Opinion
F077998
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. BRENNEN JOSHUA MAYTORENA, Defendant and Appellant.
Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F16904363)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found appellant Brennen Joshua Maytorena guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1) and found true that he personally inflicted great bodily injury upon his father, Joshua Maytorena (§ 12022.7, subd. (a)), arising out of an altercation between the two at their home. At a bifurcated court trial, the court found true that appellant had suffered a strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), and two prior prison terms (§ 667.5, subd. (b)). The court sentenced appellant to the middle term of six years plus three years for the great bodily injury enhancement, for a total prison term of nine years. The court struck the imposition of penalty for the prior prison term allegations because the court had considered them as aggravating circumstances. The court imposed an $1,800 restitution fine (§ 1202.4), a $40 courtroom operation fee (§ 1465.8), and a $30 criminal conviction fee (Gov. Code, § 70373). The court also imposed and stayed an $1,800 parole revocation fine (§ 1202.45).
All further undesignated statutory references are to the Penal Code.
Because Joshua Maytorena has the same last name as appellant, we will refer to him by Joshua to avoid confusion. No disrespect is intended. --------
On appeal, appellant asserts: (1) the trial court reversibly erred by declining to instruct the jury on the lesser included offense of simple assault; (2) the trial court reversibly erred by receiving into evidence a statement Joshua made to an officer who responded to the scene that he was "done" with appellant's "violence against [him] for 15 years" because it was inadmissible character evidence pursuant to Evidence Code section 1101, subdivision (a); (3) the matter must be remanded so the trial court can exercise its discretion as to whether to grant mental health diversion pursuant to section 1001.36, which was enacted shortly after appellant was sentenced in the present case; (4) the matter must be remanded for a hearing on appellant's ability to pay fines and fees, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); and (5) the judgment must be amended to reflect an additional day of presentence custody credit, which respondent concedes.
We conditionally reverse appellant's convictions and sentence and remand for the trial court to consider appellant's eligibility for diversion under section 1001.36. We agree there was an error in appellant's judgment regarding presentence custody credit that must be corrected, as we explain in this opinion. In all other respects, we affirm.
FACTS
On July 8, 2016, at around 6:47 p.m., Joshua called 911. A recording of the call was played for the jury. Joshua reported to the dispatcher that his son, appellant, had "just cut [Joshua] with [Joshua's] kitchen knife" and that Joshua was bleeding "profusely." Joshua said appellant had cut Joshua's wrist and "got a good vein." The dispatcher asked Joshua if the injury was intentional or accidental, and Joshua responded, "He attacked me. He's been wanting to do this for a long time. He did it. He won't follow my rules in my house, so he attacked me. He pulled my kitchen knife and attacked me."
Fresno Police Officer Michael Berumen was dispatched to Joshua's residence in response to the call and contacted Joshua upon arrival. Berumen testified Joshua was holding his left hand with a towel and was "pretty frantic." Joshua told Berumen appellant had cut Joshua's hand with a kitchen knife and taken off on foot. Berumen testified that Joshua's injury was a "pretty large slice" between his index finger and thumb approximately two inches.
Joshua was taken to the hospital for his injury a little after 7:00 p.m. After finishing his investigation of the scene, Berumen went to the hospital around 9:00 p.m. and interviewed Joshua. At the hospital, Joshua appeared to Berumen to be much calmer than he had been at the scene. Joshua explained in more detail what had happened. Joshua told Berumen that he had a verbal argument inside the house with appellant. Appellant went outside, and Joshua followed him. They continued to verbally argue on the lawn. Appellant went toward Joshua in a threatening manner, and Joshua expressed to Berumen he knew they were going to fight. Joshua grabbed a metal folding chair and threw it at appellant, but the chair did not hit appellant. Appellant then punched Joshua in the face and kicked him in the torso, causing Joshua to fall. Once Joshua had fallen, he looked up and saw the blade of the knife come down in a slicing manner cutting his hand. Appellant punched Joshua two more times in the face and took off on foot.
