People v. Flores CA5 ( 2022 )

Filed 4/8/22 P. v. Flores CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078226
Plaintiff and Respondent,
(Super. Ct. No. SF017860A)
v.
EDUARDO FLORES, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
Denise M. Rudasil, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Franson, J. and Meehan, J.
This matter is back before us after a prior appeal that resulted in a remand for
resentencing, for various reasons, including the enactment of Senate Bill No. 620 (2017-
2018 Reg. Sess.) (Senate Bill No. 620), which retroactively amended Penal Code section
12022.5, subdivision (c), to make the imposition of firearm enhancements under that
statute discretionary.1 Appellant Eduardo Flores now seeks another remand for
resentencing in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill No.
1393), which took effect after his prior resentencing. Senate Bill No. 1393 amended
sections 667 and 1385 to give trial courts discretion to dismiss a prior serious felony
enhancement at sentencing. Flores further seeks remand for the trial court to conduct a
hearing to determine whether he is eligible for mental health diversion under section
1001.36, which also took effect relatively recently. We agree with Flores that remand is
necessary for the trial court to exercise its discretion, under the amendments effected by
Senate Bill No. 1393, as to whether to impose serious felony enhancements as part of
Flores’s sentence. Since remand is necessary for this purpose, Flores will have the
opportunity on remand, to request a hearing to determine his eligibility for mental health
diversion, in the trial court, in the first instance.
FACTS AND PROCEEDINGS
The underlying facts of this matter are fully set forth in our prior opinion and we
need not repeat them here. (See People v. Flores (May 21, 2018, F071678) [nonpub.
opn.].) We will, however, outline the procedural history of the case for context.
Flores was convicted, by a jury, of six felonies and one misdemeanor, in the Kern
County Superior Court: attempted murder, with enhancements of deliberation and
premeditation and personal use of a firearm (count 1; §§ 664/187, subd. (a), 12022.5,
subd. (a)); assault with a firearm (count 2; § 245, subd. (a)(2)); two counts of shooting at
an inhabited dwelling house (counts 3 and 4; § 246); discharging a firearm in a grossly
1 Undesignated statutory references are to the Penal Code.
2.
negligent manner (count 5; § 246.3, subd. (a)); receipt of stolen property (i.e., the firearm
at issue), a misdemeanor (count 8; § 496, subd. (a)); and possession of a firearm by a
felon (count 9; § 29800, subd. (a)(1).) In a bifurcated proceeding, the court found true
sentence enhancements alleging that Flores had suffered a prior conviction that
constituted both a serious felony prior and a strike prior. (§§ 667, subds. (a), (c)-(j),
1170.12, subds. (a)-(e).)
Flores was sentenced to 14 years to life (with the possibility of parole), as well as
a determinate term of 38 years eight months. The sentence was calculated as follows:
count 1 - life with the possibility of parole after 14 years (the seven-year minimum parole
eligibility period doubled on account of the prior strike), with a consecutive term of 15
years for enhancements under section 12022.5, subdivision (a) (10 years) and section
667, subdivision (a) (five years); count 3 - 19 years (the upper term of seven years
doubled on account of the prior strike, plus five years for the § 667, subdivision (a)
enhancement); count 4 - a consecutive term of three years four months (one-third the
midterm doubled on account of the prior strike); and count 9 - a consecutive term of one
year four months (one-third the midterm doubled on account of the prior strike). The
court imposed the upper terms on counts 2 and 5, but the sentences on these counts were
stayed pursuant to section 654. The sentence on count 8 was also stayed pursuant to
section 654.
In Flores’s initial appeal, both parties agreed that Flores’s conviction for negligent
discharge of a firearm (§ 246.3, subd. (a); count 5) must be reversed because it was a
lesser included offense of shooting at an inhabited dwelling house (§ 246; counts 3 and
4). In our opinion resolving that appeal, issued on May 21, 2018, we concurred with the
parties and reversed Flores’s conviction in count 5 for negligent discharge of a firearm.
We vacated Flores’s sentence and remanded the case for resentencing in light of section
12022.5, subdivision (c), as amended by Senate Bill No. 620, as well as the reversal of
his conviction on count 5. We also asked the trial court to consider, at resentencing,
3.
whether Flores’s sentence on count 3 (shooting at an inhabited dwelling, i.e., the victim’s
home) should be stayed pursuant to section 654, in light of his sentence on count 1
(attempted murder).
On remand, on September 25, 2018, the trial court resentenced Flores to 14 years
to life with the possibility of parole, along with a determinate term of 35 years four
months. The court did not strike the firearm enhancement attached to count 1, but it
stayed the sentence on count 3 pursuant to section 654.
As to count 1, the court reimposed Flores’s previous sentence of 14 years to life,
with a consecutive 10-year firearm enhancement (§ 12022.5, subd. (a)) and five-year
prior serious felony enhancement (§ 667, subd. (a)). As noted, the court stayed the
sentence on count 3 under section 654, but imposed on count 4, the 19-year sentence
previously imposed on count 3 (the upper term of seven years doubled on account of the
prior strike, plus five years for the § 667, subd. (a) enhancement). The court reimposed
the previous sentence of one year four months on count 9. On counts 2 and 8, the prior
sentences were reimposed and stayed pursuant to section 664. The court made no
explanatory comments in regard to its sentencing choices. Flores thereafter filed the
instant appeal.
