People v. Gerson

• Decision Date: 08 July 2022
• Docket Number: D076297
• Citation: 80 Cal.App.5th 1067,296 Cal.Rptr.3d 576
• Parties: The PEOPLE, Plaintiff and Respondent, v. Hayden Abraham GERSON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

80 Cal.App.5th 1067

296 Cal.Rptr.3d 576

The PEOPLE, Plaintiff and Respondent,

v.Hayden Abraham GERSON, Defendant and Appellant.

D076297

Court of Appeal, Fourth District, Division 1, California.

Filed July 8, 2022

Certified for Partial Publication.^*

George L. Schraer, San Diego, for Defendant and Appellant.

Xavier Becerra, Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Charles C. Ragland, Assistant Attorneys General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General for Plaintiff and Respondent.

HALLER, Acting P.J. Hayden Abraham Gerson attacked two police officers attempting to detain him after he refused to comply with their orders. This attack led to a SWAT standoff and gun battle between Gerson and two SWAT officers. After Gerson choked and bit a police K-9, multiple officers were able to subdue and arrest him.

A jury found Gerson guilty of two counts of attempted voluntary manslaughter ( Pen. Code, §§ 664, 192, subd. (a) ),¹ a lesser included offense of attempted murder ( §§ 664, 187, subd. (a) ) charged in counts 1 and 2; two counts of assaulting a peace officer with a semiautomatic firearm (counts 3-4, § 245, subd. (d)(2)); shooting at an inhabited house (count 5, § 246); assault on a peace officer with force likely to produce great bodily injury (count 6, § 245, subd. (c)); making a criminal threat (count 7, § 422); exhibiting a firearm to a peace officer to resist arrest (count 8, § 417.8); two counts of resisting an executive officer (counts 9-10, § 69); and harming or interfering with a police animal (count 11, § 600, subd. (a)). The jury also found true various enhancements to these offenses. The jury found Gerson to be sane during commission of the offenses. The trial court sentenced Gerson to a total term of 33 years eight months in prison.

Gerson appeals, contending that the judgment must be reversed because the trial court erred when it denied his motion for pretrial diversion based on a mental disorder. Assuming we reject this argument, he argues that counts 1 to 5, 8, and 11 must be reversed based on errors regarding the unconsciousness instruction. He challenges the sufficiency of the evidence supporting his convictions for assaulting a peace officer with a semiautomatic firearm (counts 3, 4) and criminal threats (count 7). Gerson also claims that the sentences imposed on counts 7 and 8 must be stayed under section 654 because he committed these counts and count 6 for the same criminal purpose—to prevent his arrest. Finally, Gerson asserts that he is entitled to 608 days of preconviction custody credit ( § 2900.5, subd. (a) ) and 91 days of preconviction conduct credit ( § 4019 ) for the time he spent subject to electronic monitoring on home detention.

In the published portion of this opinion, we conclude that substantial evidence supported the trial court's finding that Gerson did not meet his burden of showing he suffered from bipolar disorder

, a mental disorder that qualifies for pretrial diversion. Accordingly, its ruling denying Gerson's motion for pretrial diversion did not amount to an abuse of discretion. We also conclude that an individual, such as Gerson, who is out on bail and subject to electronic monitoring on home detention is similarly situated to persons participating in an electronic monitoring program pursuant to section 1203.018 and that a rational basis does not exist for treating these categories of individuals differently. Accordingly, Gerson is entitled to preconviction custody credit ( § 2900.5, subd. (a) ) and preconviction conduct credit ( § 4019 ) under the state and federal equal protection clauses.

In unpublished parts II, III, and IV, we reject Gerson's remaining arguments.

On June 6, 2022, Gerson filed a motion to recall the remittitur based on ineffective assistance of appellate counsel in failing to raise Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124), which amended section 1170 to make the low-term sentence presumptively appropriate under specified circumstances.² He requested that we remand the proceedings for resentencing in light of Assembly Bill 124. In new published part VI, we address the merits of the motion. Simultaneously with this opinion, we issue an order granting the motion to recall the remittitur. In part VI, we also agree with Gerson that remand is necessary so that the trial court may exercise its discretion to resentence him under Assembly Bill 124. Accordingly, we affirm the judgment as modified but vacate Gerson's sentence and remand for resentencing. No changes to our initial opinion are otherwise made.