Joshua's testimony at trial gave a different version of events than what he told Berumen at the hospital. Joshua testified that he and appellant had gotten into an argument about appellant's responsibilities, and appellant shoved Joshua into the kitchen table. Appellant then went outside, screamed profanities, and yelled "Come fight me, come fight me now." After about a minute, Joshua went outside to tell appellant to be quiet. As soon as Joshua stepped out onto the lawn, appellant "c[a]me at" Joshua with a knife above appellant's head swinging it in a downward motion towards Joshua from a distance of about three to four feet. Joshua threw a chair at appellant "at full force." Appellant tried blocking the chair but his left arm got entangled in the legs of the chair, and Joshua tackled appellant to the ground. Appellant punched Joshua in the face one time. With both hands, Joshua grabbed appellant's left hand and pounded it onto the chair to loosen appellant's grip on the knife and managed to take the knife from appellant's hand. Appellant grabbed Joshua's leg, and Joshua tripped. Joshua got up, pointed the knife at appellant, and said, "Your turn." Appellant picked up the chair, swung it "like a bat" at Joshua, and struck Joshua's right hand causing him to cut his own left hand with the knife. Joshua said appellant did this act in self-defense. Appellant then punched Joshua twice in the face, kicked him in the side, picked up the knife, and ran off. The entire incident, including Joshua cutting himself with the knife, happened on the lawn.
Joshua explained that when he spoke to the 911 dispatcher, he was trying to convey that appellant had struck him with a chair, which caused him to cut himself with the knife, but he was in shock and was not able to say what he wanted to say. Joshua admitted he told Berumen that appellant had cut him with the knife when he was speaking with him in the hospital but that "it was a complete miscommunication going on." Joshua said he did not tell Berumen that appellant had struck him with the chair because he could not recall what had happened during the altercation at the time of his statement.
Joshua testified that he had not wanted to talk to the prosecutor about the case. Joshua said he loved appellant and did not want to testify against him. Joshua did not want appellant to get prosecuted or get in trouble.
After Joshua finished testifying, the People recalled Berumen. Berumen testified he did not believe there was any miscommunication between he and Joshua. Berumen clarified Joshua's statement at the hospital with him several times, including restating it to him. Berumen said that he was "very, very specific and clear with [Joshua] on how that account happened before [Berumen] left" the hospital. Berumen clarified numerous times how things happened, and in what order. Berumen testified that Joshua appeared to understand Berumen's questions as well as the answers Joshua provided. Joshua never told Berumen he had the knife in his hands and never mentioned that appellant had acted in self-defense nor that it seemed like it was an accident. Joshua never at any point during the conversation say that he did not remember something. Joshua never contacted Berumen to make another statement.
Berumen testified that around 9:30 p.m., he got a call from a neighbor that appellant had been sighted. When Berumen arrested appellant, he noted that appellant had no injuries.
After the incident, Joshua could not extend his thumb. Joshua's injury was diagnosed as a laceration of the tendon that allows the thumb to extend upward. The plastic surgery team repaired Joshua's injury bedside following his initial examination. Joshua had a follow up appointment a week later and was referred to occupational therapy. Joshua's sutures were removed on July 20, 2016, and he attended two occupational therapy follow up appointments. On August 17, 2016, it was determined that Joshua did not have the expected function of his thumb, and an MRI revealed the tendon had completely ruptured. Joshua was referred to a hand specialist and had to have formal surgery in an operating room to repair the tendon on January 26, 2017. Joshua testified that at the time of his testimony on June 18, 2018, he did not have feeling on the top of his thumb.
Appellant did not put on any evidence. Defense counsel argued that Joshua's trial testimony was the true series of events, and any discrepancy was due to Joshua's shock on the day of the incident. Defense counsel argued appellant acted in self-defense and injured Joshua by accident.
DISCUSSION
I. Denial of Lesser Included Offense Instruction
Appellant contends his conviction must be reversed because the trial court erred by declining to instruct the jury on simple assault. For the reasons we explain, we find no reversible error.
A. Relevant Background
After the close of evidence, defense counsel requested that the jury be instructed with CALCRIM No. 915, the jury instruction for simple assault. Defense counsel explained there was "some discrepancy" regarding what action caused Joshua's injury, and the jury could conclude that the pushing at the beginning of the incident was a simple assault.
