California Cases July 28, 2021: People v. Manzotti

Case Description

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA463396 Craig E. Veals, Judge.

Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Roberta L. Davis and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

KIM, J.

I. INTRODUCTION

Defendant and appellant Juan Manzotti pleaded no contest to manufacturing concentrated cannabis (Health & Saf. Code, § 11379.6, subd. (a)), misdemeanor cultivating more than six marijuana plants (Health & Saf. Code, § 11358, subd. (c)), three counts of child abuse (Pen. Code, § 273a, subd. (a) ), and one count of vandalism with over $400 in damage (§ 594, subd. (a)). The trial court sentenced defendant to five years in county jail. On appeal, defendant contends the court abused its discretion in denying his petition for mental health diversion, abused its discretion in denying him probation, and erred in sentencing him on the three child abuse convictions because it purportedly dismissed those convictions in the interest of justice. We affirm.

II. BACKGROUND

At 10:32 p.m., on August 13, 2017, Los Angeles County Sheriff's Department deputies responded to an explosion at a residence on East Poplar Avenue in Hacienda Heights where defendant lived with his wife and three children. The “source” of the explosion was a refrigerator in the kitchen. The residence had explosion damage on the interior. Defendant told the deputies he was in the backyard with a friend when he heard the explosion and he had no idea what caused it.

During their investigation, detectives found evidence that defendant was manufacturing concentrated cannabis. They found a metal drum containing a glass bowl of extracted concentrated cannabis, a case of 66 butane cans, empty butane cans, marijuana plants, a box of marijuana, and a jar of marijuana.

III. DISCUSSION

A. Mental Health Diversion

Defendant contends that the trial court abused its discretion when, following the entry of his pleas, it denied his petition for mental health diversion. We disagree.

1. Standard of Review and Legal Principles

Trial courts have broad discretion in determining whether a defendant is a good candidate for mental health diversion. ( People v. Moine (2021) 62 Cal.App.5th 440, 448 ( Moine ); § 1001.36, subds. (a) & (b)(1) [a court “may” grant diversion if all eligibility criteria are met].) We review a court's decision to deny mental health diversion for an abuse of discretion. ( Moine, supra , 62 Cal.App.5th at p. 448; see People v. Frahs (2020) 9 Cal.5th 618, 625 ( Frahs ) [implying that a court may exercise its discretion to deny an eligible defendant mental health diversion].) “A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard [citations], or bases its decision on express or implied factual findings that are not supported by substantial evidence [citation].” ( Moine, supra , 62 Cal.App.5th at p. 449.)

In June 2018, the Legislature enacted sections 1001.35 and 1001.36, creating a procedure by which the trial court has discretion to grant pretrial diversion to certain defendants with mental health disorders. ( Frahs, supra , 9 Cal.5th at pp. 624, 626.) “As originally enacted, section 1001.36 provided that a trial court may grant pretrial diversion if it finds all of the following: (1) the defendant suffers from a qualifying mental disorder; (2) the disorder played a significant role in the commission of the charged offense; (3) the defendant's symptoms will respond to mental health treatment; (4) the defendant consents to diversion and waives his or her speedy trial right; (5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. (Former § 1001.36, subd[s]. (b)(1)-(6)[; current subds. (b)(1)(A)-(F)].) Section 1001.36 was subsequently amended by Senate Bill No. 215 (2017-2018 Reg. Sess.) (Senate Bill 215) to specify that defendants charged with certain crimes, such as murder and rape, are ineligible for diversion. (§ 1001.36, subd. (b)(2), as amended by Stats. 2018, ch. 1005, § 1.) [¶] If the defendant makes a prima facie showing that he or she meets all of the threshold eligibility requirements and the defendant and the offense are suitable for diversion, and the trial court is satisfied that the recommended program of mental health treatment will meet the specialized mental health treatment needs of the defendant, then the court may grant pretrial diversion. (§ 1001.36, subds. (a), (b)(3) & (c)(1).)” ( Frahs, supra , 9 Cal.5th at pp. 626-627.)

