The opinion
Filed 7/5/22 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078819
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD272661,
SCD264352)
JAMES EVAN BUNAS,
ORDER MODIFYING OPINION
Defendant and Appellant. AND DENYING REHEARING
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on June 14, 2022, be modified
as follows:
On page 34, delete footnote 25.
There is no change in the judgment.
The petition for rehearing is denied.
MCCONNELL, P. J.
Copies to: All parties
Filed 6/14/22 (unmodified opinion)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078819
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD272661,
SCD264352)
JAMES EVAN BUNAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Polly H. Shamoon, Judge. Affirmed in part; reversed in part and remanded.
Janice R. Mazur, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson, Marvin E. Mizell and Daniel J. Hilton, Deputy Attorneys General,
for Plaintiff and Respondent.
I.
INTRODUCTION
In a prior opinion in this matter involving defendant James Evan
Bunas,1 we conditionally reversed the judgment and the underlying
convictions2 and remanded the matter to the trial court with directions to
conduct a mental health diversion eligibility hearing under Penal Code
section 1001.363 and to determine whether to place Bunas in mental health
diversion. (Bunas I.) We further directed that, if the trial court determined
that Bunas was ineligible for diversion or exercised its discretion not to place
Bunas on diversion, then the court was to reinstate Bunas’s convictions and
resentence him. We explained that, in this instance, the court was “to allow
for a full resentencing,” due to the court’s “misimpression about a material
fact concerning Bunas’s aggregate sentence,” in its sentencing of Bunas in the
two cases before it. (Bunas I.)
On remand, the trial court denied Bunas’s request for mental health
diversion. The court did not resentence Bunas.
1 On our own motion, we take judicial notice of our prior opinion in this
matter, People v. Bunas (Apr. 14, 2020, D075234) [nonpub. opn.] (Bunas I)
and the record in Bunas I. (See Evid. Code, §§ 459 [“The reviewing court may
take judicial notice of any matter specified in [Evidence Code] [s]ection 452”],
452, subd. (d) [permitting a court to take judicial notice of the “[r]ecords of
(1) any court of this state”].)
2 In our prior opinion, we explained that in using the term “convictions,”
we intended to refer to Bunas’s plea of guilty to certain charges and his
admissions to certain enhancement, strike, and serious felony allegations.
(Bunas I, supra, fn. 3.)
3 Unless otherwise specified, all subsequent statutory references are to
the Penal Code.
2
Bunas raises two claims in this appeal. First, Bunas contends that the
trial court abused its discretion in denying his motion for mental health
diversion. Bunas maintains that the court abused its discretion by:
(1) “refusing to hold a hearing” to determine his eligibility for diversion;
(2) determining that he was unsuitable for diversion based “solely on the
offense”; and (3) failing to hold an evidentiary hearing on his motion for
diversion.4 In presenting the first of these arguments, Bunas contends that
the court erred in relying on general objectives of sentencing in concluding
that the “goals of punishment and deterrence outweighed the ‘needs of the
defendant,’ ” in denying diversion.
Second, Bunas contends that the trial court erred in failing to
resentence him in accordance with this court’s prior decision.
We conclude that the trial court did not commit reversible error in
denying Bunas mental health diversion. As we explain, although we reject
Bunas’s three distinctly raised claims of error, we agree with Bunas that the
court erred in relying on “objectives of sentencing” in ruling on his motion for
diversion. However, we conclude that this error does not warrant reversal of
the trial court’s denial of Bunas’s motion for diversion.
We further conclude that in failing to resentence Bunas, the trial court
committed reversible error. Accordingly, we affirm the order denying
4 These claims are distinctly raised in separately captioned arguments in
Bunas’s brief, as is required under our Rules of Court. (See Cal. Rules of
Court, rule 8.204(a)(1)(B) [a brief in a civil appeal must “[s]tate each point
under a separate heading or subheading summarizing the point, and support
each point by argument and, if possible, by citation of authority”]; Cal. Rules
of Court, rule 8.360 [“briefs in criminal appeals must comply as nearly as
possible with rule[ ] . . . 8.204”].)
3
diversion, and remand once again for resentencing in accordance with the
principles outlined in our prior opinion.
II.
FACTUAL AND PROCEDURAL BACKGROUND5
A. Procedural background
1. Proceedings prior to our opinion in Bunas I
In SCD272661, Bunas pled guilty to corporal injury of a spouse
(§ 273.5, subd. (a)), making a criminal threat (§ 422), and felony child abuse
(§ 273a, subd. (a)). With respect to the corporal injury offense, Bunas
admitted personally using a deadly or dangerous weapon (§ 12022, subd.
(b)(1)) and inflicting great bodily injury under circumstances involving
domestic violence (§ 12022.7, subd. (e)). Bunas also admitted, with respect to
the criminal threat offense, that he used a deadly weapon (§ 1192.7, subd.
(c)(23)). Finally, Bunas admitted having suffered a strike prior (§§ 667,
subds. (b)–(i), 1170.12) and a serious felony prior (§§ 667, subd. (a)(1), 668,
1192.7, subd. (c)).
In June 2018, the trial court sentenced Bunas to 15 years and 4 months
in SCD272661. In addition, because Bunas had been on probation in a
separate case (SCD264352) at the time of his commission of the offenses in
SCD272661, the court revoked probation in SCD264352 and imposed a
sentence of 20 months in prison in that case, to be served consecutively to the
sentence imposed in SCD272661, for a total aggregate sentence of 17 years.
In November 2018, the trial court recalled the case for resentencing.6
At resentencing, the court imposed an aggregate sentence of 15 years and
5 Parts II.A.1, II.A.2 and II.B are drawn from Bunas I.
4
8 months in this case, SCD272661. With respect to SCD264352, the court
stated, “It was a concurrent. It’s not consecutive, and it doesn’t have to be
touched at all because it didn’t add anything to this sentence.”
2. Our opinion in Bunas I
In Bunas I, Bunas requested that the matter be remanded for a hearing
to allow the trial court to exercise its discretion to grant mental health
diversion (§ 1001.36), in light of a change in the law. Bunas also argued that,
in any event, he was entitled to a new sentencing hearing, given the lack of
clarity in the record with respect to the total aggregate sentence that the
court intended to impose in the two cases.
We agreed with both of Bunas’s contentions. Accordingly, our
disposition stated in relevant part:
“The judgment and the convictions are conditionally
reversed. The matter is remanded to the trial court with
directions to conduct a mental health diversion eligibility
hearing under section 1001.36. If the court determines that
Bunas qualifies for diversion, then the court may grant
diversion. If Bunas successfully completes diversion, then
the court shall dismiss the charges against him.
“If the court determines that Bunas is ineligible for
diversion or determines that Bunas is eligible for diversion
but exercises its discretion to not place Bunas on diversion,
or if the court places Bunas on diversion but he fails to
successfully complete diversion, then the court shall
reinstate Bunas’s convictions. The court shall thereafter
resentence Bunas in a manner consistent with our
discussion in part III.B, ante.” (Bunas I.)
6 As noted in Bunas I that “[t]he record indicates that the trial court
recalled the case for resentencing pursuant to a request from the Department
of Corrections and Rehabilitation.”
