Opinion
H049905
09-26-2023
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ALFREDO POOL, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1769254)
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant Carlos Alfredo Pool appeals from an order denying mental health diversion entered after this court conditionally reversed the judgment in his appeal from his jury conviction and sentence. On appeal, defendant contends that we should remand to correct the unlawful imposition of prior prison term enhancements under Penal Code section 667.5, subdivision (b), and that we should reverse the court's order denying mental health diversion under section 1001.36. For the reasons explained below, we order the judgment modified to strike the prior prison term enhancement, and we affirm the judgment as modified.
Unspecified statutory references are to the Penal Code.
I. Factual and Procedural Background
The court granted judicial notice of the records in People v. Pool (Oct. 9, 2019, H045567) [nonpub. opn.], review granted, Jan. 15, 2020, S259094, review dismissed, July 29, 2020. Background facts are taken from the prior appeal.
The Santa Clara County District Attorney charged defendant in an amended information with crimes against his wife, K.P. Count 1 alleged that on or about July 15, 2017, defendant assaulted K.P. with a deadly weapon, a hammer (§ 245, subd. (a)(1)). Count 1 further alleged that defendant personally inflicted great bodily injury on her under circumstances involving domestic violence (§ 12022.7, subd. (e)). Count 2 alleged that, on or about July 17, 2017, defendant falsely imprisoned K.P. (§§ 236237), and that during the commission of that crime he personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). Count 3 alleged that, on or about July 15, 2017, defendant inflicted corporal punishment on K.P. (§ 273.5, subd. (f)(1)) and that he personally inflicted great bodily injury upon her (§ 12022.7, subd. (e)). The amended information also alleged two prior felony conviction enhancements under section 667.5, subdivision (b) for which defendant had served a prison term, one for a conviction under section 273.5, subdivision (e)(1) (corporal injury to a spouse), and the other for a conviction under section 245, subdivision (a)(1) (assault with a deadly weapon).
To protect the victims' privacy, we refer to them by their initials only. (Cal. Rules of Court, rule 8.90(b)(4).)
Defendant was tried before a jury in November 2017. The evidence at trial showed that K.P. reported to the police that defendant fractured her ankle with the wooden handle of a hammer, that he kept her "trapped" in their bedroom with him, and that he threatened her with a knife. K.P. testified at trial that defendant had been convicted of domestic violence against her in Idaho, where they previously resided. A former neighbor testified that she had made two calls to 911 in 2016. In one call the neighbor stated that she had heard banging on the walls and heard K.P. say, "[S]top." In another call she told the dispatcher that she saw K.P. had a "purple eye."
The jury found defendant guilty of assault with a deadly weapon (count 1), but it found not true the allegation that he personally inflicted great bodily injury on K.P. The jury also found defendant guilty of felony false imprisonment (count 2), and it found true the allegation that he personally used a deadly or dangerous weapon in the commission of that offense. The jury was unable to reach a verdict on count 3, and the trial court declared a mistrial on that charge and later dismissed it. Defendant waived his right to a jury trial on the prior prison term allegations, and the trial court found true both of the allegations that defendant had previously been sentenced to a term of imprisonment. (§ 667.5, subd. (b).)
In February 2018, the trial court sentenced defendant to an aggregate prison term of five years and eight months, as follows: it imposed a sentence of three years on count 1, an eight-month consecutive sentence on count 2, and a one-year consecutive sentence for one of the prior prison term enhancements (§ 667.5, subd. (b)). The court also imposed a one-year consecutive term for defendant's personal use of a weapon enhancement. It imposed a restitution fine of $300 and imposed and suspended an additional restitution fine under section 1202.45. Finally, the court imposed a court operations assessment of $80 under section 1465.8, and a court facilities assessment of $60 under Government Code section 70373. At the sentencing hearing, the court did not mention the second prior prison term enhancement. Defendant appealed.
