People v. Fuller

83 Cal.App.5th 394

299 Cal.Rptr.3d 344

The PEOPLE, Plaintiff and Respondent,

v.Eric Lavell FULLER, Jr., et al., Defendants and Appellants.

E071794

Court of Appeal, Fourth District, Division 2, California.

Filed September 15, 2022

Certified for Partial Publication.^*

David Zarmi for Defendant and Appellant Eric Lavell Fuller, Jr.

Steven A. Brody, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant Destinee Sharniele Tresvant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Jennifer B. Truong, and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION ON TRANSFER

MENETREZ, J.

In People v. Tirado (2022) 12 Cal.5th 688, 692, 289 Cal.Rptr.3d 59, 502 P.3d 941 ( Tirado ), the Supreme Court held that when a firearm enhancement under Penal Code section 12022.53 has been charged and found true, a sentencing court has discretion to strike the enhancement and impose an uncharged lesser included enhancement. (Undesignated statutory citations are to the Penal Code.) On this appeal, the People argue that a sentencing court's discretion under Tirado is limited to imposing a lesser enhancement under section 12022.53, so a court that strikes an enhancement under section 12022.53 cannot impose an uncharged lesser included enhancement under section 12022.5. We disagree and hold that under Tirado the sentencing court may impose an uncharged lesser included enhancement under section 12022.5 after striking a greater enhancement under section 12022.53.

BACKGROUND

This appeal arises from the armed robbery of a nail salon followed by a high-speed pursuit of the perpetrators after they fled the scene. Victims identified Aaron Murl Moses, Jr., Eric Lavell Fuller, Jr., and Destinee Sharniele Tresvant as three of the perpetrators. A jury convicted Moses and Fuller of numerous offenses arising from the incident and found related firearm enhancements true. Tresvant pleaded guilty after the trial court found her competent to stand trial and found that she was ineligible for pretrial mental health diversion.¹

On appeal, Tresvant argues that the trial court erred by directing a verdict against her in a competency proceeding and by failing thereafter to conclude that she did not make a prima facie showing for pretrial mental health diversion under section 1001.36. Fuller and Tresvant argue that the trial court abused its discretion by failing to consider imposing uncharged lesser included firearm enhancements under section 12022.5, subdivision (a) (section 12022.5(a)) instead of imposing the charged enhancements under section 12022.53, subdivision (b) ( section 12022.53(b) ), and Tresvant argues that the trial court abused its discretion by failing to strike the enhancement. Fuller also contends that the trial court failed to consider his ability to pay various fines and fees. Moses raised numerous sentencing issues.

In a prior unpublished opinion, we vacated Moses's sentence because we concluded that it was unauthorized. The trial court failed to impose a sentence for each of Moses's offenses. ( People v. Moses (July 1, 2021, E071794), 2021 WL 2708925 [nonpub.].) We consequently vacated Moses's sentence and remanded the matter for resentencing.

The Supreme Court granted review, vacated our prior opinion, and transferred the case of Fuller and Tresvant (collectively, defendants) back to us with directions to reconsider it in light of Tirado . Earlier, while review was pending, the Supreme Court severed Moses's case, granted his request to dismiss review as to him, and remanded the matter with directions for us to issue a remittitur as to Moses, which we did.² We accordingly do not address any issues concerning Moses in this opinion. We also do not describe the underlying facts from the jury trial for Moses and Fuller, because the only issues we address as to Fuller pertain to sentencing issues that do not depend on those facts.

On remand from the Supreme Court, Fuller, Tresvant, and the People filed supplemental briefs concerning Tirado . The People argue that Tirado only authorizes a trial court to impose uncharged lesser enhancements included within section 12022.53, so it does not apply here. Defendants disagree.

We also asked the parties to submit supplemental briefing on the effect of Senate Bill No. 567 (Senate Bill 567) (2021–2022 Reg. Sess.) on defendants' sentences, which they have done. The People concede that Senate Bill 567 applies retroactively to this case but argue that remand is not warranted. Again, defendants disagree.

A. Tresvant's Competency to Stand Trial^**

Unpublished Text Follows

Before trial commenced for all defendants, Tresvant's counsel expressed doubt about Tresvant's competency, because Tresvant had made statements to counsel about the presence of FBI agents and people with a third eye in her cell. The trial court suspended proceedings as to Tresvant. After Tresvant was examined by court-appointed medical professionals for the defense and the prosecution, the court held a competency trial before a jury.