2. Background and Analysis

Defendant filed a motion for mental health diversion pursuant to section 1001.36. In support of the motion, he attached a psychological evaluation from Dr. Lisa Grajewski, a clinical and forensic psychologist. Dr. Grajewski opined that defendant met the criteria for mental health diversion.

At the hearing on defendant's motion for mental health diversion, Dr. Grajewski testified that in her evaluation of defendant she used various clinical tools, reviewed case-related police and fire reports and defendant's medical and probation reports, and interviewed defendant for two to three hours. According to Dr. Grajewski, defendant had an “extensive” back injury that required surgery. Chronic pain from that injury caused defendant to suffer from depression and anxiety.

Dr. Grajewski diagnosed defendant with major depressive disorder recurrent episode, generalized anxiety disorder, and post-traumatic stress disorder. Asked if she believed any of defendant's conditions played a significant factor in the commission of the crimes, she responded, “It's hard to say, but I would say that his major depression played a major factor in the fact that he was suffering with major depression. You have issues of cognitive ability being impaired, not thinking correctly, a lot of sadness, a lot of loss of hope in the sense he has become-one becomes derailed when you are majorly depressed.”

According to Dr. Grajewski's report, in 2013, defendant broke his back when he fell from a ladder. Defendant had unsuccessful spinal surgery and suffered from chronic pain since then. He was prescribed opiates to control the pain, but they were unsuccessful. After he stopped taking the opiates, he was prescribed medical cannabis for pain control. Dr. Grajewski testified that defendant's chronic pain contributed to his depression. She thought he was manufacturing concentrated cannabis in a search for pain relief. Defendant's depression contributed to his poor judgment.

Dr. Grajewski testified that defendant's depression could be treated with medication and psychotherapy. She also believed that defendant did not pose an unreasonable risk to the community if placed on mental health diversion because he was making attempts to turn his life around, nothing in his past suggested he would be an unreasonable risk, and there was no psychopathy present.

On cross-examination, Dr. Grajewski testified that she spent about 30 minutes interviewing defendant about the “incident on August 14th.” Defendant did not tell her what he was thinking or feeling on that day. He told her, however, that he was desperate to get off opiates in August 2017, and that was why “he was engaging in this conduct.”

Defendant also did not tell Dr. Grajewski about his involvement in the explosion or that he was extracting marijuana using butane. In her opinion, a person would have to think pretty clearly to carry out, as she understood it, the intricate process of extracting marijuana using butane.

Defendant told Dr. Grajewski that he was in pain most of the time, but could function with that level of pain using cannabis. The prosecutor asked why defendant was trying to extract marijuana in a lab if cannabis helped. Dr. Grajewski responded that defendant told her that he was not trying to extract marijuana, that faulty wiring caused the explosion.

After argument by defense counsel, the trial court ruled as follows:

“So I'll respectfully deny the request. The court finds that the underlying activity was just fraught with danger. And in fact, that danger was given fruition, or the concern that society has for it, was given fruition given what was ultimately determined, an explosion and substantial damage to the premises. It was purely through fortuity that no one was inside of this kitchen apparently at the time that his family-his children, his wife, he, were not present to be potentially even killed.

“This very well could have been a murder case depending on the circumstances changing a bit here. And... it also involved very deliberate and well thought out behavior on his part. He certainly understood the dangers of it, and that would explain why to the doctor he was less than candid with respect to his activity in manufacturing the concentrated cannabis. [¶] And also there was-there were other things available to him. There was testimony to the effect that he claimed he was trying to get off of opiates. I didn't ask any follow-up questions on that, but certainly there are other medical protocols that are considerably less dangerous than taking matters into your own hands and dealing with explosive chemicals.

“So for those and a whole host of other reasons, the court finds that he is not a suitable candidate for the relief he is requesting, and the court will respectfully deny the request.”

