The opinion
Filed 7/8/22; Opinion after vacating prior opinion
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076297
Plaintiff and Respondent,
v. (Super. Ct. No. SCD270002)
HAYDEN ABRAHAM GERSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kenneth K. So, Judge. Affirmed as modified, sentence vacated, and
remanded for resentencing.
George L. Schraer for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Charles C. Ragland, Assistant
Attorneys General, A. Natasha Cortina and Christine Levingston Bergman,
Deputy Attorneys General for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of parts II, III, and IV.
Hayden Abraham Gerson attacked two police officers attempting to
detain him after he refused to comply with their orders. This attack led to a
SWAT standoff and gun battle between Gerson and two SWAT officers. After
Gerson choked and bit a police K-9, multiple officers were able to subdue and
arrest him.
A jury found Gerson guilty of two counts of attempted voluntary
manslaughter (Pen. Code, §§ 664, 192, subd. (a)),1 a lesser included offense of
attempted murder (§§ 664, 187, subd. (a)) charged in counts 1 and 2; two
counts of assaulting a peace officer with a semiautomatic firearm (counts 3-4,
§ 245, subd. (d)(2)); shooting at an inhabited house (count 5, § 246); assault
on a peace officer with force likely to produce great bodily injury (count 6,
§ 245, subd. (c)); making a criminal threat (count 7, § 422); exhibiting a
firearm to a peace officer to resist arrest (count 8, § 417.8); two counts of
resisting an executive officer (counts 9-10, § 69); and harming or interfering
with a police animal (count 11, § 600, subd. (a)). The jury also found true
various enhancements to these offenses. The jury found Gerson to be sane
during commission of the offenses. The trial court sentenced Gerson to a
total term of 33 years eight months in prison.
Gerson appeals, contending that the judgment must be reversed
because the trial court erred when it denied his motion for pretrial diversion
based on a mental disorder. Assuming we reject this argument, he argues
that counts 1 to 5, 8, and 11 must be reversed based on errors regarding the
unconsciousness instruction. He challenges the sufficiency of the evidence
supporting his convictions for assaulting a peace officer with a semiautomatic
firearm (counts 3, 4) and criminal threats (count 7). Gerson also claims that
1 Undesignated statutory references are to the Penal Code.
2
the sentences imposed on counts 7 and 8 must be stayed under section 654
because he committed these counts and count 6 for the same criminal
purpose—to prevent his arrest. Finally, Gerson asserts that he is entitled to
608 days of preconviction custody credit (§ 2900.5, subd. (a)) and 91 days of
preconviction conduct credit (§ 4019) for the time he spent subject to
electronic monitoring on home detention.
In the published portion of this opinion, we conclude that substantial
evidence supported the trial court’s finding that Gerson did not meet his
burden of showing he suffered from bipolar disorder, a mental disorder that
qualifies for pretrial diversion. Accordingly, its ruling denying Gerson’s
motion for pretrial diversion did not amount to an abuse of discretion. We
also conclude that an individual, such as Gerson, who is out on bail and
subject to electronic monitoring on home detention is similarly situated to
persons participating in an electronic monitoring program pursuant to
section 1203.018 and that a rational basis does not exist for treating these
categories of individuals differently. Accordingly, Gerson is entitled to
preconviction custody credit (§ 2900.5, subd. (a)) and preconviction conduct
credit (§ 4019) under the state and federal equal protection clauses.
In unpublished parts II, III, and IV, we reject Gerson’s remaining
arguments.
On June 6, 2022, Gerson filed a motion to recall the remittitur based on
ineffective assistance of appellate counsel in failing to raise Assembly Bill No.
124 (2021-2022 Reg. Sess.) (Assembly Bill 124), which amended section 1170
to make the low-term sentence presumptively appropriate under specified
3
circumstances.2 He requested that we remand the proceedings for
resentencing in light of Assembly Bill 124. In new published part VI, we
address the merits of the motion. Simultaneously with this opinion, we issue
an order granting the motion to recall the remittitur. In part VI, we also
agree with Gerson that remand is necessary so that the trial court may
exercise its discretion to resentence him under Assembly Bill 124.
Accordingly, we affirm the judgment as modified but vacate Gerson’s
sentence and remand for resentencing. No changes to our initial opinion are
otherwise made.
2 During the 2021-2022 legislative term, the Legislature introduced
three bills proposing changes to section 1170 in a variety of ways. (Assembly
Bill 124 (Stats. 2021, ch. 695, § 5), Assembly Bill No. 1540 (Stats. 2021,
ch. 719, § 2), and Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3).) The three
bills were approved by the Governor and filed with the Secretary of State on
October 8, 2021. Senate Bill No. 567 bears the highest chapter number and
is presumed to be the last of the three approved by the Governor. (Gov. Code,
§ 9510.) To the extent there are conflicts between the three bills, Senate Bill
No. 567 takes precedence. (In re Thierry S. (1977) 19 Cal.3d 727, 738-739.)
Because the bills are not in conflict and the changes at issue in this appeal
were introduced by Assembly Bill 124, for ease of discussion, we refer to
Assembly Bill 124 rather than Senate Bill No. 567. (See People v. Banner
(2022) 77 Cal.App.5th 226, 243, fn. 2 (conc. & dis. opn. of Detjen, Acting P. J.)
(Banner).)
4
FACTUAL BACKGROUND3
A. Events Leading to Gerson’s Crimes
Gerson and Alisha F. dated for eight months before breaking up in May
20164 because Gerson’s “drug use was out of control.” While Gerson and
Alisha dated, Gerson was fascinated with solar energy. Gerson testified that
he and a childhood friend, Matthew M., started their own solar installation
company and that they both ran the business. Matthew, however, testified
that he started the company, Gerson worked for him and was never a co-
owner of the company. Matthew described Gerson as a person who had a
temper, often exaggerated things, and “always thrived off conflict.” Matthew
knew Gerson to be an argumentative person who blew things out of
proportion.
About two months before his arrest, Gerson told Matthew that he
started using DMT5 and “mushrooms.” Matthew noticed changes in Gerson
after Gerson started using drugs, including “constantly” talking about
various conspiracy theories, claiming he was God and that he had special
powers. Gerson also started using extremely offensive language such as
calling women “cunts” and telling Jewish people that he was “Hitler.”
Although Matthew stated that Gerson was prone to verbal conflict, physical
3 This section provides a general background regarding Gerson’s crimes.
The facts related to the specific claims at issue in this appeal will be
discussed in section B, post.
4 Undesignated date references are to 2016.
5 DMT (dimethyltryptamine) is a hallucinogenic drug. (Merriam-
Webster’s Unabridged Dict. Online (2022) < https://unabridged.merriam-
webster.com/unabridged/dimethyltryptamine> [as of July 2022], archived at
https://perma.cc/ HT7W-ZPMP.)
5
conflict would be “unusual” but that the type of behavior Gerson engaged in
changed after Gerson started using drugs. Matthew witnessed Gerson “high”
from marijuana hundreds of times but described Gerson on other drugs as
“something totally, totally different.”
During the summer and fall, Gerson began studying Hinduism, started
chanting and meditating, used different psychedelic drugs, and started
inhaling nitrous oxide.6 In November, Gerson called Alisha and told her
“crazy stuff” such as bringing her deceased sister back. Alisha suspected that
Gerson’s drug use caused him to become delusional and not in touch with
reality. Gerson later told Alisha that he had been using drugs when he made
that telephone call. During this time, Gerson’s social media postings referred
to his use of DMT as “life changing” and that mushrooms changed his
perspective about death and “now I don’t fear death.” Gerson referred to
psychedelic drugs as “medicine.” In another post he wrote that “ ‘cops are the
biggest criminals.’ ”
On the night of December 12, Alisha contacted Gerson and he invited
her to come over. When Alisha arrived, she knew Gerson was intoxicated
based on his large eyes, rapid movements, and the tone of his voice. She had
never seen Gerson this intoxicated before. Gerson told Alisha that “he was
eating mushrooms for breakfast, lunch, and dinner.” Gerson admitted at
trial that he was under the influence of psilocybin7 and nitrous oxide at the
time and had also used cannabis that day. Alisha surreptitiously recorded
6 Nitrous oxide produces a mild euphoria but in large amounts it is an
anesthetic that can cause dizziness, an inability to think clearly, a dreamlike
state, and amnesia.
7 Psilocybin is the active ingredient in a variety of hallucinogenic
mushrooms.
6
Gerson with her cell phone. Gerson made delusional statements such as
causing it to snow in Hawaii and having control because he was Lord Shiva.8
Gerson then inhaled about 14 canisters of nitrous oxide in front of Alisha.9
Alisha called the police and told them she had a “5150” with her ex-
boyfriend and she needed someone to come over immediately.10 After the
911 operator ascertained that Gerson was not hurting himself or Alisha, the
operator asked Alisha to call a non-emergency number. Instead, Alisha
texted a friend and asked her to call the police. A police dispatcher later
called Alisha to ask if Gerson was being violent. Alisha falsely answered that
Gerson was violent so that the police would respond.
B. Gerson’s Crimes
San Diego Police Officers John White and Melanie Bognuda arrived at
Gerson’s home where Alisha informed Officer Bognuda that Gerson was on
drugs and thought he was Lord Shiva. After Gerson refused to comply with
Officer White’s command to walk towards him, both officers tried to grab
Gerson’s arms to put him in handcuffs while Gerson physically resisted.
Officer White deployed his Taser when Gerson ignored his order to get on the
ground. The Taser had no effect on Gerson. Gerson then punched Officer
Bognuda in the face. Officer White tackled Gerson and both men fell to the
ground.
8 In Hinduism, Shiva is a manifestation of one God.
9 A “normal” dose of nitrous oxide is two to three canisters.
10 Welfare and Institutions Code section 5150, subdivision (a) permits
peace officers and designated mental health professionals to take persons
considered a danger to self or others into custody “for a period of up to 72
hours for assessment, evaluation, and crisis intervention.”
7
Gerson, who started training in jiu jitsu as a teenager, put Officer
White in a chokehold. Officer Bognuda hit Gerson’s body with her baton as
Gerson maintained his chokehold on Officer White. Gerson released Officer
White after Bognuda hit Gerson in the head with her baton. While Officer
White gasped for breath, Gerson stated “I’m gonna fucking kill you” and “I
will fucking murder you now.” As the officers hid behind a parked car,
Gerson retreated to his home and then came outside carrying a
semiautomatic handgun. He repeatedly racked the gun’s slide. The officers
recognized that Gerson’s gun was unloaded based on his continual racking of
the gun. Gerson then went back inside his house.
The police deployed two SWAT officers to the scene who positioned
themselves on the roof of a neighbor’s home and watched a window of
Gerson’s home where Gerson was located. At some point, Gerson fired a shot
from the room. A gunfight ensued as the SWAT officers began shooting
towards the window while Gerson fired back.
The officers then shot tear gas into the house, which caused Gerson to
run out the front door. Gerson ignored the officers’ commands to get on the
ground, which caused them to shoot Gerson with less-than-lethal rounds. A
handler then released a police K-9 to bite and hold Gerson.
The dog bit Gerson and held contact. Gerson immediately grabbed the
dog’s head, flipped it on its back and started choking the K-9. Gerson also bit
the dog. The K-9 released its bite and fell unconscious. Officers rushed in
and after a significant struggle, detained Gerson by placing him in a body
wrap.