5
Our discussion in part III.B of Bunas I, explained that “in the event
that the trial court does not grant [Bunas] mental health diversion or the
court grants diversion, but he fails to successfully complete it, a remand for a
full resentencing is appropriate under the circumstances of this case,” (italics
added) and we described those circumstances in detail.
3. Proceedings on remand
As discussed in greater detail in part III.A.3, post, on remand, Bunas
filed a motion requesting that the trial court grant him mental health
diversion pursuant to section 1001.36. Together with his motion, Bunas
lodged a December 2017 psychological evaluation of him prepared by
Dr. Clark Clipson. In addition, Bunas lodged a July 5, 2017 document
drafted by a detective who investigated the charged offenses, which
summarized a statement made by Bunas’s sister.
The People filed an opposition to the motion. With their opposition, the
People lodged the probation report from SCD264352. The People also lodged
a February 2016 psychological evaluation of Bunas prepared by Dr. Greg
Michel in connection with SCD264352.
The trial court held a videoconference hearing on Bunas’s motion on
March 16, 2021. At the outset of the hearing, Bunas’s counsel requested that
the hearing be continued so that Bunas could attend the hearing in person
when the prison in which he was incarcerated resumed transporting inmates
for such proceedings. The trial court orally denied both the request for a
continuance and the motion for diversion.
The trial court entered a minute order that same day denying Bunas’s
request for a continuance and his motion for diversion.
6
4. This appeal
Bunas timely appealed from the trial court’s March 16, 2021 order.7
B. Factual background8
Bunas inflicted corporal injury that could have resulted in a traumatic
condition to the victim, who was his domestic partner. During his infliction
of this injury, Bunas personally used a dangerous and deadly weapon, i.e., a
knife, and personally inflicted great bodily injury. Bunas also threatened the
victim in a way that caused her sustained fear, and he intended to instill fear
in the victim. In addition, Bunas put a child who was in his custody in
harm’s way. Bunas also previously suffered a conviction that was both a
serious felony prior and a strike prior.
III.
DISCUSSION
A. The trial court did not commit reversible error in denying Bunas’s motion
for diversion
Bunas claims that the trial court abused its discretion in denying his
motion for diversion.
7 As explained in footnote 21, post, while this appeal was pending, Bunas
filed a petition for habeas corpus in which he contended that, in the event
this court determined that he forfeited his request for an evidentiary hearing
on his motion for diversion, his trial counsel provided ineffective assistance in
failing to expressly request such a hearing.
8 In Bunas I, we explained that in light of Bunas’s guilty plea in
SCD272661, there was no trial and our factual background was drawn from
the plea colloquy. In part III.A.3.a–b, post, we provide additional factual
background with respect to evidence as to the circumstances of the charged
offenses, as well as Bunas’s commission of prior offenses, which was
presented to the trial court on remand in connection with Bunas’s motion for
mental health diversion.
7
1. Standard of review
In People v. Moine (2021) 62 Cal.App.5th 440, the Court of Appeal
concluded that the abuse of discretion standard of review applies “on appeal
from a trial court’s denial of mental health diversion.” (Id. at p. 448.)
“A court abuses its discretion when it makes an arbitrary or capricious
decision by applying the wrong legal standard [citations], or bases its decision
on express or implied factual findings that are not supported by substantial
evidence [citation].” (Id. at p. 449.)
2. Governing law
In People v. Frahs (2020) 9 Cal.5th 618, 626 (Frahs), the Supreme
Court provided an overview of the mental health diversion statute:
“Section 1001.36 authorizes a pretrial diversion program
for defendants with qualifying mental disorders. The
statute defines ‘ “pretrial diversion” ’ as ‘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 . . . .’
(§ 1001.36, subd. (c).) The stated purpose of the diversion
statute ‘is to promote all of the following: [¶] (a) Increased
diversion of individuals with mental disorders to mitigate
the individuals’ entry and reentry into the criminal justice
system while protecting public safety. [¶] (b) Allowing local
discretion and flexibility for counties in the development
and implementation of diversion for individuals with
mental disorders across a continuum of care settings. [¶]
(c) Providing diversion that meets the unique mental
health treatment and support needs of individuals with
mental disorders.’ (§ 1001.35, subds. (a)-(c).)” (Id. at
p. 626.)
The Frahs court outlined various “threshold eligibility requirements,”
(Frahs, supra, 9 Cal.5th at p. 627) that a defendant must satisfy before a trial
court may grant mental health diversion:
8
“As originally enacted, section 1001.36 provided that a trial
court may grant pretrial diversion if it finds all of the
following: (1) the defendant suffers from a qualifying
mental disorder; (2) the disorder played a significant role in
the commission of the charged offense; (3) the defendant’s
symptoms will respond to mental health treatment; (4) the
defendant consents to diversion and waives his or her
speedy trial right; (5) the defendant agrees to comply with
treatment; and (6) the defendant will not pose an
unreasonable risk of danger to public safety if treated in
the community. (Former § 1001.36, subd. (b)(1)–(6).)
Section 1001.36 was subsequently amended by Senate Bill
No. 215 (2017–2018 Reg. Sess.) (Senate Bill 215) to specify
that 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.)” (Id.
at pp. 626–627.)
The Frahs court explained further, “If the defendant makes a prima
facie showing that he or she meets all of the threshold eligibility
requirements and the defendant and the offense are suitable for diversion,
and the trial court is satisfied that the recommended program of mental
health treatment will meet the specialized mental health treatment needs of
the defendant, then the court may grant pretrial diversion. (§ 1001.36,
subds. (a), (b)(3) & (c)(1).)” (Frahs, supra, 9 Cal.5th at p. 627.)
The Frahs court also outlined several key features of the statutory
diversion scheme:
“The maximum period of diversion is two years. (Id., subd.
(c)(3).) If the defendant is subsequently charged with an
additional crime, or otherwise performs unsatisfactorily in
the assigned program, then the court may reinstate
criminal proceedings. (Id., subd. (d).) ‘If the defendant has
performed satisfactorily in diversion, at the end of the
period of diversion, the court shall dismiss the defendant’s
criminal charges that were the subject of the criminal
proceedings at the time of the initial diversion’ and ‘the
9
arrest upon which the diversion was based shall be deemed
never to have occurred.’ (Id., subd. (e).)” (Frahs, supra,
9 Cal.5th at p. 627.)
3. Factual and procedural background
a. Bunas’s motion for mental health diversion
On remand from Bunas I, Bunas filed a motion for mental health
diversion pursuant to section 1001.36. In his motion, Bunas outlined the
facts of the current offense as described in the probation report. Bunas
explained that on the day of the incident giving rise to the charged offenses,
he had been at a wedding with his girlfriend. While at the wedding, Bunas’s
girlfriend spoke with a male friend of hers who is an attorney and who had
represented her during a previous custody dispute with Bunas. Bunas “felt
disrespected,” and he punched the attorney in the face.
Later that evening, Bunas returned to the residence where he lived
with his girlfriend and his two children.9 According to Bunas, the following
then occurred:
“While [Bunas’s girlfriend] was on the toilet, Mr. Bunas
entered the bathroom and began hitting her in the head
with a large flashlight. [Bunas’s girlfriend] fell off the
toilet into the bathtub. [Bunas] accused her of ruining his
life and said he wanted to kill her before walking out of the
bathroom. [Bunas] then threw the flat screen [television]
in the bedroom on the floor and broke it.
