Filed 10/19/26 P. v. Ruth CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B338401
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. NA105943)
KENDRICK JAMAR RUTH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of the
County of Los Angeles, Judith L. Meyer, Judge. Affirmed.
Jeffrey Manning-Cartwright, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Kendrick Ruth appeals from a judgment of
conviction following a limited remand. He argues the trial court
erred in failing to declare sua sponte a doubt about his mental
competence prior to sentencing him and abused its discretion by
denying him mental health diversion. He also makes four claims
of sentencing error. We find no error in the court’s failure to
declare a doubt as to defendant’s competency or abuse of
discretion in its denial of mental health diversion. We also affirm
the sentence.
II. FACTUAL BACKGROUND
“At the time of his testimony on October 18, 2017, Luis
Perez was 83 years old. On February 28, 2017, he was walking
on the sidewalk along Willow Street in Long Beach when
defendant walked about 10 or 15 steps past him. Defendant then
turned around, approached Perez, and punched him in the head.
The blow knocked Perez unconscious and he fell into the street.
“Jesus Manrique, who witnessed defendant strike Perez,
ran across the street to help Perez. Manrique and another person
picked up Perez and moved him from the street. Andrew
Williams, who also saw defendant strike Perez, also went to
Perez’s aid. Perez regained consciousness and was taken to the
hospital. He experienced a lot of pain and had swelling on the
top of his head. He was released from the hospital later that
2
day.” (People v. Ruth (Aug. 28, 2019, B289124) [nonpub. opn.]
(Ruth I).)1
III. PROCEDURAL BACKGROUND
A. The Information, Jury Verdict, and Sentencing
On October 17, 2017, the Los Angeles County District
Attorney filed an amended information charging defendant with
elder abuse (Pen. Code,2 § 368, subd. (b)(1)) with the special
allegation that the victim, age 82 years, suffered great bodily
injury (§ 368, subd. (b)(2)). It was further alleged that defendant
personally inflicted great bodily injury (§ 12022.7, subd. (a)), had
suffered a prior serious and/or violent felony conviction within
the meaning of the Three Strikes law (§§ 667, subd. (d), 1170.12,
subd. (b)), which also constituted a serious felony (§ 667, subd.
(a)(1)), and had served two prior prison terms (§ 667.5, subd. (b)).
On October 19, 2017, a jury found defendant guilty of elder
abuse and found true that the victim suffered great bodily injury3
and that he was 70 years of age or older. The jury found true the
additional allegations that defendant suffered prior convictions of
assault by means of force likely to produce great bodily injury
1 On January 20, 2026, we granted defendant’s request to
take judicial notice of the record in B289124.
2 All further statutory references are to the Penal Code
unless otherwise stated.
3 As we explain below, the jury was instructed that to find
this allegation to be true, it must find that defendant personally
inflicted great bodily injury on the victim.
3
(§ 245, subd. (a)(4)), which was a serious felony, and driving
under the influence of alcohol (Veh. Code, § 23152, subd. (a)).
At the March 29, 2018, sentencing hearing, the trial court
declined to strike the prior serious felony and determined the
current crime of elder abuse was “a violent felony … based on the
fact that it has a [great bodily injury enhancement] with it … .”
The court struck a one-year prior and sentenced defendant to
prison for 16 years. The court imposed the middle term for
section 368, subdivision (b)(1) of three years, doubled for the prior
strike. It added five years for personal infliction of great bodily
injury under section 12022.7, subdivision (c).4 The court then
added the five-year enhancement under section 667, subdivision
(a)(1) for committing a serious felony while previously convicted
of a serious felony.
B. First Direct Appeal
As relevant here, after defendant appealed from the
judgment, another panel of this court conditionally reversed the
elder abuse conviction and remanded for a hearing to determine
defendant’s eligibility for a mental health diversion program
pursuant to section 1001.36. (Ruth I, supra, B289124.) The
disposition provided that should the trial court choose not to
grant mental health diversion, the court should consider whether
to exercise its section 1385 discretion to strike the section 667,
subdivision (a)(1) enhancement and to correct clerical errors in
the abstract of judgment. (Ibid.) The reviewing court also
4 In Ruth I, another panel of this court held that the section
12022.7, subdivision (c) enhancement was neither charged nor
found true.
4
ordered modification of the sentencing minute order and abstract
of judgment to reflect that defendant was sentenced to a five-year
term under section 368, subdivision (b)(2)(B) and not section
12022.7, subdivision (c).5 (Ruth I, supra, B289124).
The remittitur in Ruth I was issued on August 19, 2020.6
C. Post-remand Mental Competency Proceedings
On October 26, 2020, defense counsel declared a doubt as to
defendant’s mental competence. (§ 1368.) The trial court
suspended criminal proceedings and ordered an expert
assessment pursuant to Evidence Code section 730. In his
November 26, 2020, report, Dr. Daniel J. King opined that
defendant was not mentally competent to stand trial. Dr. King
observed defendant “did not appear to comprehend what was
occurring with his case or his attorney’s repeated explanations.”
He had delusions that his private communications with his
attorney were broadcast to other courtroom personnel and he
believed he had completed mental health diversion. Dr. King
opined that defendant met the criteria for a schizophrenia-
spectrum disorder. He added, “It is my opinion that [defendant]
tends to hide and minimize his mental health symptoms and this
5 As discussed more fully below in Part IV.E., the amended
information charged defendant with violating section 368,
subdivision (b)(2) and section 12022.7, subdivision (a), but did not
contain an allegation under section 12022.7, subdivision (c).
6 The California Supreme Court granted the People’s petition
for review, which was deferred pending consideration and
disposition in People v. Frahs (2020) 9 Cal.5th 618. On July 29,
2020, the petition for review was dismissed.
5
pattern has been seen by other clinicians as well.” Dr. King
recommended a psychiatric evaluation with respect to anti-
psychotic medication. Regarding risk of harm, Dr. King wrote, “I
did not review information suggesting [defendant] was presently
at high risk of harming himself or others. However, he was
experiencing paranoid delusions, which is a risk factor for
violence.”
On December 2, 2020, the trial court found defendant
lacked mental competence (§ 1368) and referred him for a written
recommendation as to an appropriate placement in a treatment
program and/or facility.
In a letter dated January 19, 2021, Dr. Chelsea T. Lucas
found defendant “currently represents a risk of danger beyond
that which can be safely or effectively treated in an unlocked
setting” based on her consideration of defendant’s status as
“acutely psychotic,” his “enduring medication refusal in county
jail,” and “his staggering history of unprompted violence, heavy
substance abuse, and habitual disregard for court-mandated
supervision and outpatient mental health services[.]” After
reviewing Dr. Lucas’s report, the trial court ordered defendant’s
transfer to the Department of State Hospitals for restoration of
competency and ordered the hospital to administer antipsychotic
medication involuntarily when and as prescribed.
Defendant was admitted to Atascadero State Hospital on
May 12, 2021. In a progress report dated November 3, 2021,
Dr. Theresa Fraser opined that defendant continued to
experience symptoms of schizophrenia, including delusional
ideation related to his case, which “impair his ability to engage in
a meaningful and rational discussion” and “cooperate with an
attorney in the conduct of a legal defense.” She concluded he
6
lacked mental competence and recommended he be retained for
further treatment, including the continuation of antipsychotic
medication. Dr. Fraser noted that defendant had shown evidence
of medication noncompliance and displayed poor insight into his
need for medication. With respect to danger to others, Dr. Fraser
reported “[defendant] has not engaged in any known aggressive,
assaultive, or threatening behavior since admission, though he
has perceived that unit staff members are targeting him. Despite
this, he has remained behaviorally stable without evidence of
recent aggression. His current risk for violence is estimated to be
low at this time.”
