83 Cal.App.5th 394
Cal. Ct. App.2022Background
- Defendants participated in an armed robbery of a nail salon and fled in a high‑speed pursuit; victims identified multiple perpetrators. Fuller was convicted by jury; Tresvant pled guilty after a competency proceeding.
- The jury found firearm enhancements under Penal Code § 12022.53(b) true (and Tresvant admitted the same); the trial court declined to strike those enhancements and imposed lengthy prison terms (Fuller: aggregate 32 years 4 months; Tresvant: 14 years).
- Prior appellate proceedings were affected by Supreme Court review; the matter was transferred back to the Court of Appeal for reconsideration in light of People v. Tirado (2022). The parties also briefed the retroactive effect of Senate Bill No. 567 (amending § 1170).
- At trial Tresvant raised incompetency; a directed verdict found her competent. She later sought pretrial mental‑health diversion under § 1001.36, which the court denied as to two threshold requirements.
- On remand the Court of Appeal held: (1) the directed verdict on competency was proper; (2) the court did not abuse discretion denying prima facie diversion; (3) because SB 567 applied retroactively, resentencing on count 1 is required; and (4) under Tirado the sentencing court may consider imposing uncharged lesser firearm enhancements under § 12022.5(a) after striking § 12022.53 enhancements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Was the directed verdict finding Tresvant competent proper? | People: defense expert retracted his initial incompetence opinion; no substantial evidence of incompetence. | Tresvant: Dr. Jones initially opined she was incompetent; jury could have found incompetence. | Affirmed — directed verdict appropriate; no substantial, credible evidence of incompetence remained. |
| 2) Did the court err in denying prima facie pretrial diversion under § 1001.36? | People: court permissibly considered all evidence (including record from competency proceedings) and found no prima facie showing on danger and causation. | Tresvant: court should have considered only her uncontradicted offers of proof and found a prima facie case that mental illness significantly contributed. | Affirmed — no abuse of discretion; court reasonably concluded she failed to show her disorder significantly contributed to the offenses. |
| 3) Does SB 567 (amending § 1170) apply retroactively and require resentencing? | People: concede SB 567 applies retroactively but argue remand may be unnecessary. | Defendants: SB 567 applies and trial court never applied new low‑term presumption for youth; remand required. | Vacated the sentences on count 1 and remanded for full resentencing; SB 567 applies retroactively. |
| 4) May a court strike a § 12022.53 enhancement and impose an uncharged lesser enhancement under § 12022.5(a)? | People: Tirado allows imposing only lesser § 12022.53 enhancements, not § 12022.5. | Defendants: Tirado permits imposing an uncharged lesser enhancement from § 12022.5 after striking § 12022.53 enhancement. | Held for defendants — consistent with Tirado, a court may strike a § 12022.53 enhancement and impose an uncharged lesser enhancement (e.g., § 12022.5(a)); remand permits court to consider this. |
Key Cases Cited
- People v. Tirado, 12 Cal.5th 688 (Supreme Court holding trial court may impose uncharged lesser enhancements when facts supporting them are alleged and found true)
- People v. Strickland, 11 Cal.3d 946 (Supreme Court permitting imposition of lesser uncharged enhancement under appropriate circumstances)
- People v. Fialho, 229 Cal.App.4th 1389 (court imposed § 12022.5(a) enhancement after § 12022.53 enhancement issues)
- People v. Flores, 9 Cal.5th 371 (principles on resentencing when ameliorative legislation applies)