While defendant's appeal was pending, the trial court issued an amended abstract of judgment which reduced the term imposed for the personal use of a weapon enhancement for count 2 to four months, for a total aggregate term to five years. The amended abstract sets forth a one-year sentence for one of the section 667.5, subdivision (b) enhancements, but does not list the second prior prison term enhancement.
On appeal, defendant raised claims of insufficient evidence and instructional error, which this court rejected. Defendant also contended on appeal that his case should be remanded for a hearing to determine his eligibility for pretrial mental health diversion under section 1001.36, which was enacted during the pendency of his appeal. This court conditionally reversed the judgment and remanded to the trial court with directions to hold a hearing under section 1001.36 to determine whether to grant defendant diversion under that statute.
On January 15, 2020, the California Supreme Court granted the Attorney General's petition for review in this case, holding the matter pending its decision in People v. Frahs (2020) 9 Cal.5th 618 (Frahs). On July 29, 2020, after the Supreme Court issued its opinion in Frahs finding that section 1001.36 applied retroactively, the Supreme Court dismissed the grant of review. This court issued the remittitur on August 3, 2020.
Upon remand, counsel for defendant filed a motion for mental health diversion under section 1001.36. Attached to the motion was an assessment from Santa Clara County Behavioral Health Services stating that defendant had been diagnosed as suffering from schizoaffective disorder, depressive disorder, and amphetamine dependence. A second exhibit attached to the motion was a report prepared by a psychologist at the request of defense counsel, which diagnosed defendant with depressive disorder and post-traumatic stress disorder. The psychologist reported that she conducted an assessment of the risk of defendant committing a future violent felony and determined that he was not at an unreasonable risk of doing so if he remained sober and compliant with treatment. The report specified that while he was in a moderate-high range of risk based on his history, he was within a moderate risk range for violence currently. In his motion, defendant pointed to the risk assessment in the psychologist's report, his placement in minimum custody status during his prison term for this offense, and his current participation in rehabilitative programming as factors demonstrating that he did not pose an unreasonable risk of danger to the public.
The prosecution filed an opposition to the motion, arguing that defendant should not be granted diversion because he posed an unreasonable risk of danger to public safety. The prosecution's argument regarding the unreasonable risk of danger factor relied primarily on defendant's history of violent physical abuse of his intimate partners that was documented in probation reports for convictions from 2010 and 2012, along with the conviction from the current case.
The victim in the 2010 case, R.M., was the mother of defendant's children. Defendant became upset when he found messages on R.M.'s phone from another man. He pushed her down, sat on top of her, and pressed a knife into her chest area. Defendant later called R.M.'s friends and stated that he was going to harm R.M. He then came to her house and told her to, "[W]atch your back," because "I'm going to kill you."
The conviction in 2012 arose from physical confrontations with his then-girlfriend G.G. Defendant struck G.G. with a chrome bar on her leg, foot, and head, and stabbed her with an icepick. When G.G. tried to flee, he stabbed her above the eye with scissors. He also strangled her for several minutes. These incidents occurred while defendant was on parole, during which he had received several violations, including one for failing to complete a domestic violence program.
Regarding the 2017 incidents that are the subject of the current conviction, K.P. was asked by the police in a domestic violence assessment, "Do you think [defendant] might try to kill you?" to which she replied, "[Y]es." The district attorney also informed the court at the mental health diversion hearing that during the pre-trial period defendant continued to communicate with K.P., in violation of a protective order, and he tried to persuade her how to testify. The district attorney noted that this was during a period when defendant was presumably sober because he had been incarcerated for several months at this point.
After a hearing on March 15, 2022, the court took the matter under submission. On March 22, 2022, the court denied mental health diversion based on its finding that defendant posed an unreasonable risk of danger to public safety under section 1001.36, subdivision (c)(4). The trial court did not order or produce a new abstract of judgment.
Defendant was released on parole on or about August 2019. He was on parole at the time of the diversion hearing.
Defendant filed a timely notice of appeal.