On January 13, 2022, the trial court renewed the
involuntary medication order for defendant after Dr. Valerie
Davis testified for the Department of State Hospitals that
without antipsychotic medication, which defendant did not
understand that he needed, defendant was a danger to others.
In a report dated March 1, 2022, Dr. Fraser recommended
defendant be restored to competency. The report noted that
defendant’s medication compliance had improved over time and
“[t]reatment with antipsychotic medication remains necessary for
competency restoration.” Dr. Fraser stated that during her
examination of defendant on February 25, 2022, he “was oriented
to person, place, time, and situation” and “[h]is speech was clear
and coherent, and his thought process was linear and goal-
directed.” Defendant “demonstrated improved insight into his
mental illness,” agreed with his schizophrenia diagnosis and
identified his symptoms of “‘hearing voices’” and depression. His
insight, however, was limited because he did not believe the
prescribed medication had any impact on his symptoms. When
asked if he believed the medication was helpful in reducing the
7
auditory hallucinations, defendant replied, “‘No, I learned how to
ignore them.’” Defendant said that “he last experienced [hearing]
voices approximately one month before.” Defendant “expressed a
desire to remain on his prescribed medication upon discharge
from [the state hospital], but noted that he hoped for the
medications to remain the same ‘because [he had] got[ten] used to
it.’”
Dr. Fraser observed that “some residual grandiose thinking
was evident” as defendant stated that he “‘used to have a
recording studio’” and he was friends with and related to
celebrities. Defendant “declined to speak about past delusional
ideation related to his charges” and did not exhibit any evidence
that he was responding to internal stimuli or hallucinations. He
understood the procedural posture of his case, that he did not
complete a diversion program in prison, and understood the
different sentencing possibilities available to him at that time.
On March 3, 2022, the hospital medical director certified
defendant as competent. (§ 1372.) A letter to the trial court
added the caveat that defendant was “being returned to court on
psychotropic medication. It is important that the individual
remain on this medication for his own personal benefit and to
enable him to be certified under [s]ection 1372 … .” On April 6,
2022, the court reinstated criminal proceedings.
On September 19, 2022, defense counsel declared a doubt
(§ 1368) and the trial court suspended criminal proceedings. The
court transferred the matter to the mental health division of the
superior court and appointed a psychiatrist to examine defendant
pursuant to Evidence Code section 730.
In a report dated October 24, 2022, Dr. Kevin Nowrangi
opined defendant was competent because he “evidenced linear
8
thinking” and “had a rational understanding of his charges, an
appreciation of relevant legal procedures, and motivation to work
with his attorney.” Defendant “reported a long-standing history
of schizophrenia and several inpatient psychiatric
hospitalizations. He reported he [wa]s currently taking
[antipsychotic medications] … reported motivation to continue
his medications and reported no significant side effects. [He]
reported no depression, anxiety, suicidal/homicidal ideation or
delusional beliefs. He reported intermittent auditory
hallucinations, though reduced in intensity and frequency
because of his medications.” Dr. Nowrangi also noted that
defendant “did not evidence any psychotic indicators, such as
disorganized thinking, blurred affect, or internal preoccupation.”
On October 28, 2022, the trial court reinstated criminal
proceedings at defense counsel’s request.
D. Section 1001.36 Mental Health Diversion Evaluation
On July 5, 2022, the trial court ordered the appointment of
an expert to evaluate defendant for mental health diversion.
Dr. Carl E. Osborn examined defendant on September 7, 2022,
and January 5, 2023.7 During both examinations, defendant
communicated “complex persecutory paranoid delusion[s]”
related to “a secret government program that allowed people to
change bodies in order to make money on the internet” and “a
plot by people in his family who were, ‘setting [him] up to go to
jail.’” Based on these examinations and consideration of records
related to defendant’s criminal history and past medical
7 As previously stated, Dr. Nowrangi examined defendant on
October 24, 2022, and found him mentally competent.
9
treatment, Dr. Osborn prepared a mental health diversion
evaluation dated March 8, 2023, in which he provided the
following four “psycholegal opinions.” (Capitalization, boldface,
and underscoring omitted.)
With respect to the first two opinions, Dr. Osborn found
defendant “suffers from [s]chizophrenia, [c]ontinuous” and his
“mental disorder did play a significant role in the commission of
the charged offense.” (Footnote omitted.) Dr. Osborn observed,
“defendant’s serious, persistent mental disorder underlies his
lack of impulse control when experiencing emotional arousal. At
times he is overwhelmed by a combination of anger, auditory
hallucinations and delusional beliefs, leading to irrational
explosive aggression such as that seen in the instant offense.”
Third, Dr. Osborn opined that “defendant’s symptoms
motivating the criminal behavior will respond to mental health
treatment.” He qualified his opinion by warning that defendant’s
symptoms are “amenable to treatment” by medication but that
defendant’s “level of response to even the most judiciously
prescribed medications is minimal to moderate.” In addition, “he
has a history of both overt and surreptitious non-compliance with
psychotropic medications, even within highly structured
treatment environments.”
Fourth, as to whether defendant would “pose an
unreasonable risk of danger to public safety” if treated in the
community, as defined in sections 1170.18 and 667, subdivision
(e)(2)(C)(iv), Dr. Osborn explained that the statutes “address a
narrow range of serious violent felonies sometimes referred to as
‘Superstrikes.’” In Dr. Osborn’s opinion, “Based on a strict
reading of these criteria, … defendant does not meet the
statutory definition of one who poses an unreasonable risk of
10
danger to public safety. However, in spite of not meeting this
black-letter law definition of unreasonable risk, … defendant
nevertheless presents an exceedingly poor risk for community-
based treatment. Even on those rare occasions when he has been
fully compliant with prescribed psychotropic medications, his
psychotic symptoms respond modestly at best, and as noted
above, he is rarely fully compliant.” Dr. Osborn continued:
“Since the best single predictor of future behavior is past
behavior under similar circumstances, and while living in the
community … defendant has repeatedly acted impulsively in both
violent and sexual ways, and because he has victimized two of
society’s most vulnerable populations, children and the elderly, I
simply cannot in good conscience recommend him for a
community-based mental health diversion program.”
After outlining information obtained from defendant during
the examinations and summarizing defendant’s history of mental
illness and criminal history, Dr. Osborn stated: “Despite
repeated treatment episodes and the intensive, highly structured
treatment program at county jail, … defendant remained
psychotic throughout both clinical examinations. He was not
wildly crazy when I saw him; he was able to appear relatively
normal, outwardly friendly and socially appropriate. Very little
probing was necessary, however, to reveal his bizarre paranoid,
persecutory belief system. Through hard work and patience his
treatment team has managed to put a lid on it, but the pot is still
boiling. It would take very little to blow that lid off again.”
Dr. Osborn concluded: “In light of his history of unprompted
violence, medication non-compliance and habitual disregard for
court-mandated supervision and treatment, … defendant
represents an unacceptably high risk for re-offense. Although he
11
meets the technical requirements for inclusion in California’s
new mental health diversion program, I cannot in good
conscience recommend it for him. I do not say this lightly;
although I have been doing these mental health diversion
evaluations regularly since the new law took effect, this is the
first time that I have recommended against its use. Put most
simply, I cannot envision an outpatient treatment program that
could sufficiently protect the community from this defendant’s
repetitive, mental illness driven, impulsive aggression.”
