People v. Starr CA2/1 ( 2021 )

Filed 4/26/21 P. v. Starr CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304944
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA097512)
v.
REGGIE STARR,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court
of Los Angeles County, Hector M. Guzman, Judge. Reversed in
part, conditionally reversed in part.
Aaron J. Schechter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
A jury convicted defendant and appellant Reggie Starr of
kidnapping to facilitate carjacking (Pen. Code,1 § 209.5, subd. (a))
(counts 1 and 2), kidnapping (§ 207, subd. (a)) (counts 3 and 4),
carjacking (§ 215, subd. (a)) (count 5), residential robbery (§ 211)
(count 6), and dissuading a witness by force or by threat of force
(§ 136.1, subd. (c)(1)) (count 7). He contends that his convictions
for kidnapping and carjacking must be reversed because they
are lesser included offenses of kidnapping to facilitate carjacking.
Starr also contends that we must conditionally reverse his
remaining convictions to allow him to request a mental health
diversion eligibility hearing pursuant to section 1001.36, and
that the trial court erred by imposing fines and fees without
determining that he is able to pay them. We agree with Starr as
to the lesser included offenses, and we reverse those convictions.
We also conditionally reverse the remainder of Starr’s convictions
because the record does not conclusively establish that a remand
for a pretrial diversion hearing would be futile. We reject Starr’s
argument on fines and fees.
FACTS AND PROCEEDINGS BELOW
Late in the evening of December 23, 2017, K.B. was at
home watching a movie on TV with his minor son and a woman
that K.B. had recently met. At around 1:00 a.m., the woman
left, and Starr and an unidentified accomplice came in. K.B.
had dozed off, but he woke up when he heard the sound of the
men entering. Starr pointed a gun at K.B., demanded money,
and asked where his safe was. Starr’s accomplice took jewelry
1Subsequent unspecified statutory references are to the
Penal Code.
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from K.B. and the son. Starr then led K.B. and his son into
a bedroom while Starr’s accomplice searched the premises and
took additional valuables.
After taking K.B.’s wallet and cell phone, Starr took K.B.’s
car keys and ordered K.B. and the son to get into the back seat
of K.B.’s car. Starr drove the car while his accomplice kept a
gun pointed at K.B. and the son. Starr drove about a mile from
K.B.’s home, and ordered K.B. and the son out of the car. Starr
said, “[Y]ou better not call the police,” then drove away. K.B. and
his son walked back home. Approximately three weeks later, a
sheriff ’s deputy apprehended Starr in possession of the stolen
car.
After the jury convicted Starr, the trial court imposed an
aggregate sentence of 34 years to life in prison. The sentence
consisted of two consecutive sentences of seven years to life for
the two counts of kidnapping to facilitate carjacking (§ 209.5,
subd. (a)), plus two consecutive 10-year enhancements
(§ 12022.53, subd. (b)) for personally using a firearm in the
commission of those offenses. The court stayed the sentences
for kidnapping (§ 207, subd. (a)) and carjacking (§ 215, subd. (a))
pursuant to section 654, and imposed concurrent sentences
of six years for residential robbery (§ 211) and three years for
dissuading a witness by force (§ 136.1, subd. (c)(1)).
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DISCUSSION
A. Lesser Included Offenses
Starr contends that his convictions for kidnapping (§ 207,
subd. (a)) and carjacking (§ 215, subd. (a)) must be reversed
because they are lesser included offenses of kidnapping to
facilitate carjacking (§ 209.5, subd. (a)). The Attorney General
agrees, as do we.
“In California, a single act or course of conduct by a
defendant can lead to convictions ‘of any number of the offenses
charged.’ (§ 954, italics added; People v. Ortega (1998) 19 Cal. 4th
686, 692 . . . .) But a judicially created exception to this rule
prohibits multiple convictions based on necessarily included
offenses.” (People v. Montoya (2004) 33 Cal. 4th 1031, 1034
(Montoya).)
