California Cases April 01, 2021: People v. Patella

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F17900949)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jon N. Kapetan, Judge.

Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Matthew Rodriquez, Acting Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

In 2017, appellant Jonathan Patella pled no contest to two violations of carjacking (Pen. Code, § 215, subd. (a)) and two violations of attempted carjacking (§§ 664/215,

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subd. (a)). The trial court imposed a prison term of six years eight months but found unusual circumstances existed so as to justify staying appellant's prison term for a period of three years, during which appellant would be on formal probation. In 2018, appellant admitted to a violation of probation. The sentencing court lifted the stay on appellant's sentence.

On appeal, appellant argues the judgment must be reversed because he did not expressly waive his right to a jury trial in open court when entering his plea, and the record did not otherwise demonstrate he knowingly and intelligently waived that right. He also contends the matter must be conditionally reversed and remanded so that the trial court can determine his eligibility for mental health diversion (§ 1001.36). Respondent concedes remand is appropriate for this purpose. Finally, appellant contends the fines and fees imposed by the court must be stricken or the matter remanded so the court can make a determination on his ability to pay them. We accept respondent's concession that a conditional limited remand is appropriate so the trial court can determine appellant's eligibility for mental health diversion. Because the matter is being remanded, appellant should raise his ability to pay claim below. We otherwise affirm the judgment.

Facts Underlying Offenses

On February 14, 2017, a driver who observed appellant standing in the middle of the road stopped and asked him out her window if he needed any help. Appellant attempted to reach inside the driver's window and open the door. When his attempt to open the driver's door was unsuccessful, he opened the rear door on the driver's side, got into the vehicle, and told the driver to drive. The driver's 11-year-old son was in the back seat of the vehicle on the passenger side. The driver complied because she was in fear for her and her son's life. Appellant told her to drive faster because "they were after him." The driver pulled into a gas station, and she and her son got out, ran from the car, and asked a group of people in the parking lot to call 911.

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Meanwhile, appellant approached another vehicle with a driver and a passenger waiting in line at a drive-thru restaurant in the same parking lot as the gas station. Appellant demanded the driver give him the car. The driver said no and began to roll up the window, but appellant put his body through the window up to his waist area, causing the window to drop back into the door. He and the driver began to wrestle for the keys in the ignition. Eventually, the driver gave up, and started to exit the vehicle. At that point, appellant grabbed the driver, got in the vehicle, and shut the door. The passenger also exited. He did not move the car forward because bystanders fought him out of the car and made a barricade around him until the police arrived.

When the police arrived, appellant appeared to be under the influence of a controlled substance or having "some type of ... mental health episode" or a combination of the two. Appellant was yelling that he did not want to go back to "Exodus" [a psychiatric facility] and stated, "Just take me to jail. I already carjacked three people."

Police learned appellant had been placed on a Welfare and Institutions Code section 5150 hold (5150 hold) but had escaped from the psychiatric facility immediately before committing the crimes.

Competency Proceedings

At appellant's arraignment, defense counsel declared doubt as to appellant's competency pursuant to section 1368. The court suspended the criminal proceedings and ordered appellant to be evaluated.

Howard B. Terrell, M.D., evaluated appellant and recommended the court find appellant mentally incompetent to stand trial. Dr. Terrell reported appellant told him he committed the offenses after fleeing the psychiatric facility because he was convinced the staff and the police were out to murder him. Appellant reported he was just trying to get away and had no intent to carjack or frighten anyone. Appellant expressed distrust, paranoia, and fright towards his attorney and the judge. Dr. Terrell listed under diagnostic impressions, "Other Psychotic Disorder," as well as substance use disorders,

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with a note indicating "Rule out schizoaffective disorder versus bipolar I disorder." Dr. Terrell opined that appellant "suffers from a psychotic mental disorder, which renders him unable to assist his attorney in a rational manner for the preparation of a legal defense." Dr. Terrell also opined appellant would not be restored to mental competency without the use of antipsychotic medication.

In March 2017, the court made a finding appellant was mentally incompetent to stand trial and referred him to the California Department of State Hospitals.

Appellant's competency was restored in June 2017. The court reinstated proceedings, and appellant entered not guilty pleas to all counts.

"Not Guilty by Reason of Insanity" Procedural Facts

On September 5, 2017, appellant entered not guilty by reason of insanity pleas in addition to his not guilty pleas, and the court appointed two doctors to evaluate appellant pursuant to section 1026.