E. Denial of Mental Health Diversion and Judgment
On March 28, 2023, defendant filed a motion to dismiss the
serious felony enhancement (§ 667, subd. (a)(1)) based on the
mitigating factors of multiple enhancements alleged in a single
case (§ 1385, subd. (c)(1)(2)(B)) and the current offense’s
connection to mental illness (§ 1385, subd. (c)(1)(2)(D)).
On April 5, 2023, the trial court conducted a hearing on the
remittitur. The court stated: “This matter was sent back to us
on a remittitur for deciding two things: [¶] 1. whether the court
should grant mental health diversion; and [¶] 2. a potential
resentencing.”
The trial court then addressed whether to place defendant
on mental health diversion. After acknowledging Dr. Osborn’s
conclusion that he could not recommend defendant for mental
health diversion, the court found defendant was eligible, but not
suitable, and accordingly denied mental health diversion. The
court then incorporated by reference a list of unsuitability factors
12
the court identified in writing on a worksheet.8 The worksheet
indicated that defendant was not suitable for mental health
diversion based on the court’s analysis of seven unsuitability
factors. First, the court found that a qualified mental health
expert (Dr. Osborn) had opined that the symptoms of defendant’s
mental disorder affecting his criminal behavior would not
respond to treatment. Second, the court found defendant
presented an unreasonable risk of danger to public safety as
defined in section 1170.18 if treated in the community. As to this
finding, the court wrote, “Yes, I think defendant could commit
murder and attempt[ed] murder and assault to commit rape.”
Third, the court found a qualified mental health expert
(Dr. Osborn) determined defendant was not suitable for mental
health diversion. Fourth, the court found there was no viable
treatment plan that met the clinical needs of defendant and the
interests of the community. Fifth, the court found defendant had
a criminal history of violence. Sixth, the court found the
circumstances of the current offense warranted denial of mental
health diversion. And finally, the court found that there was no
offer from a county mental health agency or private entity to
accept defendant for treatment.
In exercising its discretion to deny mental health diversion,
the trial court also considered two additional factors: defendant
had a record of prior mental health treatment failure; and
defendant presented a serious risk of committing crimes not
listed in section 1170.18 but which otherwise compromised public
safety. The court made a written notation, “This defendant will
kill someone.”
8 “Mental Health Division Eligibility & Suitability
Worksheet” (LASC CRIM 286 (Rev. 01/23)).
13
After finding defendant unsuitable for mental health
diversion, the court stated: “[D]ue to numerous changes in the
law, resentencing will have to be reconsidered. The court—also,
the appellate court asked this court to fix the enhancement on
the case, but since we’re also doing—having to consider a five-
year prior, whether the court can do high term or not, I’ll ask the
People if you would like to be heard as to what the sentence
should be.”
The prosecutor asked that the prior sentence be reinstated.
The prosecutor also asked the court to amend the information to
change subdivision (a) of the section 12022.7 allegation to read
subdivision (c) because the jury was instructed on subdivision (c)
and it had been a clerical error to omit the words “personally
inflicted” from the verdict form when the jury was asked to find
great bodily injury. The court stated that it would follow the
order of the appellate court and replace the section 12022.7,
subdivision (c) enhancement with the section 368, subdivision
(b)(2)(B) enhancement. It declined to amend the information to
add section 12022.7, subdivision (c) but agreed to hear separate
argument about “whether the jury really did find that the
defendant personally inflicted [great bodily injury].”
The prosecutor argued that in light of the jury instructions,
which required that the jury find defendant personally inflicted
great bodily injury, the evidence at trial that defendant was a
sole perpetrator, and the lack of an aiding and abetting
instruction, the omission of “defendant personally inflicted” on
the verdict form was a clerical mistake and the jury did make
that finding.
The trial court heard argument on the defense motion to
dismiss the five-year serious felony enhancement (§ 667, subd.
14
(a)(1)) and motion to strike the prior serious felony conviction
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497 (Romero). The court denied both motions.
The trial court then resentenced defendant to the 16-year
term. It imposed the middle term of three years, doubled to six
years under the Three Strikes law, plus a five-year enhancement
under section 368, subdivision (b)(2)(B)—as directed by the
appellate court—and a five-year prior serious felony
enhancement (§ 667, subd. (a)(1)) because the court determined
that the current crime of elder abuse constituted a “serious
felony” for that purpose. Although the verdict form did not reflect
a jury finding of that fact, the court ruled that the jury “had to
have found” it was defendant who personally inflicted the great
bodily injury “regardless of what the verdict form says.”
After being granted relief from default, defendant timely
filed a notice of appeal.
IV. DISCUSSION
A. Competency
Defendant first contends the trial court violated his rights
under the California Constitution and section 1367 when, after
receiving and reviewing Dr. Osborn’s mental health diversion
evaluation, it failed to sua sponte declare a doubt about
defendant’s mental competence before proceeding with the
resentencing hearing.
15
1. Legal Principles
Section 1367 provides that a defendant is mentally
incompetent when “as a result of a mental health disorder or
developmental disability, the defendant is unable to understand
the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner.” (§ 1367, subd. (a).)
Under section 1367, a defendant cannot “be tried or adjudged to
punishment” while he or she is mentally incompetent. (Ibid.)
Accordingly, if a doubt is raised as to defendant’s mental
competency, sentencing must be suspended until the question of
competency has been determined. (§ 1368, subd. (c); People v.
Cadogan (2009) 173 Cal.App.4th 1502, 1510.)
Section 1368 imposes upon the trial judge the duty, on its
own motion, to inquire into the mental competence of a defendant
whenever evidence presented during the trial or prior to
sentencing raises a doubt in this respect, even if the defendant
has previously been ruled competent. (§ 1368, subd. (a); People v.
Zatko (1978) 80 Cal.App.3d 534, 548.) “‘“‘Once a defendant has
been found competent to stand trial, a second competency
hearing is required only if the evidence discloses a substantial
change of circumstances or new evidence is presented casting
serious doubt on the validity of the prior finding of the
defendant’s competence.’”’ [Citations.] ‘[T]he duty to suspend
[proceedings] is not triggered by information that substantially
duplicates evidence already considered at an earlier, formal
inquiry into the defendant’s competence; when faced with
evidence of relatively minor changes in the defendant’s mental
state, the court may rely on a prior competency finding rather
than convening a new hearing to cover largely the same ground.’
16
[Citation.]” (People v. Bertsch and Hronis (2026) 19 Cal.5th 183,
233 (Bertsch and Hronis).)
“Whether there has been a change in circumstances
sufficient to call for a new competency hearing is necessarily a
fact-specific inquiry.” (People v. Rodas (2018) 6 Cal.5th 219, 235.)
“We review for substantial evidence the trial court’s finding of no
substantial change of circumstances and no new evidence casting
serious doubt on the initial competency determination, and we
review its decision not to reinstate competency proceedings for an
abuse of discretion.” (Bertsch and Hronis, supra, 19 Cal.5th at
p. 233, citing People v. Huggins (2006) 38 Cal.4th 175, 220.)
“‘“The decision whether to order a competency hearing rests
within the trial court’s discretion, and may be disturbed upon
appeal ‘only where a doubt as to [mental competence] may be said
to appear as a matter of law or where there is an abuse of
discretion.’ [Citation.]”’” (People v. Bloom (2022) 12 Cal.5th
1008, 1030 (Bloom), alterations in Bloom.)
2. Analysis
Defendant argues both that Dr. Osborn’s report revealed “‘a
change of circumstances’” that cast “‘serious doubt on the
validity’” of the most recent finding of competence by
Dr. Nowrangi on October 24, 2022, and that it was “new
evidence” that “revealed that the appearance of competence
[defendant] had shown at earlier points was illusory.”
