People v. Fain CA3

Filed 7/9/21 P. v. Fain CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C087400

Plaintiff and Respondent, (Super. Ct. No. 18CF00262)

v.

FELICIA MARIE FAIN,

Defendant and Appellant.

Defendant Felicia Marie Fain rear-ended a man’s car and drove off. When he followed her into a cul-de-sac, she accelerated her car into his, causing damage to his car. A jury found defendant guilty of felony assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (statutory section citations that follow are to the Penal Code unless otherwise stated) and misdemeanor hit and run resulting in property damage (Veh. Code, § 20002, subd. (a)). The trial court granted defendant three years’ probation with one year to be spent in jail, and imposed various fines and fees. On appeal, defendant argues

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this case must be conditionally reversed and remanded for the trial court to conduct a mental health diversion eligibility hearing under section 1001.36, which she contends applies retroactively. Defendant further argues the trial court violated her due process and equal protection rights when it imposed fines and fees without first determining her ability to pay. We conditionally reverse defendant’s judgment and remand to the trial court for an eligibility determination under section 1001.36.

FACTS AND HISTORY OF THE PROCEEDINGS B.McC. was stopped at a red light when defendant hit his car from behind while she was driving her SUV. B.McC. got out of the car and walked towards defendant’s car, but defendant drove away. B.McC. returned to his car, began to follow defendant, and called the police. B.McC. followed her to a cul-de-sac and, believing defendant would park her car, stayed in his car at the entrance of the cul-de-sac to wait for the police. However, defendant “floor[ed]” the accelerator on her car and drove straight at him. Defendant attempted to back up, but she hit his car on the front driver’s side, causing significant damage. After the jury found defendant guilty of felony assault with a deadly weapon and misdemeanor hit and run resulting in property damage; the trial court held a sentencing hearing. Noting the “bizarre circumstances” of the case, the trial court appointed a forensic and clinical psychologist to evaluate defendant’s mental status to determine whether defendant’s mental health would prevent her from successfully completing probation. The psychologist’s report concluded that defendant met the DSM-5 diagnostic criteria for multiple mental health disorders. At sentencing, the trial court, having reviewed the psychologist’s report, suspended defendant’s sentence and placed her on three years of probation under various terms and conditions, including that defendant must serve 365 days in county jail. The trial court also ordered defendant pay various fines and fees,