People v. Lipsett

45 Cal.App.5th 569

258 Cal.Rptr.3d 903

The PEOPLE, Plaintiff and Respondent,

v.Harley Wayne LIPSETT, Defendant and Appellant.

H045282

Court of Appeal, Sixth District, California.

Filed February 21, 2020

Certified for Partial Publication.^*

Attorney for Defendant and Appellant: James S. Thomson, Berkeley, Under Appointment by the Sixth District, Appellate Program.

Attorney for Plaintiff and Respondent: Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Basil R. Williams, Deputy Attorney General.

Mihara, J. Defendant Harley Wayne Lipsett pleaded guilty to battery on a nonprisoner by a prisoner ( Pen. Code, § 4501.5 )¹ and admitted that he had suffered a prior conviction that qualified as a strike (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to six years in prison. On appeal, defendant contends that the trial court abused its discretion and violated his constitutional rights when it denied his request to strike the strike. He also contends that this case should be remanded to determine his eligibility for mental health diversion pursuant to section 1001.36. We reject defendant's arguments and affirm the judgment.

I. Statement of Facts²

On March 23, 2015, an officer at Salinas Valley State Prison was conducting a security check when defendant "threw liquid fecal matter through the crack of his cell door, striking the officer in the left arm, left leg, head, hat, and left boot." Additional officers responded and found that defendant's cell smelled of urine and fecal matter. Defendant "was standing in front of his door yelling, ‘I got him and I got Hep C!’ " Defendant had cut himself on his arm and was dripping blood. When asked why he had thrown the liquid fecal matter, defendant replied, "It doesn't matter, I'm getting out of here anyway and there's nothing you can fucking do!"

II. Procedural Background

Defendant initially pleaded not guilty by reason of insanity, and the parties stipulated to the appointment of two psychologists to examine defendant. Dr. Carolyn Murphy found that defendant was capable of distinguishing between right and wrong and that defendant did know the nature and quality of his actions on the date of the offense. Dr. Edward Macias could not make a determination of defendant's mental status "due to limited records made available for this evaluation." The parties then stipulated to the appointment of a third psychologist, Dr. Thomas Reidy, who found that defendant "knew the nature and quality of his actions" and that he "understood that his behavior was wrong." He also agreed with the other examiners that defendant "exhibits severe personality disorder, substance abuse and dependence, and a Schizophrenia Spectrum Disorder." Defendant thereafter withdrew his plea of not guilty by reason of insanity.

The probation report noted that defendant was 37 years old and had an extensive criminal history. In 1994, defendant was committed at age 13 to the California Youth Authority (CYA)³ for residential burglary (§ 459). In 1999, at age 19, defendant committed misdemeanor assault against a peace officer while at a CYA facility, resulting in a 365-day jail sentence (§ 243, subd. (b)).

In 2000, while at a different CYA facility, defendant committed felony assault by a confined person against a person not confined ( Welf. & Inst. Code, § 1768.8, subd. (b) ). He was sentenced to four years in prison. In 2001, defendant was transferred to the Department of Corrections and Rehabilitation.

In 2002, defendant was convicted of battery on a nonprisoner by a prisoner and was sentenced to two years in prison ( § 4501.5 ). Twice in 2004, defendant again committed battery on a nonprisoner by a prisoner ( § 4501.5 ). Criminal proceedings related to both offenses were suspended because defendant was found not competent to stand trial. After his competency was restored in 2006, defendant was convicted and sentenced to two consecutive one-year terms. In 2010, while on parole, defendant was convicted of attempted first degree burglary (§§ 459, 664) and sentenced to two years in prison. He was also found to have violated the conditions of his parole for the 2004 battery convictions.

