The opinion
Filed 2/19/21 P. v. Espey CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C086379
Plaintiff and Respondent, (Super. Ct. No. 17F996)
v.
FLOYD JOSEPH ESPEY,
Defendant and Appellant.
Defendant Floyd Joseph Espey pleaded no contest to bringing a controlled
substance into jail and admitted that he suffered a strike prior conviction and a prison
prior conviction. On appeal, he contends: (1) the trial court abused its discretion when it
denied his Romero1 motion to strike his strike prior conviction, and (2) he is entitled to a
remand to allow the trial court to determine whether to grant him a mental health
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
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diversion under newly enacted Penal Code section 1001.36.2 We conclude the trial court
did not abuse its discretion in denying defendant’s Romero motion, but we will remand
the matter to give the trial court the opportunity to consider whether he is eligible for
diversion under section 1001.36.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was arrested based on violations of his prior release supervision
conditions. Once in custody, defendant resisted the search and refused to comply with
staff directives. Defendant eventually produced an object wrapped in plastic from his
anus, which tested presumptively positive for heroin and weighed 4.9 grams. Defendant
pleaded no contest to bringing a controlled substance into jail in violation of section
4573; he admitted that he suffered a strike prior conviction (§ 1170.12), and a prison
prior conviction (§ 667.5, subd. (b)). He agreed to the plea in exchange for a maximum
sentence of seven years (midterm of three years doubled plus a year for the prison prior).
During the change of plea hearing, the court noted defendant would have an opportunity
to file a Romero motion to argue that he was outside the spirit of the three strikes scheme
and therefore eligible for probation.
Defendant subsequently filed a Romero motion, asking the court to strike the
punishment for his prior “strike” conviction for residential burglary. (§§ 667, subd. (d),
1170.12, subd. (b).) Defendant argued that the court should consider his background,
character, and prospects to find him outside the spirit of the three strikes law. The
exhibits included letters from defendant’s mother explaining his family history and
struggle with drug addiction, defendant’s military service record, his disability records,
and a certificate of completion of an anger management course. In its opposition to the
motion, the prosecution argued that defendant fell within the spirit of the three strikes law
2 Undesignated statutory references are to the Penal Code.
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because, following release from prison for his strike offense, he was convicted of four
felonies evidencing a pattern of criminal behavior and continued threat to the community.
The probation department filed a presentence report recommending that defendant
be sentenced as a strike defendant. The report noted that defendant was diagnosed with
posttraumatic stress disorder (PTSD), bipolar disorder, and intermittent-explosive
disorder 10 years earlier and was under psychiatric care. The report listed defendant’s
criminal history, which included his strike conviction for first degree burglary in 2006, a
felony conviction for vandalism, a felony conviction for failure to appear while released
on bail, and 10 misdemeanor convictions for petty theft, petty theft with a prior, and
second degree burglary. The report concluded, “[T]his conviction is not less serious than
the prior convictions, and he has not been free from incarceration and serious violation of
the law for a substantial time.”
At the hearing on his Romero motion, defendant testified that following his wife’s
murder, he developed an addiction to heroin to cope with his grief and PTSD. He
claimed that he brought the heroin into prison so he would not “be sick.” On cross-
examination, defendant conceded he had been separated from his wife for at least 10
years at the time of her murder. The trial court denied defendant’s Romero motion,
concluding that his case was not in the spirit of Romero and noting that defendant was
dishonest with the court when he testified that the reason for his criminal history and drug
addiction was his wife’s death when in fact they had been estranged for over a decade.
The court found that his primary motivation was to avoid prison. Concluding that the
circumstances in aggravation outweighed those in mitigation, the court declined to strike
the strike offense and sentenced defendant to an aggregate term of seven years in state
prison.
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DISCUSSION
I
Romero Motion
Defendant contends the trial court abused its discretion in denying his Romero
motion to strike his qualifying prior strike. (See Romero, supra, 13 Cal.4th at pp. 529-
530.) He argues that because his strike offense was over 11 years old and nonviolent, he
falls outside the spirit of the three strikes law. We are not persuaded.
