Filed 1/10/25 P. v. Deiner CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082014
v. (Super.Ct.No. FWV1400027)
JASON DEINER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Daniel W.
Detienne, Judge. Conditionally reversed with directions.
So'Hum Law Center of Richard Jay Moller and Richard Jay Moller for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and
Michael J. Patty, Deputy Attorneys General, for Plaintiff and Respondent.
1 A jury convicted Jason Deiner of five counts of robbery, two counts of burglary,
and one count of reckless evasion of a police officer. (Pen. Code, §§ 211, 459; Veh.
Code, § 2800.2; unlabeled statutory citations refer to the Penal Code.) In 2019, we
decided Deiner’s appeal from the judgment. (People v. Deiner (Dec. 19, 2019, E071193)
[nonpub. opn.] (Deiner I).)1 We conditionally reversed the judgment and remanded the
matter for the trial court to consider whether Deiner qualified for mental health diversion
under section 1001.36. We also directed the court to consider whether to strike Deiner’s
enhancements for prior serious felony convictions, assuming that the court declined to
order mental health diversion.
On remand, the court denied Deiner’s diversion motion. The court resentenced
him by striking four prior serious felony enhancements, reducing his prison sentence by
20 years. In this appeal from the amended judgment, Deiner argues that the court abused
its discretion by applying the incorrect legal standard to his diversion motion. He also
argues that the court abused its discretion by declining to consider a full resentencing on
remand. We agree that the court applied the incorrect legal standard when it ruled on the
diversion motion. We therefore conditionally reverse the judgment and remand for the
court to reconsider the diversion motion under the correct standard. But we otherwise
reject Deiner’s arguments.
1 We granted Deiner’s request to take judicial notice of our opinion in his first appeal.
2 BACKGROUND
I. Deiner’s convictions and original sentence
The evidence at trial showed that Deiner robbed two banks, one in December 2013
and another in January 2014. (Deiner I, supra, E071193, pp. 2-3.) He wielded a gun
during both robberies, and he also claimed to have a bomb during one robbery. (Ibid.)
Deiner led officers on a car chase after the second robbery, but they eventually
apprehended him. (Id. at p. 3.) Inside his truck, investigators found clothing that
matched descriptions of the robber’s clothing, $1100, and a BB gun. (Ibid.)
The jury convicted Deiner of robbing two employees at the first bank and three
employees at the second bank. (Deiner I, supra, E071193, p. 9.) The jurors also
convicted him of second degree burglary of both banks and recklessly evading officers
for the car chase. (Ibid.) The operative information alleged that Deiner had five prior
robbery convictions (three in one case and two in another case), which qualified as prior
strikes for purposes of the three strikes law and prior serious felonies under section 667,
subdivision (a)(1). (Id. at p. 8.) The court found those allegations to be true, and it
denied Deiner’s motion to strike or dismiss the prior strikes under section 1385 and
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). (Deiner I, supra,
E071193, p. 8.)
The court sentenced Deiner to a total of 70 years to life in prison, plus a
determinate term of six years. (Deiner I, supra, E071193, p. 2.) The indeterminate
sentence consisted of two 25-years-to-life terms for two of the robbery counts and four
3 five-year terms for prior serious felony enhancements. (Id. at p. 9.) The six-year term
was for recklessly evading officers. (Ibid.) The court imposed prison terms on the
remaining counts, but it stayed them under section 654 or ordered them to run
concurrently. (Ibid.)
II. Mental health diversion proceedings on remand
In Deiner I, Deiner argued that the recently enacted mental health diversion statute
applied retroactively in his case because the judgment was nonfinal. We agreed,
conditionally reversed the judgment, and directed the trial court to consider whether
Deiner qualified for mental health diversion under section 1001.36. Our Supreme Court
granted review and deferred further action pending review and disposition of the issue in
People v. Frahs (2020) 9 Cal.5th 618 (Frahs). (People v. Deiner (Feb. 26, 2020),
S260282.) Frahs held that section 1001.36 applied retroactively to all cases not yet final
on appeal (Frahs, at pp. 624, 630-631), and the Supreme Court dismissed review in
Deiner I. (People v. Deiner (July 29, 2020), S260282.)