C. Post-arrest Evidence
The police transported Gerson to the hospital where an emergency
room physician diagnosed him as suffering agitated delirium from abusing
8
several substances. Based on Gerson’s agitation and failure to follow
commands, the doctor administered four different sedatives so they could do a
CT scan to check for a head injury. The CT scan revealed no acute
intracranial abnormality. Toxicology results showed the presence of THC,
indicating that Gerson had recently used marijuana. The tests also detected
the presence of a metabolic breakdown product of psilocybin. A test to detect
nitrous oxide was not performed because this compound leaves the blood very
quickly. The physician concluded that Gerson was suffering from “toxic
encephalopathy” consistent with potential neurological issues from using an
inhalant and this condition caused Gerson’s delirium.
Police detectives interviewed Gerson immediately after his release from
the hospital. Gerson claimed that he had acted in self-defense. After
informing Gerson that he would be transported to jail, Gerson asked how
many felonies he would be charged with and whether any of the charges were
wobblers or misdemeanors. When told that he would be charged with
attempted murder, Gerson responded that he did not attempt to murder a
police officer—“[t]hose guys are being such fuckin’ dramatic pussies. I didn’t
fuckin’ shoot at them. They shot at me.” He claimed that after the officers
started shooting at him he fired his gun into the air as a warning for them to
leave him alone.
After his arrest, Gerson spent time in county jail and then received
treatment in a locked unit at Alvarado Parkway Institute (Alvarado) as a
condition of bail. The trial court later modified Gerson’s bail conditions to
allow him to reside at Casa Palmera for further treatment. Records from
Casa Palmera noted that Gerson’s test results demonstrated no evidence of
psychosis or mania, that Gerson demonstrated no symptoms indicating a
need for psychotropic medication, and that Gerson was “ ‘less likely to have
9
been suffering from bipolar than a substance induced psychosis.’ ” Gerson
was then discharged on bail to home detention with a GPS device and subject
to other conditions.
At trial, Gerson claimed that he used psilocybin and DMT as
introspective tools related to his spiritual journey. He testified that after
being tased and hit with the baton, he could not make any thoughtful
decisions and did not remember most of his actions. After going through the
incident in his head “a million times,” Gerson could not explain his actions.
Defense counsel told the jury that Gerson’s delirium was a form of
unconsciousness and Gerson should not be held responsible for his actions.
DISCUSSION
I. THE TRIAL COURT DID NOT ERR WHEN IT DENIED
PRETRIAL DIVERSION
A. Legal Principles
Section 1001.36 authorizes courts to grant pretrial diversion to
defendants who meet the statute’s six qualifying criteria or eligibility
requirements. (§ 1001.36, subds. (a), (b)(1); People v. Williams (2021)
63 Cal.App.5th 990, 995.) One purpose of the program is to increase
“diversion of individuals with mental disorders to mitigate the individuals’
entry and reentry into the criminal justice system while protecting public
safety.” (§ 1001.35, subd. (a).) If mental health diversion is granted and the
defendant satisfactorily completes the court’s approved mental health
treatment program, then the defendant’s criminal charges are required to be
dismissed and the defendant’s arrest on the charges “shall be deemed never
to have occurred.” (§ 1001.36, subd. (e).)
Mental disorders that qualify for diversion include, but are not limited
to, “bipolar disorder, schizophrenia, schizoaffective disorder, or post-
traumatic stress disorder.” (§1001.36, subd. (b)(1)(A).) Excluded disorders
10
are “antisocial personality disorder, borderline personality disorder, and
pedophilia.” (Ibid.) The defendant bears the burden of making a prima facie
showing that he or she meets the minimum requirements of eligibility for
diversion. (§ 1001.36, subd. (b)(3); see Evid. Code, § 500 [“Except as
otherwise provided by law, a party has the burden of proof as to each fact the
existence or nonexistence of which is essential to the claim for relief or
defense that he [or she] is asserting.”].)
The court “may” (§ 1001.36, subd. (a)) grant pretrial diversion if a
defendant meets all six enumerated requirements: (1) the court is satisfied
that the defendant suffers from a mental disorder identified in the most
recent edition of the Diagnostic and Statistical Manual of Mental Disorders
(DSM); (2) the court is satisfied the “defendant’s mental disorder was a
significant factor in the commission of the charged offense”; (3) a qualified
mental health expert opines “the defendant’s symptoms of the mental
disorder motivating the criminal behavior would respond to mental health
treatment”; (4) the defendant “consents to diversion and waives [his or her]
right to a speedy trial”; (5) the defendant “agrees to comply with treatment as
a condition of diversion”; and (6) the court is satisfied “the defendant will not
pose an unreasonable risk of danger to public safety . . . if treated in the
community.” (§ 1001.36, subd. (b)(1)(A)-(F).) Even if a defendant otherwise
satisfies the six eligibility requirements, the court must also be satisfied that
the recommended mental health treatment program “will meet the
specialized mental health treatment needs of the defendant.” (§ 1001.36,
subd. (c)(1)(A); People v. Frahs (2020) 9 Cal.5th 618, 627 (Frahs).)
The trial court’s determination “whether the defendant’s disorder
played a significant role in the commission of the charged offense” is “a
quintessential factfinding process” subject to review for substantial evidence.
11
(People v. Oneal (2021) 64 Cal.App.5th 581, 589 (Oneal).) Similarly, the
court’s determination whether the defendant suffers from a mental disorder
under subdivision (b)(1)(A) of section 1001.36 involves evaluating expert
testimony and making conclusions based thereon and is also reviewed for
substantial evidence.
“On appeal, we must view the evidence in the light most favorable to
the People and must presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.” (People v.
Jones (1990) 51 Cal.3d 294, 314.) “Although we must ensure the evidence is
reasonable, credible, and of solid value, nonetheless it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts on which that determination depends.” (Ibid.)
“ ‘We do not reweigh evidence or reevaluate a witness’s credibility.’
[Citations.] ‘Resolution of conflicts and inconsistencies in the testimony is
the exclusive province of the trier of fact. [Citation.] Moreover, unless the
testimony is physically impossible or inherently improbable, testimony of a
single witness is sufficient to support [a trial court’s factual finding].’ ”
(People v. Brown (2014) 59 Cal.4th 86, 106.) “ ‘ “To warrant the rejection of
the statements given by a witness who has been believed by [the trier of fact],
there must exist either a physical impossibility that they are true, or their
falsity must be apparent without resorting to inferences or deductions.” ’ ”
(People v. Maciel (2013) 57 Cal.4th 482, 519.) Conversely, the trier of fact
generally may reject even uncontradicted testimony, whether by lay or expert
witnesses, so long as the rejection is not arbitrary. (Howard v. Owens
Corning (1999) 72 Cal.App.4th 621, 632 (Howard).)
Ultimately, however, diversion under section 1001.36 is discretionary,
not mandatory, even if all the requirements are met. (§ 1001.36, subd. (a)
12
[“the court may” grant pretrial diversion], subd. (b)(1) [“[p]retrial diversion
may be granted” if certain criteria are met]; see Frahs, supra, 9 Cal.5th at
p. 626 [implying that a court may exercise its discretion to deny an eligible
defendant mental health diversion].) We therefore review for abuse of
discretion the trial court’s decision whether to grant a request for mental
health diversion. (People v. Moine (2021) 62 Cal.App.5th 440, 448 (Moine).)
“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.” (Id. at p. 449.)
1. Additional Background
Gerson filed a motion for mental health diversion pursuant to section
1001.36. The motion was a proverbial battle of the experts. Dr. Clark Smith,
Gerson’s defense expert, was a psychiatrist in private practice. Dr. Smith
opined that Gerson suffered from, among other things, bipolar disorder with
psychotic features. Dr. Alan Abrams, a forensic and addiction psychiatrist
appointed by the court, explained that bipolar disorder can be an endogenous
mental illness or a substance-induced mental illness.11 In his July 2018
report, he initially diagnosed Gerson with substance induced bipolar disorder
and hypomania, noting that Gerson has been sober for 20 months and “there
is no current evidence of an endogenous psychotic mental disorder.”
11 Endogenous refers to a condition “originating in the individual’s own
psychodynamics rather than through external causes.” (Merriam-Webster’s
Unabridged Dict. Online (2022) < https://unabridged.merriam-
webster.com/unabridged/endogenous> [as of July 2022], archived at
https://perma.cc/V4XG-4XMB.)
13
The People opposed the motion arguing, among other things, that
Gerson was ineligible for diversion because he did not suffer from a
qualifying mental disorder. A report from Dr. Nichole Friedman, a court
appointed licensed psychologist, opined that at the time of the offenses,
Gerson suffered from “Other Specified Personality Disorder (mixed
personality features including Narcissistic Personality Features).” Dr.
Friedman concluded that Gerson did not have a qualifying mental disease or
defect at the time of the incident. Rather, she believed that his “voluntary
substance use (cannabis, mushroom, nitrous oxide) in conjunction with his
interpersonal reactivity, grandiose self-importance, entitlement, [and]
hostility, resulted in the alleged violence.”12
In January 2019, the court held a hearing on the motion over the
course of three days. At the hearing, Dr. Abrams changed his diagnosis to
opine that Gerson suffered from bipolar II disorder, most recently manic. His
updated diagnosis relied on people who had continued contact with Gerson,
and on the symptoms that Gerson displayed after drugs would have been out
of his system. Dr. Smith similarly opined that Gerson suffers from bipolar
disorder with psychotic features that is independent of substance use.
Dr. Friedman also testified at the hearing. She conducted the
Minnesota Multiphasic Personality Inventory (MMPI) on Gerson to
objectively measure his personality. She disagreed with the bipolar
diagnoses rendered by Drs. Smith and Abrams because one criterion for
bipolar disorder is that the person must be without substances and Gerson
was always “under the influence of substances preceding the incident.” Dr.
12 Drs. Abrams and Friedman both opined that at the time of the incident,
Gerson suffered from psilocybin, nitrous oxide and cannabis intoxication,
with a use disorder for each drug.
14
Friedman opined that Gerson did not meet the DSM, fifth edition (DSM-5)
criteria for bipolar disorder and thus did not have a qualifying mental
disorder under section 1001.36.
After considering this conflicting testimony and hearing extensive
argument from counsel, the trial court denied Gerson’s request for diversion
finding that: (1) Gerson posed an unreasonable risk of danger to public
safety if treated in the community; (2) the recommended outpatient
treatment program would not meet Gerson’s specialized needs and thus
Gerson had not demonstrated a suggested program for effective treatment
and supervision; and (3) it could not determine if Gerson suffered from
bipolar disorder. The court considered the question whether Gerson suffered
from a mental disorder to be “complex” and “very difficult” to address without
a full and complete analysis of Gerson’s life. Although Gerson’s family and
friends indicated that Gerson suffered from a period where he
“decompensated,” he also had an above average number of conflicts in his life
that suggested to the court that Gerson had a “deeper personality issue” that
took him outside the diversion statute. The trial court denied the motion,
concluding that the evidence raised questions regarding the validity of the
diagnosis that Gerson suffered from bipolar disorder.
2. Analysis
Gerson argues that insubstantial evidence supports Dr. Friedman’s
diagnosis that he has a personality disorder because: (1) the diagnosis
conflicts with the evidence showing that his mental state underwent a drastic
change shortly before the incident; and (2) she did not explain what behaviors
in his past showed characteristics of a personality disorder. He also claims
Dr. Friedman’s finding that he does not suffer from bipolar disorder is not
credible because it ignores the DSM-5 definition for bipolar disorder and,
15
consistent with DSM-5 guidelines, his bipolar disorder was not substance-
induced because he continued to have bipolar symptoms months after he
stopped using all drugs.