II. Discussion
Defendant raises two sets of claims on appeal, which we address in turn below.
A. Prior Prison Term Enhancements
Defendant contends that remand is required to correct the unlawful imposition of prior prison term enhancements. The Attorney General argues that defendant's resentencing claim is moot because he has completed his sentence. The Attorney General additionally contends that if this court reaches the resentencing issue, it should strike the unauthorized prior prison term enhancements and direct the court to issue an amended abstract of judgment, and not remand the case.
As this court stated in its opinion in defendant's original appeal, there is a "corrected" minute order in the record which asserts that the court dismissed one of the prison priors. However, according to the reporter's transcript from the sentencing, the trial court did not discuss the second prison prior term at all. "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) As noted ante, the amended abstract of judgment sets forth the term imposed for one prior prison term enhancement and does not mention the other. Because the trial court found true both allegations that defendant had previously been sentenced to a term of imprisonment, this section will address both prior prison term enhancements.
Senate Bill No. 136 (2019-2020 Reg. Sess.), which took effect January 1, 2020, amended section 667.5, subdivision (b) "to limit its prior prison term enhancement to only prior prison terms for sexually violent offenses." (People v. Jennings (2019) 42 Cal.App.5th 664, 667 (Jennings).) Senate Bill No. 136 applies retroactively to all cases not yet final on January 1, 2020. (People v. Burgess (2022) 86 Cal.App.5th 375, 380; Jennings, supra, at p. 682.)
The parties agree that Senate Bill No. 136 applies to defendant because the prior prison terms found true by the court were not based on sexually violent offenses and his case was not final as of January 1, 2020, when Senate Bill No. 136 became effective, because his petition for review to the California Supreme Court was pending as of that date. The Attorney General contends, however, that defendant's claim for resentencing is moot because he has served his prison term and is no longer on parole. Defendant argues that the issue is not moot because he is entitled to credit for time he served on the unlawful sentence against the restitution fine and other fines that he paid, pursuant to section 2900.5, subdivision (a).
Although defendant has served his prison term and is no longer on parole, we may determine that the sentencing issue raised here is not moot if the excess days served in prison based on the now-invalid prior prison term enhancements can be applied to outstanding fines and fees under section 2900.5, subdivision (a). (See People v. Sellner (2015) 240 Cal.App.4th 699, 701.) However, while a defendant's excess custody credits may be applied to reduce a fine imposed by the trial court under section 2900.5, subdivision (a), "such excess credits may not be applied to reduce victim restitution, a restitution fine, the court operations assessment, or the court facilities assessment." (People v. Petri (2020) 45 Cal.App.5th 82, 92; People v. Morris (2015) 242 Cal.App.4th 94, 100 [after the 2013 amendment to § 2900.5, subd. (a), excess custody credit may not be applied to a restitution fine]; People v. Robinson (2012) 209 Cal.App.4th 401, 403-404 [excess custody credit may not be applied to court operations or court facilities assessment].) Because no fines were imposed in this case against which excessive time in custody could be applied under section 2900.5, subdivision (a), the issue is moot.
Section 2900.5, subdivision (a) states in pertinent part: "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant, . . . shall be credited upon his or her term of imprisonment, or credited to any base fine that may be imposed, at the rate of not less than one hundred twenty-five dollars ($125) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the base fine." (§ 2900.5, subd. (a), italics added.)
Although we determine that the issue is moot, because we agree with the parties that the prior prison term enhancements found true by the court are no longer valid under Senate Bill No. 136, we will order the judgment modified to strike the section 667.5, subdivision (b) enhancement from case No. C179254.
Because the abstract of judgment in case No. C179254 lists only one sentence enhancement under section 667.5 despite the trial court having found true two enhancements under section 667.5, we order the judgment modified to strike the one section 667.5 enhancement that is listed on the abstract of judgment.