Defendant contends the trial court abused its discretion in denying him mental health diversion because “[t]he finding necessary to deny mental health diversion is a finding that the defendant would pose an unreasonable risk of danger to public safety [as defined in section 1170.8, subdivision (c) if] granted diversion.” And, the record does not support a finding that he was likely to commit a rape, murder, or other “super strike.” (See §§ 1001.36, subd. (b)(1)(F); 1170.18, subd. (b)(1); 667 subd. (e)(2)(C)(iv); Moine, supra , 62 Cal.App.5th at pp. 449-450 [defining “super strikes”].)

The record supports the trial court's implicit finding that any mental illness from which defendant suffered did not play a significant role in his offenses. Dr. Grajewski spent only about 30 minutes interviewing defendant about the “incident on August 14th.” He did not tell her what he was thinking or feeling on that day, about his involvement in the explosion, or that he was extracting marijuana using butane. Instead, defendant told her that faulty wiring caused the explosion. Dr. Grajewski did not explain why defendant was trying to extract marijuana in a lab when cannabis provided him with pain relief and was unable to say if any of defendant's mental illnesses played a significant factor in the commission of the offenses.

Moreover, a defendant may pose a risk of danger to the community that is insufficiently unreasonable to render him ineligible for mental health diversion, while still being sufficiently high that it renders him unsuitable for diversion. Here, as the trial court noted, defendant's conduct was “fraught with danger, ” it was “purely through fortuity that no one was inside of [the] kitchen” when the refrigerator exploded, and in other circumstances, a similar explosion could have resulted in death. Therefore, the court found him unsuitable for diversion due to the inherent danger that manufacturing concentrated cannabis posed-a danger that came to fruition in this case.

Defendant also contends the record does not support the trial court's suitability ruling because he was apparently out of custody on bail from August 1, 2017, to March 22, 2019, a period of about 20 months without incident or indication of dangerousness. Although the court could, and may, have considered that factor, it was within the court's broad discretion to find it did not outweigh the factors demonstrating defendant was unsuitable for mental health diversion.

B. Probation

Defendant argues the trial court abused its discretion when it sentenced him to prison rather than placing him on probation. The court did not err.

1. Standard of Review and Legal Principles

“A trial court has broad discretion in determining whether or not to grant probation. In reviewing that determination it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.” ( People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825; People v. Aubrey (1998) 65 Cal.App.4th 279, 282 [“The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion”].)

“‘The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]' [Citation.]” ( People v. Weaver (2007) 149 Cal.App.4th 1301, 1312 ( Weaver ), disapproved on another ground in People v. Cook (2015) 60 Cal.4th 922, 939.) California Rules of Court, rule 4.414 sets forth the criteria a trial court is to consider when deciding whether to grant probation. Rule 4.408(a) authorizes a court to consider factors not listed in rule 4.414 in making its decision on probation as long as those factors are reasonably related to that decision.

“‘The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]' [Citation.] Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. [Citation.]” ( Weaver, supra , 149 Cal.App.4th at p. 1313.)

2. Background and Analysis

In defendant's pre-plea probation report, a probation officer considered the elements and circumstances of defendant's offenses, the residence owner's victim statement, defendant's criminal history, and the investigating officer's statement. The probation officer evaluated defendant's suitability for probation as follows:

“[D]efendant's conduct in the present offense is concerning. He is directly responsible for causing an explosion that put his young children at risk. Furthermore, the defendant endangered others who lived in the vicinity of his residence. He displays criminal sophistication in his ability to manufacture concentrated cannabis for financial gain. This activity is detrimental to community safety and contributes to substance abuse. Furthermore, he caused the property owner to suffer significant financial damages. Based on the totality of the circumstances, he is viewed as a threat to public safety.

“[D]efendant is ineligible for probation. He is unsuitable for probation due to the seriousness and circumstances of the present offense, his infliction of a physical and emotional injury, and the likelihood that if not imprisoned, he will be a danger to others. Therefore, it is recommended probation be denied, and the defendant be sentenced to state prison.”

The probation officer listed as aggravating circumstances that defendant was on probation when he committed the instant offenses and his prior performance on probation was unsatisfactory. The probation officer stated there were no mitigating circumstances.