These arguments improperly frame the issue regarding denial of the
diversion motion. It was Gerson’s burden to present evidence that he
suffered from a qualifying mental disorder. (§ 1001.36, subd. (b)(3); Evid.
Code, § 500.) Accordingly, we believe the issue is more precisely framed as
whether Gerson met his burden of presenting evidence that he suffered from
endogenous bipolar disorder. The trial court’s statements after a lengthy
hearing show that, based on the totality of the evidence, it was not convinced
that Gerson met his burden of showing he suffered from endogenous bipolar
disorder, a qualifying mental disorder. As we shall explain, there is sufficient
evidence in this record to support the trial court’s conclusion that Gerson had
not met his burden of proof.
Dr. Friedman concluded that Gerson’s violent behavior resulted from
his voluntary substance use combined “with his interpersonal reactivity,
grandiose self-importance, entitlement, [and] hostility.” She opined that at
the time of the offenses, Gerson suffered from a personality disorder and did
not meet the DSM-5 criteria for bipolar disorder. She used the MMPI to
objectively measure Gerson’s personality and noted that Drs. Abrams and
Smith did not have Gerson take the MMPI. Dr. Friedman considered the
MMPI data to be valid and explained that it provided a means of validating
what Gerson described.
On the MMPI, Gerson scored high regarding authority problems such
as opposition to authority figures, dislike of school, and lack of constraint. He
also scored high on “persecutory ideas, meaning the ideas of external
influence,” and “on naivety, which deals with moral righteousness.” Dr.
16
Friedman considered these scores to be important in terms of the grandiosity
and moral righteousness that Gerson exhibited and in terms of his
personality psychopathology. Gerson scored “at the cutoff” in terms of
psychoticism, which deals with personality factors such as views of the
external world, unusual beliefs or experiences and the intent to overindulge
or daydream. Nonetheless, Dr. Friedman found Gerson’s personality to be
vulnerable to these factors.
Based on Gerson’s MMPI results, Dr. Friedman stated that he “fits
th[e] bill” for “a personality of paranoid grandiosity” because throughout his
life he had a paranoid feeling about authority and grandiosity. Gerson’s
“inflated self-esteem or grandiosity” also fit “with the traits of [a] narcissistic
personality.” Dr. Friedman concluded that Gerson suffered from a
personality disorder by looking at all the evidence, noting that Gerson
exhibited a sense of entitlement, selfishness, lack of empathy, grandiosity,
disregarded rules, acted out, was impulsive, had low frustration tolerance,
and “can be perceived as being arrogant and can be arrogant.” Contrary to
Gerson’s contentions, the record and Gerson’s characteristics supported Dr.
Friedman’s conclusion that he suffered from a personality disorder.
More importantly, this evidence is sufficient to undermine the court’s
confidence in the validity of the competing bipolar disorder diagnosis. First,
Drs. Smith and Abrams did not determine whether Gerson had a personality
disorder. Dr. Smith testified he did not have enough information to reach a
conclusion that Gerson suffered from a personality disorder because he
lacked information about Gerson “as a person before he got all involved with
the drugs.” Dr. Abrams similarly admitted that he did not “have a very good
sense” of Gerson as a person before he got involved with drugs and to make a
personality disorder diagnosis he “need[ed] way more evidence.”
17
Second, Drs. Smith and Abrams considered Gerson’s acute personality
change in fall 2016, as observed by Gerson’s friends and relatives, as
significant in diagnosing him as suffering from bipolar disorder. Dr.
Friedman addressed Gerson’s personality change during this time period in
her testimony. Gerson increased his drug use around August, which Dr.
Friedman noted is when Gerson’s mother noticed a decline in his mental
health. Gerson’s brother-in-law and his employer both opined that Gerson’s
personality shift occurred in about October. Drugs that Gerson started using
in the fall before the incident included DMT, ayahuasca,13 and nitrous oxide.
Gerson reported being on a five-day “binge” of psilocybin mushrooms before
the incident. Dr. Friedman considered Gerson’s drug use as significant in her
analysis, stating that Gerson “has used an exorbitant amount of
hallucinogens.” Accordingly, Dr. Friedman disagreed with the diagnoses of
Drs. Abrams and Smith that Gerson was bipolar, manic because Gerson was
always “under the influence of substances preceding the incident.”
Third, Drs. Smith and Abrams opined that Gerson’s drug use leading
up to the incident did not cause his behavioral change before the incident
because Gerson’s symptoms persisted long after his drug use stopped. Dr.
Smith stated that bipolar symptoms that persisted after Gerson stopped
using drugs included pressured speech, irritability, increased activity, and
psychotic delusions. Dr. Abrams also mentioned grandiosity and paranoia.14
13 DMT is the active ingredient in ayahuasca.
14 DSM-5 diagnostic criteria for “Bipolar II Disorder” during a hypomanic
episode include: “A. A distinct period of abnormally and persistently
elevated, expansive, or irritable mood and abnormally and persistently
increased activity or energy, lasting at least 4 consecutive days and present
most of the day, nearly every day. [¶] B. During the period of mood
18
The trial court asked Dr. Friedman about the testimony that Gerson’s
persistent symptoms of delusion and grandiosity, without drug use,
supported a conclusion that Gerson suffered from bipolar disorder.
Dr. Friedman gave an alternate explanation for Gerson’s continued
symptoms while off drugs. She explained that Gerson’s grandiosity related to
him having a narcissistic personality. She stated that delusions were not
part of bipolar disorder and explained Gerson’s delusions as experiences he
had during prior drug use that he considered as fact:
“So his delusions are also—when he describes his delusions
to me, it’s his experience when he’s been under the
influence of, let’s say, mushrooms. He’s had these
experiences, and that becomes his experience, becomes his
fact. [¶] Just like if someone is on mushrooms and they
said, I can fly. They had this feeling they could fly. That’s
disturbance and increased energy and activity, three (or more) of the
following symptoms have persisted (four if the mood is only irritable),
represent a noticeable change from usual behavior, and have been present to
a significant degree: 1. Inflated self-esteem or grandiosity. [¶] 2. Decreased
need for sleep (e.g., feels rested after only 3 hours of sleep). [¶] 3. More
talkative than usual or pressure to keep talking. [¶] 4. Flight of ideas or
subjective experience that thoughts are racing. [¶] 5. Distractibility (i.e.,
attention too easily drawn to unimportant or irrelevant external stimuli), as
reported or observed. [¶] 6. Increase in goal-directed activity (either
socially, at work or school, or sexually) or psychomotor agitation. [¶] 7.
Excessive involvement in activities that have a high potential for painful
consequences (e.g., engaging in unrestrained buying sprees, sexual
indiscretions, or foolish business investments). [¶] C. The episode is
associated with an unequivocal change in functioning that is uncharacteristic
of the individual when not symptomatic. [¶] D. The disturbance in mood
and the change in functioning are observable by others. [¶] E. The episode
is not severe enough to cause marked impairment in social or occupational
functioning or to necessitate hospitalization. If there are psychotic features,
the episode is, by definition, manic. [¶] F. The episode is not attributable to
the physiological effects of a substance (e.g., a drug of abuse, a medication or
other treatment).”
19
delusional for most of us. We think that’s delusional. You
can’t fly. [¶] They had the experience. That’s what they
are stating. That’s their belief. Doesn’t mean they are
bipolar.”
Dr. Friedman did not consider Gerson’s pressured speech to be
abnormal, stating that Gerson is talkative and “can speak fast.” She
remembered reading that Gerson came across as irritable at times. While
one reporter found Gerson to be distractible, she found him to be “goal
directed” and nothing in the records suggested that jail personnel perceived
him to be manic but that he “came across as . . . irritable at times.” Jail
records also did not suggest that Gerson displayed psychomotor agitation.
Finally, she noted that Gerson has not displayed a marked impairment in
social functions, that he has “been functioning” and running a business. She
concluded, “I just don’t believe he meets the criteria for bipolar.”
From a clinical perspective, Dr. Friedman opined that Gerson’s drug
use and personality caused his actions on the date of the incident. She
explained that Gerson “made a host of different choices that night that led to
him feeling that he was threatened by the police. And he felt like [the police]
were out to, as he stated, kill him. He was going to self-protect himself.
That’s what he did. And at the time he was on substances, and he was
amped up. And trying to calm him down at the same time and because of his
personality and how he feels about authority, he behaved in the way he did.”
Dr. Friedman specifically noted that right before the incident Gerson
had a massage and his masseuse described Gerson as his normal self and not
exhibiting manic or delusional behavior. In her experience people in a state
of mania cannot relax and “are not going to go for a massage.” Additionally,
at the start of the incident she noted that Gerson was “relaxed” and confused
20
regarding why the officers wanted to detain him. This evidence suggested to
Dr. Friedman that Gerson did not have mania or bipolar disorder.
Dr. Friedman attributed Gerson’s behavior to a combination of his
personality and narcotics use, as opposed to delirium, because Gerson had
the ability to explain why he did certain things during the incident. As
examples, Dr. Friedman referred to Gerson’s statements that he opened his
computer to listen to chanting music because he did not have his phone and
had last used his computer to listen to chanting music. This suggested to her
that Gerson “wasn’t so delirious that he was unable to . . . know his past or
navigate through his own home or not understand reality. He knew what he
was doing. It was something as simple as turning on the chanting music,
which he then used, I believe, to calm himself down.” Additionally, during
Gerson’s interview with officers, he questioned whether the charges against
him were wobblers or misdemeanors. Dr. Friedman considered this to be
“pretty sophisticated” and that Gerson knew he had done something that
could warrant a felony charge.
Contrary to Gerson’s arguments, Dr. Friedman considered the DSM-5
guidelines in making her diagnosis, explained why she believed his actions
were substance-induced, and noted how Gerson’s personality explained his
perceived bipolar symptoms after he stopped using all drugs. The record
shows that the trial court understood Gerson’s argument that his drastic
personality change shortly before the incident was attributable to the onset of
endogenous bipolar disorder. The court, however, also noted the counter-
argument that Gerson had certain personality features such as grandiosity
and paranoia that his drug use exacerbated. Ultimately, after considering
the competing evidence, it concluded “sufficient questions [were] raised about
21
the bipolar diagnosis that [it was] not satisfied that [the] burden has been
met.”
The trial court came to this conclusion after a three-day evidentiary
hearing and over three hours of oral argument where it frequently
interrupted counsel to ask questions, and often engaged in a dialogue with
counsel. Dr. Friedman’s testimony cast doubt on the competing bipolar
diagnosis; thus, the trial court’s rejection of the competing diagnosis was not
arbitrary. (Howard, supra, 72 Cal.App.4th at p. 632.) As a reviewing court,
we do not reweigh the evidence or resolve evidentiary conflicts. (People v.
Valenti (2016) 243 Cal.App.4th 1140, 1158.) Rather, we are bound by the
principle that “[t]he testimony of a single witness can be sufficient to uphold
[the trial court’s factual finding] even when there is significant countervailing
evidence, or the testimony is subject to justifiable suspicion.” (Ibid.)
Based on the totality of the evidence, the trial court could have
reasonably concluded that the changes observed by Gerson’s relatives and his
employer in fall 2016 were attributable to his personality and significant
drug use, and not the emergence of bipolar disorder. It could have also
reasonably concluded that Gerson’s personality disorder explained his
continued symptoms after he stopped using drugs. (People v. Venghiattis
(1986) 185 Cal.App.3d 326, 333 [it is not an abuse of discretion for the trial
court to give more credit to one expert’s opinion than to another’s].) It is not
within our province to reweigh the evidence.