Defendant contends that the doctors who found him
incompetent during the pendency of criminal proceedings did so
based on his delusions about the case that prevented him from
rationally understanding it. According to defendant,
17
Dr. Osborn’s report shows these delusions never dissipated;
therefore, he has never been restored to mental competency
despite contrary findings. We do not agree with this
characterization of Dr. Osborn’s report.
Contrary to defendant’s contentions, we find substantial
evidence supports the trial court’s finding that Dr. Osborn’s
report did not provide new evidence and did not reveal a change
of circumstances. Dr. Osborn diagnosed defendant with
“schizophrenia, continuous,” meaning his periods of having only
subclinical symptoms have been “very brief relative to the overall
course.”9 (DSM-5 TR, at p. 116.) He reported that during two
interviews, defendant exhibited symptoms of psychosis, including
the paranoid and delusional belief that his family had framed
him for the present crime. Dr. Osborn’s diagnosis was not new
evidence, nor were the reported symptoms of paranoid delusions
and auditory hallucinations. In 2020, defendant was diagnosed
with schizophrenia-spectrum disorder with paranoid delusions
and auditory hallucinations. Shortly thereafter, the court
ordered defendant’s transfer to a state hospital and the
administration of antipsychotic medication, involuntarily if
necessary. Defendant’s symptoms of schizophrenia continued
throughout his treatment at the state hospital, even during his
periods of competence when he was exhibiting “linear thinking,”
9 We grant defendant’s January 9, 2026, unopposed request
to take judicial notice of pages 102 through 104 and 114 through
116 of the Diagnostic and Statistical Manual of Mental Disorders,
Fifth Edition, Text Revision (DSM-5-TR), which discuss
schizophrenia and other psychotic disorders. (Evid. Code, § 452,
subd. (h).)
18
“a rational understanding of his charges, an appreciation of
relevant legal procedures,” and the ability to assist his attorney.
We therefore reject the argument that Dr. Osborn’s
observations that defendant was having delusions related to his
case was new evidence or a substantial change in conditions
mandating that the trial court sua sponte raise a doubt about his
mental competency. We defer to the trial court’s reasonable
inference that defendant remained competent.10
Finally, Dr. Osborn did not opine that defendant lacked the
ability to “understand the nature of the criminal proceedings or
to assist counsel in the conduct of a defense in a rational
manner.” (§ 1367, subd. (a); Rogers, supra, 39 Cal.4th at p. 847
[to be entitled to a competency hearing, a defendant must exhibit
10 Defendant’s reliance on Rodas, supra, 6 Cal.5th 219 is
misplaced. In Rodas, the trial court learned that (1) defendant
had stopped taking his medication, (2) he had begun
communicating incoherently with counsel about defense strategy,
and (3) defense counsel declared a doubt about defendant’s
competence. (Id. at pp. 232–233.) None of those things occurred
in this case. (Cf. Rogers, supra, 39 Cal.4th at p. 848 [“Although
trial counsel’s failure to seek a competency hearing is not
determinative [citation], it is significant because trial counsel
interacts with the defendant on a daily basis and is in the best
position to evaluate whether the defendant is able to participate
meaningfully in the proceedings [citation]”].) At argument,
defense counsel observed that defense attorneys sometimes feel it
futile to continue to raise a doubt about mental competency when
their client is returned from the state hospital with some
regularity, but never gets well. We will not speculate about
whether that happened in this case. Regardless, as defense
counsel conceded, the framework within which we operate makes
a legal distinction between mental illness—even schizophrenia—
and mental competence.
19
more than a preexisting psychiatric condition that has little
bearing on the question of whether he can assist his counsel].)
Nor did he state that prior competency findings were erroneous.
He commented that it was “particularly significant” that he
conducted his examinations of defendant “during periods when he
was believed to be legally competent to stand trial[,] in other
words, while he was at his best symptomatically.” He did not
continue his thought to make any observations casting doubt on
the validity of those prior competency findings, despite having
the opportunity to do so.11 On this record, we cannot say that a
doubt as to mental competence should have appeared to the trial
court as a matter of law. (Bloom, supra, 12 Cal.5th at p. 1030.)
Because substantial evidence supports the trial court’s
finding that there was no substantial change of circumstances or
new evidence casting serious doubt on the validity of its prior
finding that defendant was competent to stand trial, we conclude
the trial court acted within its discretion in declining to order a
renewed competency hearing. (Bertsch and Hronis, supra, 19
Cal.5th at p. 237.)
B. Suitability for Mental Health Diversion
Defendant next contends that the trial court abused its
discretion when it found defendant was unsuitable for mental
health diversion because there was no substantial evidence of an
unreasonable risk that defendant would commit a super strike.
11 The first examination occurred 12 days before trial counsel
declared another doubt as to defendant’s competency. The second
examination occurred two months after Dr. Nowrangi restored
defendant to competence.
20
1. Legal Principles
An “unreasonable risk of danger to public safety” means
“an unreasonable risk that the [defendant] will commit a new
violent felony” described in section 667, subdivision (e)(2)(C)(iv),
commonly known as a “super strike.” (§ 1170.18, subd. (c).) A
super strike includes, among other offenses, a sexually violent
offense, a sexual assault of a child under 14 years of age and
more than 10 years younger than the defendant, a lewd or
lascivious act involving a child under 14 years of age, murder and
attempted murder. (§ 667, subd. (e)(2)(C)(iv).)
We review the denial of mental health diversion for abuse
of discretion. (People v. Moine (2021) 62 Cal.App.5th 440, 448–
449.) “A court abuses its discretion when it makes an arbitrary
or capricious decision by applying the wrong legal standard, or
bases its decision on express or implied factual findings that are
not supported by substantial evidence.” (Id. at p. 449, citations
omitted.)
2. Analysis
Defendant argues there was no substantial evidence that
he would commit a super strike because “[h]e has never
committed anything remotely close to a super strike” and there
was no evidence that he had committed any acts of violence since
he was arrested in 2017.
Defendant’s criminal history in the 2000s includes
convictions for offenses involving dangerous behavior, including
misdemeanor domestic violence with injury (§ 273.5, subd. (a)),
misdemeanor battery against a spouse or cohabitant (§ 243, subd.
(e)(1)), and felony possession of a firearm by person addicted to a
21
narcotic (§ 12021, subd. (a)(1)).12 In 2013, he was convicted of a
felony assault likely to cause great bodily injury (§ 245, subd.
(a)(4)) that did cause serious bodily injury. Less than five years
later, in 2017, defendant committed this serious offense. Both
strike offenses were unprovoked attacks that resulted in serious
bodily injury. In the first, defendant’s assault on a store clerk
caused the victim to suffer a detached retina.13 In the current
case, the victim was a vulnerable, elderly man who lost
consciousness as a result. Since 2017, defendant has been in
custody under the care and control of the state, including at times
the state hospital. The absence of violent incidents during
defendant’s period of incarceration does not delegitimize the trial
court’s concern that defendant’s two most recent crimes were
dangerously close to attempted murder or murders, in other
12 “Former section 12021[, subdivision ](a)(1) provided: ‘Any
person who has been convicted of a felony under the laws of the
United States, the State of California, or any other state,
government, or country or of an offense enumerated in
subdivision (a), (b), or (d) of [s]ection 12001.6, or who is addicted
to the use of any narcotic drug, and who owns, purchases,
receives, or has in his or her possession or under his or her
custody or control any firearm is guilty of a felony.’ (Italics
added.) See now section 29800, subdivision (a)(1).” (People v.