“Fearing Mr. Bunas would return, [Bunas’s girlfriend] went
into [their] son’s bedroom with [their son]. Mr. Bunas came
9 Although Bunas’s motion referenced only one of the two children, the
probation report indicates that, at the time of the charged offense, Bunas
lived with his girlfriend, their biological child, and Bunas’s son from a
previous relationship. Both children, who were ages 9 and 13 at the time of
the offense, were at home during the incident.
10
in the room and began yelling at her and hitting her with
the flashlight again. [Bunas] grabbed her by the hair and
began to drag her out of the bedroom as [their son] began to
scream, ‘Please don’t kill mommy.’ Mr. Bunas let [his
girlfriend] go and left the room. [Bunas’s girlfriend] then
heard the defendant start his motorcycle and leave.
Assuming he was gone for the night, she took [their son]
back to her bedroom to sleep.
“While in bed, [Bunas’s girlfriend] got a call from [Bunas’s
sister], who said she called after she received a call from
her brother. Mr. Bunas had told his sister that he had just
killed [his girlfriend]. Mr. Bunas[’s] sister reported that
she felt Mr. Bunas had ‘snapped’ and that he was talking
nonsense. While they were on the phone, Mr. Bunas came
in the room holding a large knife or machete. Mr. Bunas
took the phone from [his girlfriend] and threw it, then
proceeded to strike her in the head with the knife while
yelling, ‘I’m going to kill you, you fucking bitch, you ruined
my life.’ He then stopped and fled on foot. [Bunas’s
girlfriend] then called the police. [Their nine-year-old son]
witnessed the entire incident. When police arrived,
[Bunas’s girlfriend] was taken to the hospital for treatment
of several large cuts to her ear and head.”
Bunas argued that the trial court should grant him diversion because
he suffered from a mental disorder that was “the paramount factor to his
conduct in the instant offense.”
Specifically, Bunas briefly10 argued that he satisfied each of the
elements of the statutory eligibility factors outlined in section 1001.36,
subdivision (b). Bunas stated that he suffered from several mental disorders
including “major depressive disorder, post-traumatic stress-disorder, [and]
alcohol and opioid use disorder,” and that his mental disorders were a
10 Bunas’s analysis of the eligibility factors was approximately one and a
half pages in length.
11
significant factor in his criminal conduct. In particular, Bunas argued that
his “exposure to violence and abuse,” led to his mental disorders and
culminated in his actions on the day of the charged offenses. He argued
further that his mental disorders would respond to treatment, and stated
that he would consent to diversion and comply with all terms and conditions
of any treatment providers. Finally, Bunas contended that he did not pose a
risk to public safety “as defined by . . . section 1170.18.”11 He argued:
“[S]ection 1170.18 defines an unreasonable risk of danger
to public safety as an unreasonable risk that, in this case,
Mr. Bunas will commit a new super strike as defined in the
[P]enal [C]ode. While Mr. Bunas does have a criminal
history that includes crimes of violence, he has never been
convicted of a violent strike offense pursuant to [P]enal
[C]ode section 667.5.[12] Moreover, Dr. Clipson opines in
his psychological report that Mr. Bunas[’s] mental health
disorders were significant factors in his only violent
convictions, cases SCD272661(the instant case) and
SCD264352 (probation case). Therefore any chance of
violent conduct is tied to Mr. Bunas[’s] treatment of his
mental health disorders, which he is committed to [sic][.]
This shows Mr. Bunas does not pose an unreasonable risk
of committing a new super strike and does not pose an
unreasonable risk of danger to public safety.”
With his motion, Bunas lodged Dr. Clipson’s December 2017
psychological evaluation. In his evaluation, Dr. Clipson summarized Bunas’s
11 Pursuant to section 1001.36, subdivision (b)(1)(F) and its incorporation
of section 1170.18’s definition of unreasonable risk of danger to public safety,
in order to make a finding of dangerousness, a trial court must find that the
defendant is likely to commit an offense defined in section 667,
subd. (e)(2)(C), known colloquially as a “ ‘super strike.’ ”
12 While Bunas cited section 667.5, it appears likely that the intended
citation was section 667, subdivision (e)(2)(C), which, as noted in footnote 11,
ante, defines offenses colloquially known as “super strikes.”
12
family history, as recounted by Bunas. Dr. Clipson stated that this history
included “emotional and physical abuse, as well as exposure to domestic
violence between his parents.” Dr. Clipson also stated that Bunas admitted
“a history of domestic violence in his relationships.” Dr. Clipson noted that
Bunas’s criminal record included convictions for grand theft, driving under
the influence, and shooting at an inhabited vehicle. Dr. Clipson further
recounted that Bunas acknowledged having had a “[h]istory of dependency,”
with respect to alcohol. In addition, Dr. Clipson stated that Bunas had been
“[d]ependent,” on “[p]ain pills,” and that he had last used such pills in 2014.
Dr. Clipson also reviewed a 2016 psychological evaluation of Bunas
drafted by Dr. Michel,13as well as various statements from Bunas’s family
members, records pertaining to the charged offense, and psychiatric records
from the jail. In addition, Dr. Clipson conducted an interview of Bunas,
administered a mental status examination, and performed various
psychological tests.
Dr. Clipson offered the following summary and conclusions:
“Mr. Bunas is a 44 year--old man who has experienced an
unusually high number of advers[e] childhood events. His
self--report in this regard is supported by statements by his
sister as well as by statements made by a brother before
this brother died. As someone who was physically and
psychologically abused, who grew up in a home in which his
father and older brother were molesting his sisters, and in
which there was domestic violence, substance abuse and
mental illness in his parents, [Bunas] was unable to
experience anything near normal psychosocial
development. He developed symptoms of depression and
complex posttraumatic stress which interfered with his
ability to form meaningful relationships, cope effectively
13 As noted in part II.A.3, ante, the People lodged Dr. Michel’s evaluation
with their opposition. We discuss Dr. Michel’s evaluation in part III.A.3.b,
post.
13
with stress, or form and reach life goals. He became
dependent on alcohol and pain medication as a way of
coping with negative thoughts and feelings, but his abuse of
these substances caused further problems in his social and
occupational functioning. He has attempted sobriety, but
has never adequately addressed his psychiatric difficulties
other than by taking medication.
“[Bunas’s] behavior during the instant offense is similar to
that from a prior offense in 2016. In both instances, his
anger was triggered by feelings of shame, and he responded
by becoming intoxicated on alcohol and acting out in a
violent manner. In both instances, he said he wanted to
kill the object of his anger, but inflicted relatively minor
wounds despite having the means to cause severe injury or
death. He grew up in a home plagued by domestic violence
in which his father would sometimes say he wanted to kill
his mother. It is quite likely that this statement reflects
more of an expression of anger than an actual desire to
take someone else’s life, particularly since his behavior
during both offenses reflects the release of anger more than
an earnest attempt to kill someone.
“It is also noteworthy than in both instances, Mr. Bunas
was taking Prozac. Prozac is an SSRI anti--depressant
medication that can cause symptoms of manic--like
behavior in some individuals who take this medication.