In sum, substantial evidence supported the trial court’s finding that
Gerson did not meet his burden of showing that he suffered from bipolar
disorder. Accordingly, its ruling denying the motion for pretrial diversion did
22
not amount to an abuse of discretion. (Moine, supra, 62 Cal.App.5th at
p. 449.)15
II. ALLEGED INSTRUCTIONAL ERROR
A. The Trial Court Correctly Declined to Amplify CALCRIM No. 3425
1. Additional Background
Gerson asked the trial court to give a jury instruction on
unconsciousness with additional language related to unconsciousness found
in People v. James (2015) 238 Cal.App.4th 794 (James) that stated: “One who
is unaware of his or her actions because of the lack of volitional capacity does
not commit an act with either specific or general criminal intent.” (Id. at
p. 809.) After the trial court indicated it was inclined to give CALCRIM No.
3425 without the additional language from James, Gerson’s counsel
responded that he wanted to modify the instruction to the facts of the case so
that it identified the factors supporting a finding of unconsciousness,
including the blow to the head that Gerson suffered, the tasing, and
unsoundness of mind resulting from mental illness. The prosecutor did not
object to the giving of an unconsciousness instruction but objected to the
proposed additional language as prejudicial.
Lengthy discussions with counsel ensued. During these discussions,
Gerson’s counsel again asked the court to add to CALCRIM No. 3425 the
15 Because the evidence supported the trial court’s conclusion that Gerson
did not suffer from a qualifying mental disorder, we need not address his
remaining arguments that the evidence did not support the findings that he
posed an unreasonable risk of danger or that the recommended treatment
program would not meet his needs. Even if we assumed these two findings
are not supported by the record, Gerson is not entitled to a reversal based on
the court’s conclusion that he did not suffer from a qualifying mental
disorder. (Oneal, supra, 64 Cal.App.5th 581.)
23
sentence from James stating: “One who is unaware of his or her actions
because of the lack of volitional capacity does not commit an act with either
specific or general criminal intent.” (James, supra, 238 Cal.App.4th at
p. 809.) The court ultimately read the jury a modified version of CALCRIM
No. 3425. The court’s minor changes to the standard instruction are in
italics:
“The defendant is not guilty of any charges if he acted while
unconscious. Someone is unconscious when he or she is not
conscious of his or her actions. Someone may be
unconscious even though able to move. Unconsciousness
may be caused by a black-out, or an epileptic seizure or
involuntary intoxication, blow to the head, mental illness,
or other similar condition. The defense of unconsciousness
may not be based on voluntary intoxication.
“The People must prove beyond a reasonable doubt that the
defendant was conscious when he acted. If there . . . is
proof beyond a reasonable doubt that the defendant acted
as if he were conscious, you should conclude that he was
conscious. Unless based on all the evidence, you have a
reasonable doubt that he was conscious, in which case you
must find him not guilty.”
2. Analysis
“[U]nconsciousness is a complete defense except where it is caused by
voluntary intoxication.” (People v. Heffington (1973) 32 Cal.App.3d 1, 8; see
also § 26 [“All persons are capable of committing crimes except
those[¶] . . . [¶] Four–Persons who committed the act charged without being
conscious thereof.”].) “To constitute a defense, unconsciousness need not rise
to the level of coma or inability to walk or perform manual movements; it can
exist ‘where the subject physically acts but is not, at the time, conscious of
acting.’ ” (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) “ ‘[A]n
unconscious act within the contemplation of [section 26] is one committed by
24
a person who because of somnambulism, a blow on the head, or similar cause
is not conscious of acting and whose act therefore cannot be deemed
volitional.’ ” (People v. Mathson (2012) 210 Cal.App.4th 1297, 1315, italics
omitted (Mathson).) Mental illness can also be the foundation for an
unconsciousness defense. (James, supra, 238 Cal.App.4th at p. 809.)
Gerson argues that he was lucid and conscious during his initial
interaction with Officers Bognuda and White but that after being tasered and
struck on the head with a baton his behavior became bizarre, irrational, and
consistent with unconsciousness. He contends that CALCRIM No. 3425
focused on his mental state (whether he was conscious) and that the
requested language from James, supra, 238 Cal.App.4th 794 focused on his
conduct (whether his actions were voluntary and volitional). He asserts that
the trial court’s failure to add the requested language regarding his volitional
capacity to CALCRIM No. 3425 violated his rights under the Sixth
Amendment by denying him a meaningful opportunity to present a complete
defense. The trial court rejected this pinpoint instruction stating that the
first paragraph of CALCRIM No. 3425 already addressed this concept. We
agree.
“Pinpoint instructions ‘relate particular facts to a legal issue in the case
or “pinpoint” the crux of a defendant’s case . . . .’ ” (People v. Wilkins (2013)
56 Cal.4th 333, 348-349.) Such instructions are required to be given upon
request when there is evidence supportive of the theory. (Id. at p. 349.) A
trial court errs when it refuses to give such an instruction. (People v. Hughes
(2002) 27 Cal.4th 287, 362.) A trial court, however, “may properly refuse an
instruction offered by the defendant if it incorrectly states the law, is
argumentative, duplicative, or potentially confusing [citation], or if it is not
supported by substantial evidence.” (People v. Moon (2005) 37 Cal.4th 1, 30
25
(Moon).) We independently review the correctness and adequacy of the trial
court’s instructions, examining whether the court “ ‘fully and fairly instructed
on the applicable law.’ ” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088
(Ramos).)
The first paragraph of CALCRIM No. 3425 provided: “The defendant is
not guilty of any charges if he acted while unconscious. Someone is
unconscious when he or she is not conscious of his or her actions. Someone
may be unconscious even though able to move.” (Italics added.) The plain
language of the instruction focused the jury’s attention on Gerson’s actions
and whether he was conscious (aware) or unconscious (unaware) of his
actions, not on Gerson’s intent. Thus, we reject Gerson’s argument that
CALCRIM No. 3425 erroneously focused on his mental state and not whether
he was conscious of his actions. The trial court correctly concluded that the
requested pinpoint instruction would have been duplicative. (Moon, supra,
37 Cal.4th at p. 30.) Accordingly, the trial court did not err in rejecting the
proposed pinpoint instruction and we reject Gerson’s contention that the
purported error violated his constitutional right to present a complete
defense.
In any event, as the prosecutor noted during closing argument, the
evidence reflected “[a] lot of goal-oriented behavior” that suggested Gerson
was conscious of his actions. Dr. Abrams characterized Gerson’s acts of
retrieving a gun from his house and using more drugs after being tased and
hit in the head with a baton as seemingly “nondelirious.” The police and
defense criminalists testified that Gerson positioned himself where the
SWAT officers could not shoot him. The jury heard testimony that Gerson
told Dr. Smith that he choked and bit the police K-9 to show the dog that he
was the “alpha.” During his arrest, Gerson expressed his understanding that
26
the police would release the pressure on his ear if he stopped resisting.
Additionally, Gerson’s statement during his police interview that he fired his
gun into the air as a warning for the SWAT officers to leave him alone
undercut his defense that he was unconsciousness of his actions. In
summary, this evidence is inconsistent with someone in an unconscious state
who is not aware of his actions and not acting with volition.
3. CALCRIM No. 3425 Did Not Contain Erroneous Language
There is a judicially created presumption that a person who appears to
act in an apparent state of consciousness is conscious. (People v. Hardy
(1948) 33 Cal.2d 52, 63 (Hardy); Mathson, supra, 210 Cal.App.4th at p. 1317.)
As our high court explained, this presumption places a duty on the defendant
to produce evidence “raising a reasonable doubt [in the minds of the jury that
the defendant acted unconsciously], and not the duty to overcome the
presumption by a preponderance of the evidence.” (Hardy, at p. 64.) A
defendant’s professed inability to recall an event, without more, is
insufficient evidence of unconsciousness. (People v. Rogers (2006) 39 Cal.4th
826, 888.)
CALCRIM No. 3425 ended with the following sentence: “If there is
proof beyond a reasonable doubt that the defendant acted as if he were
conscious, you should conclude that he was conscious, unless based on all the
evidence, you have a reasonable doubt that he was conscious, in which case
you must find him not guilty.” (Italics added.) Gerson contends that the
italicized language is incorrect in law because it effectively constituted a
presumption of consciousness based on the appearance that he acted as a
conscious person might act and allowed the jury to reject the unconsciousness
defense based simply on him acting as if he were conscious. According to
Gerson, the italicized phrase is not needed because the trial court already
27
concluded sufficient evidence existed to justify the unconsciousness
instruction and this phrase merely confused concepts. He claims that this
error in CALCRIM No. 3425 requires reversal of counts 1 to 5, 8 and 11.
The Attorney General responds that Gerson forfeited this argument by
not objecting to CALCRIM No. 3425 on this ground below. He argues that
the challenged phrase correctly placed the burden of proving consciousness
beyond a reasonable doubt on the People and correctly informed the jury of
the concept that if, “based on all the evidence, you have a reasonable doubt
that [Gerson] was conscious,” the presumption is rebutted and it must acquit.
A party forfeits any challenge to a jury instruction that was correct in
law and responsive to the evidence if the party failed to object in the trial
court. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 (Hudson).) This
rule does not apply if the instruction was an incorrect statement of law. (Id.
at p. 1012; People v. Gomez (2018) 6 Cal.5th 243, 312 [“[T]he forfeiture rule
‘does not apply when . . . the trial court gives an instruction that is an
incorrect statement of the law.’ ”].) Therefore, to determine whether Gerson
forfeited his argument, we must first determine whether the instruction was
correct in law. (See People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
Applying the de novo standard of review (Ramos, supra, 163 Cal.App.4th at
p. 1088), we reject Gerson’s argument that the italicized phrase is incorrect in
law.
CALCRIM No. 3425 informed jurors that to conclude Gerson acted
consciously, there must be proof beyond a reasonable doubt that he acted as if
he were conscious “unless based on all the evidence, you have a reasonable
doubt that he was conscious, in which case you must find him not guilty.”
(Italics added.) The instruction correctly states that if, based on all the
evidence the jury has a reasonable doubt that Gerson was conscious, the jury
28
was obligated to find him not guilty. The instruction also correctly makes the
point that the People have the burden of proving consciousness beyond a
reasonable doubt.
Additionally, “[w]e must consider the instructions together as a whole,
to determine whether it is reasonably likely a jury would interpret an
instruction in a particular way, because we presume jurors understand and
correlate all of the instructions.” (People v. Burton (2018) 29 Cal.App.5th
917, 925.) Here, the court also instructed the jury that evidence is the
testimony of witnesses, exhibits, and stipulated facts (CALCRIM No. 222)
and it must consider “all the evidence that was received throughout the
entire trial” in deciding whether the People proved their case beyond a
reasonable doubt (CALCRIM No. 220). Thus, considering the instructions as
a whole, it is not reasonably likely that the jury construed CALCRIM No.
3425 as requiring it to make the consciousness finding based exclusively on
Gerson’s actions.
Gerson argues that he adequately rebutted the presumption of
consciousness by producing enough evidence to warrant an instruction on
unconsciousness. He claims, at that point, the presumption had no further
relevance and the jury should have looked at the evidence alone in
determining whether he acted consciously. We disagree.