A. Relevant evidence
After the case was remanded to the trial court, Deiner submitted a written report
from a licensed psychologist, Dr. Chuck Leeb. Dr. Leeb evaluated Deiner in May 2021
and found him to be an appropriate candidate for mental health diversion. The doctor
diagnosed Deiner with posttraumatic stress disorder (PTSD), amphetamine-type
substance use disorder, and opioid use disorder.
4 According to Dr. Leeb’s report, Deiner began using methamphetamine at age 12
and heroin at age 30. (Deiner was 42 years old when evaluated.) In Dr. Leeb’s
experience, there was “a high correlation” between methamphetamine use at an early age
and sexual assault. The doctor asked Deiner “if this applied to him.” Deiner slumped his
shoulders, looked away, and turned to the side. He then reported that when he was eight
or nine years old, his older brother’s friend “was around a lot.” The friend was
approximately 15 years older than Deiner. The friend threatened to hurt Deiner and his
family if Deiner said anything. Dr. Leeb concluded that Deiner had been sexually
assaulted. He opined that the sexual assault caused PTSD and that Deiner dealt with the
trauma by using methamphetamine and heroin.
The doctor further opined that there was “a very high probability that Mr. Deiner’s
mental health symptoms were the only reason” that Deiner committed the offenses.
Someone with PTSD may suffer from auditory pseudo-hallucinations and paranoid
ideation. Deiner reported that he had been delusional and had auditory hallucinations
when he was using drugs, and he had paranoid auditory hallucinations even when he was
sober. The hallucinations had stopped since he started taking antipsychotic and
antianxiety medications. Deiner said that he committed the offenses because he needed
money to hire an attorney in his child custody dispute. Dr. Leeb opined that PTSD
impacted Deiner’s reasonableness, insight, foresight, judgment, and ability to control
himself. He also opined that the symptoms motivating Deiner’s criminal behavior would
respond to mental health treatment.
5 The court held several hearings on Deiner’s diversion motion. Dr. Leeb testified
at the first hearing in April 2022. Consistent with his report, the doctor testified that he
diagnosed Deiner with PTSD resulting from childhood sexual assault. When Deiner said
that he had started using methamphetamine at 12 years old, Dr. Leeb asked him if he had
been sexually assaulted as a child. Deiner “broke down and admitted reluctantly that he
had been.” He appeared to be in emotional pain; he dropped his head, slumped his
shoulders, put his hands on his head, and teared up. Deiner said that he had been
assaulted over a period of time and that the perpetrator threatened his safety and the
safety of his family. At that age, Deiner believed that he and his family were in danger,
so he did not disclose the assault. Dr. Leeb asked Deiner for more details but did not
push when Deiner said that he did not “‘want to go there now.’”
According to Dr. Leeb, victims of childhood sexual assault can experience
scarring and lesions particularly in the right hemisphere of the brain, which is the area of
the brain that affects executive functions, the ability to regulate emotions, and self-image
and self-esteem. It was not unusual for victims of childhood sexual assault to engage in
criminal behavior because of the effect on the executive functioning of the brain. For
example, Deiner said that he committed the robberies to get money for his children.
Committing robberies for that purpose “doesn’t make any sense, but it does make sense if
you can’t engage the executive functions.” Dr. Leeb saw no evidence that Deiner had a
toxicology screen when he was arrested, but if he had methamphetamine in his system,
6 that would have also driven his behavior. Methamphetamine was “not known for
producing logical, reasonable thought.”
Dr. Leeb opined that Deiner would not have committed the offenses if he had not
been suffering from PTSD caused by childhood sexual assault. Deiner took full
responsibility for his behavior, felt remorse for his actions, and was empathetic toward
his victims. His records also showed that he had been a model prisoner; he had not
violated any rules, and he was medication compliant. The doctor did not see any
indications that Deiner was malingering.