The trial court remanded defendant to the California Department of Corrections and Rehabilitation pursuant to section 1203.03 for a 90-day evaluation of his potential for functioning successfully on probation. A correctional counselor interviewed defendant; reviewed his medical history and psychological report; and considered his history of drug and alcohol use and his criminal history, including the instant offenses.

The correctional counselor concluded that defendant was an “unsuitable candidate for probation. He is criminally oriented and has established a criminal behavior pattern. He appears to have a poor attitude towards probation and appears to be unwilling to comply with any condition of the court and/or probation department. Further, it is believed if he were granted probation and fails, he would present a significant risk to others. Other factors include, he was on probation for Orange County Case #7WC05104 for PC273A(B) Willful Cruelty to a Child and there was a restraining order in place that doesn't expire until 7/19/21, the Victim is his stepson. [Defendant's] performance while on probation was unsatisfactory. [Defendant] has endangered his family, children, the community and neighbors in the neighborhood with his illegal activity of Manufacturing Controlled Substance which caused extensive damage to the house he was renting. [Defendant] is fortunate nobody was seriously hurt or killed by his actions.”

The clinical psychologist who evaluated defendant as part of his section 1203.03 evaluation opined that defendant had antisocial features, which were shown by his failure to conform to social norms and his minimizing his actions. The clinical psychologist concluded:

“Upon review of historical data, probation report, and this interview, when compared to the general population, [defendant's] potential for future legal violations in the community is estimated by this examiner to be in the high range. In my professional opinion, [defendant] appears unlikely to benefit from probation because he has continued to break social norms and appears to demonstrate a limited understanding of negative consequences of his behaviors. In sum, I recommend that probation be denied.”

The trial court denied defendant probation. It based its decision on the seriousness of the underlying offense-apparently referring to the manufacturing concentrated cannabis offense-and its consequences. It noted the correctional counselor's conclusion that defendant was criminally oriented, had established a pattern of criminal behavior, appeared to have a poor attitude toward probation and to be unwilling to comply with probation conditions, and posed a significant risk to others if he failed on probation. The court observed that defendant had been on probation for a prior child endangerment conviction when he committed three counts of child abuse in this case. Defendant “seem[ed] to be oblivious to the welfare of those who were within proximity of this, of the premises, and could very well have been seriously hurt as a result of what he did.”

The trial court found that defendant had “demonstrated a working understanding of the chemistry that is involved which suggests [a] certain sophistication.” It doubted that even a person with some background in chemistry could manufacture concentrated cannabis without devoting himself to the process and studying the necessary procedures. Such efforts would have undoubtedly revealed the risk involved.

The trial court noted that the probation report identified defendant's probation status and prior poor performance while on probation as aggravating circumstances. It also noted that the probation officer had found no mitigating circumstances, but it found that defendant's “relatively insignificant history of criminal misconduct” was a mitigating circumstance. It then sentenced defendant to the middle term of five years.

The trial court's decision to deny defendant probation-a decision consistent with the recommendations of the probation officer, the correctional counselor, and the clinical psychologist-was supported by the record and not an abuse of discretion. Defendant's crime of manufacturing concentrated cannabis was a serious one that led to an explosion that caused significant damage to the residence-although the restitution issue had not been resolved at the time of the sentencing hearing, the working estimate was $75, 000. (Rules 4.414(a)(1) & (5).) If defendant, his wife, or their children had been present they could have been seriously injured. Defendant had prior criminal convictions for spousal abuse and child endangerment in addition to the offenses in this case. (Rule 4.414(b)(1).) He was on probation for the child endangerment conviction when he committed the crimes in this case, which included three counts of child abuse, and his prior performance on probation was unsatisfactory. (Rule 4.414(b)(2).)

C. The Child Abuse Counts

Defendant contends the trial court erred in sentencing him on his three child abuse convictions because previously it had dismissed those counts in the interest of justice. We disagree.

