People v. Booker
| Docket Number | B322598 |
| Decision Date | 28 December 2023 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DONALD EARL BOOKER, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
1
THE PEOPLE, Plaintiff and Respondent,
v.
DONALD EARL BOOKER, Defendant and Appellant.
B322598
California Court of Appeals, Second District, Fifth Division
December 28, 2023
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA099455 Michael Villalobos, Judge. Affirmed.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
A jury convicted defendant Donald Earl Booker of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)[1]), attempted murder (§§ 664/187, subd. (a)), and mayhem (§ 203). As to each offense, the jury found true the allegation that defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).) The trial court found that defendant had two prior serious felony convictions within the meaning of the Three Strikes law (§§ 667, subd. (d) and 1170.12, subd. (b)) and section 667.5, and that he had served six prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to 45 years to life in state prison.
Defendant appealed from his conviction. We conditionally reversed the judgment and remanded to the trial court for it to conduct a mental health diversion eligibility hearing under section 1001.36. If the court reinstated the judgment, it was to consider whether to exercise its discretion to strike the section 667, subdivision (a) enhancements. (People v. Booker (May 10, 2019, B286842 [nonpub. opn.] (Booker I).)
On remand, the trial court found defendant ineligible and unsuitable for section 1001.36 mental health diversion. It sentenced defendant to 35 years to life in state prison. Defendant again appeals, contending the court erred in finding him competent to proceed with the hearings on remand, denying mental health diversion, and failing to consider new laws- Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1, (AB 518)) and Senate Bill No. 81 (Stats.2021, ch. 721, § 1, (SB 81))-in making its sentencing choices. We affirm.
II. BACKGROUND
A. Trial Evidence
The following background is taken from the unpublished opinion in defendant's prior appeal in this case, Booker I, supra, B286842:
"Dale Ross had known and been friends with defendant and Treopia Ross for about 20 years.[2] He testified that at around 9:00 a.m. on August 11, 2016, he and Treopia drank beer and smoked crystal methamphetamine at his house.
"After smoking methamphetamine for about an hour, Dale and Treopia went to the Sparr liquor store. Defendant was at the parking lot. Defendant and Treopia spoke. Dale was close by. He did not remember hearing defendant tell Treopia that he was going to kill her.
"At some point, Dale saw defendant take a swing at Treopia. Dale though[t] they were playing, 'like sand boxing or something.' Defendant and Treopia struggled for about 20 or 30 seconds. They were swinging at each other-Treopia threw punches.
"During the altercation, Dale did not see either defendant or Treopia in possession of a box cutter. He had previously seen Treopia with knives-'everybody around there carries knives and stuff.' He saw her with a knife earlier that day.
"At about 8:46 a.m. on August 11, 2016, Deciderio Flores was driving on Huntington Drive in Duarte. He saw defendant chasing Treopia. When defendant got close to Treopia he would
'swing[] on' her. He did not see Treopia swing at defendant. It appeared that defendant had something that looked like a knife in his hand. Treopia screamed for help. Flores believed that Treopia was going to be hurt and called the police.
"Flores testified that Treopia and defendant ran into a liquor store. At some point, defendant came out and walked swiftly to a Carl's Jr. across the street.
"Treopia testified that she had been convicted of misdemeanor assault with a deadly weapon in 2006 and felony forgery in February 2007. She had felony charges pending for allegedly striking and pepper spraying her 70-year-old father.
"At about 8:40 a.m. on August 11, 2016, Treopia was at the Sparr liquor store in Duarte. Defendant was in the parking lot when she arrived. Treopia called Dale, who she knew was at the Carl's Jr. At some point, Treopia approached Dale because she wanted to go to his house to dye her hair-she was homeless at the time.
"As Treopia and Dale spoke, defendant said, 'Hey, Dale,' and motioned to Dale to come over. Dale went to defendant to see what he wanted. Treopia went into the liquor store and spoke to a store employee for 10 or 15 minutes.
"Treopia then left the store and asked Dale, '"Dale, you ready?"' Dale appeared not to hear Treopia and so approached her. Defendant remained behind. Defendant then asked, '"What you doing talking about me?"' Dale walked back and forth between Treopia and defendant. At some point, defendant walked with Dale to Treopia.
