Filed 10/6/26 P. v. Rogers CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C102097
Plaintiff and Respondent,
(Super. Ct. No. 22FE012404)
v.
RICHARD STEPHEN ROGERS,
Defendant and Appellant.
A jury found defendant Richard Stephen Rogers guilty of possession for sale of
methamphetamine (Health & Saf. Code, § 11378—count one); possession of a firearm by
a person previously convicted of a felony (Pen. Code, § 29800, subd. (a)(1)—count
two);1 unlawful possession of a firearm magazine (§ 30305, subd. (a)(1)—count three);
and misdemeanor possession of cocaine (Health & Saf. Code, § 11350, subd. (a)—count
four). The trial court found true a prior strike allegation and three aggravating sentencing
factors. (§§ 667, subds. (b)-(i), 1170.12; Cal. Rules of Court, rule 4.421(b).) The court
sentenced defendant to a total term of six years and eight months in prison: four years for
count one (two years doubled for the prior strike); and 16 months each for counts two and
three (one-third the middle term doubled for the prior strike).
1 Undesignated statutory references are to the Penal Code.
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On appeal, defendant argues: (1) the trial court abused its discretion in denying
his request for mental health diversion under section 1001.36; (2) the trial court erred in
admitting evidence of his two prior convictions for possession for sale of
methamphetamine to show intent to sell in this case; and (3) the trial court abused its
discretion by refusing his request to strike his prior strike conviction pursuant to section
1385.
The judgment is affirmed.
I. BACKGROUND
On July 21, 2022, police officers conducted a traffic stop on an SUV that was
being driven by defendant. Before defendant pulled over, one officer noticed the driver’s
window was down and then a blue box in the road. He thought the driver had discarded
something out of the window. Officers found a semi-automatic firearm in the street by
the box.
When defendant got out of the SUV, a black bag fell out of the driver’s side
floorboard. Officers found a bag of methamphetamine on the ground next to the car and
another bag on the driver’s floorboard. In total, the bags contained about 30 grams of
methamphetamine. An officer opined that this amount of methamphetamine was
indicative of selling methamphetamine, and that it was a large amount for someone who
is “just a basic user, seller on the streets. That’s someone who is trying to move more
product and make money.”
Defendant had $460 cash in his pocket. Officers found a satchel that contained, in
part, a baggy of 1.52 grams of rock cocaine, a digital scale, a Glock magazine, and
defendant’s identification card. Officers also found syringes and a glass
methamphetamine pipe in the SUV.
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II. DISCUSSION
A. Request for Mental Health Diversion
Defendant argues the trial court abused its discretion in denying his request for
mental health diversion under section 1001.36.
“In 2018, the Legislature enacted section 1001.36 to create a program of pretrial
diversion for criminal defendants with diagnosed mental health disorders.” (Sarmiento v.
Superior Court (2024) 98 Cal.App.5th 882, 890.) “Effective January 1, 2023, mental
health diversion requires trial court findings that the defendant is both eligible for
diversion and suitable for the program. The criteria for each are specified in the statute.
(§ 1001.36, subds. (b) & (c).)” (Id. at p. 891.)
Here, the issue on appeal is defendant’s eligibility under section 1001.36,
subdivision (b), which provides, as relevant to this proceeding, “A defendant is eligible
for pretrial diversion pursuant to this section if both of the following criteria are met: [¶]
(1) The defendant has been diagnosed with a mental disorder.… [¶] (2) The defendant’s
mental disorder was a significant factor in the commission of the charged offense. If the
defendant has been diagnosed with a mental disorder, the court shall find that the
defendant’s mental disorder was a significant factor in the commission of the offense
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. A
court may consider any relevant and credible evidence, including, but not limited to,
police reports, preliminary hearing transcripts, witness statements, statements by the
defendant’s mental health treatment provider, medical records, records or reports by
qualified medical experts, or evidence that the defendant displayed symptoms consistent
with the relevant mental disorder at or near the time of the offense.”
Defendant filed a request for mental health diversion under section 1001.36 on the
basis of complex post-traumatic stress disorder (PTSD) and amphetamine use disorder.
The request attached a “Diagnosis Document” from “CalMHSA Sacramento County” that
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reflected defendant was diagnosed with PTSD, unspecified. The request also attached a
“CalAIM Assessment” that mentioned complex PTSD and amphetamine use disorder.
The assessment stated defendant reported daily methamphetamine use and that he began
using it at age 11. With respect to PTSD, the assessment explained defendant reported
“avoidance symptoms, hyperarousal, numbing, intrusive thoughts and dissociation.”