1. Defense Evidence

The defense presented one witness, Dr. William H. Jones, Ph.D., a court-appointed clinical psychologist who in October 2018 had conducted a 90-minute evaluation of Tresvant for competency. Dr. Jones reviewed Tresvant's police records but did not review her mental health records from jail or her childhood medical records. He questioned Tresvant about her family, education, relationships, employment history, medical history, and psychiatric history. He also asked Tresvant questions designed to elicit information about her psychological functioning, how she thinks, and whether she was experiencing symptoms of emotional distress. He further questioned Tresvant about "her understanding of the courtroom proceedings," and he believed that Tresvant "appear[ed] to understand" that the purpose of the evaluation was to determine her competency.

Tresvant reported that as a child she had been treated for unspecified mental health issues. When she was interviewed, Tresvant was taking two types of antidepressant medications. Tresvant reported that she was experiencing auditory and visual hallucinations and that she had heard hallucinated voices since childhood but had not heard any hallucinated voices after she started taking medication in jail. She claimed that the hallucinated voices distracted her and influenced her behavior. Dr. Jones did not test Tresvant to determine if she was malingering and did not consider the inconsistencies in her interview sufficient to conclude that she was malingering.

On the basis of his 90-minute evaluation of Tresvant, Dr. Jones concluded and summarized in a written report that Tresvant suffered from paranoid schizophrenia, was not competent to stand trial, and would not be able to assist her attorney in presenting a defense.

On cross-examination, Dr. Jones testified that after preparing the report he changed his opinion about Tresvant's competency to stand trial and whether she suffered from paranoid schizophrenia. Before testifying, Dr. Jones reviewed Tresvant's mental health records from jail and reports prepared by two other mental health experts, Dr. David Walsh, Ph.D., and Dr. Michael E. Kania, Ph.D., who had evaluated Tresvant before Dr. Jones.

In reviewing Tresvant's medical records, Dr. Jones learned that when Tresvant first spoke with mental health staff at jail "she did not report any voices." Tresvant instead presented to them as having anxiety and depression and was diagnosed as suffering from major depressive disorder of an unspecified degree—mild, moderate, or severe. Dr. Jones noted that "[t]here's a type of severe depression in which a person may hear hallucinated voices, but that was not indicated in [Tresvant's] records." In addition, it is possible that someone suffering from severe major depressive disorder could suffer from hallucinations, and "depression, in some cases, could make a person incompetent."

A few weeks before Dr. Jones evaluated Tresvant, Dr. Walsh evaluated her and reported that Tresvant "did not endorse or exhibit any symptoms of psychosis, mania, panic or intoxication." In reviewing the reports of Drs. Walsh and Kania, Dr. Jones was struck by the fact that Tresvant had reported hallucinations to one of those doctors and not to the other. Having reviewed the additional material about Tresvant's mental health, Dr. Jones reflected on cross-examination about how some of Tresvant's claims of auditory and visual hallucinations to him had been "unusual" or "odd" and were not of the kind typically reported by individuals suffering from paranoid schizophrenia. Tresvant's volunteering that the voices "never instructed her to hurt anybody else" also was atypical, but he noted that inmates who express that they might hurt someone else are housed differently in jail.

Given the variation in Tresvant's reports of hallucinations, Dr. Jones found his conclusion that Tresvant experienced hallucinations to be "more questionable." On the basis of the inconsistent reporting of hallucinations to Drs. Walsh and Kania and to mental health staff at jail, Dr. Jones reported that he had become "doubtful about the schizophrenia conclusion," thinking it was "probably not correct." Dr. Jones opined that Tresvant suffered instead from depression and anxiety. He doubted that Tresvant's responses to him were accurate. On the basis of "all the new information" he had obtained and reviewed, Dr. Jones opined that a "preponderance of the evidence supported" the conclusion that Tresvant was competent to stand trial.

2. Directed Verdict Motion

Following the defense case, the prosecutor orally moved for a directed verdict, arguing that there was not "sufficient evidence to sustain a jury to find, even by a preponderance of the evidence, that the defendant is incompetent." The court entertained argument from both parties and reserved...