Sanders (2012) 55 Cal.4th 731, 737, fn. 4.) At the time of
defendant’s conviction for violating section 12021, subdivision
(a)(1) in 2007, he had not been convicted of a felony or an offense
enumerated in former section 12001.6.
13 In 2013, defendant pleaded no contest to one count of
assault by means likely to cause great bodily injury (§ 245, subd.
(a)(4)) and admitted he personally inflicted great bodily injury
(§ 12022.7, subd. (a)).
22
words, super strikes. The escalation in defendant’s violent
behavior caused the trial court to memorialize in writing its
concern that “[t]his defendant will kill someone.”
Furthermore, and separately, the trial court could have
reasonably concluded that defendant posed a risk of committing a
super strike of a sexually predatory nature. Defendant was
convicted of annoying or molesting a minor (§ 647.6, subd. (a)(1))
after photographing children at a pool. He approached the same
or different children while making sexually suggestive gestures
toward them with his mouth and tongue and touched his genital
area while he stared at them. While defendant committed
nonviolent misdemeanor behavior, the law qualifies lewd and
lascivious acts and sexual assaults committed against minors
under the age of 14 as super strikes. (§ 667, subd. (e)(2)(C)(iv)(II–
III).) Given Dr. Osborn’s opinion that defendant has a “lack of
impulse control when experiencing emotional arousal” and is “[a]t
times … overwhelmed by a combination of anger, auditory
hallucinations and delusional beliefs, leading to irrational
explosive aggression,” it was not irrational, arbitrary or
capricious for the court to conclude there was an unreasonable
risk defendant would commit a lewd and lascivious act or sexual
assault against a minor.
Finally, Dr. Osborn recommended against a suitability
finding because even though defendant did not meet the “black-
letter law definition of unreasonable risk,” he had “repeatedly
acted impulsively in both violent and sexual ways” such that
Dr. Osborn could not “in good conscience recommend him for a
community-based mental health diversion program.” Substantial
evidence therefore supports the trial court’s finding that there
23
was an unreasonable risk that defendant would commit a super
strike.
We now turn to defendant’s specific challenges to his
sentence.
C. Romero Motion
Defendant first argues the trial court abused its discretion
when it declined to exercise its section 1385 discretion to strike
his prior conviction for assault likely to cause great bodily injury
(§ 245, subd. (a)(4)). Under the Three Strikes law, the
consequences of defendant’s prior strike conviction included
ineligibility for probation and local custody, a reduction in
custody credits, and doubling his term at sentencing. (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d).)
1. Background
a. Criminal history
According to the probation officer’s report prepared in April
2018, defendant was convicted of 15 misdemeanors and three
felonies beginning in 1998. Of the misdemeanors, eight were
violations of the Vehicle Code, three were for theft, and two were
for domestic violence (§§ 273.5, subd. (a), 243, subd. (e)(1)). As
noted, in October 2012, he was convicted of misdemeanor
annoying or molesting a child (§ 647.6, subd. (a)(1)).
Defendant’s felony convictions include the 2013 strike prior
for felony assault (§ 245, subd. (a)(4)), a 2009 conviction for
driving under the influence (Veh. Code, § 23152, subd. (a)), and a
24
2007 conviction for felony possession of a firearm by a person
addicted to a narcotic (§ 12021, subd. (a)(1)).
b. Resentencing hearing
At the resentencing hearing, defendant moved, pursuant to
section 1385 and Romero, supra, 13 Cal.4th 497, to strike the
allegation that he was previously convicted of a serious or violent
felony. The trial court denied his motion as follows: “The Romero
motion is denied at this point in time. I do not find that
[defendant] qualifies under any of the People v. Williams [(1998)
17 Cal.4th 148] factors. [¶] One of the main ones is the last
factor, factor n[umber four]. When you consider his prior record
and … prospects for him in the future, this court finds that there
are no prospects for [defendant]. He is just living a life of
violence. It may be as a result of some of his mental health
issues, but at this point, I find no prospects for him. [¶] He’s had
an opportunity to do mental health stuff, and … it’s just not
working, so I’m not going to strike the strike. I’m not going to
[d]o more than what the court—what I did the last time,
though—even though, I think, technically, I can—under a
resentencing for a remittitur.”
2. Legal Principles
The Three Strikes law is an alternate sentencing scheme
designed to increase the prison terms for repeat felons. (People v.
Nunez (2023) 97 Cal.App.5th 362, 370.) “When a defendant is
convicted of a felony, and it is pleaded and proved he had
committed prior ‘violent’ or ‘serious’ felonies, the Three Strikes
law provides for the imposition of increased sentences.” (Ibid.)
25
The purpose of the Three Strikes law is to punish recidivists
more harshly (People v. Davis (1997) 15 Cal.4th 1096, 1099), but
not all recidivists fall within the spirit of that law. A trial court
therefore may strike or dismiss a prior conviction in the
furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13
Cal.4th at pp. 530–531.)
A trial court deciding whether to strike a prior felony
conviction allegation under section 1385, subdivision (a) “must
consider 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.” (Williams, supra, 17 Cal.4th at p. 161;
accord, People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
We review the court’s decision whether to dismiss a prior strike
conviction for abuse of discretion. (Williams, supra, 17 Cal.4th at
pp. 152, 162.) This standard is deferential. (Id. at p. 162.) The
court abuses its discretion when, viewed in light of the spirit of
the Three Strikes law, denial is irrational or arbitrary, and no
reasonable judge could disagree that the defendant falls outside
the spirit of the law. (Carmony, supra, 33 Cal.4th at p. 375;
People v. Avila (2020) 57 Cal.App.5th 1134, 1140 (Avila).)
“Cumulative circumstances, including that a defendant’s
crimes were related to drug addiction and the defendant’s
criminal history did not include actual violence, may show that
the defendant is outside the spirit of the Three Strikes law.
(People v. Garcia (1999) 20 Cal.4th 490, 503.) Also, an abuse of
discretion may be found where a trial court considers
26
impermissible factors, and, conversely, does not consider relevant
ones. (… Carmony, supra, 33 Cal.4th at p. 378.)” (Avila, supra,
57 Cal.App.5th at pp. 1140–1141.)
3. Analysis
At the outset, the Attorney General argues that defendant
“forfeited” this issue because he failed to raise it in the original
appeal. We disagree.
“California law prohibits a defendant from raising
contentions in a piecemeal fashion by successive proceedings.
When a defendant had an opportunity to challenge his or her
sentence in an earlier appeal and failed to do so, he or she may
not belatedly raise the same issue in a later appeal or a collateral
attack on the judgment, absent good cause.” (People v. Jordan
(2018) 21 Cal.App.5th 1136, 1143 (Jordan).) “This waiver rule
applies even if the earlier appeal resulted in a remand for
resentencing, provided the defect that … defendant is challenging
in the subsequent appeal was also present in the original
sentence.” (Ibid.)
We reject the forfeiture argument because the trial court
conducted a full resentencing after remand. At that time,
defendant made a new motion to strike his prior felony conviction
and raised new facts, namely Dr. Osborn’s report, that had arisen
since the prior appeal. Defendant appeals from this new exercise
of the court’s discretion denying his motion to strike his 2013
conviction for violating section 245, subdivision (a)(4), an issue
that could not have been brought in his prior appeal. (Cf. People
v. Senior (1995) 33 Cal.App.4th 537, 534 [defendant contended
trial court erred in relying upon mandatory sentencing procedure
27
set forth in section 667.6, subdivision (d) in imposing full
consecutive terms, an issue which could have been raised in prior
appeal]; Jordan, supra, 21 Cal.App.5th at pp. 1139–1140
[defendant challenged his penalty assessments, an issue which
could have been raised in prior appeal].)