A trial court has the discretion to dismiss strike conviction allegations in the
interests of justice under section 1385, subdivision (a). (Romero, supra, 13 Cal.4th at
p. 504.) In deciding whether to exercise its discretion to dismiss strike allegations, the
trial court must determine whether the defendant should be deemed outside the spirit of
the three strikes law “and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.” (People v. Williams (1998)
17 Cal.4th 148, 161.) In making this determination, the court must consider three factors:
(1) the nature and circumstances of his present felonies; (2) the nature and circumstances
of his strike offenses; and (3) the particulars of the defendant’s background, character,
and prospects for the future. (Ibid.)
We review the trial court’s decision for abuse of discretion. (People v. Carmony
(2004) 33 Cal.4th 367, 374.) “In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial
judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not
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abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at pp. 376-377.)
Here, the trial court properly exercised its discretion in denying defendant’s
Romero motion. The authorities defendant cites are inapposite. Defendant cites two
cases where the People challenged the trial court’s exercise of its discretion in striking a
strike on appeal and the appellate court concluded the trial court’s exercise of its
discretion was permissible. (People v. Bishop (1997) 56 Cal.App.4th 1245, 1247-1250;
People v. Garcia (1999) 20 Cal.4th 490, 499-501.) Because of the procedural posture in
these cases and the deferential standard of review on appeal from the trial court’s
decision whether to strike a strike prior conviction, defendant is not similarly situated to
the defendants in cases where a trial court exercised its discretion in their favor. While
defendant argues that he does not fall within the spirit of the three strikes law because his
criminal history is nonviolent, he does not cite any authority for the proposition that his
nonviolent record alone entitles him to relief. Indeed, section 1170.12, subdivision (a)
specifically provides that a strike offense is a “prior serious and/or violent felony.”
(Italics added.) It is not necessary that defendant have a violent criminal history to fall
within the three strikes scheme. Further, the trial court found that defendant was not
truthful about the source of his addiction and criminal history, and the court found that
defendant was dishonest in an attempt to avoid state prison. Defendant has failed to
clearly show that the sentencing decision was irrational or arbitrary. The court was well
aware of its discretion and reasonably exercised it in considering defendant’s arguments
and determining that he fell within the three strikes law.
II
Mental Health Diversion
In supplemental briefing, defendant argues this matter must be remanded to give
the trial court the opportunity to consider granting him mental health diversion as
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authorized by section 1001.36, which became effective June 27, 2018. (Stats. 2018, ch.
34, § 24.)
Section 1001.36 authorizes a trial court to grant “pretrial diversion,” a
postponement of prosecution to allow the defendant to undergo mental health treatment,
if the defendant meets specified requirements. (§ 1001.36, subds. (a), (c).) Successful
completion of diversion results in the dismissal of the original charges. (§ 1001.36, subd.
(e).) Section 1001.36, subdivision (b)(1) identifies the pertinent criteria, including that
“defendant suffers from a mental disorder” and that the “mental disorder was a
significant factor in the commission of the charged offense.” (§ 1001.36, subd. (b)(1)(A),
(B); see also People v. Frahs (2018) 27 Cal.App.5th 784, 789-790, affd. (2020) 9 Cal.5th
618.)
The People argue that section 1001.36 is inapplicable to already-adjudicated
matters. But defendant urges retroactive application, citing Frahs, supra, 27 Cal.App.5th
784, which was recently affirmed by the California Supreme Court in People v. Frahs
(2020) 9 Cal.5th 618 (Frahs). Defendant also cites In re Estrada (1965) 63 Cal.2d 740
(Estrada) and People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara).
Whether a particular statute is intended to apply retroactively is a matter of
statutory interpretation. (See Lara, supra, 4 Cal.5th at p. 307 [noting “the role of the
court is to determine the intent of the Legislature”].) In general, new criminal legislation
is presumed to apply prospectively unless the statute expressly declares a contrary intent.
(§ 3.) However, where the Legislature has reduced punishment for criminal conduct, an
inference arises under Estrada “ ‘that, in the absence of contrary indications, a legislative
body ordinarily intends for ameliorative changes to the criminal law to extend as broadly
as possible, distinguishing only as necessary between sentences that are final and
sentences that are not.’ [Citations.]” (Lara, at p. 308.) Conversely, the Estrada rule “ ‘is
not implicated where the Legislature clearly signals its intent to make the amendment
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prospective, by the inclusion of an express saving clause or its equivalent.’ [Citation.]”