Defendant also reported “mental health symptoms including depression, amotivation,
energy and barriers to cessation of drug use.” In his request for mental health diversion,
defendant argued there was a “clear nexus between [his] mental illness and his alleged
conduct in his case. The facts of the current case indicate that [defendant] possessed
methamphetamine alongside a firearm and ammunition, and his assessment indicates that
he has a disorder involving excessive amphetamine use, indicating that he is likely
addicted to the substance. Given that he was potentially involved in the business of
selling drugs, the firearm that the police found and [he] is alleged to have possessed
would therefore be a necessity to help with his safety.” Defendant asserted his PTSD
caused him to believe he had no other choice but to arm himself despite legally being
barred from owning a firearm.
The prosecutor opposed defendant’s request for mental health diversion on the
basis that there was a lack of a nexus. The prosecutor argued, “PTSD does not make one
a firearm carrying drug dealer.” Further, the prosecutor pointed to the increasing scale of
defendant’s drug dealing based on the evidence of his prior convictions. In 2014,
defendant was found with about 20 grams of methamphetamine for sale. In 2017, he was
found with 24 grams of methamphetamine for sale. The prosecutor noted defendant was
a parolee still possessing firearms who had absconded at the time of the traffic stop, and
one firearm was thrown out the window.
The court heard argument on the issue. Defendant argued drug addicts resort to
selling drugs at the street level to support their habits, PTSD from his parents’
methamphetamine use made him think drug dealing was acceptable, and he armed
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himself to avoid becoming the victim of violence again. Defendant also argued drug
deals are dangerous and thus he needed to be armed.
The People argued defendant armed himself to protect his growing enterprise.
The court denied mental health diversion “particularly as it relates to the
possession of the firearm.” The court explained the fact that defendant had already been
held to answer at a preliminary hearing for possession of a firearm “further buoys” its
analysis that defendant “tossed the gun out of the car.” The court further stated, “And
that, to me, there’s no connection to depression or the post-traumatic stress disorder or the
substance use issue in terms of—I understand, I think it’s almost a bootstrapping. It’s one
thing to talk about people who, because of their addiction may sell narcotics and use the
narcotics and the like. When a person gets into the business of arming themselves with a
gun because it’s a dangerous line of work, I don’t think that’s what was contemplated by
way of the mental health diversion matter. And I don’t find there is a nexus to it. So for
that reason, the Court is denying the mental health diversion application.”
“A trial court’s ruling on a request for mental health diversion is reviewed for
abuse of discretion, and the court’s factual findings are reviewed for substantial
evidence.” (Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401 (Lacour).)
Defendant argues “the trial court failed to properly undertake this analysis.” We
disagree. Defendant’s argument emphasizes there was a presumption that his mental
health disorders were a significant factor in the charged offense because he had been
diagnosed with them, and clear and convincing evidence was required to rebut the
presumption. (§ 1001.36, subd. (b)(2).) But, the trial court explicitly recognized the
existence of the presumption. This court has explained that “the absence of evidence
proving that petitioner’s mental disorder was a factor in the commission of the offenses is
not substantial evidence supporting a finding by clear and convincing evidence that
petitioner’s mental disorder was not a factor in the commission of the offenses.” (Lacour,
supra, 110 Cal.App.5th at p. 404.) However, here, the trial court relied on evidence
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(rather than merely the absence of evidence) to implicitly conclude the presumption had
been rebutted by clear and convincing evidence.
“When reviewing a finding that a fact has been proved by clear and convincing
evidence, the question before the appellate court is whether the record as a whole
contains substantial evidence from which a reasonable fact finder could have found it
highly probable that the fact was true. In conducting its review, the court must view the
record in the light most favorable to the prevailing party below and give appropriate
deference to how the trier of fact may have evaluated the credibility of witnesses,
resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012; accord, Lacour, supra, 110
Cal.App.5th at p. 401.)
Here, the record as a whole contains substantial evidence from which the trial
court could have found it highly probable that defendant’s mental disorders did not cause,
motivate, or contribute to the charged offenses. Defendant himself argued, and the
evidence supported, that the reason for his firearm possession was because he was in a
dangerous line of work. The evidence from his prior convictions for possession for sale
and the charged offenses amply supported the conclusion that defendant’s decision to arm
himself and sell drugs was profit-motivated and not symptom-driven. As such, the court
did not abuse its discretion in denying defendant’s motion for pretrial diversion.
B. Admission of Evidence of Prior Convictions
Defendant argues the trial court erred in admitting his two prior convictions for
possession for sale of methamphetamine.
1. Trial Court Proceedings
Prior to trial, the prosecutor moved in limine pursuant to Evidence Code section
1101, subdivision (b), to introduce evidence of defendant’s prior convictions for
possession for sale of methamphetamine to show evidence of his intent to sell.