CALCRIM No. 3425 correctly informed the jury of the judicially created
concept that a person who acts conscious is conscious. (Hardy, supra, 33
Cal.2d at p. 63.) A defendant can overcome the presumption regarding
consciousness by simply producing sufficient evidence to raise a reasonable
doubt that he or she was conscious when he or she acted during the
commission of the alleged crime. (Id. at p. 64.) In other words, the
presumption merely placed a duty on Gerson to produce evidence, sufficient
29
to raise a reasonable doubt in the minds of the jury, that he acted
unconsciously. (Id. at pp. 64-65.) Additionally, CALCRIM No. 3425 does not
contain language telling the jury that a “presumption of consciousness”
existed. The Judicial Council explained why, consistent with Hardy, supra,
33 Cal.2d 52, it declined to specifically reference a “presumption of
consciousness” in its commentary to CALCRIM No. 3425, stating:
“The committee did not include an instruction on the
presumption of consciousness. There is a judicially created
presumption that a person who acts conscious is conscious.
(People v. Hardy (1948) 33 Cal.2d 52, 63-64 [198 P.2d 865].)
Although an instruction on this presumption has been
approved, it has been highly criticized. [Citations.] [¶]
The effect of this presumption is to place on the defendant a
burden of producing evidence to dispel the presumption.
[Citations.] However, if the defendant produces enough
evidence to warrant an instruction on unconsciousness, the
rebuttable presumption of consciousness has been dispelled
and no instruction on its effect is necessary. The
committee, therefore, concluded that no instruction on the
presumption of consciousness was needed.” (Judicial
Council of Cal., Crim. Jury Instns. (2021), Commentary to
CALCRIM No. 3425, pp. 962-963.)
Moreover, the California Supreme Court approved of the manner in
which the presumption of consciousness was handled in the 1979 revision of
CALJIC No. 4.31, a predecessor to CALCRIM No. 3425. (Mathson, supra,
210 Cal.App.4th at p. 1321, citing People v. Babbitt (1988) 45 Cal.3d 660, 693-
694 [“ ‘[T]here is no constitutional impediment to the state’s use of a
rebuttable presumption in meeting its assumed burden—once the issue has
been raised—to prove consciousness beyond a reasonable doubt.’ ”].)16
16 In Mathson, supra, 210 Cal.App.4th 1297, the appellate court criticized
the third paragraph of former CALCRIM No. 3425 as “potentially confusing”
30
We conclude that CALCRIM No. 3425 correctly instructed the jury as
to the potential legal effect of unconsciousness caused by a mental condition.
Therefore, Gerson forfeited this argument by failing to object or request
modification in the trial court. (Hudson, supra, 38 Cal.4th at pp. 1011-1012.)
III. CHALLENGES TO THE SUFFICIENCY OF THE EVIDENCE
A. Legal Principles
Where a defendant challenges the sufficiency of the evidence
supporting a conviction, we examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We
presume in support of the judgment the existence of every fact the trier of
fact could reasonably deduce from the evidence. (Ibid.) “The same standard
applies when the conviction rests primarily on circumstantial evidence.
[Citation.] Although it is the jury’s duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate
and stated the language should be modified. (Mathson, at p. 1317.) The
Mathson court compared the “If, however” formulation of former CALCRIM
No. 3425 with CALJIC’s “unless” clause and found the former’s wording
“unnecessarily ambiguous.” (Mathson, at p. 1323.) The court recommended
that CALCRIM No. 3425 be modified to use the “unless” formulation.
(Mathson, at pp. 1317, 1323, fn. 26.) Gerson’s reliance on Mathson is
misplaced because the language criticized in Mathson does not appear in the
current version of the jury instruction. Additionally, the Mathson court did
not hold that the language of former CALCRIM No. 3425 created a
mandatory presumption of consciousness. Moreover, at issue in Mathson was
unconsciousness caused by alcohol intoxication, which prompted the court to
criticize the last sentence of the paragraph as applied to that case. (Mathson,
at p. 1323.)
31
court[,] that must be convinced of the defendant’s guilt beyond a reasonable
doubt. [Citation.] ‘ “If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant a reversal
of the judgment.” ’ ” (Id. at pp. 1053-1054.) Reversal for insufficient evidence
is warranted only when it appears that under no hypothesis whatsoever is
there sufficient evidence to support the jury’s verdict. (People v. Bolin (1998)
18 Cal.4th 297, 331.) The testimony of a single witness, if believed by the
trier of fact, is sufficient to support a conviction, unless that testimony is
physically impossible or inherently improbable. (People v. Young (2005)
34 Cal.4th 1149, 1181.)
1. The Evidence Supported the Criminal Threats Conviction
Additional Background
When Officers White and Bognuda arrived at Gerson’s home they
believed they were responding to domestic disturbance and 5150 call. Both
officers activated their body-worn cameras. Alisha informed Officer Bognuda
that Gerson was on drugs and thought he was Lord Shiva. Officer White
observed that Gerson spoke rapidly and showed objective symptoms of being
under the influence of a controlled substance.
Officer White asked Gerson to walk towards him but Gerson refused to
follow the officer’s commands. After Officer White told Gerson that he would
be detained and reached for him, Gerson responded that he had been
“kidding” and did not want to be touched or detained. Both officers tried to
grab Gerson’s arms to put him in handcuffs while Gerson physically resisted.
Officer White called for additional officers.
Officer White directed Gerson to get on the ground or be tasered. When
Gerson walked towards Officer White, the officer deployed his Taser. The
32
Taser had no effect on Gerson. Gerson punched Officer Bognuda in the face
giving her a black eye. Officer White then tackled Gerson and the men fell to
the ground. While Officer White was on his knees, Gerson put the officer in a
chokehold. Officer Bognuda yelled at Gerson to get off Officer White as she
pulled out her baton. Officer Bognuda struck Gerson’s body with her baton
as Gerson maintained his chokehold on Officer White. As Gerson choked
him, Officer White was afraid that he would be rendered unconscious and
seriously injured. Officer Bognuda knew that a chokehold could potentially
kill a person and observed distress in Officer White’s eyes. Officer Bognuda,
worried for Officer White’s life, hit Gerson in the head with her baton. This
caused Gerson to immediately release Officer White.
Gerson then stated “I’m gonna fucking kill you” and “I will fucking
murder you now.” During trial, the court played a recording of Gerson’s
threats. Officer White testified that he heard some type of threat but could
not recall the exact words. At that time Officer White was concerned for his
safety thinking that Gerson might come after him with more force as he tried
to catch his breath.
Officer Bognuda deployed her Taser but it had no effect on Gerson
because both of the Taser’s barbs did not connect to Gerson’s body. After a
second Taser attempt, Gerson yelled at the officers and then went inside his
house. The officers had retreated behind a parked car when Gerson came
outside carrying a semiautomatic handgun and racked the gun’s slide.
Officer Bognuda had her gun drawn. Although still recovering from his
altercation with Gerson, Officer White also drew his weapon believing the
incident would be a “shoot-out.” Fortunately, the officers recognized that
Gerson’s gun was unloaded based on his continual racking of the gun.
Gerson then went back inside his house.
33
Analysis
To sustain a finding that Gerson made a criminal threat against Officer
White in violation of section 422, the People had to show (1) Gerson willfully
threatened to commit a crime that would result in death or great bodily
injury to another person; (2) Gerson made the threat with the specific intent
that the statement be taken as a threat, even if there was no intent of
actually carrying it out; (3) on its face and under the circumstances in which
it was made, the threat was so unequivocal, unconditional, immediate, and
specific as to convey to Officer White a gravity of purpose and an immediate
prospect of execution; (4) the threat caused Officer White to be in sustained
fear for his safety; and (5) Officer White’s fear was reasonable under the
circumstances. (§ 422, subd. (a); In re George T. (2004) 33 Cal.4th 620, 630.)
Gerson’s sole challenge to his criminal threats conviction is the alleged
lack of substantial evidence showing that Officer White experienced
sustained fear. Specifically, he claims that a person in Officer White’s
position would not reasonably be in sustained fear for his safety because
Gerson weighed 142 pounds and Officer Bognuda weighed 189 pounds. While
he and Officer White were wrestling, Officer Bognuda hit him several times
with her baton, including in the head. At that time, additional officers were
on their way, he would be arrested and would pose no future threat to Officer
White. We reject this argument because it ignores the circumstances in
which he made the threats.
The statute imposes two requirements on the proof of a threat victim’s
fear. First, there is a subjective component, that the threat actually caused
sustained fear. Second, the actual sustained fear must be objectively
reasonable under the circumstances. (In re Ricky T. (2001) 87 Cal.App.4th
1132, 1139-1140.) Courts have defined the term “sustained fear” as a period
34
of fear “that extends beyond what is momentary, fleeting, or transitory.”
(People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) “[A]ll of the surrounding
circumstances should be taken into account to determine if a threat falls
within the proscription of section 422. This includes the defendant’s
mannerisms, affect, and actions involved in making the threat as well as
subsequent actions taken by the defendant.” (People v. Solis (2001)
90 Cal.App.4th 1002, 1013.) Whether the threat caused the victim sustained
fear and whether the actual sustained fear was objectively reasonable are
factual questions for the jury to resolve. (See People v. Mendoza (1997)
59 Cal.App.4th 1333, 1339.) If substantial evidence supports the jury’s
implicit findings, an appellate court should “not substitute its evaluation of a
witness’s credibility for that of the fact-finder.” (Ibid.)
The evidence supports the jury’s implied conclusion that Gerson’s
threats caused Officer White to suffer sustained fear. When the officers first
contacted Gerson he appeared to be under the influence of a controlled
substance, he refused Officer White’s commands, and then physically resisted
the officers. Officer White tackled Gerson after Gerson hit Officer Bognuda
in the face, causing the men to fall. Gerson then placed Officer White in a
chokehold. As Gerson choked him, Officer White expressed fear that he
would be rendered unconscious and seriously injured.
After Officer Bognuda struck Gerson in the head with her baton,
Gerson finally released Officer White. As Officer White gasped for breath,
Gerson threatened to “kill” and “murder” him. When Gerson made these
threats Officer White expressed concern for his safety thinking that Gerson
might come after him with more force as he tried to catch his breath. Gerson
then did exactly what Officer White feared.
35
Less than three minutes after making his threats, Gerson came outside
with a semiautomatic handgun and attempted to rack a bullet into the
chamber. The argument that Officer White did not experience sustained fear
because Officer Bognuda was with him and other officers were on the way is
incredible given the totality of the circumstances. This record also supports a
conclusion that Officer White’s fear was objectively reasonable under the
circumstances. Based on the totality of the circumstances, substantial
evidence supports the jury’s implied finding that Officer White was
reasonably in sustained fear for his safety. (§ 422, subd. (a).)
2. The Evidence Supported the Assault on Peace Officer Convictions
Additional Background
SWAT Officers Justin Tennebaum and Brandon Gibson positioned
themselves on the roof of a neighbor’s home. In the meantime, Gerson had
gone back inside his house to a room where he ingested mushrooms, inhaled
nitrous oxide, and chanted. The two officers watched the window of Gerson’s
home where Gerson was located. The window was open about six to eight
inches. Officer Tennebaum could hear noises coming from the room and a
male voice chanting or singing.
At some point, Gerson fired a shot from the room. Officer Gibson
testified that Gerson had his gun pointed toward him and his partner.
Officer Gibson then saw the vertical blinds on the window part and believed
Gerson intended to fire more shots. A gunfight ensued as the sniper officers
began shooting towards the window while Gerson fired back. Based on the
muzzle flashes from Gerson’s gun, both officers believed that Gerson had his
gun pointed at them. Officer Tennebaum was one hundred percent certain
that he and his partner were being shot at and feared for both of their lives.
36
Gerson fired all eight rounds from his handgun The two SWAT officers fired
approximately 48 shots.