Given the apparent fact that he has committed impulsive,
violent acts that resulted in his arrest only twice, and both
times he was taking Prozac, it is possible that his behavior
was caused, at least in part, by his use of this substance.
This would have to be substantiated by a psychiatrist,
however, as this lies outside my area of expertise as a
psychologist.”
In addition to Dr. Clipson’s report, Bunas lodged a detective’s summary
of a statement given by Bunas’s sister. In the statement, Bunas’s sister
provided some background information pertaining to Bunas’s relationship
with his girlfriend. The detective stated that Bunas’s sister had described
14
the relationship as “toxic and codependent.” In addition, Bunas’s sister
provided a description of her knowledge of the events surrounding the
charged offense.
b. The People’s opposition
The People filed an opposition to Bunas’s motion in which they
described the charged offenses,14 evidence of Bunas’s commission of various
offenses in SCD264352, his criminal history, and his mental health history.
With respect to the section 1001.36 eligibility factors, the People
maintained that Bunas’s mental health disorder had not played a significant
role in the offenses, arguing that the “[d]efense has not provided any
documentation from a mental health professional or other credible source
that [Bunas] was experiencing symptoms or episodes at the time of the
offenses.” The People also maintained that Bunas had not demonstrated how
mental health treatment would affect the symptoms that contributed to his
commission of the crimes.
The People further maintained that Bunas presented an unreasonable
risk of danger to the public if treated in the community. They argued in part
as follows:
“Here, [Bunas] clearly poses a significant risk to the
community. [Bunas] was on probation for a violent offense
when he punched his girlfriend’s friend in the face and
when he attacked his girlfriend several times, threatened
to kill her and ultimately tried to kill her with a machete.
Attempted murder is one of the enumerated offenses that
14 As noted in part II.A.1, ante, these offenses included the infliction of
corporal injury on a spouse (§ 273.5, subd. (a)) with the use of a deadly or
dangerous weapon (§ 12022, subd. (b)(1)) and infliction of great bodily injury
under circumstances involving domestic violence (§ 12022.7, subd. (e)).
The People’s opposition contained photographs of Bunas’s girlfriend
depicting the injuries that she suffered in the attack in this case, including
numerous stitches to the top of her head.
15
would qualify as a ‘super strike.’[ ] Based on the facts of the
current case, coupled with his recent history of violence,
this court has grounds to and should find that [Bunas]
presents a danger to the community as contemplated by
this statute and should thus be denied diversion.”
With their opposition, the People lodged the probation report from
SCD264352. The probation report described the circumstances leading to the
offense to which Bunas pled guilty—shooting at an inhabited vehicle, (§ 246)
in part as follows:
“On 08/29/15, an SDPD officer responded . . . to investigate
a report of someone shooting into an unoccupied vehicle
and vandalizing property. [D.B.] stated he lived with
family and roommate [J.U.] [S.B.] stated he parked his van
in front of the residence and a bullet hole was discovered in
the driver’s side door of the van the following day. He also
noticed a message scribbled with a sharp object which read,
‘Keep taking and you be next [sic].’ The front tires and rear
tires were flat, two tires on [S.B.’s] truck were flat . . . .”
The probation report also provided a description of various counts that
had been dismissed in the case that included the following:
“On 10/02/15, [S.B.] and [J.U.] were outside on their patio
when James Bunas showed up unannounced. Bunas
walked up to [S.B.] holding a knife in one hand and a gun
in the other. Bunas yelled at [S.B.], ‘You were talking shit
on my children, I will kill you!’ Bunas pressed the gun
against [S.B.’s] head and slashed his right ring finger with
the knife. Bunas produced a metal baton and struck [S.B.]
on the left arm. Bunas struck [J.U.] in the head with the
baton before he fled. [S.B.] sustained lacerations to his
fingers and forearm and [J.U.] sustained a large laceration
to his forehead.”
The probation report added that J.U. stated that he had known Bunas
since high school and that J.U. saw that Bunas “had guns, an AK-47 and
16
body armor.” In addition, while J.U. “never saw Bunas being violent towards
anyone, [Bunas] appeared [to J.U. to be] paranoid from drug use.”
The People also lodged Dr. Michel’s 2016 psychological evaluation of
Bunas. In his evaluation, Dr. Michel discussed many of the same issues as
were outlined in Dr. Clipson’s evaluation, including Bunas’s abusive
childhood as well as his criminal history and substance abuse problems.
With respect to several of the charged offenses that were dismissed in
SCD264352, the evaluation stated in part:
“Mr. Bunas admitted he had confronted the victims but
that many of the details as contained in the record . . . were
not correct. He said he was never in possession of a gun, a
pipe or a stick noting he had a knife in his pocket with the
handle resembling brass knuckles in his pocket that he
produced during a verbal altercation with the victims. He
said that one of the victims tried to hit him and he put up
his hand while holding a knife for protection resulting in
one of the victims receiving a cut on his finger. [Bunas] did
not explain how the victim received a laceration to his
forehead or injury to his leg.”
The evaluation also stated, “Mr. Bunas candidly stated he had
victimized the vehicle” forming the basis of Bunas’s conviction for shooting at
inhabited vehicle in SCD264352. However, the evaluation noted that Bunas
had not discussed “using a firearm.”
In a section of the report titled, “Summary and Recommendations,”
Dr. Michel stated, “It is of obvious concern that [Bunas’s] pent-up and
repressed feelings and affective state led to a combination of affective and
predatory behavior escalating from property damage to verbal confrontation
to physical assault.”
17
c. The March 16, 2021 hearing on the motion for diversion
The trial court held a hearing on Bunas’s motion for diversion on
March 16, 2021 at which the prosecutor, defense counsel and Bunas appeared
by videoconference. At the outset of the hearing, defense counsel moved to
continue the hearing so that Bunas could be “physically present, in court.”
Defense counsel explained that the prison at which Bunas was incarcerated
was “not transporting people currently [to court] . . . [but] I think that’s going
to change fairly soon.”
The trial court stated that it would take a short recess before ruling on
the continuance request, adding, “it took some doing to get us all here.”
When the court returned from the recess, after confirming that all of
the participants were present at the videoconference, the court stated the
following:
“Okay. Mr. [defense counsel] has just made a motion that
this continue until Mr. Bunas can be transferred from state
prison and be brought down to San Diego. We have no idea
when those transfers will be made, how long that will take,
what’s involved in that. But the court, based on what I’m
intending to do today, does not feel like it is efficient or in
anybody’s best interest to do that. The court feels that it
would be a waste of time and resources given that the court
is not holding a full hearing in this matter.
“So[,] what the court has done is -- in anticipation, and once
I received this case, the court received the following mental
health diversion request on behalf of Mr. Bunas pursuant
to penal code section 1001.36. I have reviewed the moving
papers, the response, all of the attachments, and the
original probation report.”
After defense counsel objected and again requested a continuance to
permit Bunas to be physically present, the court stated:
18
“Mr. [defense counsel], if the court was going to hold a
hearing, I agree with you. I would think that it would be in
his best interest if he wanted to be here physically for the
hearing, and you would then be physically available in the
courtroom with him with your witnesses. But the court is
not going to hold a hearing. I am denying the motion based
on the moving papers.”
Defense counsel responded, “Oh, okay. My apologies.”