Defendant opposed the motion.
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During a hearing on the motion, the prosecutor provided a summary of both prior
cases. In the 2014 case, defendant was stopped by law enforcement and found with 18.7
grams of methamphetamine that was packaged for sale, a digital scale, unused baggies,
and $383 in cash. In the 2017 case, defendant had 24.25 grams of methamphetamine. If
the court allowed the evidence, the prosecutor would introduce certified copies of the
convictions and call one law enforcement witness for each conviction.
Defense counsel argued the 2014 conviction was not probative because it was 10
years old and could confuse and prejudice the jury because the facts of that case were
similar to the current charges. As to the 2017 conviction, counsel argued seven years had
passed.
The court granted the prosecutor’s motion to admit the evidence of the 2014 and
2017 incidents for the limited purpose of proving intent to sell methamphetamine. The
court found neither conviction was too remote in time and noted defendant was never out
of custody very long. The court concluded the evidence was straightforward and would
not cause jury confusion or an undue consumption of time. The court found “the
probative value of the prior acts, namely possessing that methamphetamine for the
purpose of sale, to be probative and relevant in this matter given that the charge is exactly
the same as the current case.”
2. Analysis
Evidence Code section 1101, subdivision (a), “ ‘expressly prohibits the use of an
uncharged offense if the only theory of relevance is that the accused has a propensity (or
disposition) to commit the crime charged and that this propensity is circumstantial proof
that the accused behaved accordingly on the occasion of the charged offense.’ ” (People
v. Chhoun (2021) 11 Cal.5th 1, 25.) “ ‘Subdivision (b) of section 1101 clarifies, however,
that this rule does not prohibit admission of evidence of uncharged misconduct when
such evidence is relevant to establish some fact other than the person’s character or
disposition,’ such as identity, common plan, or intent. [Citation.] Evidence of uncharged
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crimes is admissible to prove identity, common plan, and intent ‘only if the charged and
uncharged crimes are sufficiently similar to support a rational inference’ on these issues.”
(People v. Edwards (2013) 57 Cal.4th 658, 711.) “ ‘The least degree of similarity
(between the uncharged act and the charged offense) is required in order to prove intent.
[Citation.] … In order to be admissible to prove intent, the uncharged conduct must be
sufficiently similar to support the inference that the defendant “ ‘probably harbor[ed] the
same intent in each instance.’ ” ’ ” (People v. Foster (2010) 50 Cal.4th 1301, 1328.)
“Even if evidence of the uncharged conduct is sufficiently similar to the charged
crimes to be relevant for a nonpropensity purpose, the trial court must next determine
whether the evidence’s probative value is ‘substantially outweighed by the probability
that its admission [would] … create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.’ ” (People v. Chhoun, supra, 11 Cal.5th at p. 26,
quoting Evid. Code, § 352.)
The admission of evidence under Evidence Code sections 1101 and 352 is
reviewed for abuse of discretion. (People v. Leon (2015) 61 Cal.4th 569, 597.)
Defendant has not demonstrated the trial court abused its discretion. He argues
that because the prior convictions were for an offense he was charged with, they caused
undue prejudice. This argument is unpersuasive. “ ‘Evidence is prejudicial within the
meaning of Evidence Code section 352 if it “ ‘uniquely tends to evoke an emotional bias
against a party as an individual’ ” [citation] or if it would cause the jury to
“ ‘ “prejudg[e]” a person or cause on the basis of extraneous factors.’ ” ’ ” (People v.
Foster, supra, 50 Cal.4th at p. 1331.) The trial court explained the evidence was relevant
to whether the methamphetamine was possessed for sale. The court considered the
evidence to be introduced and any potential for prejudice, confusion, or undue
consumption of time. We conclude the trial court did not abuse its discretion in admitting
evidence of defendant’s two prior convictions for possession of methamphetamine for
sale for the limited purpose of proving his intent to sell.
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C. Denial of Romero Motion2
Defendant argues the trial court abused its discretion by denying his so-called
Romero motion to strike his prior strike conviction. We find no abuse of discretion.
1. Trial Court Proceedings
Prior to his sentencing hearing, defendant filed a motion pursuant to Romero,
supra, 13 Cal.4th 497 asking the court to dismiss the prior strike allegation in the
furtherance of justice pursuant to section 1385. Defendant argued he was outside the
“spirit” of the Three Strikes law because his prior strike conviction was 19 years old, he
had remained conviction free for more than five years, he had suffered childhood trauma
and mental health concerns, and desired substance abuse treatment. Defendant also
argued his current and prior convictions did not involve violence.