Deiner also submitted his medical records from prison, and the court indicated that
it reviewed them. According to the medical records, Deiner had a mental health
consultation in July 2020. In the section describing the reason for the consultation, the
notes state: “Inmate has issues of drug usage and old childhood traumas that he reports
he can barely recall.” The records indicate that he had a mental health assessment later
that month. The clinical summary states that Deiner was “endorsing both anxiety and
some depression. He reports having been depressed most of his life. . . . The patient
reported having been sexually molested by a neighbor boy when he []was in grade
school. . . . The patient has a drug history that began about age 12 shortly after a Sunday
School teacher was being too overfamiliar with him and he stopped going to that church.”
The records of the same assessment also state: “Overall, this patient had difficulties in
school in reaction to his sexual molest and managed to graduate continuation School. He
reacted again to the later overfamiliarity by using drugs to numb up. The patient most
7 likely lost his trust in people following the overfamiliarity and drug abuse led to
criminality and finally to prison.”
B. The court’s ruling
The court heard argument on the diversion motion at a second hearing in May
2022. Deiner argued that he had shown his eligibility for mental health diversion,
because Dr. Leeb had diagnosed him with qualifying mental disorders and those
disorders played a significant role in the commission of the offenses. The court did not
rule on that date and continued the matter.
At the continued hearing in March 2023, the court announced its tentative ruling to
deny the diversion motion. The court observed that Deiner had a long history of
substance abuse and characterized that evidence as “completely credible.” But the court
stated: “There were some other things that were not as clearly proven. There was a
sexual abuse as a child claim that was made that has credibility issues. I note [defense
counsel] didn’t even mention that in her original sentencing brief, so this is something
that came out later in talking to Dr. Leeb; and the evidence of that in the record is
unclear.” The court also observed that Deiner “probably wouldn’t commit another crime.
His dangerousness to the community may or may not be there, and he may or may not
have some mental illness; but the Court finds no nexus, no evidence, not even near a
preponderance of the evidence, just no evidence that this—these two bank robberies were
related to a mental illness.” The court noted that in committing the offenses, Deiner used
clothing to disguise himself, used a gun (that the victims did not know was fake), led
8 police on a car chase, and told police that he committed the robberies because he needed
money for child support. The court also noted that there was no evidence that Deiner was
under the influence when he committed the offenses. The court reasoned: “So while I
think he may have had a drug addiction at the time, probably did, there’s zero evidence in
the record that any of that, that he had a mental illness other than drug abuse that
contributed to the crime; and that even if he was a drug addict, there’s no evidence
linking the addiction to the crime. [¶] And, therefore, because there’s no evidence of a
nexus, my tentative would be to deny consideration for M.D.D.”
In response to the tentative ruling, Deiner argued that Dr. Leeb testified that
Deiner had PTSD, which could lead to drug abuse as a way to deal with untreated mental
health issues. Deiner asserted that there was a nexus between his untreated PTSD and the
offenses. The court replied: “And it’s that P.T.S.D. that I just find no supporting
evidence of in the—in the record for that.” The court adopted its tentative ruling and
denied Deiner’s motion for diversion.
III. Deiner’s resentencing
After Deiner’s original sentencing, the Legislature amended section 1385,
subdivision (b), to give courts discretion to strike or dismiss prior serious felony
enhancements. (Stats. 2018, ch. 1013, § 2, eff. Jan. 1, 2019.) In Deiner I, we directed the
9 court to consider whether to strike or dismiss those enhancements if it did not grant
Deiner’s diversion motion.2 (Deiner I, supra, E071193, pp. 14-15.)
The court resentenced Deiner in August 2023. Deiner’s resentencing brief argued
that he was entitled to “a full resentencing” on the prior serious felony enhancements and
also his prior strikes. Deiner urged the court to strike both the prior strikes and the prior
serious felony enhancements. He also urged the People to recommend that the court
recall his sentence and resentence him under section 1172.1. (Former § 1172.1, subd.
(a)(1), enacted by Stats. 2022, ch. 58, § 9 [court may recall the sentence and resentence a
defendant “at any time upon the recommendation” of the district attorney].)