The court noted that the evidence of the pushing was not the evidence the prosecution was relying on to substantiate the charge. The court declined to give the simple assault instruction stating: "[T]he Court is of the opinion that either an assault with a deadly weapon happened or it did not because there was self-defense involved here. There's been no evidence of anything other than a knife being used. The issue for the jury here would be the circumstance of whether or not there was self-defense in using the knife. And so the Court would decline to give CALCRIM [No.] 915, finding that there is insubstantial evidence to do so. It would not merit consideration by the jury under the circumstances here."
B. Relevant Law
The trial court has a sua sponte duty to "instruct fully on all lesser necessarily included offenses supported by the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 148-149 (Breverman.).)
" 'This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence.' [Citation.] '[T]he rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither "harsher [n]or more lenient than the evidence merits." ' " (People v. Smith (2013) 57 Cal.4th 232, 239-240.) " ' "The rule's purpose is ... to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence." ' " (People v. Landry (2016) 2 Cal.5th 52, 96.)
An instruction on a lesser included offense is not warranted unless it is supported by "substantial evidence," meaning "evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense." (People v. Shockley (2013) 58 Cal.4th 400, 403-404.)
C. Standard of Review
"On appeal, we independently review whether a trial court erroneously failed to instruct on a lesser included offense." (People v. Trujeque (2015) 61 Cal.4th 227, 271.)
D. Analysis
The parties agree, as do we, that simple assault (§ 240) is a lesser included offense of assault with a deadly weapon (§ 245). (People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748 (McDaniel).) A simple assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) The only difference between simple assault and assault with a deadly weapon is the latter requires proof that the defendant used a deadly weapon. (McDaniel, at p. 748.) An assault with a deadly weapon cannot be committed without necessarily committing a simple assault.
Thus, the question before us is whether substantial evidence supported a reasonable conclusion that the lesser but not the greater offense was committed.
1. Assault with the Chair
The jury in the present case was presented with two alternate scenarios of how Joshua sustained the injury to his hand: (1) appellant personally cut Joshua with the knife; and (2) appellant swung a chair at Joshua who was holding the knife on appellant causing Joshua to cut himself with the knife.
Appellant argues under the second scenario, the jury could have found appellant committed an assault with the chair, but not that the chair was a deadly weapon within the meaning of section 245. We agree that Joshua's testimony at trial that appellant swung a chair at Joshua causing his hand to be cut constituted substantial evidence warranting the instruction.
The trial court declined to give the simple assault instruction based on there being "no evidence of anything other than a knife being used," but this was not an accurate representation of the evidence, as Joshua had testified the injury occurred by appellant swinging the chair at him. We note that while the credibility of Joshua's testimony was disputed by the prosecution, "[i]n deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (Breverman, supra, 19 Cal.4th at p. 162.)
Here, the jury could have believed that appellant swung the chair at Joshua but not accept Joshua's determination that the chair was swung in self-defense. The jury could have also determined the chair was not a deadly weapon within the meaning of section 245; i.e., that it was not used in such a way that was capable of causing and likely to cause death or great bodily injury. (See CALCRIM No. 875.) We note that none of the instructions, nor the verdict forms, specified the knife as the deadly weapon used in the assault. Joshua's testimony that appellant caused the injury by swinging the chair at him constituted substantial evidence that simple assault rather than assault with a deadly weapon occurred.
This conclusion, however, does not end our inquiry. We must also determine whether the error merits reversal. As the California Supreme Court explained in Breverman, "an erroneous failure to instruct on a lesser included offense is [not] necessarily prejudicial, on the premise that if the evidence was substantial enough to warrant lesser offense instructions in the first place[;] [the evidence] must have been strong enough to affect the outcome had the instructions not been omitted." (Breverman, supra, 19 Cal.4th at p. 177.) The standard used to determine whether the evidence supports the instruction be given and the standard used to determine whether the error affected the outcome of the trial meriting reversal are "distinct." (Ibid.)
A trial court's erroneous failure to instruct on a lesser included offense in a noncapital case is state law error to be reviewed under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson). (People v. Beltran (2013) 56 Cal.4th 935, 955; Breverman, supra, 19 Cal.4th at pp.177-178.) Under Watson, " 'a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.' " (People v. Beltran, at p. 955.) The test " 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (Id. at p. 956, quoting Breverman, supra, 19 Cal.4th at p. 177.)