The court then stated the following:
“And so what the court is finding, so I’m clear with all the
parties, is I have reviewed all of the materials, I have
reviewed all of the attachments, and I have reviewed the
probation report. . . . [S]ection 1001.36 indicates that there
is a potential for diversion if the defendant meets the
eligibility requirements and the offense is suitable for
diversion. What the court is saying is even if the mental
illness was a significant factor in the charged offense, and I
am not indicating it was, I’m not making a finding that it
was, especially given the other motives that he had in this
case, but assuming that even if the court found all of the
requirements, including that the mental illness was a
significant factor in the charged crimes, this court would
nonetheless exercise its discretion to conclude that the
charged offenses, though not statutorily disqualified, are
not suitable for diversion.”
The court added:
“The general objectives of sentencing[ ] stated in
California Rule[s] of Court[, rule] 4.410 reflect the various
and sometimes conflicting goals of our criminal justice
system. Although mental health diversion might satisfy
the objectives of encouraging the defendant to lead a law-
abiding life and deterring him from future offenses, an
assault, an unprovoked assault, on one victim, and a later
attack on another victim with first a flashlight and then a
machete where he splits open her head, again, unprovoked,
threatening her all the while to kill her for ruining his life,
and all in front of her children who are pleading for the
19
man, the defendant, not to kill their mother, involves a use
of force and fear on members of the public that justifies
placing the goals of punishment and [deterrence] of others
by demonstrating the consequences of such criminal
behavior above the needs of the defendant’s, and for those
reasons the defendant’s motion for mental health diversion
is denied.”
Defense counsel again stated that he was objecting to the hearing being
held without Bunas being physically present in court, and the trial court
reaffirmed its rulings denying the request to continue and the motion for
diversion. The court then asked whether either the prosecutor or defense
counsel wanted to say anything further. As discussed in part III.A.4.c, post,
defense counsel stated that his client’s presence was “the main issue.”
Counsel did not raise any other issues.
4. Application
Bunas raises three arguments in support of his claim that the trial
court abused its discretion in denying his motion for diversion. We consider
each argument in turn.
a. The trial court did not err in purportedly failing to hold an
eligibility hearing
Bunas contends that the trial court erred by “refusing to hold a
hearing to determine [his] eligibility for diversion.” (Boldface omitted.)
To begin with, we note that it is undisputed that the trial court held a
hearing on March 16, 2021 on Bunas’s motion for diversion at which defense
counsel, Bunas, and the prosecutor appeared by way of videoconference.
During the hearing, the trial court stated that it had “reviewed the moving
papers, the response, all of the attachments, and the original probation
report.” Further, the trial court rendered a ruling on the motion at the
hearing and entered a minute order denying the motion.
20
Notwithstanding that the trial court undisputedly held a hearing at
which it denied Bunas’s motion for diversion, Bunas offers several arguments
in support of his claim that the trial court failed to hold an eligibility hearing.
None entitles him to reversal. First, Bunas argues that the “trial court flatly
refused to hold an eligibility hearing.” (Emphasis omitted.) It is true that, on
several occasions during the hearing on Bunas’s motion, the trial court stated
that it would not be holding a “hearing.” Specifically, the court made the
following statements at the March 16, 2021 hearing:
“The court feels that it would be a waste of time and
resources [to wait until Bunas could be transported to
court] given that the court is not holding a full hearing in
this matter.”
“[I]f the court was going to hold a hearing, I agree with you
[defense counsel, that Bunas should be present in court]. I
would think that it would be in his best interest if he
wanted to be here physically for the hearing, and you would
then be physically available in the courtroom with him with
your witnesses. But the court is not going to hold a
hearing.”
“And so given that the court is not holding a full hearing
because the court is finding that the offense is not suitable
for diversion, it does not appear to be in anybody’s best
interest, and it seems to be an unnecessary use of court
time and resources to bring [Bunas] down to hear what the
court just indicated for the record. There will not be a
hearing based on the court’s finding of this unsuitability of
diversion based on the offense itself.”
However, when considered in context, it is clear that in making these
statements, the court intended to indicate that it would not hold an
evidentiary hearing on Bunas’s motion. With respect to two of the
statements, the trial court stated that it would not hold “a full hearing,”
(italics added) and with respect to the third statement, the court referred to a
21
hearing at which “witnesses” would be present. Thus, we interpret each of
the trial court’s statements quoted above as reflecting the trial court’s ruling
that it would not hold an evidentiary hearing on Bunas’s motion for
diversion.15 Accordingly, the court’s statements that it would not be holding
a “hearing” do not provide a basis for reversal.
Bunas also argues that the trial court erred by ruling on his motion for
diversion “without even allowing argument by counsel.” While the trial court
could have been more solicitous in determining counsels’ desire to present
argument, defense counsel appeared by videoconference at the hearing and
could have requested the opportunity to present argument on the merits of
the motion if he had desired to do so. Indeed, while defense counsel
repeatedly moved to continue the hearing and raised his objection that Bunas
be allowed to be present in court four times during the hearing, defense
counsel never requested the opportunity to present argument on the merits of
the motion. Under these circumstances, the trial court could have reasonably
concluded that defense counsel sought only to continue the hearing in order
to permit Bunas to be present in court and that defense counsel was willing
to submit on his moving papers with respect to the merits of the motion.16
This conclusion is supported by the following colloquy from the end of March
16, 2021 hearing:
15 In part III.A.4.c, post, we consider Bunas’s contention that the trial
court erred in denying his motion without conducting an evidentiary hearing.
16 Bunas does not contend in either this appeal or in his petition for
habeas corpus that defense counsel provided ineffective assistance in failing
to present argument at the March 16, 2021 hearing.
22
“[The court]: Okay. Anything from the people?
“[The prosecutor]: No, your honor. I’d submit.
“[The court]: Okay. Anything further, [defense counsel]?
“[Defense counsel]: I mean, the court stated it wouldn’t be
in anybody’s best interest other than my client’s right to be
there personally present. So, I mean, that’s the main issue
I have here.”17
Finally, in his reply brief, Bunas contends that the trial court erred in
determining that the charged offenses were not suitable for mental health
diversion, without first determining his eligibility for diversion. While
Bunas does not dispute that a trial court may deny a request for mental
health diversion on the ground that a defendant or offense is unsuitable for
diversion even if the defendant is eligible for diversion, he argues that the
trial court was “required to determine [his] eligibility for diversion before it
considered his suitability for diversion.” (Italics added.) Yet, he points to
nothing in the text of the statute that required the trial court to determine
eligibility prior to determining suitability. Section 1001.36, subdivision
(b)(3) provides that “[a]t any stage of the proceedings, the court may require
the defendant to make a prima facie showing that the defendant will meet
the minimum requirements of eligibility for diversion and that the defendant
and the offense are suitable for diversion.”18 (Italics added.) Thus, the
17 Bunas does not contend on appeal that the trial court erred in refusing
to continue the hearing so that he could be physically present in the
courtroom rather than appearing by video.
18 Section 1001.36, subdivision (b)(3) provides in its entirety:
23
defendant carries a prima facie burden with respect to both eligibility and
suitability, and there is nothing in the statute mandating the order in which
the trial court is to consider these issues.
