39 Cal.App.5th 849
Cal. Ct. App.2019Background
- Defendant Robert Eugene Torres Jr. convicted by jury of multiple felonies and misdemeanors stemming from sustained domestic violence, arson, and firing a handgun; pleaded to one felony vandalism count.
- Sentence: nine years state prison; concurrent six-month county jail terms on some counts.
- Relevant events: repeated assaults and threats against his wife (Dec 2016–Apr 2017), a house fire started with ignitable fluid, and shots fired from the residence.
- After sentencing, defendant sought relief under newly enacted Penal Code § 1001.36 (mental health pretrial diversion), enacted June 27, 2018.
- Court held § 1001.36 cannot be applied after trial, conviction, and sentencing (pretrial diversion must occur before adjudication); double jeopardy principles bar post‑conviction diversion.
- Court reversed one arson conviction (count 4) because a single act of setting one fire cannot support multiple § 452(d) convictions for different owners; struck the concurrent six‑month term for that count; affirmed the judgment as modified (nine years unchanged).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of § 1001.36 (mental health diversion) after conviction | § 1001.36 is retroactive to cases not yet final; defendant entitled to conditional remand | § 1001.36 is pretrial only; does not apply after adjudication/sentencing; retroactive application would violate double jeopardy | § 1001.36 does not apply post‑adjudication; diversion must occur "until adjudication"; retroactive application barred by double jeopardy |
| Eligibility for diversion (qualifying mental disorder) | Even if retroactive, defendant has serious thought disorder and should qualify | Record (competency exams) does not show a DSM‑diagnosed qualifying disorder that played a significant role | Defendant not eligible: pretrial examinations did not establish a qualifying DSM diagnosis or role in offenses |
| Multiple § 452(d) convictions for single fire (counts 3 & 4) | Prosecutor: fire burned property of two owners; supports two convictions | Single act/set fire burned mixed‑ownership pile; cannot be split into distinct offenses | Reversed count 4; single act cannot be fragmented into separate § 452(d) convictions; sentence for count 4 stricken |
| Sufficiency of evidence — discharge of firearm with gross negligence (§ 246.3) | — | Defendant: firing into air not necessarily creating high risk of death or great bodily injury | Sufficient evidence; firing in a populated residential area supports gross negligence under Ramirez and Alonzo principles |
| Dissuading witness (§ 136.1) — timing | — | Defendant: conduct not proven within the specific dates alleged | Held sufficient: offense may be continuous; jury instructed timing only must be reasonably close to alleged period |
| False imprisonment (§ 236) | — | Defendant: blocking bathroom door did not imprison because victim could move elsewhere | Evidence supported false imprisonment where defendant used force/positioning to compel victim to remain; conviction upheld |
| Imposition of fines/fees without ability‑to‑pay hearing (Dueñas) | Dueñas requires ability‑to‑pay finding before imposing certain fines/fees | Trial court imposed assessments and restitution fine; defendant forfeited claim by not objecting | Forfeited: defendant failed to object at trial/sentencing; Dueñas claim not preserved |
Key Cases Cited
- People v. Craine, 35 Cal.App.5th 744 (Fifth Dist. 2019) (§ 1001.36 not intended to apply to defendants tried and convicted before enactment)
- People v. Weaver, 36 Cal.App.5th 1103 (Second Dist. 2019) (contrasting view on § 1001.36 application)
- People v. Frahs, 27 Cal.App.5th 784 (Fourth Dist. 2018) (discusses threshold requirements for § 1001.36 diversion)
- People v. Ramirez, 45 Cal.4th 980 (2009) (§ 246.3 liability focuses on foreseeability of risk from firing into air)
- Larios v. Superior Court, 24 Cal.3d 324 (1979) (jeopardy attaches when jury is empanelled and sworn)
- People v. Vidana, 1 Cal.5th 632 (2016) (single act cannot support multiple convictions when based on same act or course of conduct)
- People v. Beamon, 8 Cal.3d 625 (1973) (same rule regarding single‑act multiple counts)