80 Cal.App.5th 1067
Cal. Ct. App.2022Background
- In December 2016 Gerson, while reportedly under the influence of psilocybin, nitrous oxide and cannabis, violently resisted two officers, choked one, threatened to kill him, retrieved a semiautomatic handgun and later engaged in a shootout with two SWAT officers; he also choked and bit a police K‑9 before being subdued.
- A three‑day pretrial hearing produced conflicting expert diagnoses: defense experts diagnosed endogenous bipolar disorder; the court‑appointed and a court psychologist diagnosed substance‑induced symptoms or personality disorder. The trial court denied pretrial mental‑health diversion under Penal Code §1001.36.
- A jury found Gerson guilty of multiple offenses (including attempted voluntary manslaughter as a lesser included of attempted murder, assault on officers with a semiautomatic firearm, criminal threats, exhibiting a firearm to resist arrest, resisting an officer, and harming a police animal) and found him sane; the trial court sentenced him to 33 years 8 months.
- On appeal Gerson challenged denial of diversion, the unconsciousness jury instruction, sufficiency of evidence for certain counts, application of Penal Code §654 to concurrent sentences, and entitlement to custody/conduct credits for time on GPS home detention while released on bail.
- The Court of Appeal (published in part) upheld the denial of diversion (substantial evidence the bipolar diagnosis was unproven), rejected the other substantive appellate claims in unpublished parts, held Gerson was entitled to preconviction custody and conduct credits for his GPS home detention under equal protection principles, and granted a motion to recall the remittitur to remand for resentencing under Assembly Bill 124 (vacating the sentence).
Issues
| Issue | People’s Argument | Gerson’s Argument | Held |
|---|---|---|---|
| Denial of pretrial diversion (§1001.36) | Trial court correctly found Gerson failed to prove he suffered endogenous bipolar disorder and posed risk; denial was discretionary and supported by substantial evidence. | He met the burden to show bipolar disorder qualifying for diversion; denial was an abuse of discretion. | Affirmed: substantial evidence supported denial because experts and objective testing (MMPI) supported personality/disorder and substance‑induced explanation. |
| Unconsciousness jury instruction (CALCRIM No. 3425) — request to add James language on volitional capacity | Instruction as given adequately covered unconsciousness and burden of proof; defendant forfeited specific objection. | Trial court should have amplified instruction to stress lack of volitional capacity and allow full defense. | Denied: CALCRIM No. 3425 properly addressed awareness/volition; added wording would be duplicative; any claim forfeited and, in any event, evidence showed goal‑directed conduct. |
| Sufficiency of evidence — assault on SWAT officers with semiautomatic firearm and criminal threats | Substantial evidence showed Gerson fired toward officers and had present ability; threats caused sustained fear. | He lacked ability to injure SWAT officers from his interior position; threats did not cause sustained fear. | Affirmed: Chance doctrine supports present ability where defendant had means/location to strike; circumstances supported sustained fear for threats. |
| Application of Penal Code §654 to sentences for assault/threat/exhibiting firearm | Counts involved separate acts and intents (assault, then threats, then exhibiting a gun) so multiple punishment permissible. | Sentences for counts 7 and 8 should have been stayed because all acts had single objective (prevent arrest). | Affirmed: acts were temporally and functionally distinct, permitting multiple punishments; trial court’s implied finding supported by substantial evidence. |
| Custody and conduct credits for GPS home detention while released on bail | Credits limited to statutory home‑detention programs (§1203.018); Gerson wasn’t in such a program so no credit. | His GPS‑monitored home detention was substantially similar to §1203.018 programs; denying credits violates equal protection. | Remanded to award credits: court held Gerson similarly situated to §1203.018 participants and no rational basis justified disparate treatment; awarded 608 days custody credit (§2900.5) and 91 days conduct credit (§4019). |
| Recall of remittitur / resentencing under Assembly Bill 124 | People argued recall not appropriate and remand unnecessary because trial court already considered mental health; appellate counsel’s omission wasn’t prejudicial. | Appellate counsel was ineffective for failing to seek remand under AB 124; AB 124 makes low term presumptive when trauma contributed to offense, so remand required. | Granted: remittitur recalled; sentence vacated and remanded for resentencing so trial court can exercise discretion under AB 124. |
Key Cases Cited
- People v. Frahs, 9 Cal.5th 618 (2020) (discusses statutory diversion scheme and court’s discretion under §1001.36)
- People v. Chance, 44 Cal.4th 1164 (2008) (defines "present ability" to commit assault and when external factors do not negate present ability)
- People v. Hardy, 33 Cal.2d 52 (1948) (judicially created presumption that one who acts conscious is conscious)
- People v. Mathson, 210 Cal.App.4th 1297 (2012) (critique of prior CALCRIM language on unconsciousness; discusses appropriate instruction wording)
- People v. Yanez, 42 Cal.App.5th 91 (2019) (held equal protection requires awarding conduct credits for pretrial electronic home detention comparable to post‑sentence programs)
- People v. Gutierrez, 58 Cal.4th 1354 (2014) (defendants are entitled to sentencing decisions made with informed discretion; remand required if trial court lacked statutory context)
- People v. Banner, 77 Cal.App.5th 226 (2022) (addresses retroactivity and application of Assembly Bill 124 to nonfinal cases)