Further, there is nothing in the statute, or in any case law, that
mandates that a trial court determine the defendant’s eligibility if it
determines that the defendant or offense is not suitable for diversion. Since,
as Bunas acknowledges, a trial court may deny a motion for diversion on the
basis of either suitability or eligibility, if the court determines that the
defendant or offense is not suitable, it makes no difference whether the
defendant is eligible. Given that the statute specifies that the “hearing on
the prima facie showing shall be informal” (§ 1001.36, subd. (b)(3)) and does
not mandate that a trial court make specific findings regarding eligibility,
we see no reason why a trial court could not elect to decide the motion on
suitability grounds, alone.19
“At any stage of the proceedings, the court may require the
defendant to make a prima facie showing that the
defendant will meet the minimum requirements of
eligibility for diversion and that the defendant and the
offense are suitable for diversion. The hearing on the
prima facie showing shall be informal and may proceed on
offers of proof, reliable hearsay, and argument of counsel.
If a prima facie showing is not made, the court may
summarily deny the request for diversion or grant any
other relief as may be deemed appropriate.”
19 Bunas also suggests in his reply brief that the trial court was required
to determine his eligibility for diversion prior to determining his suitability,
based on the following language in our disposition in Bunas I:
“The matter is remanded to the trial court with directions
to conduct a mental health diversion eligibility hearing
under section 1001.36. If the court determines that Bunas
qualifies for diversion, then the court may grant diversion.”
24
Finally, Bunas suggests that the trial court did not “consider[ ]
evidence as to the eligibility factors,” and he contends that, as a result, the
trial court was in “no position to summarily conclude that the defendant’s
offenses rendered him “unsuitable” for diversion.” We are not persuaded.
The court stated that it had considered Bunas’s motion as well as all of the
supporting documents. Thus, the record supports the conclusion that the
trial court considered all of the evidence that Bunas presented with his
motion, including that which he contends demonstrated his eligibility for
diversion.
In sum, we conclude that Bunas is not entitled to reversal on the
ground that the trial court failed to hold an eligibility hearing on his motion
for diversion.
b. The trial court did not err in relying solely on the
circumstances of the charged offenses to deny the motion
for diversion
Bunas also contends that “[t]he trial court’s statement that even if [he]
was eligible under the statute, it would deny diversion based solely ‘on the
offense itself’ (5RT 808) constitutes an abuse of discretion.” Specifically,
Bunas notes that section 1001.36, subdivision (b)(2) specifies a list of offenses
that render a defendant statutorily ineligible for diversion, and he argues,
In remanding for a “mental health diversion eligibility hearing,” we did
not intend to say that the court was required to determine Bunas’s
“eligibility” under the statute. Rather, our intention was to direct the court
to determine whether mental health diversion was appropriate in this case.
The hearing that the court held comports with our remand in that respect.
Our disposition did not inject additional requirements for the trial court to
follow in determining diversion beyond those found in the statute. For the
reasons stated in the text, we conclude that the trial court complied with the
statutory requirements.
25
“None of these enumerated offenses were charged in this case.”20 Bunas
reasons, “Given this specific list of ineligible offenses, it follows that a motion
for diversion should not be denied based solely on an offense which is not
statutorily ineligible.” (Underscore omitted.)
The trial court did not deny Bunas’s motion because he was charged
with, or convicted of, offenses that rendered him statutorily ineligible or
unsuitable for diversion. Rather, it was the circumstances of Bunas’s
commission of the charged offenses in this case that, in the court’s view,
rendered him unsuitable for diversion. The court noted that the
circumstances of the charged offenses included, “an unprovoked assault, on
one victim, and a later attack on another victim with first a flashlight and
then a machete where he splits open her head, again, unprovoked,
threatening her all the while to kill her for ruining his life, and all in front of
20 Section 1001.36, subdivision (b)(2) provides:
“(2) A defendant may not be placed into a diversion
program, pursuant to this section, for the following current
charged offenses:
“(A) Murder or voluntary manslaughter.
“(B) An offense for which a person, if convicted, would be
required to register pursuant to Section 290, except for a
violation of Section 314.
“(C) Rape.
“(D) Lewd or lascivious act on a child under 14 years of
age.
“(E) Assault with intent to commit rape, sodomy, or oral
copulation, in violation of Section 220.
“(F) Commission of rape or sexual penetration in concert
with another person, in violation of Section 264.1.
“(G) Continuous sexual abuse of a child, in violation of
Section 288.5.
“(H) A violation of subdivision (b) or (c) of Section
11418.”
26
her children who are pleading for the man, the defendant, not to kill their
mother . . . .” It is clear from the trial court’s ruling that it was the
circumstances of the charged offenses, rather than Bunas’s commission of
certain specified offenses, that led the trial court to deny his motion for
diversion.
Further, the fact that the Legislature enumerated a list of offenses that
render a defendant ineligible as a matter of law for mental health diversion
(§ 1001.36, subd. (b)(2)) does not demonstrate that the Legislature intended
to preclude a trial court from relying solely on the circumstances of an offense
or offenses in determining either eligibility or suitability for diversion.
Section 1001.36 specifies that the trial court may consider the “the
defendant’s violence and criminal history, the current charged offense, and
any other factors that the court deems appropriate,” in determining
eligibility. (§ 1001.36, subd. (b)(1)(F), italics added). While the statute does
not specify the factors that a trial court may consider in determining
suitability (see § 1001.36, subd. (b)(3)), it permits the court to determine
whether a defendant has made “a prima facie showing . . . that the defendant
and the offense are suitable for diversion,” (italics added) thereby evincing the
Legislature’s intent that a trial court be permitted to rely on a consideration
of the circumstances of the charged offense in determining suitability.
Finally, there is nothing in section 1001.36, with respect to either eligibility
or suitability, that precludes a trial court from relying primarily, or even
entirely, on the circumstances of the charged offense or offenses in denying a
motion for diversion.
Accordingly, we reject Bunas’s contention that the trial court erred in
denying his motion for diversion “based solely on the offense.”
27
c. The trial court did not err in denying the motion for diversion
without allowing an evidentiary hearing
Bunas claims that the trial court abused its discretion in denying the
motion for diversion without allowing an evidentiary hearing. As an initial
matter, Bunas contends that the trial court understood defense counsel’s
request to continue the matter to allow Bunas to be present in person (rather
than by videoconference) to be an “implicit request for an evidentiary
hearing.” (Underscore omitted.) In support of this argument, Bunas notes
that, in denying counsel’s request for a continuance, the trial court stated the
following:
“If the court was going to hold a hearing[,] I agree with you.
I would think that it would be in his best interest if he
wanted to be here physically for the hearing, and you would
then be physically available in the courtroom with him with
your witnesses. But the court is not going to hold a hearing.
I am denying the motion based on the moving papers.”
(Boldface omitted.)
We agree with Bunas that the trial court’s references in the above
quotation to “a hearing,” should be understood to mean “an evidentiary
hearing,” particularly in light of the court’s reference to “witnesses.” Thus,
we agree with Bunas that the trial court understood defense counsel’s request
for a continuance to be “an implicit request for an evidentiary hearing.”