“In deciding whether an offense is necessarily included in
another, we apply the elements test, asking whether ‘ “ ‘all the
legal ingredients of the corpus delicti of the lesser offense [are]
included in the elements of the greater offense.’ [Citation.]” ’
(People v. Lopez (1998) 19 Cal. 4th 282, 288 . . . .) In other
words, ‘if a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense
within the former.’ ” (Montoya, supra, 33 Cal.4th at p. 1034.)
“When a defendant is found guilty of both a greater and a
necessarily lesser included offense arising out of the same act or
course of conduct, and the evidence supports the verdict on the
greater offense, that conviction is controlling, and the conviction
of the lesser offense must be reversed.” (People v. Sanders (2012)
55 Cal. 4th 731, 736.)
Section 209.5, subdivision (a) provides that “[a]ny person
who, during the commission of a carjacking and in order to
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facilitate the commission of the carjacking, kidnaps another
person who is not a principal in the commission of the carjacking
shall be punished by imprisonment in the state prison for life
with the possibility of parole.” Thus, by its terms, a defendant
cannot violate the statute without committing kidnapping. (See
People v. Stringer (2019) 41 Cal. App. 5th 974, 988; People v. Ortiz
(2012) 208 Cal. App. 4th 1354, 1368.) Similarly, our Supreme
Court has held that carjacking is a lesser included offense of
kidnapping to facilitate carjacking. (People v. Montes (2014) 58
Cal. 4th 809, 898; accord, In re B.J. (2020) 49 Cal. App. 5th 646,
652.)
Substantial evidence supported Starr’s conviction of the
greater offense of kidnapping to facilitate carjacking, as Starr
does not dispute. We therefore reverse his convictions for the
lesser included offenses of carjacking and for kidnapping.
B. Mental Health Diversion Hearing
1. Background on Section 1001.36
On June 27, 2018, the same day the jury rendered its
verdict in Starr’s case, section 1001.36 became effective. The
new law allows trial courts to grant pretrial diversion to allow
defendants suffering from a mental disorder to postpone and
potentially avoid prosecution by obtaining treatment for the
disorder. A defendant is eligible for pretrial diversion if six
statutory criteria are met: “(A) The court is satisfied that the
defendant suffers from a mental disorder as identified in the
most recent edition of the Diagnostic and Statistical Manual
of Mental Disorders. . . . [¶] (B) The court is satisfied that
the defendant’s mental disorder was a significant factor in
the commission of the charged offense. . . . [¶] (C) In the opinion
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of a qualified mental health expert, the defendant’s symptoms
of the mental disorder motivating the criminal behavior would
respond to mental health treatment. [¶] (D) The defendant
consents to diversion and waives the defendant’s right to a
speedy trial [or is an appropriate candidate for diversion but
unable to consent due to defendant’s mental incompetence] . . . .
[¶] (E) The defendant agrees to comply with treatment as a
condition of diversion. [¶] (F) The court is satisfied that the
defendant will not pose an unreasonable risk of danger to
public safety, as defined in Section 1170.18, if treated in the
community.” (§ 1001.36, subd. (b)(1)(A)−(F).)
If the trial court determines that the defendant meets
the criteria and that a “recommended inpatient or outpatient
program of mental health treatment will meet the specialized
mental health treatment needs of the defendant” (§ 1001.36,
subd. (c)(1)(A)), the court may refer the defendant for treatment.
If the defendant is charged with a new offense or fails to perform
satisfactorily in the mental health program, the court may modify
the treatment program, refer the defendant for conservatorship
proceedings, or reinstate the charges against the defendant.
(§ 1001.36, subd. (d).) Otherwise, if the defendant performs
satisfactorily in the diversion program for a maximum of two
years, “the court shall dismiss the defendant’s criminal charges
that were the subject of the criminal proceedings at the time of
the initial diversion.” (§ 1001.36, subd. (e).)
