People v. Phillips CA2/4 ( 2021 )

Filed 4/6/21 P. v. Phillips CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B304857
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA455160)
v.
EDWIN PHILLIPS,
Defendant and Appellant.
APPEAL from an order of the Superior Court for Los Angeles
County, Sergio C. Tapia, II, Judge. Affirmed.
Adrian K. Panton, 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, Toni R. Johns Estaville and Nikhil Cooper, Deputy Attorneys
General, for Plaintiff and Respondent.
In a prior appeal, defendant Edwin Phillips appealed from his
conviction of one count of indecent exposure with a prior. (Pen. Code,1
§ 314, subd. (1).) We conditionally reversed the judgment and
remanded the matter to the trial court with directions to conduct a
mental health diversion eligibility hearing under section 1001.36. We
directed that if the court found that the statutory criteria were met, it
could grant diversion and, if defendant successfully completed
diversion, the court must dismiss the charges; but if the court found the
statutory criteria were not met, or if defendant did not complete
diversion, the judgment must be reinstated.
On remand, the trial court held the hearing as directed, but at the
hearing defendant in effect withdrew his consent to diversion and did
not present any evidence. The trial court found the statutory criteria
were not met and declined to grant diversion. Defendant now appeals
from that ruling, arguing that the trial court’s findings were not
supported by substantial evidence. We conclude that by withdrawing
his consent to diversion, defendant forfeited any challenge to the trial
court’s ruling declining to grant diversion. Accordingly, we affirm the
order.
BACKGROUND
The facts of defendant’s crime are not material to this appeal.
Suffice to say that in early 2017 defendant was charged with one felony
count of indecent exposure with a prior (§ 314, subd. (1)) and a
1 Further undesignated statutory references are to the Penal Code.
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misdemeanor count of assault and battery (§ 242). During pretrial, a
question was raised regarding defendant’s mental competence, and a
psychiatrist appointed to evaluate him found that defendant was
competent to stand trial. However, the psychiatrist found that
defendant qualified for a diagnosis of exhibitionistic disorder and
polysubstance use disorder. On September 11, 2017, defendant pleaded
nolo contendere to the indecent exposure count and was sentenced to
the upper term of three years, with execution of the sentence
suspended, and was placed on probation. Probation was conditioned on
defendant serving 356 days in county jail; he was given credit for 193
days of actual custody and 162 days of good time/work time credit (for a
total of 355 days).
Defendant appealed from the judgment, raising a single issue:
whether section 1001.36, which was enacted after his conviction and
gives trial courts discretion to order pretrial diversion for defendants
with mental health issues under certain circumstances, applies
retroactively to cases in which judgment had been entered but was not
yet final. We concluded that section 1001.36 does apply retroactively,
and we conditionally reversed the judgment and remanded to the trial
court with directions to conduct a mental health diversion eligibility
hearing. We issued our opinion on June 4, 2019.
On April 22, 2019, while his appeal was pending, defendant was
found in violation of his probation. On May 8, 2019, the trial court
revoked probation and imposed the previously suspended sentence. He
was given credit for a total of 688 days. Two days later, defense counsel
asked the court to recall the sentence and continue the matter until
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defendant amassed enough credit so he would remain in county jail
until his release. The court agreed, recalled the sentence and put the
matter over to April 30, 2020 for sentencing.
As noted, we issued our opinion in defendant’s appeal from the
judgment on June 4, 2019. Remittitur issued on August 6, 2019. The
hearing on remand was continued several times; on November 6, 2019,
defense counsel asked that the matter be put over to December 17,
2019, when defendant would have accrued enough credits to be released
upon imposition of the previous sentence. The court agreed and
continued the hearing.
At the December 17, 2019 hearing, the trial court asked defense
counsel if he wanted to be heard on the remittitur. Counsel responded:
“No, Your Honor. I’ve talked with Mr. Phillips about it previously. I
think at this juncture, Your Honor, if Mr. Phillips were to participate in
a [diversion] counseling [program], . . . that would prolong his
commitment to the court. He’s already, I believe, served the requisite
amount of time and so that would be our request.”
The court then ruled as follows: “The court has reviewed the
entire court file, all the reports associated with that file from Probation,
as well as others. The court is not convinced that the underlying
offense is related to any mental health issue as described in Penal Code
section 1001.36. Moreover, it is unclear to this court that if there were
an underlying issue related to the criminal conduct and actual
treatment were available, that Mr. Phillips would avail himself of [it] to
resolve this issue. [¶] For those reasons, your requests under 1001.36
after full consideration are denied.” After a discussion regarding
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defendant’s custody credits, the court concluded that defendant had
served his entire sentence and ordered him released to parole.
Defendant timely filed a notice of appeal from the order denying
diversion.
DISCUSSION
Defendant contends on appeal that the findings underlying the
trial court’s denial of mental health diversion were not supported by
substantial evidence. He asserts that the court’s finding that
defendant’s crime was not related to any mental health issue is
contradicted by the record, citing our statement in our prior opinion
that the psychiatrist appointed to evaluate him “found that he qualified
for a diagnosis of Exhibitionistic Disorder (which would satisfy the first
criterion under section 1001.36, subd. (b)(1)(A).” He also asserts that
the trial court’s finding that defendant would not avail himself of
treatment if diversion were granted is pure speculation. We need not
address whether substantial evidence supports those findings because
defendant forfeited any challenge to the denial of diversion by
requesting that the court not grant diversion.
Section 1001.36 is an unusual statute. While it gives a trial court
the discretion to grant pretrial diversion to a qualifying defendant, the
court may do so only if the defendant consents to it. (See § 1001.36,
subd. (b)(1)(D) [statutory criteria required to grant diversion includes
that “[t]he defendant consents to diversion”].) By asking the court not
to grant diversion, defendant in effect withdrew his consent to
diversion, thus rendering him ineligible for diversion. In short,
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defendant not only acquiesced to the court’s ruling, he ensured it. He
cannot now be heard to complain that the ruling was improper. (People
v. Saunders (1993) 5 Cal.4th 580, 589-590 [“‘“An appellate court will
ordinarily not consider procedural defects or erroneous rulings, in
connection with relief sought or defenses asserted, where an objection
could have been, but was not, presented to the lower court by some
appropriate method . . . . The circumstances may involve such
intentional acts or acquiescence as to be appropriately classified under
the headings of estoppel or waiver”’”].)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J. COLLINS, J.
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