People v. Peterson CA5

California Court of Appeal Sep 16, 2020 No. F077135AUnpublished

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Holding. The court held that a defendant whose judgment was not final when Penal Code section 1001.36 took effect is entitled to a limited remand to determine eligibility for mental health diversion. It further held that a trial court may properly delegate the initial determination of victim restitution amounts to the probation department, provided the defendant retains the right to a judicial hearing to contest that amount.

Issues

Whether a defendant is entitled to a limited remand to determine eligibility for mental health diversion under Penal Code section 1001.36.
Whether a trial court's order delegating the determination of victim restitution amounts to the probation department constitutes an improper delegation of authority.

Disposition. conditionally reversed and remanded

Quotations verified verbatim against the opinion

“the court’s reasoning and its conclusion that a trial court may, under section 1202.4, subdivision (f), direct an agency other than the trial court to determine the amount of restitution, were correct.”

“Due process is satisfied if [the] appellant is given notice of the amount sought and a hearing to contest that amount.”

Filed 9/16/20 P. v. Peterson CA5 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F077135 Plaintiff and Respondent, (Kern Super. Ct. Nos. BF165609A, v. BF163967A, BF166408A)

XZAYVIA SAMOAN PETERSON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Amanda D. Cary, and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Meehan, J. and Snauffer, J.

Defendant and Appellant Xzayvia Samoan Peterson (appellant) pled no contest in case No. BF163967A to infliction of corporal injury on a cohabitant (Pen. Code, § 273.5),1 in case No. BF165609A to assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)), and in case No. BF166408A, to assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4); count 1) and she admitted an on-bail enhancement (§ 12022.1) in this last case. On March 6, 2018, pursuant to a plea agreement involving the three cases, the court sentenced her to an aggregate prison term of six years, the middle term of three years on her assault conviction in case No. BF165609A, and an on-bail enhancement in that case; a consecutive one year (one-third the middle term of three years) on her domestic violence conviction in case No. BF163967A; and a concurrent middle term of two years on her assault conviction in case No. BF166408A. On appeal, appellant contends the trial court improperly ordered victim restitution pursuant to section 1202.4, subdivision (f) in an amount to be determined by the probation department. We rejected this argument in an unpublished opinion filed December 10, 2018. Appellant filed a petition for rehearing, arguing that she was entitled to the benefits of then recently-enacted section 1001.36. She did not raise any challenges to our opinion’s resolution of her restitution argument. We denied the petition for rehearing. The Supreme Court subsequently issued its opinion in People v. Frahs (2020) 9 Cal.5th 618 (Frahs), holding that section 1001.36 is retroactive to people whose judgments are not final when the statute took effect. (See Frahs, at p. 846.) The Supreme Court transferred the present case back to this court with directions to reconsider the matter in light of Frahs. Because appellant’s judgment was not final when section 1001.36 took effect, appellant “is entitled to a limited remand for the trial court to

People v. Peterson CA5

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