People v. Torres

• Decision Date: 10 September 2019
• Docket Number: 2d Crim. No. B290895
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Eugene TORRES, Jr., Defendant and Appellant.

39 Cal.App.5th 849

252 Cal.Rptr.3d 484

The PEOPLE, Plaintiff and Respondent,

v.Robert Eugene TORRES, Jr., Defendant and Appellant.

2d Crim. No. B290895

Court of Appeal, Second District, Division 6, California.

Filed September 10, 2019

Valerie G. Wass, under appointment by the Court of Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, David E. Madeo, Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

YEGAN, J.

Robert Eugene Torres, Jr., no doubt, has some thought disorder. But his case should not now be diverted from the traditional criminal law process. We hold that the newly enacted mental health diversion statute ( Pen. Code, § 1001.36 )¹ cannot be applied on appeal after conviction and sentence. A contrary ruling would do violence to the language of the statute and potentially violate double jeopardy principles. Appellant was convicted by jury for discharging a firearm with gross negligence (count 1: § 246.3, subd. (a)), unlawfully causing a fire to an inhabited structure or property (count 2; § 452, subd. (b)), unlawfully setting fire to property of another (counts 3 & 4; § 452, subd. (d)), three counts of corporal injury to a spouse (§ 273.5, subd. (a); counts 6, 12, 13), assault with a deadly weapon (count 7; § 245, subd. (a)(1)), dissuading a witness from reporting a crime (count 9; § 136.1, subd. (b)(1)), misdemeanor false imprisonment (count 10; § 236), and battery on a spouse (count 11; § 243, subd. (e)(1)). Appellant entered a plea to felony vandalism (count 5; § 594, subd. (b)(1)). He was sentenced to nine years state prison, and six months county jail to be served concurrent to the prison term. We reverse the misdemeanor conviction on count 4 for unlawfully setting fire to the property of another, strike the six-month jail sentence with respect to count 4, and affirm the judgment as modified. (§ 1260.) The sentence remains the same: nine years state prison.

Facts

Appellant and his wife lived in a rented condominium in San Luis Obispo. From July 2015 to March 2017, wife was treated for brain and lung cancer

which caused her to suffer vertigo and equilibrium problems, thin and dry skin, and weight loss. At first, appellant acted as a responsible caregiver for her. But his attitude toward wife changed. The continuing predicament precipitated a reign of cruelty starting in December 2016. Appellant grabbed wife by the arms, pinned her down on the bed, spit in her face, and while holding a pillow over wife's face said " ‘Aren't you dead yet.’ " Her forearms were "ripped" and bruised. Appellant told wife that if she told anyone about what happened "it would be the last thing [she] did."

In February 2017, appellant again pinned wife down on a bed, held a pillow over her face, and ripped the skin on her forearms. She managed to kick free but feared that appellant would kill her if she reported the domestic violence.

In March 2017, there were more acts of violence. Appellant blocked wife from entering the bathroom. Appellant stepped to the side, grabbed wife by the shoulders and shoved her against the vanity. He remained in the bathroom doorway, blocked wife from leaving, and threatened her and said " ‘Aren't you dead yet?’ "

On another occasion appellant shoved wife down on a bed and slammed the television remote control down on her foot. On yet another day, appellant threw wife on the bed, pinned her down, and tried to suffocate her with a pillow. Appellant threatened to shoot wife with a pistol, pulled the trigger, and said " ‘See, it's not loaded.’ " Appellant ranted on a daily basis and said he wished she was dead.

On April 18, 2017 appellant pinned wife down on the bed and held a pillow over her face. Wife almost blacked out. The next day, appellant slammed wife into the bedroom wall, dragged her out the house, and locked the front door. Wife beat on the door and begged to be let inside for 10 to 15 minutes. When a friend arrived at noon to pick her up for a lunch date, wife was sitting in the front yard with suitcases and boxes. Wife looked "broken" and had a swollen ear. Wife moved out to live with her parents. She eventually reported the matter to the police.

On May 11, 2017, a neighbor saw broken furniture, a coffee pot, a spice rack and a wooden chair outside the condominium. He called 911 to report that something was smoking behind appellant's fence. San Luis Obispo Police Officer Edwards responded to the call and saw household items and broken chairs in the yard, smoldering. Appellant was ordered to put out the fire.

A week later, San Luis Obispo Police Officer Villanueva responded to a midnight call that gun shots had been fired at the condominium. Officer Villanueva heard the sound of breaking glass, loud thuds, and four gunshots. The officer then saw appellant walk into the backyard, raise his arm, and fire a shot.