The trial court may order pretrial diversion “at any point
in the judicial process from the point at which the accused is
charged until adjudication.” (§ 1001.36, subd. (c).) In addition,
“[a]t any stage of the proceedings, the court may require the
defendant to make a prima facie showing that the defendant will
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meet the minimum requirements of eligibility for diversion and
that the defendant and the offense are suitable for diversion.”
(§ 1001.36, subd. (b)(3).)
Despite the statutory limitation allowing the court to order
pretrial diversion only “until adjudication” (§ 1001.36, subd. (c))
of the defendant’s case, the Supreme Court has held that the
law applies retroactively to all defendants who were convicted
and sentenced but whose cases were not yet final on appeal at
the time the law became effective. (See People v. Frahs (2020)
9 Cal. 5th 618, 630–632 (Frahs).)
If a defendant is wrongly denied an opportunity to request
pretrial diversion, the remedy is to conditionally reverse the
defendant’s convictions and to remand the case to the trial
court to determine whether the defendant is eligible. (Frahs,
supra, 9 Cal.5th at pp. 637, 640–641.) A remand “is warranted
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.” (Id. at p. 640.)
2. Application to the Case
Here there is evidence that Starr suffers from a qualifying
mental disorder. Prior to the sentencing hearing, a psychologist
prepared a report on Starr to make a record for a future youth
offender parole hearing. (See § 3051; People v. Franklin (2016)
63 Cal. 4th 261, 284.) The report documented years of mental
and emotional issues stemming from childhood abuse and
neglect. The psychologist concluded that Starr suffers from
major depressive disorder, post-traumatic stress disorder,
antisocial personality disorder, as well as substance use
disorders stemming from his use of alcohol, cannabis, and
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methamphetamine. According to the report, these disorders
“affected [Starr’s] emotional functioning and decision-making”
and “may have played a role in [his] behavior during the instant
offense.”
The Attorney General contends that we should
nevertheless affirm Starr’s convictions because the record shows
that remanding for a diversion eligibility hearing would be futile.
In several analogous circumstances, where a new court decision
or legislation makes defendants eligible for retroactive sentencing
relief, reviewing courts have refused to require a new sentencing
hearing on the ground of futility where the record affirmatively
shows that the trial court would deny the relief. (See, e.g., People
v. Gutierrez (1996) 48 Cal. App. 4th 1894, 1896 [discretion to
strike prior strike convictions for purposes of sentencing]; People
v. Allison (2019) 39 Cal. App. 5th 688, 705 [discretion to strike
firearm enhancements]; People v. Jones (2019) 32 Cal. App. 5th
267, 272–275 [discretion to strike serious felony enhancements].)
The Supreme Court in Frahs found it unnecessary to decide
whether a futility exception exists in cases involving requests
for pretrial diversion under section 1001.36. (See Frahs, supra,
9 Cal.5th at p. 640.) In analyzing the issue, the Court suggested
that, if an exception exists, it would apply narrowly—only if the
record “conclusively establish[ed] that a remand would be futile.”
(Id. at p. 639.)
The Attorney General contends that remand in this case
would be futile because the trial court made findings suggesting
that Starr does not qualify for diversion. In particular, the
Attorney General argues that the trial court has already rejected
the possibility “that the defendant’s mental disorder was a
significant factor in the commission of the charged offense.”
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(§ 1001.36, subd. (b)(1)(B).) The Attorney General notes that,
when the trial court was considering factors in mitigation (see
Cal. Rules of Court, rule 4.423(b)(2)) during the sentencing
hearing, the trial court found that “[t]here’s nothing in the record
that indicates that these crimes were committed as a result of a
mental disorder.” We disagree that the trial court’s statement
“conclusively establish[es] that a remand would be futile.”
(Frahs, supra, 9 Cal.5th at p. 639.) We cannot rule out the
possibility that the trial court would conclude that Starr’s mental
disorders were a significant factor in his crimes, even if those
crimes were not the “result of a mental disorder” for purposes of
mitigating his culpability. (See ibid. [“the trial court could find
that these criteria for diversion are satisfied even if that court
believed defendant’s mental disorder did not significantly reduce
his culpability for the crimes”].)