Dr. Terrell again evaluated appellant and opined appellant was "legally insane at the time of the crime" (emphasis omitted) because he was suffering from a psychotic mental disorder that prevented him from understanding the wrongfulness of his criminal actions at the time of the crime. The other clinician who evaluated appellant, Paula J. Willis, Ph.D., reported "it is difficult to determine if [appellant's] cocaine, heroin or methamphetamine dependence solely created his psychotic symptoms, or if he was experiencing a major depressive episode with psychosis, which was triggered by the acute stress of his present situation." Dr. Willis nonetheless opined appellant likely "didn't fully understand the nature and quality of his acts, because his actions were driven from his distorted, defective, and delusional thoughts, and not reality based."

Information

Following a preliminary hearing held on November 8, 2017, appellant was held to answer to the charges. An information filed November 14, 2017, charged appellant with two counts of carjacking (§ 215, subd. (a); counts 1 & 2); one count of kidnapping

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(§ 207, subd. (a); count 3); one count of kidnapping someone under 14 years of age (§§ 207, subd. (a)/208, subd. (b); count 4); and two counts of attempted carjacking (§§ 664/215, subd. (a); counts 5 & 6). Appellant entered standard not guilty pleas to all counts on November 27, 2017.

Change of Plea Hearing

On December 21, 2017, appellant executed a "Felony Advisement, Waiver of Rights, and Plea Form" (unnecessary capitalization omitted) (waiver form). The waiver form indicated appellant requested to withdraw his not guilty plea and enter a plea of "NO CONTEST" as to counts 1, 2, 5, and 6. Appellant initialed next to the sentence, which read: "I have had enough time to discuss my case and all possible defenses with my attorney." Under the section entitled "CONSTITUTIONAL RIGHTS," was printed, "I understand I am presumed innocent and the State is required to prove me guilty beyond a reasonable doubt. I also understand that I have the following constitutional rights as to all matters charged against me[.]" Next to the statement, "The right to a speedy, public JURY or COURT TRIAL," appellant initialed boxes, which read: "I understand this right" and "I give up this right." Appellant dated and signed the statement, which read: "I declare under PENALTY OF PERJURY, under the laws of the State of California, that I have read, understood, and initialed each item above, and everything on this form is true and correct." Appellant's attorney signed and dated the "ATTORNEY'S STATEMENT," which read: "I am the attorney of record for the defendant and have reviewed this form with my client. I have explained to the defendant each of his/her rights and answered all of the defendant's questions with regard to this plea. I have discussed the facts of the case with the defendant, and explained the consequences of this plea, the elements of the offense(s), and the possible defense(s). I concur with this plea and the defendant's decision to waive his/her constitutional rights."

The same day, a change of plea hearing was held. The trial court asked appellant if the signature and initials on the waiver form were his, to which appellant responded

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they were. Defense counsel informed the court appellant wanted to plead no contest to counts 1, 2, 5, and 6, the carjacking and attempted carjacking. The prosecutor informed the court the People were dismissing the kidnapping charges (counts 3 & 4). The court addressed appellant: "[Y]ou heard the statements made by counsel; is this what you want to do today?" Appellant responded in the affirmative.

The court then advised appellant: "In this matter you have a right to have the matter heard by way of a speedy, public jury or court trial; do you understand that?" Appellant responded, "Yes, your Honor." The court then asked appellant if he understood he had the right to remain silent, the right to call witnesses and present evidence, and the right to confront witnesses. Appellant responded, "Yes" he understood he had each right. The court asked appellant if he had any questions for the court or counsel, to which appellant responded, "No, sir."

The court then told appellant he was entering no contest pleas to counts 1, 2, 5, and 6, and asked, "Is that what you want to admit by way of no contest?" Appellant responded, "Yes, sir." The court then asked appellant if he understood the offenses qualified as strikes under the "Three Strikes" law, to which appellant responded in the affirmative.

The court made a finding appellant had "expressly, knowingly, understandingly and intelligently waived his statutory and constitutional rights" and that "the plea was freely and voluntarily made, with an understanding of the nature of the charges as well as the consequences of the plea." The court found there was a factual basis for the plea and adopted the findings and orders contained in the waiver form.

Initial Sentencing

The probation report indicated appellant had a criminal history including a possession with intent to sell conviction, a federal conviction for sale of cocaine, and a federal probation violation. While the probation report indicated a fact showing unusual circumstances to warrant the grant of probation was that "[t]he crime was committed

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because of a mental condition, not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation," the probation officer's recommendation was to deny probation and commit appellant to state prison due to the "serious nature of the crimes." The prison term recommendation was for middle consecutive terms totaling eight years four months.

On the date set for appellant's sentencing, the court ordered a diagnostic assessment of appellant pursuant to section 1203.03 based on the information contained in the probation report.