Turning to the merits, defendant “submits that the trial
court abused its discretion in declining to strike the prior strike
on the ground that [defendant] has a long criminal history
arising from psychosis and, because of psychosis and the limited
effects of his treatment, has no prospect of improving.” According
to defendant, “[i]t is not a purpose of recidivist sentencing to
make prisons stand in for mental health care” and thus it is
outside the spirit of the Three Strikes law to increase
punishment for a defendant, such as himself, whose recidivism is
beyond his control.
Defendant argues that “a person who is not morally
responsible for his recidivism because he is not in control of his
actions cannot reasonably be found to be within the spirit of a law
that punishes recidivists more harshly because they are more
blameworthy than others.” (See Williams, supra, 17 Cal.4th at
p. 160 [considering “the ‘letter’” and the “‘spirit’” of the Three
Strikes law in determining whether a court abused its discretion
in dismissing on its own motion a prior serious or violent felony
conviction].) We agree that defendant is not appropriately
characterized as a career criminal who is unable to stay out of
prison, particularly since he has only had two prior prison
commitments14 and, at the time of this crime, he was
14 Defendant was sentenced to 16 months in prison in 2007
when he was convicted of being an addict in possession of a
28
approximately 40 years old. Most of his criminal record contains
misdemeanor convictions for non-violent offenses for which he
was sentenced to summary probation. Defendant’s present
conviction for a serious felony, however, occurred close in time to
the conviction that preceded it, which was also a serious felony;
both were unprovoked assaults that caused serious bodily injury.
Thus, his criminal conduct escalated recently.
“An appellate court is not authorized to substitute its
judgment of the relative weights of aggravating and mitigating
factors properly considered by the trial court. [Citations.] ‘It is
not enough to show that reasonable people might disagree about
whether to strike one or more of his prior convictions. Where the
record demonstrates that the trial court balanced the relevant
facts and reached an impartial decision in conformity with the
spirit of the law, we shall affirm the trial court’s ruling, even if
we might have ruled differently in the first instance.’” (People v.
Zichwic (2001) 94 Cal.App.4th 944, 961.)
A trial court abuses its discretion when it refuses to dismiss
a prior conviction because of personal antipathy for the defendant
while “ignoring ‘defendant’s background,’ ‘the nature of his
present offenses,’ and other ‘individualized considerations.’”
(Romero, supra, 13 Cal.4th at p. 531.) Here, the court presided
over years of competency proceedings with this defendant and
reviewed multiple reports concerning his mental health. It
recognized that defendant’s mental illness was contributing to his
recidivism but that, as of that time, none of the treatment efforts
had worked. In the worksheet the court completed when
evaluating defendant for diversion, it expressed that the
firearm, and four years in prison in 2013 when he was convicted
of assault likely to cause great bodily injury.
29
symptoms of defendant’s mental disorder affecting his criminal
behavior would not respond to treatment. Second, the court
found defendant presented an unreasonable risk of danger to
public safety if treated in the community as opposed to in
confinement, concluding there was no viable treatment plan that
met the clinical needs of defendant and the interests of the
community. As to this finding, the court wrote, “I think
defendant could commit murder and attempt[ed] murder and
assault to commit to rape.” While exercising its discretion to
deny mental health diversion, the trial court also considered that
defendant had a record of prior mental health treatment failure
and presented a serious risk of committing crimes not listed in
section 1170.18 but which otherwise compromised public safety.
The court made a written notation, “This defendant will kill
someone.”
The trial court also presided over the trial and deemed the
circumstances of the offense as so severe that it remarked later
that defendant was “lucky he didn’t kill the victim in this
particular case. Due to the victim[’]s age and nature of injuries,
the victim was lucky.”15 On this record, we cannot conclude the
court ignored defendant’s background, the nature of his present
offense, or any other individualized considerations. The court
focused on public safety, which is neither arbitrary nor capricious
and is squarely within the spirit of the Three Strikes law. (See
Ewing v. California (2003) 538 U.S. 11, 25–26 [“When the
15 But see People v. Avila (2020) 57 Cal.App.5th 1134, 1142
(“Sentencing is not the proper venue for the trial court’s
imagination. Ruling on a Romero motion requires consideration
of the nature and circumstance of the crime actually committed,
not a crime that might have occurred.”).
30
California Legislature enacted the [T]hree [S]trikes law, it made
a judgment that protecting the public safety requires
incapacitating criminals who have already been convicted of at
least one serious or violent crime”]; People v. Superior Court
(Guevara) (2025) 18 Cal.5th 838, 849 [“The [Three Strikes]
Reform Act [of 2012] provides that courts may deny petitions of
defendants determined to pose an unreasonable risk of danger to
public safety”]; People v. Superior Court (Kaulick) (2013) 215
Cal.App.4th 1279, 1286, 1292) [discussing how the Three Strikes
Reform Act of 2012 provided a means to resentence current
inmates unless the court determined reduction in the sentence
would pose an unreasonable risk of danger to public safety].)
D. Request to Dismiss Prior Serious Felony Enhancement
Defendant next argues that the trial court was required to
dismiss the five-year serious felony enhancement (§ 667, subd.
(a)(1)) because it was in furtherance of the interests of justice to
do so. (§ 1385, subd. (c)(1).) Defendant contends “it offends
justice to multiply the punishments a man receives because his
psychosis renders him chronically unable to conform to the needs
of society.”
1. Relevant Background
In Ruth I, this court instructed the trial court to exercise its
discretion and consider whether to strike the five-year serious
felony enhancement imposed under section 667, subdivision (a).
(Ruth I, supra, B289124). On March 25, 2023, after remand,
defendant filed a motion to dismiss the serious felony
enhancement based on the mitigating factors of multiple
31
enhancements alleged in a single case (§ 1385, subd. (c)(1)(2)(B))
and the current offense’s connection to mental illness (id., subd.
(c)(1)(2)(D)).
After considering defendant’s mental illness, criminal
record, and “level of dangerousness,” the trial court chose not to
strike the enhancement. The court explained: “This court is
choosing not to strike [the prior serious felony enhancement],
mainly because of … defendant’s record and … defendant’s, quite
frankly, level of dangerousness. [¶] I understand that
[defendant] has mental health issues. He’s not to the point where
he is [legally incompetent], but I do understand that he has
mental health issues. At some point, regardless of those mental
health issues, we still have factors in aggravation where he is
hurting random members of the public. [¶] So, at some point,
the public needs to be protected from a gentleman of this
nature—of a violent nature—who, I’m afraid is, at this point, just
lucky he didn’t kill the victim in this particular case. Due to the
victim[’]s age and nature of injuries, the victim was lucky. [¶]
I don’t find the fact that he has mental health problems to be
persuasive enough for this court to strike the five-year prior.”
2. Legal Principles
“In 2019, the Legislature granted trial courts authority to
dismiss section 667[, subdivision] (a)’s five-year enhancement for
a prior serious felony conviction. (Stats. 2018, ch. 1013, §§ 1–2;
People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Before 2019, a
trial court was ‘required to impose a five-year consecutive term
for “any person convicted of a serious felony who previously has
been convicted of a serious felony” (§ 667[, subd.] (a)), and the
court ha[d] no discretion “to strike any prior conviction of a
32
serious felony for purposes of enhancement of a sentence under
[s]ection 667.”’ (People v. Garcia, [supra, 28 Cal.App.5th] at
p. 971.)
