People v. Merritt CA6

Filed 10/5/20 P. v. Merritt CA6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H046069 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1639645)

v.

RAYMOND D. MERRITT,

Defendant and Appellant.

Defendant Raymond D. Merritt was convicted by jury trial of second degree 1 robbery (Pen. Code, §§ 211, 212.5, subd. (c)) in March 2018, and the court found true strike and serious felony allegations. He was sentenced on July 12, 2018 to nine years in state prison, which included a five-year serious felony enhancement under section 667, subdivision (a). On appeal, defendant contends that a remand is required for the court to determine (1) whether he is eligible for mental health diversion under section 1001.36, which took effect in June 2018, after the jury’s verdict but before his sentencing hearing, and (2) whether to strike the five-year serious felony enhancement under Senate Bill No. 1393, which took effect in January 2019, after his sentencing hearing. We conclude that a remand is required as to the serious felony enhancement but not as to his eligibility for mental health diversion.

1 All further statutory references are to the Penal Code.

I. FACTS In June 2016, Mina Shehata was working as an assistant manager at a CVS store in Santa Clara. On the morning of June 9, Shehata saw defendant with a bag next to a locked display case containing tooth whiteners. The display case appeared to have been pried open, and a row of merchandise was missing. Shehata asked defendant: “ ‘Can I check your bag?’ ” Defendant said “ ‘No’ ” and started to walk toward the store’s exit. Shehata, who was wearing a CVS shirt and name badge, stepped in front of defendant and told him: “ ‘I need you to stop and check your bag.’ ” Again, defendant refused. Defendant put his hands in front of him with clenched fists “in a boxer’s stance” and said: “ ‘I am going to punch you if you don’t move.’ ” Defendant “moved his arm like he was going to punch me in the face.” Shehata was “scared” and “had a feeling that he would start punching me on the face.” Shehata stepped aside, and defendant walked “straight to the front door.” Shehata followed him and saw him get into a parked car. Shehata took a couple of photographs of the car and called his manager and the “loss prevention person,” who told him to call the police. The police arrived five minutes later. Shehata gave the police the photographs he had taken of the car, which showed the car’s license plate number. At about noon that day, the car was stopped by a sheriff’s deputy for a seat belt violation. Defendant was driving the car. A bag in the front passenger seat of the car contained several boxes of teeth whitening strips. Defendant “spontaneously” told a police officer at the scene of the car stop that he “did do a theft” at “a CVS store.” “He said that he expected to get a citation for the theft.” Defendant’s fingerprint was found on the CVS display case. II. PROCEDURAL BACKGROUND In August 2016, defendant was charged by information with robbery, and it was further alleged that he had suffered a prior conviction that qualified as both a strike (§§ 667, subds. (b)-(i), 1170.12) and a serious felony and that he had suffered two prison priors (§ 667.5, subd. (b)).