FACTUAL BACKGROUND ³

A. Events Leading to Gerson's Crimes

Gerson and Alisha F. dated for eight months before breaking up in May 2016⁴ because Gerson's "drug use was out of control." While Gerson and Alisha dated, Gerson was fascinated with solar energy. Gerson testified that he and a childhood friend, Matthew M., started their own solar installation company and that they both ran the business. Matthew, however, testified that he started the company, Gerson worked for him and was never a co-owner of the company. Matthew described Gerson as a person who had a temper, often exaggerated things, and "always thrived off conflict." Matthew knew Gerson to be an argumentative person who blew things out of proportion.

About two months before his arrest, Gerson told Matthew that he started using DMT⁵ and "mushrooms." Matthew noticed changes in Gerson after Gerson started using drugs, including "constantly" talking about various conspiracy theories, claiming he was God and that he had special powers. Gerson also started using extremely offensive language such as calling women "cunts" and telling Jewish people that he was "Hitler." Although Matthew stated that Gerson was prone to verbal conflict, physical conflict would be "unusual" but that the type of behavior Gerson engaged in changed after Gerson started using drugs. Matthew witnessed Gerson "high" from marijuana hundreds of times but described Gerson on other drugs as "something totally, totally different."

During the summer and fall, Gerson began studying Hinduism, started chanting and meditating, used different psychedelic drugs, and started inhaling nitrous oxide.⁶ In November, Gerson called Alisha and told her "crazy stuff" such as bringing her deceased sister back. Alisha suspected that Gerson's drug use caused him to become delusional and not in touch with reality. Gerson later told Alisha that he had been using drugs when he made that telephone call. During this time, Gerson's social media postings referred to his use of DMT as "life changing" and that mushrooms changed his perspective about death and "now I don't fear death." Gerson referred to psychedelic drugs as "medicine." In another post he wrote that " ‘cops are the biggest criminals.’ "

On the night of December 12, Alisha contacted Gerson and he invited her to come over. When Alisha arrived, she knew Gerson was intoxicated based on his large eyes, rapid movements, and the tone of his voice. She had never seen Gerson this intoxicated before. Gerson told Alisha that "he was eating mushrooms for breakfast, lunch, and dinner." Gerson admitted at trial that he was under the influence of psilocybin⁷ and nitrous oxide at the time and had also used cannabis that day. Alisha surreptitiously recorded Gerson with her cell phone. Gerson made delusional statements such as causing it to snow in Hawaii and having control because he was Lord Shiva.⁸ Gerson then inhaled about 14 canisters of nitrous oxide in front of Alisha.⁹

Alisha called the police and told them she had a "5150" with her ex-boyfriend and she needed someone to come over immediately.¹⁰ After the 911 operator ascertained that Gerson was not hurting himself or Alisha, the operator asked Alisha to call a non-emergency number. Instead, Alisha texted a friend and asked her to call the police. A police dispatcher later called Alisha to ask if Gerson was being violent. Alisha falsely answered that Gerson was violent so that the police would respond.

B. Gerson's Crimes

San Diego Police Officers John White and Melanie Bognuda arrived at Gerson's home where Alisha informed Officer Bognuda that Gerson was on drugs and thought he was Lord Shiva. After Gerson refused to comply with Officer White's command to walk towards him, both officers tried to grab Gerson's arms to put him in handcuffs while Gerson physically resisted. Officer White deployed his Taser when Gerson ignored his order to get on the ground. The Taser had no effect on Gerson. Gerson then punched Officer Bognuda in the face. Officer White tackled Gerson and both men fell to the ground.

Gerson, who started training in jiu jitsu as a teenager, put Officer White in a chokehold. Officer Bognuda hit Gerson's body with her baton as Gerson maintained his chokehold on Officer White. Gerson released Officer White after Bognuda hit Gerson in the head with her baton. While Officer White gasped for breath, Gerson stated "I'm gonna fucking kill you" and "I will fucking murder you now." As the officers hid behind a parked car, Gerson retreated to his home and then came outside carrying a semiautomatic handgun. He repeatedly racked the gun's slide. The officers recognized that Gerson's gun was unloaded based on his continual racking of the gun. Gerson then went back inside his house.

The police deployed two SWAT officers to the scene who positioned themselves on the roof of a neighbor's home and watched a window of Gerson's home where Gerson was located. At some point, Gerson fired a shot from the room. A gunfight ensued as the SWAT officers began shooting towards the window while Gerson fired back.

The officers then shot tear gas into the house, which caused Gerson to run out the front door. Gerson ignored the officers' commands to get on the ground, which caused them to shoot Gerson with less-than-lethal rounds. A handler then released a police K-9 to...