The People argued that the court had no jurisdiction to reconsider its denial of
Deiner’s Romero motion to strike the prior strikes; Deiner did not raise that issue in
Deiner I, and the remittitur did not mention the issue. The People also declined to
recommend that the court recall Deiner’s sentence under section 1172.1.
The court struck all four of the prior serious felony enhancements, giving Deiner a
total sentence of 50 years to life in prison plus a determinate sentence of six years. But
the court determined that the remittitur did not give it authority to conduct a full
resentencing, and it had no authority to conduct a full resentencing under section 1172.1.
The court noted that even if it had jurisdiction to strike the prior strikes, it would again
decline to do so.
2 Specifically, our disposition stated: “If the court reinstates [Deiner’s] convictions, the court shall resentence Deiner and consider whether to strike or dismiss the prior serious felony enhancements under section 667, subdivision (a)(1), and section 1385, subdivision (b).” (Deiner I, supra, E071193, p. 15.)
10 DISCUSSION
I. Mental health diversion
Deiner argues that the trial court abused its discretion by applying the incorrect
legal standard to his motion for diversion. He asserts that the Legislature had recently
amended section 1001.36, but the court applied the former version of the statute. We
agree and remand for the court to reconsider the motion under the correct legal standard.
A. Overview of the diversion statute
Since 2018, section 1001.36 has given trial courts discretion to grant pretrial
diversion to defendants suffering from qualifying mental disorders. (People v. Brown
(2024) 101 Cal.App.5th 113, 119 (Brown).) In April and May 2022 (when the first two
hearings in this matter occurred), the former version of the statute listed six criteria for
determining whether to grant diversion. (Former § 1001.36, subd. (b)(1)(A)-(F), as
amended by Stats. 2019, ch. 497, § 203.) The first two criteria required the court to be
“satisfied” (1) that “the defendant suffers from a mental disorder as identified in the most
recent edition of the Diagnostic and Statistical Manual of Mental Disorders” (DSM) and
(2) that “the defendant’s mental disorder was a significant factor in the commission of the
charged offense.” (Former § 1001.36, subd. (b)(1)(A)-(B).) The defendant had to show
that those criteria were satisfied by a preponderance of the evidence. (See Evid. Code,
§ 115 [“Except as otherwise provided by law, the burden of proof requires proof by a
preponderance of the evidence”].)
11 Effective January 1, 2023, the Legislature amended section 1001.36. (Stats. 2022,
ch. 735, § 1.) The Legislature recharacterized the first two criteria as “‘eligibility’”
criteria. (Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891 (Sarmiento).)
“More substantively, a defendant’s eligibility no longer turned on findings to the court’s
‘satisfaction.’ Rather, defendants are generally eligible if they ‘ha[ve] been diagnosed’
with a recognized mental disorder” (ibid.), including PTSD and other disorders identified
in the most recent edition of the DSM. (§ 1001.36, subd. (b)(1).) The defendant must
provide evidence of the mental disorder, which “shall include a diagnosis or treatment for
a diagnosed mental disorder within the last five years by a qualified mental health
expert.” (Ibid.) A psychologist is a “qualified mental health expert” for purposes of the
statute. (§ 1001.36, subd. (f)(1)(D)(2).) That expert “may rely on an examination of the
defendant, the defendant’s medical records, arrest reports, or any other relevant
evidence.” (§ 1001.36, subd. (b)(1).)
With respect to the second eligibility criterion, “the amended statute creates a
presumption that the defendant’s diagnosed mental disorder was a significant factor in the
commission of the charged crime.” (Sarmiento, supra, 98 Cal.App.5th at p. 891.) That
is, the court “shall find” that the diagnosed mental disorder was a significant factor
“unless there is clear and convincing evidence that it was not a motivating factor, causal
factor, or contributing factor to the defendant’s involvement in the alleged offense.”
(§ 1001.36, subd. (b)(2).)
