1) to strike the punishment on the great bodily injury enhancement (but not the enhancement itself), and imposed 180 days on count 3, to run concurrently with the sentence on count 1. The court explained as follows its reason for striking the great bodily injury enhancement:
"As I've read and listened to the victim, I appreciate and understand totally where's she coming from. However, what I take into consideration is the totality of who you are. And I find the fact that you suffer from [PTSD], that you served your country in the armed services, that you are a troubled man, that you need help, and I have chosen to exercise my discretion. And that's how I've come up with the sentence that has been imposed, and that is the bas[is] for my decision." (Italics added.)
The trial court in case RIF0030 imposed an 8-month term on count 1 to run consecutively, and 180 days on counts 2 and 3 to run concurrently, with the sentence in the instant case; and awarded Maleta credit for time served in case RIM 1069.
After imposing various fines, fees, and assessments that are not at issue in this appeal, the court made the following statement:
"First off, I want to say this to you, sir. I hope you get well. I do appreciate your service to your country. But you're a danger right now to innocent people such as the victim in this case. She was at no fault whatsoever for what she went through. It was a close call. I exercised my discretion in favor by giving you less time than I could have. I did that in-for the reasons I've stated on the record. But I'm not naive as to think that you don't need help. You need help. You're a danger to yourself and to others. You need to address that.
"I know I'm not offering you any-a solution to that right now. But you gotta get your mind right. Or else you're going to go back to prison, to my regret, regret of counsel, and to society's regret. Because you're not a throw-away person. You shouldn't just be tossed aside and thrown away. I don't look at veterans like that. Okay?
"And so I've given you a break. I want you to know that. And if you can't see that, then I think you should reflect and think long and hard about what could have happened here. It could have been-I think the total is . . . potentially nine years. Nine years plus. And you got a chance to get yourself right. And when you come back out, the next judge is not going to be as considerate. I can guarantee that.
"I have a real fellowship with people in the service for a lot of personal reasons to me. So you maybe got a little bit of a break here coming before somebody that really respects the armed services and the sacrifice folks like you that made this country. But that does not mean you get to be a criminal in civilized society." (Italics added.)
2. Guiding Principles and Analysis
Pursuant to sections 1170.9 and 1170.91, the trial court is obligated "to consider a criminal defendant's qualifying service-related conditions as mitigating circumstances in making discretionary sentencing choices." (People v. Panozo (2021) 59 Cal.App.5th 825, 831 (Panozo)) Under section 1170.9, subdivision (a)," [i]n the case of any person convicted of a criminal offense who could otherwise be sentenced to county jail or state prison and who alleges that the person committed the offense as a result of. . . [PTSD] . . . stemming from service in the United States military, the court shall, prior to sentencing, make a determination as to whether the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from . . . [PTSD]... as a result of his or her service." Under subdivision (b)(1) of this statute, "If the court concludes that a defendant convicted of a criminal offense is a person described in subdivision (a), and if the defendant is otherwise eligible for probation, the court shall consider the circumstances described in subdivision (a) as a factor in favor of granting probation."
Where the court has decided to deny probation, section 1170.91, subdivision (a) requires further, "[i]f the court concludes that a defendant convicted of a felony offense is, or was, a member of the United States military who may be suffering from . . . [PTSD] ... as a result of his or her military service, the court shall consider the circumstance as a factor in mitigation when imposing a term under subdivision (b) of Section 1170."
In Panozo, this court concluded that sections 1170.9 and 1170.91 "speak in terms that are mandatory rather than permissive" and thus, that they "unambiguously obligate" a sentencing court to consider a defendant's service-related PTSD in making discretionary sentencing choices. (Panozo, supra, 59 Cal.App. 5th at p. 836.) We noted in Panozo that the defendant's "sentencing brief asked for probation, referenced his service-related PTSD, and provided documentation to support his diagnosis and request for treatment. And defense counsel argued extensively at sentencing that his client's crimes were the byproduct of his military service, warranting probation or imposition of the lower term." (Id. at pp. 837-838.) We also noted that, while the trial court "was plainly aware that [defendant] served in Iraq, struggled with PTSD and alcohol use, and requested probation and treatment through Veterans Court," there is no indication the court understood its obligation to consider that fact as a circumstance in mitigation when making discretionary sentencing choices. (Id. at p. 838.) Accordingly, we remanded the matter for resentencing because "a court's compliance with the mandates of sections 1170.9 and 1170.91 cannot be inferred from an ambiguous record." (Id. at pp. 836-837.)