(Underscore omitted.) However, for the reasons discussed below, we reject
Bunas’s contention that the trial court abused its discretion in denying this
request.21
21 As noted in footnote 7, ante, while this appeal was pending, Bunas filed
a separate petition for habeas corpus. In his petition, Bunas claims that, “in
the event that this court holds, in the direct appeal, that defense counsel’s
request for a continuance did not constitute a request for an evidentiary
hearing,” (underscore omitted) and that Bunas therefore forfeited any right to
28
First, while Bunas contends that “no published case has directly
addressed whether a trial court is required to hold an evidentiary hearing in
a mental health diversion proceeding upon request,” (italics added) it is clear
that section 1001.36, subdivision (b)(3) authorizes a trial court to deny a
motion for diversion without holding an evidentiary hearing if the court
determines that a defendant has failed to make a prima facie showing in
support of diversion. The statute expressly authorizes a trial court to
“summarily deny the request for diversion,” if the defendant fails to carry his
burden of making a prima facie showing in support of diversion at a hearing
that “shall be informal and may proceed on offers of proof, reliable hearsay,
and argument of counsel.” (§ 1001.36, subd. (b)(3), italics added.) Thus, the
trial court was not required to hold an evidentiary hearing merely upon
defense counsel’s implied request for such a hearing.
Nor do we agree with Bunas’s argument that People v. McCallum
(2020) 55 Cal.App.5th 202 (McCallum) “is analogous and strongly supports a
finding that the court abused its discretion by refusing to allow an
evidentiary hearing.” In McCallum, the Court of Appeal concluded that a
trial court had abused its discretion in denying a recommendation from the
Secretary of the Department of Corrections and Rehabilitation that the
defendant’s sentence be recalled under former section 1170, subdivision
(d)(1), “without first allowing [the defendant] to submit information necessary
for the court to exercise its discretion whether to follow the recommendation.”
(McCallum, supra, at p. 216, italics added.) The McCallum court explained
an evidentiary hearing, “then that forfeiture is the result of ineffective
assistance of counsel.” We agree with Bunas that his counsel impliedly
requested a continuance so that the court might hold an evidentiary hearing
and we do not base our rejection of Bunas’s claim on forfeiture.
Accordingly, as we explain in a separate order filed today, we deny
Bunas’s petition for habeas corpus on the ground that it is moot.
29
that after the trial court received the Secretary’s recommendation, defense
counsel filed a motion for “ ‘a case management conference with the [c]ourt
and [d]istrict [a]ttorney to discuss [the Department’s] recommendation and, if
necessary, set a briefing and hearing schedule for the matter.’ ” (Id. at
p. 209.) The McCallum court interpreted the “request as one seeking an
opportunity to submit additional information relevant to the Secretary’s
recommendation and briefing addressing why the trial court should follow
the recommendation.” (Id. at p. 216, fn. 13.) The trial court never held a case
management conference and declined to exercise its discretion to recall the
defendant’s sentence in a minute order. (Id. at p. 209.) Neither the
defendant nor his counsel was present in court at the time the court entered
the minute order. (Ibid.) While the McCallum court concluded that the
defendant was “[n]ot [e]ntitled to a [h]earing [u]nder [s]ection 1170,
[s]ubdivision (d)(1),” (id. at p. 211, italics altered) to consider the Secretary’s
recommendation, the court concluded that the trial court had abused its
discretion by “simply . . . ignor[ing] [the defendant’s] request to provide input
on the Secretary’s recommendation.” (Id. at p. 216, italics added.)
Unlike in McCallum, in this case, the trial court permitted Bunas to
file a brief and supporting documentation, including a psychological report.
Further, the trial court held a hearing on Bunas’s motion for diversion at
which the court stated that it had read and considered Bunas’s written
submissions. In addition, Bunas’s counsel and Bunas were both present by
way of videoconference at the hearing on the motion for diversion. Thus,
unlike in McCallum, the trial court permitted Bunas to “provide input”
(McCallum, 55 Cal.App.5th at p. 216) and “submit information,” (ibid.) on his
request for diversion.
30
Further, the McCallum court concluded that the defendant was not
entitled to a hearing under the statutory scheme at issue in that case
(McCallum, supra, 55 Cal.App.5th at p. 211) and the McCallum court had no
occasion to consider the circumstances under which a defendant might be
entitled to an evidentiary hearing to consider a request for mental health
diversion under section 1001.36. For all of these reasons, McCallum does not
support Bunas’s contention that the trial court erred in denying his motion
without holding an evidentiary hearing.
Finally, we reject Bunas’s contention that the trial court abused its
discretion in denying an evidentiary hearing because, according to Bunas, the
court purportedly “deprived [him] of his right to present evidence regarding
the nature and extent of his mental health issues, how they may have
contributed to the offense, [Bunas’s] ability and willingness to comply with
any treatment recommended by the court or medical providers, and so on.”
As described above, section 1001.36, subdivision (b)(3) clearly empowers the
trial court to adjudicate a motion for diversion without an evidentiary
hearing if the trial court determines that a defendant has failed to make a
prima facie showing that he or she meets all of the threshold eligibility
requirements and that the defendant and the offense are suitable for
diversion.22
Accordingly, we conclude that the trial court did not abuse its
discretion in denying the motion for diversion without allowing an
evidentiary hearing.
22 Apart from the arguments addressed in the text, Bunas does not argue
that the trial court abused its discretion in determining that he failed to
carry his prima facie burden of demonstrating his eligibility and suitability
for mental health diversion.
31
d. The trial court erred in relying on general objectives of
sentencing in denying Bunas’s motion for diversion, but the
error does not warrant reversal
Although not raised as a separately captioned argument,23 we agree
with Bunas that the trial court erred in relying on general objectives of
sentencing in denying Bunas’s motion for diversion.
As noted in part III.A.3.c, ante, during one portion of the hearing on the
motion for diversion, the trial court stated:
“The general objectives of sentencing[ ] stated in
California Rule[s] of Court[, rule] 4.410 reflect the various
and sometimes conflicting goals of our criminal justice
system. Although mental health diversion might satisfy
the objectives of encouraging the defendant to lead a law-
abiding life and deterring him from future offenses, an
assault, an unprovoked assault, on one victim, and a later
attack on another victim with first a flashlight and then a
machete where he splits open her head, again, unprovoked,
threatening her all the while to kill her for ruining his life,
and all in front of her children who are pleading for the
man, the defendant, not to kill their mother, involves a use
of force and fear on members of the public that justifies
placing the goals of punishment and [deterrence] of others
by demonstrating the consequences of such criminal
behavior above the needs of the defendant’s, and for those
reasons the defendant’s motion for mental health diversion
is denied.”
In our prior opinion in Bunas I, we explained that we were applying the
remedy employed by the Court of Appeal in People v. Frahs (2018)
27 Cal.App.5th 784, 796, namely “a conditional reversal of both the judgment
and the convictions underlying the judgment, and a remand to permit the
trial court to grant diversion and thereby avoid the imposition of a sentence.”
(Italics altered; see also Frahs, supra, 9 Cal.5th at p. 639 [“by conditionally
23 (Cal. Rules of Court, rules 8.204(a)(1)(B), 8.360; see fn. 4, ante.)