DISCUSSION
I. Senate Bill No. 1393
Senate Bill No. 1393, which was signed by the Governor on September 30, 2018,
and became effective on January 1, 2019, gave “courts discretion to dismiss or strike a
prior serious felony conviction for sentencing purposes.” (People v. Garcia (2018) 28
Cal.App.5th 961, 965, 971 (Garcia).) Before the effective date of Senate Bill No. 1393,
section 667, subdivision (a) required mandatory imposition of prior serious felony
enhancements in compliance with section 1385, subdivision (b), which expressly
precluded courts from striking prior serious felony convictions for sentencing purposes.
(See People v. Valencia (1989) 207 Cal.App.3d 1042, 1045-1047.)
4.
Flores’s resentencing hearing took place in September 2018, before Senate Bill
No. 1393 took effect in January 2019. Flores’s 2018 sentence included two section 667,
subdivision (a) prior serious felony conviction enhancements (mandatory at the time).
The parties agree that the amendments effected by Senate Bill No. 1393 are retroactively
applicable to Flores’s case, which is pending final judgment. (See In re Estrada (1965)
63 Cal.2d 740; Garcia, supra, 28 Cal.App.5th at p. 973.)
The People contend that remand is nonetheless not necessary, even under the
applicable “clearly indicated” standard, because the trial court imposed the maximum
sentence and did not strike the firearm enhancement. (See People v. McDaniels (2018)
22 Cal.App.5th 420, 425, 427-428.) However, the firearm enhancement is distinct from
the two prior serious felony conviction enhancements at issue here. Moreover, the trial
court gave no explanation for its sentencing decision; indeed, it made no comment
whatsoever as to its reasoning.2 (Cf. People v. Jones (2019) 32 Cal.App.5th 267, 273-
274.) Under these circumstances we cannot conclude the trial court “clearly indicated” it
would not strike even one of the prior serious felony conviction enhancements in the
event it had the discretion to do so. We must therefore remand to give the trial court an
opportunity to exercise its discretion in this regard. At resentencing, the court will be
entitled to consider evidence of Flores’s “postsentencing conduct in prison.” (People v.
Yanaga (2020) 58 Cal.App.5th 619, 628-629.)
II. Section 1001.36: Mental Health Diversion
Effective June 27, 2018, the Legislature enacted sections 1001.35 and 1001.36,
which created a pretrial diversion program for certain defendants with qualifying mental
health disorders. (Stats. 2018, ch. 34, § 24.) Section 1001.36 was subsequently amended
by Senate Bill No. 215 (2017-2018 Reg. Sess.; Stats.2018, ch. 1005, §1) to specify that
2 Similarly, the court made no explanatory comments at Flores’s initial sentencing
on May 15, 2015.
5.
defendants charged with certain crimes, such as murder and rape, are ineligible for
diversion. (§ 1001.36, subd. (b)(2), as amended by Stats. 2018, ch. 1005, § 1.) In People
v. Frahs (2020) 9 Cal.5th 618 (Frahs), our Supreme Court held that section 1001.36
applies retroactively to all cases with nonfinal judgments (the parties’ briefs in this matter
were filed before Frahs was issued, hence we need not address the arguments raised on
this point, therein).
Here, the mental health diversion statutes are retroactively applicable to Flores’s
case. Flores’s briefs point to evidence in the trial record indicating that Flores appears to
suffer from a mental health disorder and exhibited paranoid behavior in connection with
the principal crimes at issue in this case. Our opinion in Flores’s prior appeal notes: (1)
the existence of a police report documenting that Flores had a mental disorder; (2) his
“ ‘paranoid’ ” and “ ‘irrational’ ” conduct at the time of his arrest; and (3) his “bizarre”
statements during his police interrogation. (People v. Flores, supra, F071768, *3, fn. 6,
*4.) We cannot say as a matter of law, based on the record, that Flores is ineligible for
mental health diversion under section 1001.36. Since the case is being remanded in any
event, Flores will have the opportunity to make a request for mental health diversion in
the trial court, in the first instance.3 We will conditionally reverse the judgment so the
trial court may consider any request for mental health diversion made by Flores on
remand. We express no view concerning whether Flores will be able to show eligibility
3 The People argue that Flores should have requested mental health diversion at the
time of his prior resentencing and that his failure to do so amounts to forfeiture of the
issue. However, the previous remand was to give the trial court the opportunity to
consider whether to exercise its discretion to strike a firearm enhancement – hence, we
are not persuaded that defense counsel’s failure to raise the issue of mental health
diversion at that time forfeited the issue. The case will now be remanded again, in light
of Senate Bill No. 1393, but Flores’s trial counsel is on notice that Flores may bring a
motion for mental health diversion on remand. Failure to do so at this point would forfeit
the issue for purposes of any subsequent appeal.
6.
(should he request diversion), or on whether the trial court should exercise its discretion
to grant diversion if it finds him eligible.
DISPOSITION
The judgment is conditionally reversed. The matter is remanded for (1)
consideration of any motion for mental health diversion made by Flores, and (2)
resentencing, in the event mental health diversion is not ultimately sought, or not granted,
or is granted but not successfully completed.
If Flores moves for mental health diversion; is found eligible; diversion is granted;
and he successfully completes diversion, then the court shall dismiss the charges.
(§ 1001.36, subd. (e).) In the event Flores does not move for mental health diversion, or
the trial court denies such a motion, or, the court grants the motion but Flores fails to
successfully complete diversion, the court shall reinstate Flores’s convictions.
Upon the reinstatement of Flores’s convictions, the trial court shall resentence
Flores in light of Senate Bill No. 1393’s amendments to sections 667, subdivision (a) and
1385, subdivision (b). At resentencing, the court shall also consider applicable
amendments to sentencing laws that became effective during the pendency of this appeal,
including on January 1, 2022.
7.