A police criminalist testified that the weapon Gerson fired at the
officers ejects expended shell casings a distance of seven to 14 feet to the
right and over the shooter’s right shoulder. Police found eight expended shell
casings in the room where Gerson was located. The criminalist analyzed the
trajectory of the bullets that Gerson fired. Four bullets hit the neighboring
house where the two SWAT officers were positioned, two shots hit the fence
between the two houses, and there was no information for the remaining two
shots. The police criminalist believed that these two shots went over the roof
where the officers were located.
The four bullets that hit the neighbor’s home landed over twenty feet
away from Officer Gibson’s location. The police criminalist did not know
Gerson’s location inside the room when Gerson fired his gun. The shell
casings from Gerson’s gun were found in the back corner of the room. The
police criminalist concluded that Gerson was in a place where the two SWAT
officers could not shoot him.
Gerson hired a criminalist who specializes in firearms-related matters
and crime scene re-creation. The defense criminalist agreed with the police
criminalist’s conclusion that Gerson had positioned himself in the back corner
of the room based on the trajectories of the bullets going into and out of the
room and the location of the expended shell casings. The defense criminalist
opined that a person standing near the window and the wall containing the
window, particularly anyone looking through the blinds on the window,
would have been hit by incoming bullets.
The defense criminalist opined that it was impossible for Officer
Tennebaum to have seen a muzzle flash coming directly at him from the
37
room. Nor did Officer Gibson see a muzzle flash. The defense criminalist
noted that the room had a mirror that would have reflected the muzzle
flashes of a gun discharged in the room. He believed that the SWAT officers
saw the movement of the blinds on the window and the reflection of a muzzle
blast off the mirror in the room. Based on his re-creation and the location of
the shots fired by Gerson, the defense criminalist did not believe Gerson
could have shot either SWAT officer.
Analysis
Citing People v. Chance (2008) 44 Cal.4th 1164 (Chance), Gerson
contends that his convictions for assault on a peace officer with a
semiautomatic weapon must be reversed because the record does not contain
substantial evidence showing that he had the present ability to commit a
violent injury on the two SWAT officers. He asserts that the evidence shows
he fired his gun from a position inside the house in which it was impossible
for him to harm the officers. Thus, at the time he fired the shots, he had no
ability to injure them.
To sustain a conviction for assaulting a peace officer with a
semiautomatic firearm, the prosecution had to prove, among other things,
that “[w]hen [Gerson] acted, he had the present ability to apply force with a
semiautomatic firearm to a person.” (§ 245, subd. (d)(2); CALCRIM No. 860.)
Section 240 provides: “An assault is an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of another.” (Italics
added.)
In Chance, supra, 44 Cal.4th 1164, the Supreme Court considered the
actus reus required for assault, specifically, what is required for a defendant
to have the “ ‘present ability’ to inflict injury” necessary to prove an assault
under section 240. (Chance, at pp. 1167, 1171.) The court concluded that the
38
defendant in Chance had the present ability to inflict injury on a police officer
even though the defendant pointed his gun in the wrong direction (incorrectly
believing the officer was in front of him, although the officer had moved
behind him), the defendant could not fire his gun until he moved a new round
into the firing chamber, and the officer would have shot the defendant first if
he had changed direction. (Id. at pp. 1168-1169, 1173, 1176.)
The Chance court explained that the “present ability” element “is
satisfied when ‘a defendant has attained the means and location to strike
immediately.’ [Citations.] In this context, however, ‘immediately’ does not
mean ‘instantaneously.’ It simply means that the defendant must have the
ability to inflict injury on the present occasion. Numerous California cases
establish that an assault may be committed even if the defendant is several
steps away from actually inflicting injury, or if the victim is in a protected
position so that injury would not be ‘immediate,’ in the strictest sense of that
term.” (Chance, supra, 44 Cal.4th at p. 1168, fn. omitted.) “[W]hen a
defendant equips and positions himself to carry out a battery, he has the
‘present ability’ required by section 240 if he is capable of inflicting injury on
the given occasion, even if some steps remain to be taken, and even if the
victim or the surrounding circumstances thwart the infliction of injury.” (Id.
at p. 1172.)
Contrary to Gerson’s assertion, the evidence adequately establishes
that the two SWAT officers were within his firing range. Gerson fired eight
rounds through the window and in the direction of the two officers. Four of
Gerson’s shots hit the house where the officers were located. Both officers
believed that Gerson’s actions endangered their lives. Gerson’s position in
the back of the room provided him the means and location to strike
immediately; thus, he had the present ability to injure. (Chance, supra, 44
39
Cal.4th at p. 1174.) That external circumstances may have doomed his
assault to failure did not negate his present ability to commit an assault.
(Ibid. [An intended victim’s “ ‘effective steps to avoid injury has never been
held to negate this “present ability.” ’ ”]; see also People v. Raviart (2001) 93
Cal.App.4th 258, 267 [“[T]he fact that [the target] may have been sheltered,
in whole or in part, by [a] building did not preclude [a] jury from finding
defendant had the present ability to injure him.”]; People v. Valdez (1985) 175
Cal.App.3d 103, 106, 112 [affirming assault conviction for defendant who
fired a gun at a gas station attendant sheltered behind a bulletproof
window].)
In sum, substantial evidence supports the jury’s finding that Gerson
was guilty of assault with a semiautomatic weapon.
IV. ALLEGED VIOLATION OF SECTION 654
A. Additional Background
The jury found Gerson guilty of a series of crimes directed toward
Officer White, including: assault by means of force likely to produce great
bodily injury for placing Officer White in a chokehold (count 6); threatening
to kill or murder Officer White after releasing him from the chokehold (count
7); exhibiting a firearm to resist arrest when he exited his house with an
unloaded gun that he attempted to rack several times (count 8); and resisting
Officer White using force or violence by placing Officer White in a chokehold
(count 10). The trial court stayed the sentence on count 10 and imposed
consecutive terms of one year and four months on count 6, eight months on
count 7 and one year on count 8.
B. Analysis
Gerson contends that his sentences on counts 7 (criminal threats) and 8
(exhibiting a firearm) must be stayed under section 654 because his objective
40
for these counts and counts 6 (assault likely to produce great bodily injury)
and 10 (resisting an officer using force) was to prevent the officers from
arresting him. To that end, he assaulted and threatened Officer White,
exhibited a firearm, and resisted Officer White. He argues that the trial
court correctly stayed sentence on the resisting count but that it erred when
it failed to stay counts 7 and 8 for making a criminal threat and exhibiting a
firearm. The People contend that while Gerson’s grand scheme may have
been to avoid arrest, counts 7 and 8 are based on separate acts and entailed
sufficiently separate intents and objectives. We agree with the People.
Section 654 is intended to ensure that the defendant is punished
commensurate with his or her culpability. (People v. Harrison (1989)
48 Cal.3d 321, 335.) The defendant’s intent and objective, not the temporal
proximity of his or her offenses, determines whether multiple punishment is
permissible. (Ibid.) When section 654 prohibits multiple punishments, the
trial court must stay execution of sentence on the convictions that implicate
multiple punishments. (People v. Correa (2012) 54 Cal.4th 331, 337.)
“Whether a defendant may be subjected to multiple punishment under
section 654 requires a two-step inquiry, because the statutory reference to an
‘act or omission’ may include not only a discrete physical act but also a course
of conduct encompassing several acts pursued with a single objective.
[Citations.] We first consider if the different crimes were completed by a
‘single physical act.’ [Citation.] If so, the defendant may not be punished
more than once for that act. Only if we conclude that the case involves more
than a single act—i.e., a course of conduct—do we then consider whether that
course of conduct reflects a single ‘ “intent and objective” ’ or multiple intents
and objectives. [Citations.] At step one, courts examine the facts of the case
to determine whether multiple convictions are based upon a single physical
41
act. [Citation.] When those facts are undisputed . . . the application of
section 654 raises a question of law we review de novo.” (People v. Corpening
(2016) 2 Cal.5th 307, 311-312 (Corpening).)
“ ‘ “Whether a course of criminal conduct is divisible and therefore gives
rise to more than one act within the meaning of section 654 depends on the
intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses not for
more than one.” [Citation.]’ [Citation.] If the court makes no express
findings on the issue, as happened here, a finding that the crimes were
divisible is implicit in the judgment and must be upheld if supported by
substantial evidence. [Citation.] Thus, ‘[w]e review the trial court’s findings
“in a light most favorable to the respondent and presume in support of the
order the existence of every fact the trier could reasonably deduce from the
evidence.” ’ ” (People v. Lopez (2011) 198 Cal.App.4th 698, 717 (Lopez).)
“We first consider if the different crimes were completed by a ‘single
physical act.’ ” (Corpening, supra, 2 Cal.5th at p. 311.) Gerson and the
People agree that the assault, criminal threats, and exhibiting a firearm
counts constituted separate acts. We concur that this case involves a course
of conduct, rather than a single physical act. We next “consider whether that
course of conduct reflects a single ‘ “intent and objective” ’ or multiple intents
and objectives.” (Ibid.) “Under section 654, a course of conduct divisible in
time, though directed to one objective, may give rise to multiple convictions
and multiple punishment ‘where the offenses are temporally separated in
such a way as to afford the defendant opportunity to reflect and renew his or
her intent before committing the next one, thereby aggravating the violation
of public security or policy already undertaken.’ ” (Lopez, supra, 198
Cal.App.4th at pp. 717-718.)
42
The trial court impliedly found that Gerson’s course of conduct reflected
multiple intents and objectives. The record supports this determination.
Count 6 pertained to Gerson’s assault on Officer White, including
putting him in a chokehold. The assault ended when Officer Bognuda hit
Gerson in the head with her baton, which caused Gerson to immediately
release his chokehold on Officer White. After releasing his chokehold, Gerson
committed count 7 when he threatened to kill and murder Officer White.
Gerson then retreated into his house only to come back outside with a
handgun to presumably implement his threats and commit count 8. This
evidence supports findings of separate intents and objectives and does not
compel a conclusion there was an indivisible course of conduct, or that
Gerson’s offenses were committed as a means of facilitating the single
objective of avoiding arrest.
Even if Gerson committed the crimes with the same intent or objective,
the trial court’s implied finding can be affirmed on the alternative basis that
Gerson had adequate time to reflect on his actions. The evidence allows a
reasonable deduction that Gerson’s offenses were “ ‘temporally separated in
such a way as to afford [him the] opportunity to reflect and renew his [ ]
intent before committing the next one, thereby aggravating the violation of
public security or policy already undertaken.’ ” (Lopez, supra, 198
Cal.App.4th at pp. 717-718.)
We therefore conclude that substantial evidence supported multiple
punishment for Gerson’s separate acts of threatening Officer White’s life and
exhibiting a firearm to Officer White. Thus, the trial court did not err by its
implied finding that section 654 did not apply to counts 7 and 8.