Appellant told Detective Vitale that he pointed a handgun "up towards the hill" and fired eight rounds. The detective visited the condominium and saw broken windows, holes in the walls, missing doors and light fixtures, and noticed that the kitchen cabinet and stovetop were missing. The living room carpet had a large burn mark and the word "liar" was spray painted on a wall. Detective Vitale found a .45 caliber semiautomatic handgun in a laundry basket and a charred pile of furniture, clothing, and household goods. The city fire marshal opined that the carpet fire was started with an ignitable fluid and that the furniture fire was not started by someone dropping a lit match, as appellant claimed.

Section 1001.36 Mental Health Diversion

Appellant was sentenced on June 12, 2018 and contends that section 1001.36 requires that his conviction be conditionally reversed to determine whether appellant qualifies for mental health diversion. Section 1001.36 was enacted on June 27, 2018 and authorizes trial courts to grant "pretrial diversion" to defendants diagnosed with certain mental disorders. (See Stats. 2018, ch. 34, § 24; People v. Cawkwell (2019) 34 Cal.App.5th 1048, 1053, 246 Cal.Rptr.3d 744.) Relying on People v. Frahs (2018) 27 Cal.App.5th 784, 238 Cal.Rptr.3d 483 (Frahs ), review granted Dec. 27, 2018, S252220, appellant argues that section 1001.36 applies to criminal convictions that are not yet final.

In People v. Craine (2019) 35 Cal.App.5th 744, 247 Cal.Rptr.3d 564, the Fifth District Court of Appeal held that section 1001.36 was not intended to apply to defendants tried and convicted before the enactment of the statute. "The primary legislative goal of diverting mentally ill defendants from the criminal justice system through preadjudicative intervention programs cannot be achieved once the defendant has been tried, adjudged guilty, and sentenced." ( Id. at pp. 749-750, 247 Cal.Rptr.3d 564.) We agree with the holding and analysis in Craine and disagree with the recent case of People v. Weaver (2019) 36 Cal.App.5th 1103, 249 Cal.Rptr.3d 223. We hold that section 1001.36 does not apply to defendants tried, convicted, and sentenced before June 27, 2018, the effective date of section 1001.36. "[P]retrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced. Upon reaching this point of ‘adjudication,’ the ‘prosecution’ is over and there is nothing left to postpone. ( § 1001.36, subd. (c).)" ( Id. at p. 756, 247 Cal.Rptr.3d 564.)

We offer a further rationale for our holding. Double jeopardy principles compel non-retroactivity. (See Cal. Const., art. I, § 15 ["Persons may not twice be put in jeopardy for the same offense"]; § 1023.) Jeopardy attaches when the jury is empanelled and sworn. ( Larios v. Superior Court of Ventura County (1979) 24 Cal.3d 324, 329, 155 Cal.Rptr. 374, 594 P.2d 491.) "The right not to be placed twice in jeopardy for the same offense is as sacred as the right to trial by jury." (Ibid. ) Appellant was fairly tried and fairly convicted. The evidence is sufficient to support all but one of the jury verdicts and jeopardy has attached as a matter of law. (See People v. Hernandez (2003) 30 Cal.4th 1, 6-7, 131 Cal.Rptr.2d 514, 64 P.3d 800.) Section 1001.36, subdivision (c) states that " ‘pretrial diversion’ means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication , to allow the defendant to undergo mental health treatment...." (Italics added.) "Until adjudication" means before the jury is impaneled and sworn. If we agreed with appellant and he was granted mental health diversion and he later violated diversion, double jeopardy principles would bar a new trial or conviction. This eviscerate the statute's enforcement mechanism.

Appellant contends that mental health diversion may be invoked after guilt is adjudicated and sentenced, but this would violate the cardinal rule of statutory construction that courts may not add words to a statute. ( People v. Guzman (2005) 35 Cal.4th 577, 587, 25 Cal.Rptr.3d 761, 107 P.3d 860 ; Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1698, 8 Cal.Rptr.2d 614 [courts do not sit as super-legislatures].) We cannot "add" a waiver of jeopardy amendment to section 1001.36 for those defendants seeking diversion after conviction and sentence. Nor can we say that he who asks for such treatment impliedly "consents" to a waiver of jeopardy. In the cases dealing with "consent" all note that there was something wrong with the trial for which the defendant sought a new trial. There is nothing wrong here.

Sentencing occurs after adjudication and section 1001.36, subdivision (c) provides that mental health diversion may be ordered at any point in the judicial process "until adjudication. " We, accordingly, reject the argument that section 1001.36 is an ameliorative statute that lessens punishment and may be retroactively...