Here, unlike the circumstances in Panozo, the record unambiguously shows the trial court fully complied with section 1170.91. After denying probation, the court repeatedly considered Maleta's service-related PTSD in making its discretionary sentencing choices. In so doing, the trial court in the instant case imposed the mid-term of 3 years, and not the upper term of 4 years, on count 1; struck the 3-year punishment for the great bodily injury enhancement on count 1 (§ 12022.7, subd. (a)), despite the severity of Doe's injuries and over the People's opposition; and ran the 180 days on count 3 concurrent with the sentence on count 1.
Moreover, the trial court in case RIF0030 dismissed the out-on-bail enhancement on count 1 over the People's opposition; sentenced Maleta to one-third the middle term of 2 years on count 1; and imposed 180 days on counts 2 and 3 to run concurrently with the 3-year term in the instant case. Finally, the trial court in case RIM 1069 imposed 180 days, again to run concurrently with the sentence in the instant case.
As the trial court noted, Maleta was facing an aggregate maximum sentence of about 9 years, but instead received a sentence of 3 years 8 months on all cases. Because of the discretionary sentencing choices made by the trial court due, at least in part, to Maleta's service-related PTSD, defendant received a reduced sentence, and the court satisfied its obligation under 1170.91.
In contrast to the trial court's analysis in connection with section 1170.91, the record is ambiguous with regard to whether the court properly understood the scope of its sentencing discretion under section 1170.9. The court at the outset of the hearing noted it had never participated in such a hearing and thus, it had sought guidance from the attorneys. During the course of that lengthy hearing, the prosecution repeatedly maintained that, "if the defendant was otherwise eligible for probation, then the court shall consider" his military status and PTSD. (Italics added.) Defense counsel agreed. Thereafter, and without explanation, the court stated, "I will not deem this to be an unusual case" and denied probation.
The approach the attorneys suggested, and the one the court appears to have adopted, was erroneous. As we noted in Panozo, the statute "requir[es] courts to consider a defendant's service-related condition as a factor in favor of granting probation-not just as a consideration if probation were granted-and mandating consideration of service-related conditions in determinate sentencing even if probation were denied." (Panozo, supra, 59 Cal.App. 5th at p. 836.)
Although remand for resentencing typically is required when ambiguity exists regarding a court's understanding and application of section 1170.9, that is unnecessary here because "the record clearly indicates that the trial court would have reached the same conclusion if it had been aware of its discretion." (See People v. Barber (2020) 55 Cal.App. 5th 787, 814; see also People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez) [where a court is unaware of discretionary sentencing choices, remand for resentencing is required unless the record" 'clearly indicate[s]'" the trial court would have reached same conclusion if aware of such discretion].) Here, the court repeatedly expressed its belief that Maletawas a danger to Doe, himself, and others; and therefore, that he needed to be incarcerated to separate him from society while he continued to rehabilitate. It is apparent from these statements that remand would be an idle act. (Gutierrez, supra, at p. 1391.)
In short, the court satisfied its obligations under section 1170.91 when it considered Maleta's service-related PTSD in exercising its sentencing discretion; and, on this record, remand for the court to consider his sentencing under section 1170.9 is unwarranted.
E. Correction of the Abstract of Judgment and Sentencing Minute Order
Finally, Maleta contends the abstract of judgment and the July 31, 2020 sentencing minute order must be corrected to comport with the trial court's oral pronouncement of sentence in the instant case that the punishment on the great bodily injury enhancement on count 1 was "stricken" (see § 1385, subds. (a) & (b)(1)) and not merely "stayed" (see § 654, subd. (a)). The People agree, as do we. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [recognizing that when there is a conflict between the oral pronouncement of judgment and the minute order and/or abstract of judgment, the trial court's oral pronouncement controls].) The People also note the abstract of judgment and sentencing minute order should be further corrected to show the consecutive 8-month term imposed by the court in case RIF0030. We also agree.
Section 1385 states in part: "(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. [If] (b)(1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a)."
III. DISPOSITION
The trial court is directed to modify the abstract of judgment and sentencing minute order to show (1) the punishment on the great bodily injury enhancement in section 12022.7, subdivision (a) was "stricken" and not "stayed" in count 1 in the instant case; and (2) defendant in case RIF0030 was sentenced to an 8-month term on count 1 to run consecutively with the sentence imposed in the instant case. The trial court is further directed to forward the modified abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: O'ROURKE, J., DO, J.