12 The amended statute recharacterizes the remaining four criteria as suitability
factors that the court must consider for any defendant who satisfies the eligibility
requirements. (§ 1001.36, subd. (c); Sarmiento, supra, 98 Cal.App.5th at p. 891.) A
defendant is suitable for pretrial diversion if (1) a qualified mental health expert opines
that the symptoms of the defendant’s mental disorder will respond to treatment, (2) the
defendant consents to diversion and waives the right to a speedy trial, (3) the defendant
agrees to comply with treatment, and (4) the defendant will not pose an unreasonable risk
of danger to public safety if treated in the community. (§ 1001.36, subd. (c)(1)-(4).)
Even if the defendant makes a prima facie showing that they satisfy all of the
eligibility and suitability requirements, the court still has discretion to deny diversion.
(§ 1001.36, subd. (a); Sarmiento, supra, 98 Cal.App.5th at p. 892.) We review the
court’s ultimate decision whether to grant diversion for abuse of discretion. (Brown,
supra, 101 Cal.App.5th at p. 121.) “A trial court abuses its discretion when it bases its
ruling on the wrong legal standard.” (Lunsted v. Superior Court (2024) 100 Cal.App.5th
138, 147 (Lunsted).)
B. Application of the incorrect legal standard
The People concede that the court erred by applying the former version of section
1001.36, but they contend that Deiner forfeited the argument. They note that Deiner did
not draw the court’s attention to the change in the law at the March 2023 hearing, after
the court announced its tentative ruling. We exercise our discretion to reach the merits of
Deiner’s argument to forestall any eventual claim of ineffective assistance of counsel.
13 (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [“An appellate court is generally
not prohibited from reaching a question that has not been preserved for review by a
party”]; People v. Crittenden (1994) 9 Cal.4th 83, 146 [reviewing forfeited claims on the
merits in view of potential claim for ineffective assistance of counsel].)
The court erred by applying the outdated version of the statute. At the time of the
court’s ruling, the eligibility criteria required that Deiner “ha[d] been diagnosed with a
mental disorder” by a qualified mental health expert within the last five years.
(§ 1001.36, subd. (b)(1).) Dr. Leeb’s recent PTSD diagnosis satisfied that requirement.
The doctor was a qualified mental health expert within the meaning of the statute (a
psychologist), and he diagnosed Deiner in 2021. But the court appeared to apply the
former law, which instead necessitated that the court be “satisfied that the defendant
suffers from a mental disorder.” (Former § 1001.36, subd. (b)(1)(A).) Using that
standard, the court found “no supporting evidence” that Deiner had PTSD and “zero
evidence . . . that he had a mental illness other than drug abuse that contributed to the
crime.”
Moreover, the court found no evidence, “not even near a preponderance of the
evidence,” linking a mental disorder to the offenses. The court thus appeared to be
applying the former law, which required the defendant to show by a preponderance of the
evidence that the mental disorder was a significant factor in the offense. But Deiner was
entitled to a presumption that his diagnosed mental disorder was a significant factor in the
commission of the offenses, and that presumption may be rebutted only by clear and
14 convincing evidence to the contrary. (§ 1001.36, subd. (b)(2).) The court’s application
of the incorrect legal standard in both of the foregoing respects amounted to an abuse of
discretion. (Lunsted, supra, 100 Cal.App.5th at p. 147.)
The proper remedy is to remand unless the record clearly indicates that the trial
court would have reached the same conclusion using the correct standard. (People v.
Doron (2023) 95 Cal.App.5th 1, 10; Brown, supra, 101 Cal.App.5th at p. 128.) The
record lacks that clarity. The court did not appear to credit the PTSD diagnosis, and its
finding that there was no evidence that a mental disorder was a significant factor in the
offense appears to have been limited to the drug-related disorders. Under these
circumstances, it is unclear whether the court would find by clear and convincing
evidence that Deiner’s diagnosed PTSD was not a significant factor. Dr. Leeb’s report
and testimony provided evidence of the various effects of PTSD (some of which we
summarized in part II.B. of the Background section). But it is unclear whether the court
considered any of that, given its rejection of the PTSD diagnosis. Whether PTSD was
“was not a motivating factor, causal factor, or contributing factor” (§ 1001.36, subd.