Wasco State Prison clinical psychologist Lisa Welch evaluated appellant, and her diagnostic impressions included "[p]olysubstance [d]ependence" and "[p]rior delusions, psychotic symptoms and paranoia most likely due to drug use." Welch noted appellant's prior performance on probation was not satisfactory and while he took responsibility for his actions, his actions put the community at risk. She recommended long-term inpatient substance abuse treatment in the event probation was granted. Wasco correctional counselor T. Mosley opined appellant was an inappropriate candidate for probation and recommended appellant be committed to state prison, noting that if he were granted probation, "and fails, he would present a significant risk to himself and the community."

At the continued sentencing hearing, the court found there were sufficient unusual circumstances to justify the imposition of a stayed prison term. The court stated the unusual circumstances were that appellant was placed on a 5150 hold prior to the conduct that resulted in the convictions and that "there was some failure and negligence on the part of the mental health facility ... that allowed him to escape or walk out of that facility and perpetrate the [offenses]."

The court imposed the midterm of five years on count 1 and a consecutive term of one year eight months on count 2. The court imposed concurrent midterms on counts 5 and 6. The court imposed a restitution fine of $1,800 under section 1202.4 and a

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probation revocation fine of the same amount, which would be due in the event of probation being revoked. The court also imposed a $160 court security fee pursuant to section 1465.8 and a $120 criminal conviction assessment pursuant to Government Code section 70373, payable on April 1, 2020.

The court stayed appellant's six-year eight-month prison term for three years, during which appellant would be on formal probation. Among appellant's probation conditions were to enroll in and a complete long-term inpatient substance abuse treatment and to participate in mental health treatment.

2018 Probation Violation

In May 2018, appellant was arrested and believed to be to be under the influence of narcotics. Appellant had been acting erratically; he was cutting into his family's couch and pulling out the stuffing, and then he locked himself in the family's car. Appellant admitted he had been using narcotics on the day of his arrest. Appellant was given the opportunity to be transported from jail to a residential drug rehabilitation program and was advised his failure to complete the program would result in the probation officer making a recommendation for prison. Appellant left the program after two days and was allowed to return two days later. Appellant tested positive for methamphetamine upon return. The next day, appellant left the program a second time. Appellant failed to report to probation after leaving the program and later left a voicemail to his probation officer wherein he stated, "I said whatever I could to get out of jail to you and I apologize for that."

Probation initiated violation proceedings, alleging appellant violated his probation by failing: (1) his treatment program; (2) to refrain from the use of narcotics; and (3) to report to his probation officer.

Violation of Probation Sentencing

On June 26, 2018, appellant admitted to a probation violation. The court lifted the stay on appellant's principal sentence for a total prison term of six years eight months.

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The court ordered appellant to pay the balance of his $1,800 restitution fee, imposed an additional $1,800 probation revocation fine pursuant to section 1202.45, and ordered appellant to pay the balance of his other fees and assessments. Appellant's attorney stated appellant was "indigent" and requested the "Court [to] give him any kind of relief on any of the fines." The court responded, "He reserves any and all rights regarding that. He can bring the proper motions. At this time it's denied."

I. Knowing and Intelligent Waiver of Right to Trial By Jury

Appellant contends that because the trial court did not make sufficient inquiry as to whether appellant knowingly and intelligently waived his right to a jury trial in open court and the record does not disclose a knowing and intelligent waiver, the judgment must be reversed. We disagree.

A defendant's guilty or no contest plea in a criminal matter implicates several federal constitutional rights: (1) the privilege against self-incrimination; (2) the right to trial by jury; and (3) the right to confrontation. ( Boykin v . Alabama (1969) 395 U.S. 238, 243.) A defendant's waiver of these rights by guilty or no contest plea must be intelligent and voluntary. ( Id . at pp. 242, 244.) The California Supreme Court has held that California courts must "specifically and expressly enumerate" each of the rights specified in Boykin before accepting a guilty plea, and responses must be elicited from the defendant. ( In re Tahl (1969) 1 Cal.3d 122, 132.) Article I, section 16 of the California Constitution provides "[a] jury may be waived in a criminal case by the consent of both parties expressed in open court by the defendant and the defendant's counsel."

Where a court has failed either partially or completely to advise and take waivers of the defendant's trial rights before accepting a guilty plea, the test for reversal is whether the record affirmatively shows the change of plea is voluntary and intelligent under the totality of the circumstances. ( People v . Howard (1992) 1 Cal.4th 1132, 1175-1178; People v . Farwell (2018) 5 Cal.5th 295, 303.)