43
V. GERSON IS ENTITLED TO CUSTODY OR CONDUCT CREDITS
FOR THE TIME HE SPENT RELEASED ON BAIL
A. Additional Background
The trial court set Gerson’s bail at $2 million on the condition that he
wear a GPS monitoring device and be admitted to a locked hospital unit for
treatment and evaluation. Gerson was then treated at Alvarado. While
there, he was not allowed to leave the premises and wore a GPS device. After
the trial court modified Gerson’s bail conditions, he transferred from
Alvarado to Casa Palmera. The court required Gerson to wear a GPS
monitoring device and subjected him to a Fourth Amendment waiver. Gerson
was then discharged to home detention with a GPS device and subject to
other conditions. Gerson’s home detention lasted from August 4, 2017, to
April 4, 2019.17
Prior to sentencing, Gerson sought custody and conduct credits for the
time he spent at Alvarado and Casa Palmera, and his time on home detention
while out on bail. The prosecutor agreed that Gerson was entitled to custody
and conduct credit for his time at Alvarado and Casa Palmera. The trial
court awarded Gerson custody credits for those days but concluded that he
was not entitled to credit for his time at home on bail finding that home
17 While on home detention, the trial court reduced Gerson’s bail to
$1 million and his conditions changed over time. Initially, the court allowed
him 90 minutes per day to do personal errands but required that he be
accompanied by a responsible adult. The court then ordered him to
surrender his passport, remain on GPS monitoring, abstain from alcohol,
regularly drug test, and attend psychological counseling. Eventually, the
court allowed him to work between 7 a.m. and 6 p.m. He was later allowed to
work until 8:30 p.m. on Wednesdays and spend three nights a week at his
girlfriend’s home. He remained subject to a curfew, wore a GPS device and
was subject to a Fourth Amendment waiver.
44
detention was not a “custodial environment” similar to county jail, Alvarado,
or Casa Palmera.
B. Custody Credits
Preconviction custody credits are governed by section 2900.5,
subdivision (a), which provides in relevant part that “[i]n all felony and
misdemeanor convictions, either by plea or by verdict, . . . all days of custody
of the defendant, including . . . days served in home detention pursuant to
Section 1203.016 or 1203.018, shall be credited upon his or her term of
imprisonment. . . .” Section 1203.016 governs home detention postsentencing
and section 1203.018 extends the same conditions and privileges to a home
detention program prior to sentencing. (People v. Yanez (2019) 42
Cal.App.5th 91, 93-94 (Yanez).) The conditions of electronic home detention
under sections 1203.016 and 1203.018 are “substantially similar.” (Yanez, at
p. 94.) Under the version of section 1203.018 in effect when Gerson was
sentenced, “the board of supervisors of any county” may “offer a program
under which inmates being held in lieu of bail in a county jail or other county
correctional facility may participate in an electronic monitoring program” if
specified statutory conditions are met. (Id., subds. (a) & (b), italics added.)
Section 1203.018 leaves the terms of the electronic monitoring program
to the discretion of county authorities, but provides that the rules and
regulations of the program must require that the participant “remain within
the interior premises of his or her residence during the hours designated by
the correctional administrator” and “admit any person or agent designated by
the correctional administrator into his or her residence at any time for
purposes of verifying the participant’s compliance with the conditions of his
or her detention.” (Former § 1203.018, subds. (d)(1) & (d)(2).) The statute
allows for the use of “global positioning system devices or other supervising
45
devices for the purpose of helping to verify the participant’s compliance with
the rules and regulations of the electronic monitoring program.” (Former
§ 1203.018, subd. (d)(3).)18
The plain language of section 2900.5 provides that Gerson may receive
custody credit for periods in home detention prior to sentencing only if the
home detention complies with section 1203.018. Gerson candidly admits that
the record does not support a conclusion that he was on a home detention
program within the meaning of section 1203.018. Instead, Gerson argues
entitlement to additional preconviction custody credits under People v.
Lapaille (1993) 15 Cal.App.4th 1159 (Lapaille). Assuming we reject this
argument, he asserts that awarding preconviction custody credits to persons
who participate in electronic monitoring programs pursuant to section
1203.018, while denying preconviction custody credits to persons such as
himself, subject to electronic monitoring on home detention while on bail,
violates his right to equal protection.
We find that Lapaille, supra, 15 Cal.App.4th 1159 is of limited value to
Gerson because it was decided before the enactment of section 1203.018, at a
time when electronic home detention was available only to sentenced inmates,
under the conditions of section 1203.016. (Lapaille, at p. 1165.) Section
1203.018 now extends the same conditions and privileges to pretrial custody.
As Gerson admitted, however, he was not on a home detention program
within the meaning of section 1203.018.
Turning to Gerson’s alternative argument, he notes that persons who
participate in electronic monitoring programs pursuant to section 1203.018
18 The current version of section 1203.018 is substantively similar to the
former version.
46
are entitled to preconviction custody credits, while persons on home detention
and subject to electronic monitoring while on bail, such as himself, are not.
In other words, Gerson argues that he is similarly situated to a person
participating in an electronic monitoring program pursuant to section
1203.018 and thus should be entitled to preconviction custody credits on
equal protection grounds. We agree.
“Equal protection requires the state to treat similarly situated persons
alike, with some exceptions in which the disparate treatment is sufficiently
related to the purpose of the [law] in question.” (People v. Jacobs (1992) 6
Cal.App.4th 101, 103.) The similarly situated inquiry examines whether two
groups are similarly situated for purposes of the law challenged, not whether
they are similarly situated for all purposes. (People v. McKee (2010) 47
Cal.4th 1172, 1202 (McKee).) The threshold question is “whether two classes
that are different in some respects are sufficiently similar with respect to the
laws in question to require the government to justify its differential
treatment of these classes under those laws.” (Ibid.) “If persons are not
similarly situated for purposes of the law, an equal protection claim fails at
the threshold.” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
To show that persons such as himself who are out on bail and subject to
electronic monitoring are similarly situated to persons participating in an
electronic monitoring program pursuant to section 1203.018, Gerson must
establish that the terms of his release were as “custodial, or restraining” as a
statutory home detention program pursuant to section 1203.018. (See
Lapaille, supra, 15 Cal.App.4th at pp. 1163, 1169 [“[I]n order to compare
persons confined to their homes under electronic surveillance, and thus
eligible for home detention program credit pursuant to current section
2900.5, subdivision (a), with defendant, who was confined to preconviction
47
house arrest as a condition of [his release on his own recognizance], for
purposes of applying the equal protection clauses, we must determine
whether his confinement to his home was as custodial, or restraining, as are
those confined subject to electronic tracking.”].)
Subdivision (d) of former section 1203.018 provides that participants in
a home detention program must comply with the rules of the program,
including the following: (1) remaining within the interior premises of his or
her residence during the hours designated by the correctional administrator;
(2) admitting persons into his or her residence at any time for purposes of
verifying compliance with the conditions of his or her detention; and (3) a
GPS device or other supervising device. Here, the record shows that Gerson
was required to remain in his home during the hours designated by the court,
wear a GPS device, and was subject to a Fourth Amendment waiver.
Because Gerson’s home detention satisfied the statutory requirements, we
conclude that the terms of his release were at least as “custodial, or
restraining” as a statutory home detention program pursuant to section
1203.018. (See Lapaille, supra, 15 Cal.App.4th at pp. 1163, 1169.) Thus,
Gerson is similarly situated to persons participating in an electronic
monitoring program pursuant to section 1203.018, yet he is being treated
differently.19
19 We reject the People’s argument that Gerson is not similarly situated to
defendants on home detention under section 1203.018 because he posted bail
and defendants on home detention under 1203.018 did not. As Gerson aptly
notes, entitlement to custody credits under section 2900.5 is related to a
defendant’s days in custody and not whether a defendant posted bail.
(§ 2900.5, subd. (a); McKee, supra, 47 Cal.4th at p. 1202 [two groups must be
similarly situated for purposes of the law challenged, not for all purposes].)
48
Once it is determined that two groups are similarly situated for the
purposes of a statute, we then ask whether disparate treatment of the groups
is justified. (McKee, supra, 47 Cal.4th at p. 1207.) Where, as here, the
legislative classification does not reach a suspect class or fundamental right,
the classification does not violate equal protection if it bears a rational
relationship to a legitimate public purpose. (People v. Hofsheier (2006) 37
Cal.4th 1185, 1200-1201, overruled on another ground in Johnson v.
Department of Justice (2015) 60 Cal.4th 871, 888.)
Under this standard, “equal protection of the law is denied only where
there is no ‘rational relationship between the disparity of treatment and some
legitimate governmental purpose.’ ” (People v. Turnage (2012) 55 Cal.4th 62,
74.) “In other words, the legislation survives constitutional scrutiny as long
as there is ‘ “any reasonably conceivable state of facts that could provide a
rational basis for the classification.” ’ [Citation.] This standard of rationality
does not depend upon whether lawmakers ever actually articulated the
purpose they sought to achieve. Nor must the underlying rationale be
empirically substantiated. [Citation.] While the realities of the subject
matter cannot be completely ignored [citation], a court may engage in
‘ “rational speculation” ’ as to the justifications for the legislative choice
[citation]. It is immaterial for rational basis review ‘whether or not’ any such
speculation has ‘a foundation in the record.’ ” (Id. at pp. 74-75.)
The People have not attempted to justify treating individuals such as
Gerson released on bail and ordered by a court to home detention with
electronic monitoring different from individuals participating in an electronic
monitoring program pursuant to section 1203.018. Even speculating, we
cannot discern a rational basis for treating an individual, such as Gerson,
who is out on bail and subject to electronic monitoring different from an
49
individual participating in an electronic monitoring program pursuant to
section 1203.018. Both categories of individuals are subjected to similarly
restrictive home detention conditions and both are avoiding spending time in
jail or other local custody.
Denying a defendant preconviction custody credit for days spent subject
to electronic monitoring on “home detention based on the manner in which he
or she came to participate in the program would elevate form over substance;
the focus is properly on whether the placement met certain custodial
conditions and standards, not the procedure by which the defendant was
placed.” (People v. Raygoza (2016) 2 Cal.App.5th 593, 601, italics added.) If
the defendant’s custody conditions satisfy the statutory minimum conditions,
there is no basis to deny credit to the defendant while granting it to others
subject to similar custody conditions. As the Raygoza court observed in a
footnote that cited Lapaille, supra, 15 Cal.App.4th 1159, “A statute that
precludes similarly detained defendants from receiving similar custody credit
raises serious constitutional concerns.” (Raygoza, at p. 602, fn. 4.)
Accordingly, we hold that Gerson is entitled to 608 days of custody
credit for preconviction custody pursuant to section 2900.5, subdivision (a)
under the state and federal equal protection clauses.
C. Conduct Credits
Gerson also contends that he is entitled to additional conduct credit
under section 4019 for his time on home detention. In addition to actual
custody credit under section 2900.5, “section 4019 . . . offer[s] prisoners in
local custody the opportunity to earn ‘conduct credit’ against their sentences
for good behavior.” (People v. Brown (2012) 54 Cal.4th 314, 317, fn. omitted.)
Section 4019 applies in various circumstances, including “[w]hen a prisoner
participates in a program pursuant to Section 1203.016 . . . .” (§ 4019, subd.
50
(a)(7).) Although section 4019 expressly authorizes conduct credit for
defendants participating in a postsentencing electronic home detention
program under section 1203.016, section 4019 does not expressly address
defendants participating in a presentencing electronic home detention
program under section 1203.018.
In Yanez, the appellate court held that, because defendants are
statutorily eligible for conduct credit if they are placed on electronic home
detention after imposition of sentence (see §§ 1203.016, 4019, subd. (a)(7)), it
violates equal protection to deny eligibility for conduct credit for time spent
on electronic home detention prior to sentencing (see § 1203.018). (Yanez,
supra, 42 Cal.App.5th at p. 93.) Gerson argues that because he has shown
entitlement to custody credits under the equal protection clause even though
he was not on a home detention program under section 1203.018, he is
similarly entitled to conduct credits under Yanez, even though he was not on
a home detention program under section 1203.018.
As we discussed, Gerson has shown entitlement to custody credits
under the equal protection clause. Accordingly, under Yanez, supra, 42
Cal.App.5th 91, to the extent Gerson is entitled to receive preconviction
section 2900.5 custody credits, he is also entitled to 91 days of preconviction
section 4019 conduct credit for his time spent in preconviction home
detention as a matter of equal protection. (Yanez, at p. 100.)