(b)(2)) in Deiner’s offenses “is ‘quintessential factfinding’ [citation] and thus a question
best left to the trial court to answer in the first instance.” (People v. Doron, at p. 10.) We
express no opinion on how the court should decide the issue on remand.
For all of these reasons, we conclude that the court erred by applying the incorrect
legal standard to Deiner’s diversion motion. We conditionally reverse the judgment,
15 reverse the order denying the diversion motion, and remand for the court to reconsider
the motion.
II. Resentencing
Deiner argues that the court abused its discretion by declining to consider a full
resentencing on remand. He asserts that we ordered him to be “fully resentenced” in
Deiner I. He additionally contends that we should remand for the court to resentence him
under section 1172.1. The arguments lack merit.
After the remittitur issues, “the trial court is revested with jurisdiction of the case”
to carry out the directions of the reviewing court. (People v. Dutra (2006) 145
Cal.App.4th 1359, 1366.) “‘The terms of the remittitur define the trial court’s
jurisdiction to act.’” (Id. at p. 1367.) The remittitur directions are in the dispositional
language of the opinion, which “must be read in conjunction with the opinion as a
whole.” (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859.) “‘The issues
a trial court may address in remand proceedings are therefore limited to those specified in
the reviewing court’s directions, and if the reviewing court does not direct the trial court
to take a particular action or make a particular determination, the trial court is not
authorized to do so.’” (People v. Cervantes (2021) 72 Cal.App.5th 326, 332.)
The trial court did not misinterpret our directions on remand by refusing Deiner’s
request for a full resentencing. Specifically, Deiner asked the court to reconsider striking
his prior strikes. Our disposition did not vacate his sentence or otherwise order the court
to reconsider the entirety of his sentence. If there was any ambiguity about that in the
16 disposition, then the whole of the opinion dispelled it. Deiner argued only that we should
remand for the court to exercise its newly granted discretion to strike the prior serious
felony enhancements. He did not argue that the court erred by denying his Romero
motion to strike the prior strikes, and we did not address that or any other issue that
would entitle him to a full resentencing. The court correctly interpreted our directions on
remand. (People v. Cervantes, supra, 72 Cal.App.5th at p. 332 [on remand for the trial
court to consider whether to strike a firearm enhancement, the court had no authority to
conduct a full resentencing].)
The court also did not err by refusing to recall the sentence and resentence Deiner
under section 1172.1. At the time of the proceedings on remand, the statute permitted the
court to recall the sentence on its own motion, but only “within 120 days of the date of
commitment” to the Department of Corrections and Rehabilitation. (Former § 1172.1,
subd. (a)(1), as amended by Stats. 2022, ch. 58, § 9.) Deiner was committed to the
Department of Corrections and Rehabilitation in 2018. Section 11721.1 did not permit
the court to recall the sentence on its own motion in March 2023, long after the 120-day
period had expired.
Effective January 1, 2024, the Legislature amended section 1172.1 to permit the
court to recall a sentence on its own motion “at any time if the applicable sentencing laws
at the time of the original sentencing are subsequently changed by new statutory authority
or case law.” (§ 1172.1, subd. (a)(1), as amended by Stats. 2023, ch. 446. § 2.) The
“[r]ecall and resentencing under this section may be initiated by the original sentencing
17 judge, a judge designated by the presiding judge, or any judge with jurisdiction in the
case.” (Ibid.) Deiner urges us to “remand for the trial court to consider whether to
resentence” him under the recently amended statute. But the court needs no directions
from us to recall the sentence and resentence Deiner under section 1172.1. As already
explained, the statute gives the court authority to do that on its own motion if the
applicable sentencing laws have changed. Our remittitur would not be the source of the
court’s jurisdiction in that respect.
DISPOSITION
The judgment is conditionally reversed, and the order denying Deiner’s motion for
diversion under section 1001.36 is reversed. On remand, the trial court shall reconsider
the motion under section 1001.36. If the court determines that Deiner qualifies for
mental health diversion, then the court may grant diversion. If the court does not grant
diversion, or if Deiner is granted diversion but does not successfully complete it, then the
court shall reinstate the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
McKINSTER Acting P. J.
FIELDS J.