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In cases where there are no special circumstances which indicate a plea is otherwise involuntary, a court's reliance on a validly executed waiver form is sufficient to satisfy the dictates of Boykin and Tahl . ( In re Ibarra (1983) 34 Cal.3d 277, 286.) "The judge need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney." ( Ibid .) "Only if in questioning the defendant and his attorney the trial court has reason to believe the defendant does not fully comprehend his rights, must the trial court conduct further canvassing of the defendant to ensure a knowing and intelligent waiver of rights." ( People v . Castrillon (1991) 227 Cal.App.3d 718, 722, cited with approval in People v . Panizzon (1996) 13 Cal.4th 68, 83.)

Here, appellant clearly waived all of his constitutional rights, including, specifically, his right to a jury trial, in the waiver form. He declared under penalty of perjury he had read and understood everything on the waiver form. He stated in open court the initials and signature on the form were his, that he wished to enter the plea, and that he did not have any questions for the court or counsel. Defense counsel had signed the portion of the form indicating he had explained appellant's rights to him and answered all of his questions. There are no special circumstances on the record indicating the plea was not voluntary. Thus, because the waiver form contained signed statements that appellant had had the opportunity to speak with his attorney and that his attorney had explained all of his rights and the consequences of the plea to him, and because appellant stated in open court he had no questions, the trial court was not required to conduct any further inquiry or take express waivers in open court. The colloquy satisfied the California constitutional requirement that consent to waiver be expressed in open court, and we conclude, based on the totality of the circumstances, the record affirmatively discloses appellant's waiver of his right to a jury trial was knowing and intelligent.

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While appellant acknowledges "a 'sufficient waiver form can be a great aid to a defendant in outlining [ Boykin-Tahl rights],' and that a defendant who had signed such a form based on advice from competent counsel 'has little need to hear a ritual recitation of his rights by a trial judge[]' [quoting In re Ibarra , supra , 34 Cal.3d at pp. 285-286]," he insists that his "recurring mental problems" and "the near-breakdown of his relationship with his attorney" indicates he did not knowingly and intelligently waive his right to a jury trial. We are not convinced.

First, there is no evidence on the record that appellant's mental health issues affected appellant's ability to knowingly and intelligently waive his constitutional rights. No party nor the court raised doubt as to his competence at the time of the plea. Appellant alleges no error with regard to the trial court not ordering proceedings pursuant to section 1368 at the time of appellant's change of plea and points to no evidence that would have supported such an order. To the contrary, evaluations of appellant's mental health in the months both before and after his change of plea indicated his mental status was good. In October 2017, just a couple of months before he entered his plea, Dr. Willis reported appellant's performance on the mental status examination she administered was "excellent." She also described appellant's concentration, ability to think abstractly, social judgment, reasoning abilities, and insight as "excellent." She reported appellant's thought processes were "clear, organized, and self-advocating, with no evidence of delusional content." Dr. Willis opined at the time of her evaluation appellant did not presently exhibit a major mood or thought disorder and was "rational and clear." In January 2018, just a few weeks after appellant entered his plea, a rehabilitation consultant who examined appellant reported he exhibited no immediate evidence of thought disorder or psychosis. On February 13, 2018, just a couple of months after appellant entered his plea, Dr. Welch reported he was "alert, and oriented to person, place, time, and situation" and his thought process appeared to be "organized." She did not opine appellant suffered from any current mental health issues that would raise an inference he was not

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competent. Despite appellant's argument to the contrary, the record does not disclose that appellant's mental health issues had any effect on his ability to knowingly and intelligently waive his right to a jury trial and enter the plea.

We are similarly unconvinced that the nature of appellant's relationship with his attorney gives rise to any inference appellant's waiver was not knowing and intelligent. To support appellant's argument, he points to the fact that appellant sought to obtain substitute counsel by way of a Marsden hearing in August 2017, four months before the change of plea. During the Marsden hearing, appellant, after airing his frustrations, expressed he was willing to continue to be represented by his attorney, and defense counsel expressed difficulty with communicating with appellant but not an inability to do so. The court noted it appeared appellant and counsel had a personality conflict, but that the conflict did not appear to be irreconcilable and denied the motion. Appellant does not allege any error with regard to the court's denial of his Marsden motion. The fact this Marsden hearing took place does not give rise to an inference appellant did not knowingly and intelligently waive his right to a jury trial.