The trial court declined to strike the prior strike. It explained its reasoning as
follows:
“[W]hen I look at the strike prior by itself, it’s from 2005 and it’s a first-degree
residential burglary. Some time has passed 19 years. The problem is … that there has
been no significant what we call a wash out period. In that [defendant] despite his best
attempts has been unable to lead a law-abiding life consistently since that strike prior. [¶]
And has only been out of prison a short time before returning with these current charges.
And, in fact, I think between the strike prior and the current time he’s had three additional
prison sentences based on felony convictions. [¶] As well as a number of misdemeanors.
I don’t give that great weight but he has had consistently prison commitments based on
felony offenses since his strike prior did occur.
“So, therefore, there has not been a wash out period. While the prior did not
involve great violence or weapons, the Court is concerned that these last two convictions
specifically were for the same offense that you were convicted of in this Court a short
2 People v. Romero (1996) 13 Cal.4th 497 (Romero).
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time ago. And that is a violation of Health and Safety Code [s]ection 11378 with prior
strikes.
“And what sets this case apart even more is the fact that there was a weapon and
there was ammunition in a separate area, separate and apart from the firearm, money and
all the indicia that go along with selling narcotics.
“And so this is even more serious than the other priors where there were no guns.
And it was alleged that you were dealing methamphetamine or whatever type of narcotic.
But now we’ve still got sales, we still have a large quantity, and now we have a firearm
and ammunition making it that much more dangerous.
“The length of [defendant’s] criminal history is consistent from 1992. I would
consider in some respects that these crimes are of increasing severity for the reasons
stated and that … this time selling narcotics there’s now a firearm and ammunition.
“[Defendant] is currently 52 years old, he’s had a number of chances to
rehabilitate on previous occasions, and has been sent to state prison previously at least
seven times from my count not including any parole violations.
“The nature of the current offense is not substantively different from other prior
offenses that he’s had. And I don’t believe the interests of justice would be served
without imposing the prior—the strike.
“I have read and considered all of the aggravating and mitigating factors set forth
by [defense counsel] including—and I don’t discount any childhood trauma that you did
sustain. The problem … is the number and length of your record and the increasing
severity.”
2. Analysis
On appeal, defendant argues he is outside the spirit of the Three Strikes law
because his prior strike was not violent and he suffered abuse as a child, including his
introduction to illegal drugs by his parents.
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Subdivision (a) of section 1385 provides that a judge may, in furtherance of
justice, dismiss a criminal action. In Romero, our Supreme Court held that a trial court
may utilize this provision to strike or dismiss a prior strike conviction for purposes of
sentencing under the Three Strikes law. (Romero, supra, 13 Cal.4th at p. 504.) In ruling
on a Romero motion, the court considers “whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review a trial court’s denial of a Romero motion for abuse of discretion.
(People v. Carmony (2004) 33 Cal.4th 367, 374.) “This review is deferential.… [A]n
appellate court may not substitute its judgment about appropriate sentencing for that of
the trial court, but instead must give due regard to the discretion vested in that court.
[Citations.] The appellate court can find a reversible abuse of discretion only if it
concludes that no reasonable judge would have agreed with the trial court’s decision.
[Citations.] Unless that standard is met, the appellate court must affirm the decision,
even if it ‘ “might have ruled differently” ’ on the Romero motion ‘ “in the first
instance.” ’ ” (People v. Dain (2025) 18 Cal.5th 246, 258.) “Abuse of discretion in
failing to strike a prior conviction occurs in limited circumstances: where the trial court is
not aware of its discretion; where the trial court considers impermissible factors; or where
applying the Three Strikes law would produce an arbitrary, capricious, or patently absurd
result under the specific facts of a particular case. [Citation.] A reviewing court’s
disagreement with the trial court’s weighing of proper factors (as distinct from the trial
court’s reliance on improper factors in the weighing process) does not constitute an abuse
of discretion.” (People v. Dryden (2021) 60 Cal.App.5th 1007, 1029; see Carmony,
supra, at pp. 378-379.)
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On this record, we cannot conclude the trial court abused its discretion. The trial
court was not required to give “great weight” to any mitigating factors under section
1385, subdivision (c)(2). (See e.g. People v. Serrano (2024) 100 Cal.App.5th 1324, 1338
[the Three Strikes law is an alternative sentencing scheme not impacted by § 1385, subd.
(c)].) Nonetheless, the record reflects that the trial court considered defendant’s
mitigating evidence and arguments and concluded that defendant still fit within the spirit
of the Three Strikes law based on “the number and length of [his] record and the
increasing severity.” We cannot conclude this decision was “so irrational or arbitrary that
no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at
p. 377.)
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, Acting P. J.
We concur:
/S/
KRAUSE, J.
/S/
FEINBERG, J.
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