People v. Vindiola CA6

Filed 8/26/20 P. v. Vindiola CA6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H045815 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1769827)

v.

DAMIAN MANUEL VINDIOLA,

Defendant and Appellant.

Defendant Damian Manuel Vindiola pleaded no contest to attempted arson (Pen. Code, § 455)1 and admitted that he had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)). After the trial court granted defendant’s Romero2 motion to dismiss the prior strike conviction, it suspended imposition of sentence and placed defendant on probation for three years. The trial court also imposed various fines, probation costs, fees, and assessments. On appeal, defendant contended that the case must be remanded for the trial court to exercise its discretion to strike the prior serious felony enhancement and to determine whether he is entitled to mental health diversion under section 1001.36. He also challenged the imposition of fines (§§ 1202.4, 1202.44), probation costs (§ 1203.1b,

1 All further statutory references are to the Penal Code unless stated otherwise. 2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

subd. (a)), a criminal justice administration fee (Gov. Code, §§ 29550, subd. (c), 29550.2, subd. (a)), a court operations assessment (§ 1465.8), and a criminal conviction assessment (Gov. Code, § 70373). In an opinion filed March 27, 2020, a different panel of this court affirmed the trial court’s order. (People v. Vindiola (Mar. 27, 2020, H045815) [nonpub. opn.]; see id. (conc. & dis. opn. of Bamattre-Manoukian, J.).) On July 29, 2020, the California Supreme Court granted review, S261875, and transferred the matter to this court with directions to vacate the decision and reconsider the cause in light of People v. Frahs (2020) 9 Cal.5th 618 (Frahs). We have vacated the prior decision by separate order. Neither party has submitted supplemental briefing pursuant to California Rules of Court, rule 8.200(b). For reasons that we will explain, we will conditionally reverse the trial court’s order and remand the matter for the court to conduct a mental health diversion eligibility hearing. (See Frahs, supra, 9 Cal.5th at p. 640.) I. Statement of Facts3 On July 27, 2017, San Jose firefighters responded to a fire on the roof of a bathroom at Welch Park. Defendant was standing on the roof by the fire. Defendant was agitated and said, “ ‘Fuck the police,’ ” numerous times. Defendant stated that he had started the fire because he wanted an opportunity to talk with police. After defendant put out the fire, he came down from the roof and was taken into custody. The fire charred a nine-square-foot section of the roof. II. Discussion A. Prior Serious Felony Enhancement Defendant contends that the case must be remanded for the trial court to exercise its discretion to strike the prior serious felony enhancement.