People v. Starr

THE PEOPLE, Plaintiff and Respondent, v. REGGIE STARR, Defendant and Appellant.

B304944

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

April 26, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. YA097512)

APPEAL from the judgment of the Superior Court of Los Angeles County, Hector M. Guzman, Judge. Reversed in part, conditionally reversed in part.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ A jury convicted defendant and appellant Reggie Starr of kidnapping to facilitate carjacking (Pen. Code,¹ § 209.5, subd. (a)) (counts 1 and 2), kidnapping (§ 207, subd. (a)) (counts 3 and 4), carjacking (§ 215, subd. (a)) (count 5), residential robbery (§ 211) (count 6), and dissuading a witness by force or by threat of force (§ 136.1, subd. (c)(1)) (count 7). He contends that his convictions for kidnapping and carjacking must be reversed because they are lesser included offenses of kidnapping to facilitate carjacking. Starr also contends that we must conditionally reverse his remaining convictions to allow him to request a mental health diversion eligibility hearing pursuant to section 1001.36, and that the trial court erred by imposing fines and fees without determining that he is able to pay them. We agree with Starr as to the lesser included offenses, and we reverse those convictions. We also conditionally reverse the remainder of Starr's convictions because the record does not conclusively establish that a remand for a pretrial diversion hearing would be futile. We reject Starr's argument on fines and fees.

FACTS AND PROCEEDINGS BELOW

Late in the evening of December 23, 2017, K.B. was at home watching a movie on TV with his minor son and a woman that K.B. had recently met. At around 1:00 a.m., the woman left, and Starr and an unidentified accomplice came in. K.B. had dozed off, but he woke up when he heard the sound of the men entering. Starr pointed a gun at K.B., demanded money, and asked where his safe was. Starr's accomplice took jewelryfrom K.B. and the son. Starr then led K.B. and his son into a bedroom while Starr's accomplice searched the premises and took additional valuables.

After taking K.B.'s wallet and cell phone, Starr took K.B.'s car keys and ordered K.B. and the son to get into the back seat of K.B.'s car. Starr drove the car while his accomplice kept a gun pointed at K.B. and the son. Starr drove about a mile from K.B.'s home, and ordered K.B. and the son out of the car. Starr said, "[Y]ou better not call the police," then drove away. K.B. and his son walked back home. Approximately three weeks later, a sheriff's deputy apprehended Starr in possession of the stolen car.

After the jury convicted Starr, the trial court imposed an aggregate sentence of 34 years to life in prison. The sentence consisted of two consecutive sentences of seven years to life for the two counts of kidnapping to facilitate carjacking (§ 209.5, subd. (a)), plus two consecutive 10-year enhancements (§ 12022.53, subd. (b)) for personally using a firearm in the commission of those offenses. The court stayed the sentences for kidnapping (§ 207, subd. (a)) and carjacking (§ 215, subd. (a)) pursuant to section 654, and imposed concurrent sentences of six years for residential robbery (§ 211) and three years for dissuading a witness by force (§ 136.1, subd. (c)(1)).

DISCUSSION

A. Lesser Included Offenses

Starr contends that his convictions for kidnapping (§ 207, subd. (a)) and carjacking (§ 215, subd. (a)) must be reversed because they are lesser included offenses of kidnapping to facilitate carjacking (§ 209.5, subd. (a)). The Attorney General agrees, as do we.

"In California, a single act or course of conduct by a defendant can lead to convictions 'of any number of the offenses charged.' (§ 954, italics added; People v. Ortega (1998) 19 Cal.4th 686, 692 . . . .) But a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses." (People v. Montoya (2004) 33 Cal.4th 1031, 1034 (Montoya).)

"In deciding whether an offense is necessarily included in another, we apply the elements test, asking whether ' " 'all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.' [Citation.]" ' (People v. Lopez (1998) 19 Cal.4th 282, 288 . . . .) In other words, 'if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.' " (Montoya, supra, 33 Cal.4th at p. 1034.) "When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed." (People v. Sanders (2012) 55 Cal.4th 731, 736.)

Section 209.5, subdivision (a) provides that "[a]ny person who, during the commission of a carjacking and in order tofacilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole." Thus, by its terms, a defendant cannot violate the statute without committing kidnapping. (See People v. Stringer (2019) 41 Cal.App.5th 974, 988; People v. Ortiz (2012) 208 Cal.App.4th 1354, 1368.) Similarly, our Supreme Court has held that carjacking is a lesser included offense of kidnapping to facilitate carjacking. (People v. Montes (2014) 58 Cal.4th 809, 898; accord, In re B.J. (2020) 49 Cal.App.5th 646, 652.)

Substantial evidence supported Starr's conviction of the greater offense of kidnapping to facilitate carjacking, as Starr does not dispute. We therefore reverse his convictions for the lesser included offenses of carjacking and for kidnapping.

B. Mental Health Diversion Hearing

1. Background on Section 1001.36

On June 27, 2018, the same day the jury rendered its verdict in Starr's case, section 1001.36 became effective. The new law allows trial courts to grant pretrial diversion to allow defendants suffering from a mental disorder to postpone and potentially avoid prosecution by obtaining treatment for the disorder. A defendant is eligible for pretrial diversion if six statutory criteria are met: "(A) The court is 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. . . . [¶] (B) The court is satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense. . . . [¶] (C) In the opinionof a qualified mental health expert, the defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment. [¶] (D) The defendant consents to diversion and waives the defendant's right to a speedy trial [or is an appropriate candidate for diversion but unable to consent due to defendant's mental incompetence] . . . . [¶] (E) The defendant agrees to comply with treatment as a condition of diversion. [¶] (F) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community." (§ 1001.36, subd. (b)(1)(A)-(F).)

If the trial court determines that the defendant meets the criteria and that a "recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant" (§ 1001.36, subd. (c)(1)(A)), the court may refer the defendant for treatment. If the defendant is charged with a new offense or fails to perform satisfactorily in the mental health program, the court may modify the treatment program, refer the defendant for conservatorship proceedings, or reinstate the charges against the defendant. (§ 1001.36, subd. (d).) Otherwise, if the defendant performs satisfactorily in the diversion program for a maximum of two years, "the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings at the time of the initial diversion." (§ 1001.36, subd. (e).)

The trial court may order pretrial diversion "at any point in the judicial process from the point at which the accused is charged until adjudication." (§ 1001.36, subd. (c).) In addition, "[a]t any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant willmeet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion." (§ 1001.36, subd. (b)(3).)

Despite the statutory limitation allowing the court to order pretrial diversion only "until adjudication" (§ 1001.36, subd. (c)) of the defendant's case, the Supreme Court has held that the law applies retroactively to all defendants who were convicted and sentenced but whose cases were not yet final on appeal at the time the law became effective. (See People v. Frahs (2020) 9 Cal.5th 618, 630-632 (Frahs).)

If a defendant is wrongly denied an opportunity to request pretrial diversion, the remedy is to conditionally reverse the defendant's convictions and to remand the case to the trial court to determine whether the defendant is eligible. (Frahs, supra, 9 Cal.5th at pp....