We note as an initial matter that, in finding appellant guilty of assault with a deadly weapon, they necessarily had to find that appellant used a deadly weapon, whether it be the knife or the chair. However, "in assessing prejudice, 'it does not matter that the jury chose to convict the defendant of the greater offense over acquittal or that the defendant was convicted of the greater offense on sufficient evidence.' [Citation.] To hold otherwise would undermine the very purpose of the sua sponte rule." (People v. Brown (2016) 245 Cal.App.4th 140, 156, as modified on denial of rehg. (Mar. 23, 2016), citing Breverman, supra, 19 Cal.4th at p. 178, fn. 25.)
Keeping this in mind, we conclude that even if an instruction on simple assault had been provided, it was not reasonably probable that appellant would have succeeded in convincing even one juror he had committed only the lesser offense of simple assault and not assault with a deadly weapon.
First, the prosecution's case that appellant assaulted Joshua and caused Joshua's injury with the knife was strong. The prosecutor effectively impeached Joshua's testimony that the injury was caused by appellant swinging the chair by offering testimony from Berumen of Joshua's detailed statement at the hospital as well as testimony that Joshua did not appear to miscommunicate what happened nor did he later try to revise his statement. The prosecutor also elicited from Joshua that he did not want to testify against appellant and did not want to cooperate with the prosecutor, which provided motivation for Joshua to downplay appellant's culpability. Further, Joshua's trial testimony did not match the physical evidence of the scene, but his statement to Berumen at the hospital did. Joshua testified that the entire incident took place in the lawn area, where the metal chair was found, but the majority of the blood was located on the concrete area, and no blood was found on the lawn area or the chair. Though Joshua testified he had thrown a metal chair at appellant with "full force," and slammed his hand against the chair with such force that it caused appellant to lose his grip, appellant presented with no injuries at the time of his arrest.
Second, neither parties' closing argument advanced the theory that appellant committed an assault with the chair being the deadly weapon. The prosecutor argued that appellant assaulted Joshua with the knife and only the knife. The prosecutor relied on Joshua's statement to Berumen and focused on discrediting his trial testimony that appellant used the chair and not the knife. The prosecutor stated, "In this case, [appellant] used a knife .... I've proven that he sliced or stabbed his father with a knife." The prosecutor went on to opine that Joshua told a different story at trial to protect his son. Appellant's defense was not that the assault with the chair did not support the charge, but that the act was done in self-defense. Defense counsel argued: "[T]he argument isn't that ... [appellant] didn't cause an assault.... The argument is did he do it in self-defense?" Defense counsel argued that Joshua did not lie; it just "took him time [to] get to that place where he could remember [what happened]." He argued the injury happened by accident.
Finally, the jury found true the allegation that appellant had personally inflicted great bodily injury upon Joshua. The jury was instructed they could use the fact that Joshua was injured to consider whether appellant committed an assault. (CALCRIM No. 875.) While the results of an assault cannot be conclusive, they are " 'often highly probative of the amount of force used.' " (McDaniel, supra, 159 Cal.App.4th at p. 746.) That the jury expressly found appellant had personally inflicted great bodily injury tends to show they likely would find whether appellant used the knife or the chair, that he did so with force likely to cause great bodily injury.
We are not persuaded by appellant's argument that the jury's request to have Joshua's testimony re-read demonstrates it was reasonably probable for the jury to convict appellant of simple assault rather than assault with a deadly weapon. Appellant contends this could indicate the deliberations were close. However, the evidence of the events in this case was not straight forward and required the jury to make sense of Joshua's seemingly contradictory statements. For this reason, we decline to infer from the fact that they asked to hear his testimony again that it was a close case for purposes of the harmless analysis. In reviewing the totality of the record, for the reasons stated, we conclude the error was harmless.
2. Assault By Pushing, Kicking and/or Punching
In addition to the above, appellant argues the simple assault instruction should have been given because the jury could have found appellant guilty of simple assault based on the evidence that appellant pushed, kicked, and punched Joshua. Appellant also argues his constitutional right to present a defense was violated by the failure to instruct on simple assault based on the pushing, punching, and kicking because the failure to instruct on simple assault precluded appellant from presenting a theory as to "when an assault occurred." This argument is without merit. The charged offense was based on the act which caused Joshua's injury. Appellant does not cite to any authority to convince us that the fact the evidence supported other crimes were committed on the day of the incident constitutes a viable defense to the charged crime.
In any event, this alleged error is clearly harmless under any standard based on the jury's finding that appellant personally inflicted great bodily injury under section 12022.7. " ' "[I]n some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury." ' " (People v. Elliot (2005) 37 Cal.4th 453, 475.) The jury's finding that appellant personally inflicted great bodily injury in the commission of the assault leaves no reasonable doubt the jury would not have not found appellant guilty of assault based on the pushing, punching, and kicking. There was no evidence on the record from which the jury could conclude Joshua suffered great bodily injury caused by those acts. Joshua sustained "redness" on his left shoulder as a result of being punched and kicked. Berumen testified Joshua had no visible injuries on his face from being punched and did not appear to receive treatment for any injuries to his face. The testimony of the physician who testified as to Joshua's injury only related to the injury to Joshua's hand. We find no reversible error by the trial court's failure to instruct on simple assault based on pushing, punching, and/or kicking.
3. Alleged Due Process Error
Appellant separately argues the court's failure to instruct on simple assault violated his due process rights, citing the United States Supreme Court's decision in Beck v. Alabama (1980) 447 U.S. 625, 637, which held that instructions on a lesser included offense are constitutionally required in capital cases. However, the Supreme Court has not extended Beck to noncapital cases. (See Howell v. Mississippi (2005) 543 U.S. 440, 445 (per curiam) [asserting that a state rule on lesser included offense instructions "unlike [the constitutional right to a lesser included offense instruction articulated in] Beck ... applies in noncapital cases"]. Appellant recognizes there is a split of authority at the federal circuit court level, but does not go any further to establish error in the present case except simply to say, "the better rule is that the holding of Beck should be extended generally to non-capital cases." Absent any compelling argument by appellant, we decline to do so here.
II. Admission of Statement Referencing Violence
A. Relevant Background
The prosecutor sought to admit the video from Berumen's body camera. On the video, Joshua makes the statement: "I've been dealing with [appellant] and his violence against me for 15 years." Appellant's counsel sought to exclude the statement, arguing it alluded to prior bad acts inadmissible under Evidence Code section 1101 and was thus inadmissible character evidence. Counsel went on to explain he objected to the prosecutor questioning Joshua on specific instances of prior bad conduct. Counsel stated, "the statement itself in the recording ... in itself is not bad. And I had a long time considering if I wanted to use it or not. And I've come to the conclusion I do not. But for [clarity], what really concerned me was the ability to question [Joshua] on this statement and then start to dig into these prior bad acts my client committed." The prosecutor stated she did not intend to elicit the statement until and unless appellant elicits self-defense on cross-examination of Joshua.
The court made the following ruling:
"Part of the problem in ruling on these evidentiary issues ... is that I'm relying on a proffered state of the evidence. [T]his is like hitting a moving target. Once the evidence comes in, it may be the case that the proffered
evidence is different than what actually occurred here in the court. It may be the case that there is an issue with regards to the reasonableness of the conduct of a party and that may bear upon any history. These parties are family members and they know each other. So, for that reason, the Court would deny the request to preclude the statements made in the video, audio portion about any prior conduct by [appellant] towards [Joshua]. The questioning, of course, the Court cannot categorically preclude questioning on a point that might be raised because there may be an issue that comes up during trial that opens the door or that makes this probative and relevant, frankly. So, for that reason, I'm unable and will not be making a ruling with regards to a preclusion order. Certainly, you may make your objections for the record and I will rule on those objections based on the state of the evidence at that time."
Berumen was the People's first witness at trial. The prosecutor moved to admit the body camera video into evidence through direct examination of Berumen. Defense counsel renewed "the same objections [he] made prior." The court overruled defense counsel's objection and received the body camera video into evidence. The entire video was played for the jury, and they were provided with transcripts to help them follow along. No evidence of specific prior bad acts was proffered by the prosecution.