1. Background

At the initial sentencing hearing on July 26, 2019, the trial court stated that it did not believe section 654 applied to the child abuse convictions. It then asked the prosecutor, “Do you wish to proceed on those? Would there be any objection to dismissing those three counts? The children were not present.” The prosecutor responded that she would not object. The court stated, “Okay. Good. All right.” Later, to allow the parties additional time to gather further evidence on the issue of restitution, the court continued the sentencing hearing to September 27, 2019.

At the continued sentencing hearing, the trial court stated it had given the case a lot of thought and asked the parties for any final arguments. The prosecutor stated that she wanted to provide clarifying information about defendant's prior child endangerment conviction. She stated that defendant had picked up a minor child by the throat, leaving the child's feet dangling. She wanted to “clarify that point when the court takes into consideration the totality of everything as far as sentencing. [¶] And again, just to reiterate that this was an explosion, a very dangerous situation. Children-he had children that could have possibly been harmed, and people could have been harmed and in taking into account the past record, other than that the People submit.”

The trial court noted that because there were three separate victims on the child abuse counts, section 654 did not apply. It further noted that defendant had been placed on probation for his prior child endangerment conviction and was “charged with three counts of similar conduct in this particular case. He seems to be oblivious to the welfare of those who were within proximity of this, of the premises, and could very well have been seriously hurt as a result of what he did.” The court then sentenced defendant to, among other things, four-year concurrent terms on his child abuse convictions.

2. Analysis

Defendant cites People v. McKee (1968) 267 Cal.App.2d 509, 514 ( McKee ) and People v. Booker (1994) 21 Cal.App.4th 1517, 1521 ( Booker ) for the proposition that a trial court may take action with respect to a criminal charge that amounts to a dismissal of that charge, even though it does not use the word “dismissed.” Neither case is apposite. Unlike in McKee, supra , 267 Cal.App.2d at page 510, and Booker, supra , 21 Cal.App.4th at page 1520, where the courts of appeal construed a trial court order directing the district attorney to file an amended information charging defendant with a reduced charge and a court order reducing a felony to a misdemeanor, as orders dismissing the greater felony charges, here, at the first sentencing hearing, the trial court made no order with respect to the child abuse convictions. Instead, it solicited the prosecutor's position about one of its sentencing options. The court's statements were not tantamount to an order dismissing the child abuse convictions.

IV. DISPOSITION

The judgment is affirmed.

We concur: RUBIN, P. J., BAKER, J.

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Notes:

All further statutory references are to the Penal Code.

Defendant contends he may raise these issues on appeal without a certificate of probable cause because they do not challenge the validity of the plea, but rather the court's post-plea exercises of discretion and sentencing. The Attorney General agrees, as do we. ( People v. Buttram (2003) 30 Cal.4th 773, 785.)

Because defendant pleaded no contest to the charged counts and waived his right to a preliminary hearing, we rely on the probation report's description of the offenses as context for our discussion below.

This testimony conflicted with Dr. Grajewski's report which indicated that defendant had stopped taking opiates before he committed the instant offenses.

All further rules references are to the California Rules of Court.

Rule 4.414 provides:

“Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.

“(a) Facts relating to the crime [¶]

“Facts relating to the crime include:

“(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;

“(2) Whether the defendant was armed with or used a weapon;

“(3) The vulnerability of the victim;

“(4) Whether the defendant inflicted physical or emotional injury;

“(5) The degree of monetary loss to the victim;

“(6) Whether the defendant was an active or a passive participant;

“(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;

“(8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and

“(9) Whether the defendant took advantage of a position of trust or confidence to commit the crime. [¶]... [¶]

“(b) Facts relating to the defendant [¶]

“Facts relating to the defendant include:

“(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct;

“(2) Prior performance and present status on probation, mandatory supervision, postrelease community supervision, or parole;

“(3) Willingness to comply with the terms of probation;

“(4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;

“(5) The likely effect of imprisonment on the defendant and his or her dependents;

“(6) The adverse collateral consequences on the defendant's life resulting from the felony conviction;

“(7) Whether the defendant is remorseful; and

“(8) The likelihood that if not imprisoned the defendant will be a danger to others.”

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