In 2012, defendant committed felony assault (§ 245, subd. (a)(4)). Proceedings were suspended in 2013 because defendant was found not competent to stand trial. Defendant was detained at Napa State Hospital pending restoration of his competency. While detained there, defendant resisted a peace officer and vandalized property (§§ 69, 594, subd. (b)(1)). In 2014, defendant was found mentally competent and discharged from the hospital. He was thereafter convicted of the hospital-related offenses and sentenced to three years and four months in prison. In 2015, proceedings resumed in the 2012 assault case, and defendant was convicted and sentenced to four years in prison.

At the sentencing hearing in the current case, defense counsel requested that the court strike the strike. Counsel characterized defendant as "a person who never had an opportunity to live to his full potential, to any potential, really." Describing defendant's upbringing, counsel noted: "What is described in the probation report is somebody who was put under the influence of drugs at the age starting at five, and that is -- that is not volitional on his part, at all." Counsel further noted that defendant "entered the juvenile justice system at age 11 and went to CYA at age 14." Defendant had not, counsel asserted, been able to "function in a way that allows him to be free from these institutions."

Defense counsel argued that defendant's case was one that did not fall "within the spirit of the Three Strikes Law." He explained: "He has engaged in zero assaultive behavior, except for those -- against those people who are exercises [sic ] complete dominion over his ability to function. He has not engaged in assaultive behavior outside of the prison context, with the exception of one counselor who he did assault, in a parole context. So he is somebody, from the age of five, who has been involved in social -- substance abuse, and traumatic, excessive abuse upon him: Sexual abuse, physical abuse, upon his person. And then, he was placed, from that situation, into the Department of Corrections, CYA. And from there, he goes to the Department of Corrections at -- and in and out of the state hospitals and the Department of Corrections. Totally unable to function." Counsel asserted that defendant's conduct was the result of "his mental illness," which was the result of "things that were not volitional on his part, at all." Counsel concluded that while defendant's behavior was "very serious," it was "not the type of recidivist behavior that the Three Strikes Law was meant to -- correct and punish."

Defendant also addressed the court. He explained that on "the day all this happened, [he] was actually in the middle of changing from one type of med to another." He continued: "I know I have a mental illness, and before I came to county jail, I was in state hospital, and they -- I learned a lot more in state hospital than I ever did in prison. I've been in prison more than state hospital, so I'm just asking for a chance to get some help and better my life." He also reiterated that he had "antisocial personality disorder" and that he "was sexually abused" as a child. He also described how he had started "smoking weed ... at five years old" and first tried "meth at eight, for the first time on [his] eighth birthday."

The prosecutor opposed defendant's request that the prior strike be stricken. He acknowledged that defendant "was presented with some pretty tough situations growing up." But, the prosecutor noted, defendant had "committed multiple assaults, and I think for the safety of [the] public, and so that, perhaps, [defendant] can accept the gravity of what happened on that day, that the Court [should] not strike the strike ...." Considering defendant's circumstances, the prosecutor believed that a low or midterm sentence, doubled, would be appropriate.

The court refused to strike the strike. The court imposed a six-year prison term, double the midterm for the battery offense.

III. Discussion

A. Prior Strike^**

B. Section 1001.36

Defendant contends that his case should be remanded to determine his eligibility for mental health diversion under section 1001.36, which was enacted after he was sentenced. The Attorney General argues that defendant is precluded from seeking pretrial mental health diversion because the statute is not retroactive and because defendant has not shown eligibility for mental health diversion under section 1001.36.

1. Background

Effective June 27, 2018, the Legislature added two new sections to the Penal Code (§§ 1001.35, 1001.36 ) that authorize trial courts to grant "pretrial diversion" to defendants diagnosed with qualifying mental disorders.⁴ (Stats. 2018, ch. 34, § 24.) Section 1001.36 permits a trial court to "grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in paragraph (1) of subdivision (b)." ( § 1001.36, subd. (a).) "As used in this chapter, ‘pretrial diversion’ means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication ...." ( § 1001.36, subd. (c).)⁵

Section 1001.36 sets forth six requirements that must be satisfied for a defendant to be eligible for mental health diversion. First, the trial court must be "satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding...