74 Cal.App.5th 561
Cal. Ct. App.2022Background
- On Dec. 12, 2016, Hayden Gerson resisted two San Diego police officers, punched and choked one officer, retreated into his home, fired a handgun through a window at SWAT officers, and later choked and bit a police K-9; multiple officers subdued and arrested him.
- A jury convicted Gerson of multiple offenses, including two counts of attempted voluntary manslaughter (lesser of attempted murder), two counts of assault on peace officers with a semiautomatic firearm, shooting at an inhabited dwelling, assault likely to produce great bodily injury, criminal threats, exhibiting a firearm to resist arrest, resisting an executive officer, and interfering with a police animal; various enhancements were found; total term 33 years 8 months.
- Pretrial, Gerson sought diversion under Penal Code §1001.36, claiming bipolar disorder; competing expert testimony attributed his conduct either to endogenous bipolar disorder or to substance-induced symptoms and personality disorder. The trial court denied diversion.
- Gerson also sought a modified unconsciousness jury instruction, challenged sufficiency of evidence for some convictions, argued certain sentences should be stayed under §654, and sought preconviction custody and conduct credits for time on GPS home detention while out on bail.
- The Court of Appeal (published in part) affirmed the judgment as modified: it upheld the denial of diversion, rejected the instructional and sufficiency challenges in unpublished parts, but held Gerson was entitled to 608 days of preconviction custody credit (§2900.5) and 91 days of conduct credit (§4019) for his GPS/home-detention period on equal protection grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of pretrial diversion under §1001.36 (qualifying mental disorder) | People argued Gerson failed to prove a qualifying endogenous bipolar disorder; evidence supported denial. | Gerson argued he met burden showing bipolar disorder with psychotic features qualifying him for diversion. | Affirmed: substantial evidence supported court’s finding that Gerson failed to prove endogenous bipolar disorder; denial not an abuse of discretion. |
| Jury instruction on unconsciousness (CALCRIM No. 3425 modification) | Court/People: standard CALCRIM 3425 adequately covers unconsciousness; additional James language was duplicative and unnecessary. | Gerson sought added language clarifying lack of volitional capacity so jury could consider voluntariness; argued Sixth Amendment right to present complete defense. | Affirmed: trial court properly declined the pinpoint modification; CALCRIM 3425, read with other instructions, was correct and not misleading. |
| Sufficiency of evidence for criminal threats (§422) | People: evidence (threats, chokehold, then retrieving a gun and racking slide) showed threat caused sustained, reasonable fear. | Gerson: Officer White could not have had sustained fear given relative size, presence of backup, and arrest imminence. | Affirmed: substantial evidence supported that Officer White experienced sustained, reasonable fear. |
| Sufficiency of evidence for assault on peace officers with semiautomatic firearm (§245(d)(2)) | People: firing through the window toward SWAT provided means/location to strike immediately; present ability satisfied. | Gerson: shots came from a position that made it impossible to hit officers; thus no present ability. | Affirmed: under Chance, present ability exists where defendant had means/location to strike; evidence supported convictions. |
| §654 stay of sentences for counts intended to prevent arrest (counts 6,7,8,10) | People: counts reflect separate acts/intents (assault, then threat, then exhibiting firearm) permitting separate punishment. | Gerson: the acts shared a single objective—prevent arrest—so multiple punishments violate §654. | Affirmed: court implicitly found divisible conduct and separate intents; substantial evidence supports multiple punishments for counts 7 and 8. |
| Preconviction custody and conduct credits for GPS/home detention while on bail | People: custody/conduct credits apply only to statutorily defined home-detention programs (e.g., §1203.018); Gerson was not on such a program. | Gerson: his GPS/home-detention conditions were at least as custodial as §1203.018 programs; denying credits violates equal protection. | Modified: affirmed judgment but remanded to award 608 days custody credit (§2900.5) and 91 days conduct credit (§4019) based on equal protection (no rational basis to treat him differently). |
Key Cases Cited
- People v. Frahs, 9 Cal.5th 618 (Cal. 2020) (diversion statute requirements and court discretion)
- People v. Chance, 44 Cal.4th 1164 (Cal. 2008) (present ability for assault satisfied when defendant has means and location to strike immediately)
- People v. Hardy, 33 Cal.2d 52 (Cal. 1948) (judicially created presumption that a person who acts conscious is conscious)
- People v. Mathson, 210 Cal.App.4th 1297 (Cal. Ct. App. 2012) (discussion of unconsciousness instruction language and potential confusion)
- People v. Yanez, 42 Cal.App.5th 91 (Cal. Ct. App. 2019) (preconviction home-detention conduct credits under equal protection)
- People v. Lapaille, 15 Cal.App.4th 1159 (Cal. Ct. App. 1993) (pre-§1203.018 home confinement credit analysis)
- People v. Corpening, 2 Cal.5th 307 (Cal. 2016) (section 654 framework: single act vs. divisible course of conduct)