"Defendant 'was looking [Treopia] up and down.' She asked him, '"Why are you maddogging me, looking me up and down like that?"' Defendant said, in a normal tone of voice, 'Bitch, shut up.
I'm going to kill you.' Defendant then swung at Treopia and she put her hand up so he would not hit her in the face. Treopia had not threatened defendant or swung at him.
"Defendant's blow, with a box cutter, made contact with the palm of Treopia's right hand and cut her. Defendant then tried to pull Treopia's hair back and cut her throat. To defend herself, Treopia put her 'hands up, like to square off with him' in a fighting position. Defendant then cut Treopia's left hand, cutting her to the bone.
"Treopia ran into the street and screamed for help and for someone to call the police. Defendant pursued and tried to catch her. Treopia ran inside the Sparr liquor store. Defendant followed her. Treopia asked the liquor store employee to call the police.
"Treopia was taken to the hospital where she had surgery on her hands that lasted five or six hours. She had casts on her hands for two weeks and could not use them. Treopia was in a lot of pain when she left the hospital. She suffered lasting impairment to one of her hands that prevented her from continuing her employment braiding hair.
"Deputy Sheriff Brendon Jackson responded to the Sparr liquor store. There, he spoke with Dale. Dale said he was standing with Treopia in a dirt lot when defendant approached. Treopia asked defendant, 'Why you looking me up and down?' Defendant responded, 'Shut up, bitch; I'll kill you.'" (Booker I, supra, B286842.)
B. Remand Proceedings
On September 14, 2021, Dr. Haig Kojian evaluated defendant for section 1001.36[3] mental health diversion. Dr. Kojian had previously evaluated defendant and was appointed at defense counsel's request. Prior to the evaluation, defendant stated that he "understood the scope and intent of testing and volunteered to be interviewed." Dr. Kojian prepared a mental health diversion report for the court in which he concluded that defendant met one of the six criteria for mental health diversion (all criteria had to be met to qualify for mental health diversion (§ 1001.36, subd. (b)(1) ["Pretrial diversion may be granted pursuant to this section if all of the following criteria are met"] (italics added)).
In his report, Dr. Kojian opined that defendant met the first diversion criterion-whether he suffered from a qualifying mental disorder. (§ 1001.36, subd. (b)(1)(A).) Defendant had a significant history of mental illness including a diagnosis of schizophrenia, treatment with numerous psychiatric medications, and multiple psychiatric hospitalizations. In September 2015, defendant was "considered to be incompetent to stand trial." The doctor also noted that defendant had a significant history of methamphetamine use. During the course of the interview, defendant "ma[d]e a number of strange comments such as that he
is '33 degrees Fahrenheit,'-a reference to 33 degree Free Mason, that he walks in the light, and that he follows the light like the Illuminati." Dr. Kojian diagnosed defendant with "Schizoaffective Disorder, Bipolar Type" and "Stimulant Use Disorder-Amphetamine Type."
Dr. Kojian concluded that defendant did not meet the second diversion criterion-whether his mental disorder played a significant role in the commission of the charged offense. (§ 1001.36, subd. (b)(1)(B).) Defendant denied committing the charged offenses and stated that "he was not impaired on the date of the incident . . . and that he knew 'exactly' what was going on . . . [and] wasn't mentally compromised ...." Dr. Kojian opined it was "possible that [defendant] may have been under the influence of a psychoactive substance such as methamphetamine which could have caused him to either be delusional or paranoid, and it is also possible that he may have been delusional and paranoid as a result of mental illness but this is only conjecture."
Dr. Kojian believed that defendant did not meet the third diversion criterion-whether his symptoms would respond to mental health treatment. (§ 1001.36, subd. (b)(1)(C).) Dr. Kojian stated, "It's not clear if [defendant's] symptoms would be responsive to treatment. He is, currently, under psychiatric care with Effexor but he continues to demonstrate delusional thinking. It is likely his illness is quite refractory."
Dr. Kojian concluded that defendant did not meet the fourth diversion criterion-whether he consented to diversion and waived his speedy trial right.[4] (§ 1001.36, subd. (b)(1)(D).) According to Dr. Kojian, "[Defendant] reported he is willing to
participate in treatment, however, he has, historically, struggled with medication and treatment noncompliance. In addition, I suspect he will be at a very high risk for...
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