“Prior to 2022, section 1385 ‘did not provide direction as to
how courts should exercise [their] discretion’ to dismiss or strike
enhancements. (People v. Anderson (2023) 88 Cal.App.5th 233,
238.) But, effective January 1, 2022, Senate Bill No. 81 (2021–
2022 Reg. Sess.) (Senate Bill 81) amended section 1385 to specify
mitigating circumstances courts must consider when deciding
whether to strike enhancements in furtherance of justice. (Stats.
2021, ch. 721, § 1; People v. Lipscomb (2022) 87 Cal.App.5th 9, 16
[(Lipscomb)].)
“Senate Bill 81 added subdivision (c) to section 1385 …
(Stats. 2021, ch. 721, § 1), which now provides that ‘the court
shall dismiss an enhancement if it is in the furtherance of justice
to do so,’ and instructs the court to ‘consider and afford great
weight to evidence offered by the defendant to prove … [specified]
mitigating circumstances.’” (People v. Dain (2025) 115
Cal.App.5th 235, 246.)
These mitigating circumstances include, as relevant to this
case, where “[m]ultiple enhancements are alleged in a single
case” (§ 1385, subd. (c)(2)(B))16 and “[t]he current offense is
connected to mental illness” (id., subd. (c)(2)(D)). “Proof of the
presence of one or more of these circumstances weighs greatly in
favor of dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety.
‘Endanger public safety’ means there is a likelihood that the
16 Section 1385, subdivision (c)(2)(B) states: “Multiple
enhancements are alleged in a single case. In this instance, all
enhancements beyond a single enhancement shall be dismissed.”
33
dismissal of the enhancement would result in physical injury or
other serious danger to others.” (Id., subd. (c)(2), italics added.)
“Section 1385[, subdivision] (c) does not mean that,
whenever a listed mitigating circumstance is present, the trial
court must dismiss all enhancements unless it finds dismissal
would endanger public safety. The California Supreme Court has
explained that, even without ‘a finding that dismissal would
endanger public safety,’ the trial ‘court retains the discretion to
impose or dismiss enhancements provided that it assigns
significant value’ to the presence of any listed mitigating
circumstances. (People v. Walker (2024) 16 Cal.5th 1024, 1029
[(Walker)].)” (People v. Bravo (2025) 107 Cal.App.5th 1144, 1157.)
Here, the trial court found that a dismissal would endanger
public safety. And the Supreme Court “emphasize[d that] in
most cases, ‘if the trial court finds that dismissal of an
enhancement would endanger public safety, then it is hard to see
how dismissal would further the interests of justice,’
notwithstanding the applicability of any mitigating factors
identified in [section 1385,] subdivision (c)(2).” (Walker, supra, 16
Cal.5th at p. 1033.)
We review the exercise of discretion under section 1385,
subdivision (c) for abuse of discretion. (People v. Gonzalez (2024)
103 Cal.App.5th 215, 225.) We also review the trial court’s
determination that dismissal of the enhancement would
endanger public safety for abuse of discretion. (People v.
Mendoza (2023) 88 Cal.App.5th 287, 298.) “The abuse of
discretion standard is highly deferential. When, ‘“as here, a
discretionary power is statutorily vested in the trial court, its
exercise of that discretion ‘must not be disturbed on appeal except
on a showing that the court exercised its discretion in an
34
arbitrary, capricious or patently absurd manner that resulted in
a manifest miscarriage of justice.’”’” (Ibid.)
3. Analysis
Under section 1385, subdivision (c), it is a mitigating factor
that “[t]he current offense is connected to mental illness.”
(§ 1385, subd. (c)(2)(D).) Defendant argues that because he
commits offenses when he lacks control due to emotional arousal
and being overwhelmed by anger, hallucinations and delusions,
his recidivism is attributable to his mental illness.
Section 1385, subdivision (c) required the trial court to give
great weight to defendant’s mental illness and its role in the
offense, and to dismiss the enhancement in the interests of
justice unless the court found that dismissal of the enhancement
would endanger public safety. The court did exactly as the
statute prescribes. It recognized the severity of defendant’s
mental illness. It also recognized defendant was “hurting
random members of the public” and the “the public need[ed] to be
protected from a gentleman of this nature—of a violent nature—
who … is … lucky he didn’t kill the victim in this particular
case.” In other words, the court was aware of the applicable legal
standards and followed them. We find no abuse of discretion.
(See Walker, supra, 16 Cal.5th at p. 1033 [“‘[I]f the trial court
finds that dismissal of an enhancement would endanger public
safety, then it is hard to see how dismissal would further the
interests of justice’”]; Lipscomb, supra, 87 Cal.App.5th at pp. 19–
20 [discussing how every version of Senate Bill 81 empowered the
court to impose an enhancement where failure to do so would
endanger public safety].)
35
E. Apprendi Error17
Defendant next contends that the trial court committed
Apprendi error when it imposed the five-year enhancement under
section 667, subdivision (a)(1) because, according to defendant,
the jury did not expressly find defendant personally inflicted
great bodily injury.
1. Relevant Background
In Ruth I, we ordered the sentencing minute order and
abstract of judgment modified to reflect that defendant was
sentenced to an additional five-year term for imposing great
bodily injury under section 368, subdivision (b)(2)(B) and not
section 12022.7, subdivision (c). (Ruth I, supra, B289124.)
Because the section 368, subdivision (b)(2) enhancement does not
establish that a defendant personally inflicted great bodily injury
and does not automatically classify the crime of elder abuse as
serious or violent (see §§ 667.5, subd. (c)(8); 1192.7, subd. (c)(8)),
the trial court considered whether defendant’s conviction still
qualified as a serious felony such that the section 667,
subdivision (a) enhancement could apply.18
The trial court recognized the verdict form did not indicate
defendant “personally inflicted” the great bodily injury under
17 Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
18 Both the 15 percent conduct credit limitation (§ 2933.1) for
those convicted of a violent felony and the section 667,
subdivision (a)(1) enhancement for those convicted of a serious
felony who have been previously convicted of a serious felony
depend on these classifications.
36
section 12022.7 and, under People v. Gallardo (2017) 4 Cal.5th
120 (Gallardo), the jury must determine the facts that make a
conviction serious or violent. The court nonetheless found that
“the jury had to have found” defendant personally inflicted the
great bodily injury because it was instructed with CALCRIM
No. 3160 “which specifically says ‘personally inflicted great bodily
injury’” and “[t]he facts also show that this is a single-defendant
case … .” The court then found that defendant’s conviction for
elder abuse constituted a serious felony and for that reason,
defendant was eligible for the prior serious felony enhancement
under section 667, subdivision (a)(1), which the court elected not
to strike.
2. Legal Principles
Section 667, subdivision (a)(1) permits imposition of a five-
year term of imprisonment for each prior conviction for a serious
felony brought and tried separately when the present felony is a
serious felony. “Serious felony” in that context “means a serious
felony listed in subdivision (c) of Section 1192.7.” (§ 667, subd.
(a)(4).) A “serious felony” under section 1192.7, subdivision (c),
includes “any felony in which the defendant personally inflicts
great bodily injury on any person, other than an accomplice[.]”
(§ 1192.7, subd. (c)(8).) ‘To ‘personally inflict’ an injury is to
directly cause an injury, not just to proximately cause it.” (People
v. Rodriguez (1999) 69 Cal.App.4th 341, 347; accord, People v.
Bland (2002) 28 Cal.4th 313, 337.)
“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
37
reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) “The
elevation of a defendant’s sentence based on facts that ‘are
neither inherent in the jury’s verdict nor embraced by the
defendant’s plea’ violates ‘a defendant’s right to trial by jury
safeguarded by the Sixth and Fourteenth Amendments.’” (In re
Cabrera (2023) 14 Cal.5th 476, 483 (Cabrera), quoting
Cunningham v. California (2007) 549 U.S. 270, 274.)