To the contrary, the Marsden transcript demonstrates appellant had a relatively sophisticated understanding of the criminal process—he initiated the motion because of his frustration with defense counsel advising him to enter a not guilty by insanity plea rather than obtaining an "offer" for a prison commitment from the prosecutor. Appellant expressed he was looking for "the quickest fastest way" to "get home" and was willing to "accept responsibility"; he felt drug treatment would be more beneficial than a commitment at the state hospital. Appellant at no point expressed an expectation he would go to trial as a result of the "offer" he desired. It appears appellant had an understanding a plea agreement would contain a waiver of his right to a jury trial, which is further supported by the fact appellant had a criminal history. (See People v . Cross

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(2015) 61 Cal.4th 164, 179-180 [" 'previous experience in the criminal justice system is relevant to a recidivist's " 'knowledge and sophistication regarding his [legal] rights' " ' "].) Further, the ultimate outcome of the case aligned with appellant's expressed goals in the Marsden hearing: a resolution that did not include a commitment in the state hospital and got him home quickly. That appellant's counsel assisted appellant in obtaining an outcome that appellant, based on his comments in the Marsden hearing, clearly would have viewed as favorable is contrary to appellant's claim that the alleged near "breakdown" of his relationship with his attorney had an effect on his ability to knowingly and intelligently waive his right to a jury trial or enter his plea.

Because appellant signed a waiver form clearly waiving his right to a jury trial, and the record further affirmatively discloses his change of plea was knowing and voluntary under the totality of the circumstances, we find no reversible error with regard to the trial court failing to confirm in open court appellant was waiving his right to a jury trial.

II. Mental Health Diversion

Appellant contends his conviction should be conditionally reversed and the matter remanded for the court to exercise its discretion whether to grant mental health diversion pursuant to section 1001.36. Respondent concedes that remand is appropriate. We accept respondent's concession.

Section 1001.36 took effect on June 27, 2018, the day after appellant's violation of probation sentencing. Under section 1001.36, a court may grant pretrial diversion if a defendant meets the minimum requirements.

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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 , 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 a conditional limited remand for the court to conduct a mental health diversion eligibility hearing. ( Id . at p. 640.)

Here, respondent concedes a conditional limited remand is proper because appellant appears to have suffered from a qualifying mental disorder. We agree. Appellant committed the offenses after being placed on a 5150 hold and escaping from the psychiatric crisis center. Dr. Terrell opined appellant suffered from a psychotic mental disorder, and appellant was deemed incompetent to stand trial and required treatment for his competency to be restored. Drs. Terrell and Willis both opined appellant suffered from a mental condition at the time of the crimes which rendered him unable to fully understand the criminal nature of his acts. 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.

We conclude the record "affirmatively discloses" that appellant "appears to ... suffer[] from a qualifying mental disorder" and accordingly that a conditional limited remand is proper. ( Frahs , supra , 9 Cal.5th at p. 640.)

In light of respondent's concession, we remand to allow the trial court to make the proper factual findings. 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.

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III. Fines and Fees

In People v . Dueñas (2019) 30 Cal.App.5th 1157 ( Dueñas ), the appellate court held the imposition of the nonpunitive court security fee (§ 1465.8, subd. (a)(1)) and criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) without a determination of the defendant's ability to pay them violated due process. ( Dueñas , at p. 1164.) The Dueñas court also held that if the defendant has demonstrated an inability to pay the restitution fine, which is intended to be punitive (§ 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.)

Relying on Dueñas , appellant asserts this court should strike the $160 court security fee, the $120 criminal conviction assessment, and the $1,800 restitution fine imposed in appellant's case in the absence of any evidence he has the ability to pay them. Respondent concedes the court security fee and criminal conviction assessment implicate due process rights but that any due process violation was harmless beyond a reasonable doubt because the record demonstrates appellant had the ability to pay these fees. Respondent argues the imposition of the restitution fine, which respondent contends is more appropriately analyzed under the excessive fines clause, was not unconstitutional.

We decline to address appellant's claim on its merits. As this matter is being remanded on other grounds, appellant will have the opportunity to raise the issue of his ability to pay the fines and fees below. Upon remand, he "will bear the burden of both demonstrating a harm of constitutional magnitude and making a record regarding his alleged inability to pay the restitution fine and court assessments." ( People v . Montes (2021) 59 Cal.App.5th 1107, 1121; see People v . Castellano (2019) 33 Cal.App.5th 485,

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490 ["[A] defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court."].) "[W]e express no view as to whether defendant may be able to state a viable claim that ultimately withstands constitutional scrutiny on review." ( People v . Montes , at p. 1121.)

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.)

As stated above, appellant, if he chooses, may request upon remand an ability to pay hearing where he will bear the burden of showing a harm of constitutional magnitude and to make a record regarding his alleged inability to pay.

In all other respects, the judgment is affirmed.

DE SANTOS, J.

WE CONCUR:

HILL, P.J.

PEÑA, J.