32
reversing defendant’s convictions and sentence for an eligibility hearing
under section 1001.36, the case would be restored to its procedural posture
before the jury verdict for purposes of evaluating defendant’s eligibility for
pretrial mental health diversion” (italics added)].) We specifically noted that
the trial court must “ ‘treat the matter as though [Bunas] had moved for
pretrial diversion after the charges had been filed, but prior to their
adjudication.’ ” (Bunas I, italics added.) Further, our disposition expressly
stated that the “the convictions are conditionally reversed,” and we explained
in our opinion, “[i]n using the term ‘convictions’ . . . we intend to refer to
Bunas’s plea of guilty to the underlying charges, as well as his admissions to
the enhancement allegations and the strike and serious felony allegations.”
(Ibid.)
In short, our prior opinion made clear that the trial court was required
to adjudicate Bunas’s motion for diversion in light of our conditional reversal
of his conviction and plea of guilty. Until the court denied Bunas’s motion for
diversion, his guilty plea remained reversed and the “objectives of
sentencing[ ]” had no application to Bunas.24 Thus, it was not proper for the
trial court to rely on the objectives of sentencing in denying Bunas’s motion
for diversion.
24 We express no opinion with respect to whether a motion for diversion
may be properly filed after a jury’s verdict or a plea of guilty in a case, unlike
this one, in which the mental health diversion statute became effective prior
to such verdict or guilty plea. The Supreme Court is currently considering,
“What is the latest point at which a defendant’s request for mental health
diversion is timely under Penal Code section 1001.36?” (People v. Braden
(2021) 63 Cal.App.5th 330, review granted and limiting issue to be briefed
and argued July 14, 2021, S268925.) Nor do we address whether, in such a
case, it would be appropriate for a trial court to consider the objectives of
sentencing in ruling on the motion for diversion.
33
Nevertheless, we conclude that the trial court’s error does not warrant
reversal. To begin with, “ ‘It is appellant’s burden on appeal to establish an
abuse of discretion and prejudice.’ ” (People v. Pacheco (2022) 75 Cal.App.5th
207, 213, italics added [discussing an appellant’s burden in seeking reversal
of trial court’s denial of mental health diversion].) “This means reversal is
appropriate ‘only if the reviewing court finds it reasonably probable the result
would have been more favorable to the appealing party but for the error.’ ”
(People v. Banner (2022) 77 Cal.App.5th 226, 235 [discussing standard of
prejudice for claims of error pertaining to mental health diversion].) Bunas
fails to present any argument that the trial court’s reference to sentencing
objectives constituted prejudicial error.25
In any event, we conclude that the trial court’s reference to sentencing
objectives in denying Bunas’s motion was harmless. To begin with, for the
reasons stated in part III.A.4.b, ante, the trial court was free to rely on the
evidence pertaining to the circumstances of the charged offenses in
determining Bunas’s eligibility and suitability for mental health diversion.
As described in part III.A.3, ante, that evidence undisputedly demonstrated
that Bunas committed two different violent attacks on his girlfriend. During
the attacks, he used weapons and threatened to kill her. Moreover, the
undisputed evidence established that Bunas had punched another individual
in the face earlier that day. At the March 16, 2021 hearing, the trial court
referenced this evidence of Bunas’s violent conduct in denying his motion for
mental health diversion. In addition, the record unequivocally establishes
that, at the time Bunas committed these offenses, he was on probation in
SCD264352 for a strike offense (§ 246) of shooting at an inhabited vehicle.
25 Bunas’s brief does not contain a prejudice argument with respect to any
of the arguments raised.
34
The trial court was also presented with evidence that Bunas had also
committed two separate violent assaults with weapons with respect to the
dismissed offenses in SCD264352.
In addition to the evidence of Bunas’s violent history, the trial court’s
summary disposition of his motion for mental health diversion also supports
the conclusion that the court’s reference to the objectives of sentencing did
not constitute reversible error. (See § 1001.36, subd. (b)(3) [authorizing trial
court to “summarily deny the request for diversion”].) At the March 16
hearing, the court stated that, “even if the mental illness was a significant
factor in the charged offense, and I am not indicating it was, I’m not making
a finding that it was, especially given the other motives that he had in this
case, but assuming that even if the court found all of the requirements,
including that the mental illness was a significant factor in the charged
crimes, this court would nonetheless exercise its discretion to conclude that
the charged offenses, though not statutorily disqualified, are not suitable for
diversion.” This statement supports the conclusion that the court did not
intend to grant Bunas diversion, irrespective of any improper comments
pertaining to sentencing objectives that the court made during the hearing.
In sum, given Bunas’s recent violent criminal history, as well as the
trial court’s ruling at the hearing, it is not reasonably probable that Bunas
would have obtained a more favorable result if the court had not erroneously
referenced the objectives of sentencing in denying his motion for mental
health diversion. Accordingly, we conclude that, while the trial court erred in
relying on general objectives of sentencing in denying Bunas’s motion for
diversion, the error does not warrant reversal.
35
B. The trial court erred in failing to resentence Bunas
Bunas claims that the trial court failed to resentence him in accordance
with our opinion in Bunas I. The People concede the error. We agree that
the trial court erred in failing to resentence Bunas in accordance with
Bunas I.
In Bunas I, we noted that Bunas argued: “[I]n the event that the trial
court does not grant him mental health diversion . . . the trial court should be
ordered to resentence him. Bunas contends that a full resentencing is
required given the lack of clarity with respect to the court’s intended
judgment.” (Bunas I.)
We agreed with Bunas’s contention, reasoning:
“At the November 2018 hearing, the trial court imposed a
sentence in SCD272661 that was four months longer than
the sentence that it imposed in this case in June 2018.
However, given that the court imposed this sentence while
under a misimpression about a material fact concerning
Bunas’s aggregate sentence, we cannot be certain as to the
aggregate sentence that the court intended to impose in
both cases. If we were to restrict the trial court on remand
to clarifying whether it intended that the sentence in the
probation case SCD264352 run concurrently with, or
instead, consecutively to the sentence imposed in
SCD272661,[26] we would be limiting the court to imposing
an aggregate sentence that might not comport with the
trial court’s intended aggregate sentence in the two cases.
We therefore conclude that the proper remedy is to allow
for a full resentencing at which time the trial court may
consider the full range of sentencing options available to it
in both cases.” (Bunas I.)
26 We rejected the People’s suggestion for such a remand order in Bunas I.
Instead, we directed the court to conduct a full resentencing hearing in both
SCD272661 and SCD264352.
36
On remand from Bunas I, the trial court failed to resentence Bunas.
Accordingly, we conclude that the matter must again be remanded to the trial
court with directions to conduct a full resentencing in SCD272661 and
SCD264352 in accordance with our directions in Bunas I.
IV.
DISPOSITION
The trial court’s March 16, 2021 order denying Bunas’s motion for
diversion is affirmed. The court’s March 16, 2021 order is reversed insofar as
the trial court failed to resentence Bunas in accordance with Bunas I. The
matter is remanded to the trial court with directions to conduct a full
resentencing in SCD272661 and SCD264352. At the conclusion of
resentencing, the court shall order the preparation of a corrected abstract of
judgment and shall forward the corrected abstract to the Department of
Corrections and Rehabilitation.
AARON, J.
WE CONCUR:
MCCONNELL, P. J.
HALLER, J.
37