“Under this principle, a judge may not find facts that
increase the defendant’s punishment beyond what is authorized
by the ‘guilty verdict standing alone.’” (Cabrera, supra, 14
Cal.5th at p. 483, quoting Ring v. Arizona (2002) 536 U.S. 584,
605.) “Sentencing courts may not peer behind the verdict to
assess whether the evidence supports a fact not reflected in the
jury’s decision.” (Ibid.; see also Gallardo, supra, 4 Cal.5th at
pp. 134, 136.) “[J]ury instructions … help identify what facts a
jury necessarily found … .” (Gallardo, supra, 4 Cal.5th at p. 137.)
“‘[T]he function of the verdict is to register the jury’s
determination of whether the evidence sufficiently establishes
the facts that the instructions recite are necessary to conviction.’
[Citation.] … Where the jury is fully instructed as to each
element of a sentence enhancement, it is not necessary that the
verdict enumerate each of those elements.” (People v. Chevalier
(1997) 60 Cal.App.4th 507, 514 (Chevalier), italics added.)
3. Analysis
Here, the jury was instructed, “If you find the defendant
guilty of the crime charged in Count 1, you must then decide
whether the People have proved the additional allegation that
the defendant personally inflicted great bodily injury on someone
38
who was 70 years of age or older. [¶] To prove this allegation,
the People must prove that: 1. The defendant personally inflicted
great bodily injury on Luis Perez during the commission of the
crime; [¶] AND [¶] 2. At that time, Luis Perez was 70 years of
age or older. …” (CALCRIM No. 3162, italics added.) The jury
was also instructed, “If you find the defendant guilty of the crime
charged in Count 1 you must then decide whether the People
have proved the additional allegation that the defendant
personally inflicted great bodily injury on Luis Perez in the
commission of that crime. [¶] Great bodily injury means
significant or substantial physical injury. It is an injury that is
greater than minor or moderate harm.” (CALCRIM No. 3160,
italics added.)
The verdict form presented to the jury asked the jury to
answer “true” or “not true,” to two questions: whether the victim
“suffered great bodily injury” and “was 70 years and older.” The
verdict form did not include an inquiry as to whether defendant
personally inflicted the great bodily injury. But Apprendi, supra,
530 U.S. 466 does not require that a verdict form recite every
element of an enhancement, only that the jury find every element
beyond a reasonable doubt. (Id. at p. 490; People v. Lobato (2003)
109 Cal.App.4th 762, 767 (Lobato) [Apprendi does not change the
holding of Chevalier that it is unnecessary to enumerate all the
elements in a verdict form].) “In returning the verdict form, the
jury clearly manifest[s] its intention to find true the allegation
charged.” (People v. Jackson (2014) 58 Cal.4th 724, 750; accord,
Bertsch and Hronis, supra, 19 Cal.5th at p. 242 [“We presume the
jurors understood and followed the court’s instructions absent
evidence to the contrary”]; Lobato, supra, 109 Cal.App.4th at
p. 767; Chevalier, supra, 60 Cal.App.4th at pp. 514–515.) In
39
returning a “true” finding on the special allegations, the jury
necessarily found that “defendant personally inflicted great bodily
injury on someone who was 70 years of age or older.” (Italics
added.) Accordingly, the trial court did not, as defendant
contends, need to engage in any judicial fact finding to find that
the crime qualified as a serious felony.19
F. Supplementary Probation Report20
Defendant’s original probation report in this case was
prepared in 2018. California Rules of Court21, rule 4.411(a)(2)
states, “[T]he court must refer the case to the probation officer
for: [¶] … [¶] [a] supplemental report if a significant period of
time has passed since the original report was prepared.” In
connection with resentencing defendant in 2023, the trial court
did not order a supplemental report. Defense counsel did not
object or ask that a supplemental report be prepared. Defendant
now claims the court erred by failing to order a supplemental
probation report.
19 Having concluded that the jury, rather than the court,
found that defendant personally inflicted great bodily injury on
his victim, we reject defendant’s related argument that the court
erred when it applied a 15 percent credit limitation under section
2933.1.
20 Defendant’s January 9, 2026, request for judicial notice is
granted as to Exhibits A and D.
21 Further rule references are to the California Rules of
Court.
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Other courts have held in similar situations that, by failing
to request a supplemental report from the trial court or object to
its absence, a defendant has forfeited this claim on appeal.
(People v. Campbell (2023) 98 Cal.App.5th 350, 385–386
(Campbell); People v. Franco (2014) 232 Cal.App.4th 831, 834;
People v. Johnson (1999) 70 Cal.App.4th 1429, 1432; People v.
Myers (1999) 69 Cal.App.4th 305, 311; People v. Llamas (1998) 67
Cal.App.4th 35, 39.) Defendant, however, contends case law prior
to the amendment of rule 4.411 effective January 1, 2018, is no
long persuasive as the court is now required to order a
supplemental report under rule 4.411(a)(2), and this requirement
can only be waived expressly by joint stipulation of the parties
and with the court’s consent under rule 4.411(b); thus, the issue
cannot be forfeited by a defendant. (See rule 4.411(b); § 1203,
subd. (b)(4) [probation report “may be waived only by a written
stipulation” of parties or “oral stipulation in open court”]; People
v. Dobbins (2005) 127 Cal.App.4th 176, 182 (Dobbins)
[interpreting section 1203, subd. (b)(4), which governs probation
reports, and declining to apply forfeiture doctrine in light of
statute’s clear language].) We agree.
The only case the parties cite that addresses this issue
post-amendments is Campbell, supra, 98 Cal.App.5th 350, and
that court was not presented with the argument that forfeiture is
impossible because the plain language of subdivision (b) of rule
4.411 requires express waiver by joint stipulation of the parties.
Campbell is therefore not dispositive with respect to this issue
and the plain language of rule 4.411(b) compels the conclusion
that there has been no forfeiture. Nevertheless, we find the
asserted error was harmless.
41
Failure to obtain a supplemental probation report is a
state-law error reviewed for prejudice under People v. Watson
(1956) 46 Cal.2d 818 (Watson). Under that standard, defendant
bears the burden to show “a reasonable probability of a result
more favorable to [him] if not for the error.” (Dobbins, supra, 127
Cal.App.4th at p. 182; Watson, supra, 46 Cal.2d at p. 836; People
v. Triplett (2020) 48 Cal.App.5th 655, 663.)
Defendant argues that the error was prejudicial because a
supplemental probation report would have included the input of
an objective probation officer on the six new psychological
evaluation reports and record of no violent behavior that had
occurred since the last probation report. According to defendant,
because the trial court showed “singular focus” on him posing “a
deadly threat to the public,” an objective presentation by a
probation officer would have influenced the court to sentence
defendant differently.
Defendant relies on speculation. He fails to identify any
information a supplemental probation report might have
contained that was not already before the trial court, either as
part of the six new psychological evaluation reports it received
during the two and a half years of competency proceedings that
separated remand from sentencing, or as presented by defense
counsel. (See Dobbins, supra, 127 Cal.App.4th at p. 183 [failure
to order supplemental probation report harmless where
sentencing judge was familiar with defendant’s history].) The
sentencing court presided over the trial and was well acquainted
with defendant’s background and mental health history.
Considering these circumstances, it is not reasonably probable
defendant would have received a more favorable sentence had a
supplemental probation report been prepared.
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V. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM (D.), J.
We concur:
BAKER, Acting P. J.
KUMAR, J.*
* Retired judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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