B. Mental Health Diversion
In June 2018, the Legislature enacted section 1001.36, which created a pretrial diversion program for certain defendants with mental health disorders. (Stats. 2018, ch. 34, § 24.) (See Frahs, supra, 9 Cal.5th at p. 624.) The statute defines "[p]retrial diversion" as "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. (f)(1).) Except for defendants charged with certain specified offenses not relevant here, a trial court may grant pretrial diversion when it is satisfied that six criteria are met. (§ 1001.36, subds. (b), (c).)
Here, the court found that five of the six criteria were met, but it determined that defendant did not meet the requirement that "[t]he defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community." (§ 1001.36, subd. (c)(4).) It denied mental health diversion on that basis.
In announcing its decision regarding the "unreasonable risk of danger" factor, the court stated as follows:
"The last factor is the Court must be satisfied that you will not pose an unreasonable risk of danger to public safety as defined in Section 1170.18 if you receive treatment in the community. Now, this section - when you hear 'public safety,' you think, you know, a public safety risk could be someone who breaks into a car or punches someone as they're walking down the street, something like that, but that's not what the statute says. It defines public safety by using a particular Penal Code that relates to what we consider our super strikes. And super strike [sic] are the most egregious types of crimes that we have, and among them would be -- murder is one of them.
"So when I looked at the fact pattern -- or not the fact pattern, but the facts of the case, it was pretty - it was pretty bad. I know that as it occurred and that the jury found that on July 15th of 2017, that you had an argument with your girlfriend, Victim 1, relating to infidelity. And it appears that you took a hammer and used the wooden part, not the hammer part, but the wooden part and hit her ankle twice. And an expert at trial did find that it was like ligament damage, almost like you would get if you twisted your ankle, so the jury did not find the great bodily injury allegation true. I do know that at first you didn't want to take her to the hospital, but you did and then, according to the victim, told her what to say to the treatment team, that she hurt herself dancing.
"Three days later, another argument had over, again, infidelity, but this time, you were swinging a knife. And it sounds like, from what I could understand from the facts, that you used it near an end table in the bedroom, but it did scare the victim. She tried to hide. And then at some point, you had her sit in a place where you could see her while you showered from the bathroom. She did try to escape, and she fell as she was escaping, but was able to get to neighbors and call the police. The police asked her a bunch of questions at the time of arrest, and it's called a lethality assessment. And the one she responded 'yes' to was that you had used a weapon or threatened to use a weapon in the past, that you feared - - that she feared that you could try to kill her, that you had been violent or were constantly jealous or tried to control her activities, that you had tried to commit suicide, that she has a child with a different father - - and that you know that, that you're not the father - - and that she believed that you had followed and spied on her in the past.
"After the trial, a probation report was submitted and it's dated January 11th of 2018. And, again, various risk factors are looked at in all family violence cases, and I think at that time probation ranked you a 13 out of 21. And the - - these factors are supposed to rank or judge people to see if they're believed to be dangerous or violent in the future or what the lethality risk would be for a victim.
"There was another felony conviction, I think, that you had in the past, which was DV on a spouse with - - or partner with a prior conviction, another felony assault with deadly weapon, and then there is a series of misdemeanors, a resisting arrest, a concealed dirk or dagger, and exhibition of a deadly weapon. The prior felony conviction that you had occurred in July of 2012, and in that, it appears that there was a second victim in a relationship with you and that on July 26th, again, thinking that the client was being unfaithful, you hit the victim with a metal bar on her foot, leg and back of her head. The next day, July 27th, she alleged that you stabbed her in the leg with an ice pick. On July 28th, you accused her of being unfaithful to you. She tried to leave. It sounds like you grabbed her by the hair and then had scissors, stabbed her above her left eye and then jabbed her - - jabbing at her with scissors. Then you got on top of her and used one hand to put it on her throat to strangle or choke her. The probation report that was dated April 12th of 2013, it - - basically, the lethality factors, again, that they risked - - ranked were 16 factors positive that you would be lethal or further violent in the future.