VI. MOTION TO RECALL THE REMITTITUR
A. Recalling the Remittitur Is Appropriate Under the Circumstances
In 2019, the trial court sentenced Gerson to a total term of 33 years
eight months in prison. As part of that sentence, the trial court imposed the
middle term on Counts 3 and 4 (assaulting two peace officers with a
semiautomatic firearm). While this appeal was pending, Assembly Bill 124
51
amended section 1170 to require the sentencing court to impose a lower term
where trauma experienced by the defendant contributed to the offense and
the court concludes aggravating circumstances did not outweigh mitigating
circumstances. Gerson contends he suffered physical trauma as a result of
being hit by a baton multiple times and this trauma was “a contributing
factor in the commission” of the assaults.
Gerson now seeks to recall the remittitur issued on April 26, 2022,
claiming ineffective assistance of appellate counsel in failing to file a
supplemental brief or a petition for rehearing requesting a remand for
resentencing based on Assembly Bill 124. Gerson argues because physical
trauma contributed to the assault, and it would not be “contrary to the
interest of justice” to impose the lower term, the court was required to impose
the lower term of five years, instead of the seven years the court imposed at
sentencing on Count 3, the principal term.
The People oppose the motion, arguing that the proper route to obtain
relief on Gerson’s ineffective assistance of counsel claim is through a petition
for writ of habeas corpus, not the “obscure and constrained method of moving
for recall of the remittitur.” The People also contend that Assembly Bill 124
does not benefit Gerson because the trial court already considered Gerson’s
mental health at the sentencing hearing, thus counsel was not ineffective for
failing to subsequently raise the issue.
We agree that Gerson could have filed a petition for a writ of habeas
corpus to raise his claim of ineffective assistance of counsel, but we disagree
that this was the only remedy available to him. For good cause, a remittitur
may be recalled (Cal. Rules of Court, rule 8.272(c)(2)) and, other than to
correct clerical errors, a remittitur may be recalled “on the ground of fraud,
mistake, or inadvertence.” (Pacific Legal Foundation v. California Coastal
52
Com. (1982) 33 Cal.3d 158, 165, italics added.) As our high court noted in
People v. Mutch (1971) 4 Cal.3d 389, a remittitur may be recalled when an
error of law “is of such dimensions as to entitle the defendant to a writ of
habeas corpus.” (Id. at p. 396.) Likewise in People v. Rhoden (1972) 6 Cal.3d
519, 521, 529, on an application to recall the remittitur, the California
Supreme Court held that the petitioner was denied his right to effective
counsel on appeal and transferred the matter to the appellate court with
directions to recall its remittitur, vacate its decision, and reinstate the
appeal.
In People v. Lewis (2006) 139 Cal.App.4th 874, the court recalled the
remittitur and vacated the opinion where the basis for affirming the
conviction was later abrogated by the California Supreme Court. (Id. at
p. 879.) Similarly, in People v. Valenzuela (1985) 175 Cal.App.3d 381, the
appellate court granted a motion to recall the remittitur on the ground
defendant was deprived of effective assistance of appellate counsel. (Id. at
p. 394.) And, in People v. Phung (2018) 25 Cal.App.5th 741, the appellate
court recalled a remittitur on the ground that appellate counsel had provided
ineffective assistance of counsel in failing to raise the retroactivity of
Proposition 57 to his case. (Phung, at p. 747.) The circumstances here are
similar to those in Valenzuela and Phung.
In arguing against recalling the remittitur, the People cited In re
Richardson (2011) 196 Cal.App.4th 647, which addressed a habeas petition
alleging, among other things, that petitioner suffered ineffective assistance of
counsel when his appellate counsel failed to seek recall of the remittitur after
the California Supreme Court issued an opinion that changed the law on an
issue. (Id. at p. 656.) In Richardson, however, the appellate court issued its
opinion affirming the judgment in August 2006, issued its remittitur on
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December 4, 2006, and a week later, the Supreme Court on December 11,
2006, issued an opinion that cast a shadow on one of the appellate court’s
rulings. (Id. at p. 654.) Thus, the change in the law occurred after the
opinion was final and did not result from ineffective assistance of counsel in
failing to raise the issue. (Id. at pp. 664-665.) Richardson is distinguishable.
The next question is whether Gerson’s appellate counsel provided
ineffective assistance to warrant the remedy of recalling the remittitur.
“ ‘[T]o demonstrate ineffective assistance of counsel, a defendant must first
show counsel’s performance was “deficient” because his [or her]
“representation fell below an objective standard of reasonableness . . . under
prevailing professional norms.” [Citations.] Second, he [or she] must also
show prejudice flowing from counsel’s performance or lack thereof. [Citation.]
Prejudice is shown when there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” ’ ” (In re Harris (1993) 5 Cal.4th 813, 832-833;
Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
“On direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective assistance are more
appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013)
57 Cal.4th 986, 1009.)
To determine whether appellate counsel’s failure to raise an argument
under Assembly Bill 124 “fell below an objective standard of reasonableness,
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and if so, whether the failure resulted in prejudice, we must assess the merits
of that claim.” (In re Hampton (2020) 48 Cal.App.5th 463, 478 (Hampton).)
The Governor signed Assembly Bill 124 on October 8, 2021. This was
after the appeal had been fully briefed and during the period when we
reviewed the matter prior to oral argument. During this time appellate
counsel could have requested permission to file a supplemental opening brief
asking this court to remand Gerson’s case for a new sentencing hearing under
Assembly Bill 124. (See Cal. Rules of Court, rule 8.200(a)(4).) Alternatively,
after we issued the opinion on January 22, 2022, appellate counsel could have
included an issue related to Assembly Bill 124 in the petition for rehearing he
filed on February 14, 2022, but did not do so. In a declaration Gerson’s
counsel filed in support of the motion to recall the remittitur, he admitted
that he was not aware that Assembly Bill 124 might apply to Gerson and that
he had no tactical reason for failing to raise an issue based on Assembly Bill
124. (Hampton, supra, 48 Cal.App.5th at p. 477 [“where appellate counsel
fails to raise ‘a significant and obvious issue,’ the failure will generally be
considered deficient performance under Strickland, supra, 466 U.S. 668”].)
The People do not challenge Gerson’s argument that it was objectively
unreasonable for his appellate counsel to fail to file a supplemental brief
addressing Assembly Bill 124, or a petition for rehearing requesting remand
for resentencing under Assembly Bill 124. Rather, the People contend
Gerson’s appellate counsel cannot establish he was ineffective for failing to
raise Assembly Bill 124 because Gerson suffered no prejudice in that the
result would not be different under Assembly Bill 124. Specifically, the
People assert that a remand is unnecessary because the trial court considered
Gerson’s alleged mental health disorder when sentencing him and the result
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would have been the same had Assembly Bill 124 been in effect at the time of
sentencing. As we shall explain, we disagree.
B. Gerson Is Entitled to Resentencing Under Assembly Bill 124
The Governor signed Assembly Bill 124 while this appeal was pending,
and it became effective on January 1, 2022. (Stats. 2021, ch. 695, § 5.3.)
Assembly Bill 124 applies retroactively to nonfinal cases on direct appeal.
(Banner, supra, 77 Cal.App.5th at p. 240); People v. Vieira (2005) 35 Cal.4th
264, 305-306 [a judgment becomes final when the time for petitioning for a
writ of certiorari in the United States Supreme Court has passed]; see U.S.
Supreme Ct. Rule 13(1) [providing ninety days from the date of the entry of
the final judgment in the highest state appellate court to petition the
Supreme Court for a writ of certiorari].)
Assembly Bill 124 made a low-term sentence presumptively
appropriate under specified circumstances, including where the defendant’s
experience of psychological or physical trauma was a “contributing factor” to
the defendant’s commission of the offense. (§ 1170, subd. (b)(6)(A).) Where
the presumption applies, the trial court may impose a higher sentence if it
finds “the aggravating circumstances outweigh the mitigating circumstances
[so] that imposition of the lower term would be contrary to the interests of
justice.” (§ 1170, subd. (b)(6).) Even where the presumption does not apply
because there is no evidence that the circumstances listed in paragraph (6)
are present, the trial court retains discretion to impose the lower term.
(§ 1170, subd. (b)(7).)
Remand for resentencing is required in this case “unless the record
‘clearly indicate[s]’ that the trial court would have reached the same
conclusion ‘even if it had been aware that it had such discretion.’ ” (People
v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) This is because defendants are
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“ ‘entitled to sentencing decisions made in the exercise of the “informed
discretion” of the sentencing court.’ ” (Ibid.) A court that is not aware of the
scope of its discretionary powers cannot exercise that “informed discretion”
any more than a court whose sentence may have been based on
misinformation regarding a material aspect of the defendant’s record. (Ibid.)
We reject the People’s assertion that the record clearly indicates the
trial court would have imposed the same sentence had Assembly Bill 124
been in effect at the time of sentencing. The probation report, prepared in
July 2019, well before the language of Assembly Bill 124 was introduced on
December 18, 2020, notes that Gerson has diagnosed mental disorders and
suffered a traumatic brain injury during the incident. However, at the time
of Gerson’s sentencing in 2019, the trial court had no statutory reason to
make, and Gerson had no reason to seek, a finding that past psychological or
physical trauma was a contributing factor to his commission of any of his
offenses. (§ 1170, subd. (b)(6)(A).) “[P]sychological trauma based on mental
illness may be a circumstance qualifying for the lower term presumption in
section 1170, subdivision (b)(6).” (Banner, supra, 77 Cal.App.5th at p. 241.)20
Additionally, even if the trial court were to find no evidence that the
circumstances listed in paragraph (6) are present, it nonetheless retains
discretion to impose the lower term. (§ 1170, subd. (b)(7).)
20 We also reject the People’s argument that a remand would be futile
because Gerson’s probation report listed three aggravating circumstances
and only one mitigating circumstance. Subdivision (b)(6) of section 1170
requires that “the aggravating circumstances outweigh the mitigating
circumstances” but also that “imposition of the lower term would be contrary
to the interests of justice.” The parties did not argue this point and the trial
court was not called upon to make such a finding during Gerson’s 2019
sentencing hearing.
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Accordingly, Gerson’s sentence is vacated. On remand, the trial court
may fully resentence Gerson anew, incorporating the new legislative changes.
(See People v. Buycks (2018) 5 Cal.5th 857, 893; People v. Valenzuela (2019)
7 Cal.5th 415, 424-425 [“[T]he full resentencing rule allows a court to revisit
all prior sentencing decisions when resentencing a defendant.”].) We express
no view as to how the trial court should exercise its discretion on remand.
DISPOSITION
We direct the trial court to award Gerson 608 additional days of
preconviction custody credit (§ 2900.5, subd. (a)) and 91 additional days of
preconviction conduct credit (§ 4019). Gerson’s sentence is vacated and the
matter is remanded for resentencing under Assembly Bill 124. After
resentencing, the clerk of the superior court is directed to amend the abstract of
judgment accordingly and forward a copy of the amended abstract of judgment
to the Department of Corrections and Rehabilitation. As modified, the judgment
is affirmed.
Upon issuance of the remittitur, the clerk is directed to forward a copy of
this opinion and the order granting Gerson’s request to recall the remittitur to
the State Bar of California. (Bus. & Prof. Code, § 6086.7, subd. (a)(2).)
HALLER, Acting P. J.
WE CONCUR:
DATO, J.
DO, J.
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