The Attorney General also argues that remand for a
pretrial diversion hearing would be futile because Starr cannot
meet another of the criteria—to satisfy the court that he “will not
pose an unreasonable risk of danger to public safety, as defined
in Section 1170.18, if treated in the community.” (§ 1001.36,
subd. (b)(1)(F).) The Attorney General points out that even the
psychologist’s report, introduced on Starr’s behalf, found that
Starr “currently poses a risk of reoffending if released back into
the community.” In addition, the Attorney General notes that
Starr’s current offense is only one part of an extensive history
of dangerous conduct, and that the trial court stated that Starr
“has shown progressive violence over time” that culminated
in his current convictions. Starr responds that the relevant
question is not simply whether he poses a risk of danger to
public safety, but rather whether he would continue to pose
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such a danger “if treated in the community.” (§ 1001.36,
subd. (b)(1)(F).) Starr notes that the psychologist found
that his behavior improved when he was receiving treatment
for his mental disorders. The record thus does not show
“conclusively” that the trial court would reject Starr’s request
for pretrial diversion on the basis of his continuing risk of danger
to public safety. Because the trial court has not decided Starr’s
eligibility for pretrial diversion, and because the record does not
“conclusively establish that a remand would be futile” (Frahs,
supra, 9 Cal.5th at p. 639), we must conditionally reverse Starr’s
convictions and allow him to request pretrial diversion in the
trial court.
On remand, the trial court “ ‘as nearly as possible [should]
retroactively apply the provisions of section 1001.36, as though
the statute existed at the time [defendant] was initially
charged.’ ” (Frahs, supra, 9 Cal.5th at p. 637.) Thus, “[i]f the trial
court finds that [defendant] 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 [defendant] successfully completes
diversion, then the court shall dismiss the charges. [If, however,]
the court determines that [defendant] does not meet the criteria
under section 1001.36, or if [defendant] does not successfully
complete diversion, then his convictions and sentence shall be
reinstated.’ ” (Ibid.) As in Frahs, “[w]e express no view as to
“whether defendant will be able to show eligibility on remand
or whether the trial court should exercise its discretion to grant
diversion if it finds him eligible.” (Id. at p. 625.)
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The Attorney General contends that Starr is not entitled to
remand for a pretrial diversion hearing because he failed to raise
the issue in the trial court. In general, a defendant must raise an
issue before the trial court, or he will be deemed to have forfeited
his claim on appeal. (People v. Scott (1994) 9 Cal. 4th 331, 351
(Scott).) We will not apply the forfeiture doctrine in this case,
however, because it was unclear until after the trial court
sentenced Starr whether he was eligible to request pretrial
diversion before the trial court.
Section 1001.36 became effective on June 27, 2018, the
same day that the jury rendered its verdict in Starr’s case. The
Attorney General contends that Starr could have requested
pretrial diversion at any time from that date until February 13,
2020, the date of his sentencing hearing. But the retroactive
application of the law was not clear at that time. The statute
allows the trial court to order pretrial diversion “at any point in
the judicial process . . . until adjudication” (§ 1001.36, subd. (c)),
but does not define “adjudication.” At least one court has held
that “ ‘[u]ntil adjudication’ means before the jury is impaneled
and sworn.” (People v. Torres (2019) 39 Cal. App. 5th 849, 855.)
Under this interpretation, by the time the law became effective,
it was already too late for Starr to apply for pretrial diversion.
Indeed, as the court in Frahs noted, several cases held that the
new law did not apply retroactively to defendants who had been
convicted but whose cases were not yet final. (See Frahs, supra,
9 Cal.5th at p. 631, fn. 2.)
The Attorney General argues that Starr’s trial attorney
did not render ineffective assistance of counsel by failing to
request pretrial diversion because Starr’s attorney might have
reasonably relied on those opinions as correct, despite the
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existence of other Court of Appeal opinions holding that the
law applied retroactively. (See Frahs, supra, 9 Cal.5th at p. 631,
fn. 2 [listing cases].) Indeed, it would be natural to infer that
the statute does not apply retroactively because “[i]n the normal
course of operations, a trial court would determine before trial
whether a defendant is eligible for pretrial diversion. (Id. at
p. 633, italics added.) By the time the Supreme Court definitively
answered the question with its opinion in Frahs, Starr had
already been sentenced, and the trial court no longer had
jurisdiction.