(People v. Floyd (2003) 31 Cal.4th 179, 185, italics omitted.)
While Estrada involved the reduction in punishment for a specific offense (People
v. Brown (2012) 54 Cal.4th 314, 323), this rule was applied in Lara to a specific class of
individuals, juvenile offenders (Lara, supra, 4 Cal.5th at p. 308). Lara reasoned Estrada
retroactivity applied to the class of juveniles because “[t]he possibility of being treated as
a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and
sentenced as an adult can result in dramatically different and more lenient treatment” for
that juvenile class. (Lara, at p. 303.) Finding nothing to rebut the Estrada inference,
Lara applied Proposition 57 retroactively to every juvenile “charged directly in adult
court whose judgment was not final at the time [Proposition 57] was enacted.” (Lara, at
pp. 303-304.)
Like Lara, “[t]here is no dispute here that section 1001.36 confers a potentially
ameliorative benefit to a specified class of persons, i.e., defendants with certain
diagnosed mental disorders.” (People v. Weaver (2019) 36 Cal.App.5th 1103, 1117,
review dism. July 29, 2020, S257049; § 1001.36, subds. (a), (e).) In Frahs, our Supreme
Court concluded Estrada’s inference of retroactivity applies to section 1001.36 such that
defendants with qualifying mental disorders whose cases are not yet final are entitled to
limited remand for the trial court to determine whether they are eligible for mental health
diversion. (Frahs, supra, 9 Cal.5th at pp. 624-625.) The court concluded “the possibility
of being granted mental health diversion rather than being tried and sentenced ‘can result
in dramatically different and more lenient treatment.’ [Citation.]” (Id. at p. 631.) The
court therefore concluded “the ameliorative nature of the diversion program places it
squarely within the spirit of the Estrada rule,” and thus the program retroactively applies
to defendants whose cases are not yet final. (Ibid.) That is the case for defendant here.
The Frahs court further rejected the People’s argument the defendant there was
not entitled to remand because he did not make an adequate showing of eligibility.
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(Frahs, supra, 9 Cal.5th at pp. 637-638.) The People argued the defendant had to
demonstrate he met all six threshold eligibility requirements before the appellate court
could remand. (Ibid.) The court found imposing such a high bar for remand “would be
unduly onerous and impractical” and “inconsistent with any sensible retroactive
application of the statute.” (Id. at p. 638.) Instead, the court concluded “a conditional
limited remand for the trial court to conduct a mental health diversion eligibility hearing
is warranted when, as here, 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 [citation].” (Id. at p. 640.)
The People claim in supplemental briefing that even if section 1001.36 must be
applied retroactively to defendant’s case, “[r]emand is futile because the trial court
showed that it would not admit [defendant] to diversion when it declined to strike his
prior conviction and sentenced him to the maximum allowed under the plea bargain.”
We disagree. The record here affirmatively discloses that defendant meets at least one of
the threshold requirements for relief under section 1001.36, namely, he was diagnosed
with two qualifying mental health disorders, bipolar disorder and PTSD. (See § 1001.36,
subd. (b)(1)(A).) While the trial court found defendant was untruthful about his wife’s
death being the primary motivation for his addiction and criminal acts, the record does
not clearly show that the trial court would have concluded that defendant’s mental
disorders were not a significant factor in the commission of the charged offense under
section 1001.36, subdivision (b)(1). Even if defendant lied about the root cause of his
PTSD, it does not necessarily follow that his diagnosed PTSD and bipolar disorder were
not significant factors in his decision to bring heroin into jail. Accordingly, we cannot
clearly determine that remand is futile on the record before us. We must conditionally
reverse and remand to the trial court for a diversion eligibility hearing.
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DISPOSITION
The judgment is conditionally reversed. The matter is remanded to the trial court
with directions to hold a diversion eligibility hearing to determine whether to grant
defendant diversion under that statute. If the trial court determines that defendant
qualifies for diversion under section 1001.36, then the court may grant diversion.
However, if the court determines that defendant is ineligible for diversion or fails to
successfully complete the diversion program, then his convictions and sentence shall be
reinstated.
/s/
BLEASE, Acting P. J.
We concur:
/s/
ROBIE, J.
/s/
KRAUSE, J.
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