"The third case was from March of 2010, which is a significant time ago, but there was a third victim in a relationship with you. And you had seen on her phone, as you were moving your things out at the end of the relationship, that she had messaged some guy. And so you pushed her on the bed, and you sat on her and you took a folding knife out and held it to her breast. Then you took the phone, and than you yelled at her and threatened her. On that, the probation report that was dated February 4th of 2011, risk ranked you for 14 out of 21 risk factors.
"So in this particular case, given the lethality factors as were contained in the police report, given the facts of the offense as I understand them from reading the probation report from the underlying offense, I do not find that you are - I do not find that the element number five has been met, that you will not pose an unreasonable risk of danger to the public safety, as defined in that Penal Code section, because I believe that in the future if you were in a relationship and you had the feeling that a partner was unfaithful, that it is possible that you could kill your partner. And for that reason, I am denying mental health diversion at this time."
On appeal, defendant argues that the factor of "not posing an unreasonable risk to the public if treated in the community" is inapplicable in diversion suitability proceedings, such as this one, that occur post-conviction where the defendant has been released on parole. The Attorney General contends that this issue is forfeited. The trial court delivered its ruling on the issue orally at a hearing, and defendant on appeal acknowledges that defense counsel did not object at the hearing to the court's ruling, or to its reliance on this factor. We agree with the Attorney General that defendant has forfeited the issue by failing to raise it below and thus we decline to reach it. (Cf. People v. Goldman (2014) 225 Cal.App.4th 950, 961 [challenges to discretionary sentencing choices are forfeited by failure to object].)
The Attorney General concedes that this issue is not moot because if diversion were granted and defendant successfully completed the diversion process his charges would be dismissed. (See People v. Pool, supra, H045567.)
Defendant argues in the alternative that if the "unreasonable risk of danger" factor is applicable, the trial court applied the wrong legal standard in denying diversion, and that there was insufficient evidence to support the court's determination that defendant was disqualified from mental health diversion on this basis. The Attorney General contends that the record indicates that the court applied the correct standard, and that substantial evidence supports the court's dangerousness finding.
"A trial court's ruling on a motion for mental health diversion is reviewed for an abuse of discretion, and factual findings are reviewed for substantial evidence." (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147 (Whitmill).)" 'A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard [citation], or bases its decision on express or implied factual findings that are not supported by substantial evidence.'" (Ibid., quoting People v. Moine (2021) 62 Cal.App.5th 440, 449 (Moine).)
One of the eligibility criteria a court must find before granting mental health diversion under section 1001.36 is 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." (§ 1001.36, subd. (c)(4).) "Section 1170.18, subdivision (c) defines 'unreasonable risk of danger to public safety' to mean 'an unreasonable risk that the petitioner will commit a new violent felony' within the meaning of section 667, subdivision (e)(2)(C)(iv). That clause, in turn, itemizes eight categories of offenses-sexually violent offenses, oral copulation with a child under 14, lewd or lascivious act with a child under 14, homicide, solicitation to commit murder, assault with a machine gun on a peace officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by life imprisonment or death- colloquially referred to as 'super strikes.'" (Whitmill, supra, 86 Cal.App.5th at p. 1149.) "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.'" (Moine, supra, 62 Cal.App.5th at p. 450, quoting People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310.) In making this determination, the court may consider "the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant's treatment plan, the defendant's violence and criminal history, the current charged offense, and any other factors that the court deems appropriate." (§ 1001.36, subdivision (c)(4).)
Defendant argues that the trial court erred when it determined that defendant did not meet the requirement that he would not pose an unreasonable risk of danger to public safety because it applied the standard of "possible" to committing a super strike instead of finding that it was "likely" he would commit such an offense. As noted, in assessing whether defendant poses an unreasonable risk of danger to public safety, a court must find that the defendant is "likely to commit a super strike offense." (Whitmill, supra, 86 Cal.App.5th at p. 1151.) The court here in setting forth its decision not to grant mental health diversion stated that defendant had not met the unreasonable risk of danger factor because: "I believe that in the future if you were in a relationship and you had the feeling that a partner was unfaithful, that it is possible that you could kill your partner."