B. Analysis
Appellant contends the admission of the statement in the audio portion of the body camera video that "I've been dealing with him and his violence against me for 15 years" was inadmissible character evidence under Evidence Code section 1101, subdivision (a), and that its admission warrants reversal. We disagree.
Evidence Code section 1101, subdivision (a) reads in pertinent part: "[E]vidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
Appellant asserts that the statement was admissible for no other reason but to allow the jury to make an impermissible inference that because appellant had a violent history, appellant must not have acted in self-defense during the incident. Respondent contends the statement was admissible because it was relevant to negate appellant's claim of self-defense, as well as the "credibility of [Joshua's] testimony that he had 'miscommunicated' to [Berumen]."
We need not resolve this dispute because we conclude that any error is clearly harmless. Appellant urges us to apply the more stringent Chapman standard of error (Chapman v. California (1967) 386 U.S. 18). We do not find appellant has established the alleged error rendered his trial fundamentally unfair so as to implicate any federal constitutional rights requiring us to apply this standard. Thus, we review the alleged error under the Watson standard. (See People v. Lindberg (2008) 45 Cal.4th 1, 26.) We ask whether it is reasonably probable the outcome would be more favorable to appellant absent the errors. (Watson, supra, 46 Cal.2d 818, 836.)
Here, it is not reasonably probable the outcome of appellant's trial would be more favorable to him had this comment been excluded. The evidence was uncontroverted that appellant became violent with Joshua seemingly without provocation as a result of a verbal argument. Joshua testified appellant initiated the physical altercation. Joshua testified appellant shoved him into a table, screamed profanities, yelled "Come fight me," and "c[a]me at" Joshua with a knife, and that Joshua had no weapons. Further, Berumen testified, without objection, that Joshua told him that he felt appellant was coming towards him "in a manner that [Joshua] felt was threatening based on prior altercations." (Italics added.)
Joshua's passing comment that appellant has been violent towards him for 15 years was vague, no party drew attention to it, the prosecutor did not elicit evidence of specific bad acts, and the evidence was uncontradicted that appellant had been violent towards Joshua. Because appellant's defense included that he inflicted some violence against Joshua, it is unlikely the comment caused the jury to convict him without finding the People had proven the elements of the crime beyond a reasonable doubt. (See CALCRIM No. 220.) There is no reasonable probability that the comment would have influenced the jury's decision. Any error in admitting the statement was harmless.
III. Mental Health Diversion
Appellant contends the case should be remanded for the court to exercise its discretion whether to grant mental health diversion pursuant to section 1001.36. We agree.
Section 1001.36 took effect on June 27, 2018, a few days after appellant's jury trial and a little less than two months before appellant's sentencing. Under section 1001.36, a court may grant pretrial diversion if a defendant meets the minimum requirements. These requirements include: (1) the court is satisfied the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders; (2) the court is satisfied the defendant's mental disorder was a significant factor in the commission of the charged offense; (3) in the opinion of a qualified mental health expert, the defendant's symptoms would respond to mental health treatment; (4) the defendant consents to diversion and waives his right to a speedy trial; (5) the defendant agrees to comply with treatment as a condition of diversion; and (6) the court is satisfied the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. (§ 1001.36, subd. (b)(1)(A)-(F).)
In People v. Frahs (2020) 9 Cal.5th 618 (Frahs), the California Supreme Court held that section 1001.36 applies retroactively to all cases not yet final on appeal. (Frahs, supra, at pp. 631-632.) In such a case, when the record "affirmatively discloses that the defendant appears to meet at least the first threshold eligibility requirement for mental health diversion—the defendant suffers from a qualifying mental disorder," the proper remedy is conditional limited remand for the court to conduct a mental health diversion eligibility hearing. (Id. at p. 640.)