To accept the Attorney General’s argument would require
us to hold that Starr forfeited his claim to pretrial diversion
by failing to raise it in the trial court, but that his claim of
ineffective assistance of counsel fails because his attorney’s
erroneous interpretation of the law was reasonable. This would
not serve the purpose of the forfeiture doctrine, “to ensure the
fair and orderly administration of justice.” (Scott, supra, 9
Cal.4th at p. 351.) Instead, it would deny Starr an opportunity to
seek access to a benefit for which he may be eligible on the basis
of a technicality. In light of the lack of clarity regarding the law
and the injustice of not doing so, we will exercise our discretion
not to apply the forfeiture doctrine to Starr’s claim. (See In re
Sheena K. (2007) 40 Cal. 4th 875, 887-888, fn. 7.)2
2 Because we do not apply the forfeiture doctrine, we need
not address Starr’s claim of ineffective assistance of counsel. On
August 20, 2020, Starr filed a petition for a writ of habeas corpus
in which he also raises the issue of ineffective assistance of
counsel. (In re Reggie Starr (order considering petn. concurrently
with appeal filed Aug. 27, 2020, B307143).) We deny the petition
in a separate order filed concurrently with this opinion.
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We also disagree with the Attorney General’s contention
that remanding for a hearing on pretrial diversion will place
an unwarranted strain on the trial court’s resources. As the
Attorney General concedes, regardless of whether we remand
for a pretrial diversion hearing, the trial court will need to hold
further proceedings in the case to address our reversal of the
convictions of lesser included offenses in counts 3, 4, and 5.
C. Fines and Fees
At the sentencing hearing, the trial court imposed a total
of $800 in fines and fees. These included a $300 restitution
fine (§ 1202.4, subd. (b)), a $280 court operations assessment
(§ 1465.8, subd. (a)(1)), a $210 court facilities assessment (Gov.
Code, § 70373, subd. (a)(1)), and a $10 crime prevention fine
(§ 1202.5, subd. (a)).3 Starr’s attorney did not object to these
fines and fees at the sentencing hearing, but he now contends
under People v. Dueñas (2019) 30 Cal. App. 5th 1157, 1168–1172
(Dueñas) that the trial court violated his due process rights
by imposing the fines and fees without considering whether he
would be able to pay them.
We disagree. As we explained in detail in People v. Caceres
(2019) 39 Cal. App. 5th 917, 926–929, the imposition of fees
and restitution fines does not ordinarily implicate due process
or require trial courts in all cases to determine a defendant’s
ability to pay before imposing them. Nothing about Starr’s case
suggests that it involves the “extreme facts” (id. at p. 923) in
3 The court also imposed a $300 parole revocation
restitution fine pursuant to section 1202.45, but that fine is
suspended and would only be imposed if Starr is released on
parole and his parole is subsequently revoked.
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which due process claims might be involved. Because Starr’s
claim fails on the merits, we need not decide whether he forfeited
it by failing to object to the imposition of the fines and fees.
Nevertheless, if the trial court rejects Starr’s request for
pretrial diversion and reinstates his convictions on counts 1, 2, 6,
and 7, the court will be required at a minimum to recalculate the
fees under section 1465.8 and Government Code section 70373,
which apply once for each conviction. Nothing in this opinion
prevents Starr from objecting to the imposition of all the fines
and fees at that time.
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DISPOSITION
Starr’s convictions for kidnapping and carjacking
(counts 3, 4, and 5) are reversed. His remaining convictions
are conditionally reversed pending the outcome of a hearing
regarding Starr’s request for pretrial diversion under Penal Code
section 1001.36.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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