In its written opposition to defendant's motion for mental health diversion, the prosecution cited the required standard, stating that the trial court must find that defendant is likely to commit a super strike offense. The prosecution then continued by arguing that defendant was "likely to commit a super-strike offense in the future if granted diversion pursuant to section 1001.36." The court stated at the hearing that it had reviewed the prosecutor's opposition. At the March 15, 2022, diversion hearing, counsel for defendant repeatedly referred to the correct "likely to commit a super strike" offense standard.
We presume that the court knows and applies the correct statutory and case law. (People v. Coddington (2000) 23 Cal.4th 529, 644.) Here, the parties expressly argued the correct standard to the court, both in writing and at the hearing. In addition, in announcing its ruling on the matter, the court stated: "The last factor is the Court must be satisfied that you will not pose an unreasonable risk of danger to public safety as defined in Section 1170.18 if you receive treatment in the community" and it continued by stating that the mental health diversion statute "defines public safety by using a particular Penal Code that relates to what we consider our super strikes." On this record, we conclude that the court knew of and followed the applicable law when it determined that defendant did not meet the requirement that he would not pose an unreasonable risk of danger to public safety.
We also conclude that the trial court did not abuse its discretion in determining that defendant posed an unreasonable risk to public safety. Defendant has been convicted of repeated acts of significant intimate partner violence in situations that involved threats of further harm to the victims. In the current offense, where defendant broke the victim's ankle, threatened her with a knife, and kept her trapped in a room, the victim told police that she thought defendant would try to kill her. The neighbor also observed the victim as having "a purple eye." (People v.Pool, supra, H045567.) In the 2010 case, he pressed a knife into the chest area of the victim, told her friends that he was going to harm the victim, and told the victim that he was going to kill her. In the 2012 case, he beat the victim with a chrome bar and icepick, stabbed her with scissors when she tried to flee, and strangled her for several minutes.
The trial court could reasonably infer from defendant's prior acts of domestic violence and threats to victims that he presents a risk "of not only threatening violence, but also using deadly force." (People v. Hall (2016) 247 Cal.App.4th 1255, 1266.) The mental health diversion statute specifies that in determining whether defendant will not pose an unreasonable risk of danger to public safety, the court may consider "the defendant's violence and criminal history" as well as "the current charged offense." (§ 1001.36, subd. (c)(4).) Moreover, while the report from the psychologist advised that defendant was not at an unreasonable risk of committing a future violent felony if he remained sober and compliant with treatment, the district attorney noted at the hearing that defendant had violated his no contact order with the victim during the pretrial period in this case during a period in which he was presumably sober, based on his incarceration status.
The trial court in setting forth its ruling stated that it had looked at the "fact pattern" presented by defendant's history of domestic violence. In particular, the court emphasized that as to the 2017 incident, defendant assaulted and injured the victim after an argument related to infidelity, resisted bringing her to the hospital, and told her to lie to medical providers about the cause of her injury. As to the 2012 incident, the court noted that defendant's violence against the victim included hitting her with a metal bar, stabbing her with an icepick, and jabbing her with scissors after accusing her of unfaithfulness. The court added that in the 2010 case, defendant attacked and threatened the victim after seeing that she had messaged another man.
Substantial evidence supports the trial court's conclusion that if defendant was in a relationship again and he believed that his partner was unfaithful, he would pose an unreasonable risk of danger to public safety. Therefore, the court did not abuse its discretion in denying mental health diversion.
III. Disposition
We order the judgment modified to strike the prior prison term enhancement under Penal Code section 667.5, subdivision (b). As so modified, the judgment is affirmed.
WE CONCUR: DANNER, J. BROMBERG, J.