Here, respondent has conceded conditional limited remand is proper. We accept this concession. Though appellant's mental health was not an issue at trial, before trial appellant was deemed incompetent to stand trial twice. A psychiatrist diagnosed him with a chronic, psychotic mental disorder requiring psychotropic medication. In addition, the probation report indicated as a mitigating circumstance that appellant was suffering from a mental or physical condition that significantly reduced culpability for the crime. At sentencing, the court commented that if appellant were able to comply with his medication regimen and with his parole, "he wouldn't be here." The court noted appellant "may have sought to self-medicate himself with methamphetamine and that exacerbated his mental health issues causing a situation which we are now here on, and it caused injuries to his father by virtue of the outburst that occurred." The court considered appellant's mental health condition "a significant factor for him with regards to culpability in this case," and considered it a mitigating circumstance with regard to the sentence it imposed. We conclude the record "affirmatively discloses" that appellant "appears to ... suffer[] from a qualifying mental disorder" and accordingly that conditional limited remand is proper. (Frahs, supra, 9 Cal.5th at p. 640.) We express no view concerning whether appellant will be able to show eligibility on remand or whether the trial court should exercise its discretion to grant diversion if it finds appellant eligible.
IV. Fines and Fees
Appellant challenges the imposition of the assessments imposed against him under section 1465.8, subdivision (a)(1), and Government Code section 70373, subdivision (a)(1). Appellant also challenges the restitution fine imposed against him under section 1202.4, subdivision (b)(1). Appellant's claim is based primarily on Dueñas, supra, 30 Cal.App.5th 1157.
In Dueñas, Division Seven of the Second Appellate District held that the imposition of the court operations assessment (§ 1465.8, subd. (a)(1)) and the criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)), without a determination of the defendant's ability to pay them, violates the constitutional guarantee of due process. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held that if the defendant has demonstrated an inability to pay the restitution fine (§ 1202.4, subd. (b)(1)), the trial court must stay execution of the fine until the People prove the defendant has gained the ability to pay. (Dueñas, at p. 1164.)
We conclude the issue is forfeited. Here, the court imposed an $1,800 restitution fine without objection. Pursuant to section 1202.4, subdivision (d), the court is permitted to consider appellant's inability to pay, among other factors, in setting the restitution fine above the minimum. By failing to object to the imposition of an amount well over the minimum, appellant forfeited any ability to pay argument with regard to the restitution fee. It follows that since appellant did not complain of the $1,800 restitution fine, he would not complain of the relatively nominal $40 and $30 assessments imposed pursuant to section 1465.8, subdivision (a)(1) and Government Code section 70373, subdivision (a)(1), respectively. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
Because appellant has forfeited the issue, we decline to address its merits.
V. Error in Calculation of Appellant's Custody Credits
Appellant asserts the judgment should be amended because the trial court ordered presentence custody credits in the amount of 862 days, consisting of 661 actual days for time spent in jail and in the state hospital after being found competent, 103 days for time spent in treatment at the state hospital, and 98 days of conduct credit pursuant to section 2933.1. Appellant's conduct credit is calculated at 15 percent of his actual days spent in custody because he committed a violent felony. (§ 2933.1.) Appellant contends he should have received 99 days of conduct credits because 15 percent of 661 is 99.15, not 98. Respondent agrees.
The parties' mathematical calculation is correct. The abstract of judgment should be amended to reflect an award of 863 days, including 99 days of conduct credit.
DISPOSITION
We conditionally reverse appellant's convictions and sentence and remand for the trial court to consider appellant's eligibility for diversion under section 1001.36. If the trial court finds appellant suffers from a mental disorder, does not pose an unreasonable risk of danger to public safety, and otherwise meets the six statutory criteria (as nearly as possible given the postconviction procedural posture of this case), then the court may grant diversion. If appellant successfully completes diversion, then the court shall dismiss the charges. However, if the court determines that appellant does not meet the criteria under section 1001.36, or if appellant does not successfully complete diversion, then his convictions and sentence shall be reinstated. (See Frahs, supra, 9 Cal.5th at pp. 640-641.)
In addition, the trial court shall cause the abstract of judgment to be amended to reflect that appellant has earned 99 days of conduct credits rather than 98 days. His total days of credit should be indicated as 863, not 862. The trial court is directed to forward a certified copy of the amended abstract of judgment to the appropriate authorities.
In all other respects, the judgment is affirmed.
DE SANTOS, J. WE CONCUR: POOCHIGIAN, Acting P.J. PEÑA, J.