California Court of Appeal May 12, 2022 No. E076464Unpublished
Filed 5/12/22 P. v. Magallon CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076464
v. (Super.Ct.No. RIF1602770)
MIGUEL ANGEL MAGALLON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Affirmed in part, reversed in part, and remanded with directions.
Avatar Legal and Cynthia M. Jones, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, Michael
Pulos, Joy Utomi, Eric A. Swenson, and Kathryn A. Kirschbaum, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant and appellant Miguel Angel Magallon was tried and convicted of
attempted murder and assault with a deadly weapon, as well as several enhancements of
1
those counts. He was originally sentenced to an indeterminate sentence of 14 years to life
In a previous appeal, we rejected Magallon’s challenges to the judgment of
conviction, but remanded for the trial court to consider whether to grant mental health
diversion under the newly enacted Assembly Bill No. 1810 (2018 Reg. Sess.) and, if
necessary, to resentence Magallon. (People v. Magallon (May 29, 2019, E069524)
[nonpub. opn.].) We directed that, if resentencing was necessary, the trial court should
(1) consider whether to exercise its discretion under another newly enacted law, Senate
Bill No. 1393 (2017-2018 Reg. Sess.), to dismiss the prior serious felony conviction
enhancement that was previously imposed and (2) strike, rather than stay, any prison
prior enhancement that could not be applied to Magallon’s sentence because it was also
the basis for an imposed serious prior felony conviction enhancement. (Magallon, supra,
E069524.) On remand, the trial court denied Magallon’s request for mental health
diversion and resentenced him to a term of 14 years to life plus a determinate sentence of
eight years.
In this appeal, Magallon contends the trial court abused its discretion in denying
him mental health diversion. He argues the trial court applied the wrong standard,
looking only at his past conduct in assessing the risk he poses to public safety, and failing
to consider “the potential effect” that “treatment might have on [his] behavior.” He also
observes that the trial court apparently expressed, albeit in an ambiguous manner, its
intention to simply strike two prison prior enhancements; one (previously stayed) in
2
accordance with our directions on remand, and the second (previously imposed) because
of an intervening change in the law. Both the minute order of the sentencing hearing and
abstract of judgment, however, indicate instead that the two prison prior enhancements
were imposed, but with punishment stricken. Magallon argues that the prison prior
enhancements should be stricken, to the extent that has not already been done, and that
the minute order of the sentencing hearing and abstract of judgment should reflect that
circumstance. Additionally, in supplemental briefing, Magallon argues that remand for
resentencing is required to allow the trial court to exercise its new discretion under yet
another change in the law, enacted by Assembly Bill No. 518 (2021-2022 Reg. Sess.).
We are not persuaded that the trial court applied the wrong standard in considering
whether to grant mental health diversion. Magallon’s other two contentions, however,
are meritorious, as the People concede. We therefore affirm the trial court’s order
denying mental health diversion, but vacate Magallon’s sentence and remand for the trial
court to resentence him.
I. BACKGROUND
As discussed in our previous opinion, Magallon’s current charges arise from an
incident in which he stabbed his maternal uncle multiple times with a knife. (People v.
Magallon, supra, E069524.) The jury convicted Magallon of attempted murder (Pen. 1 Code, §§ 664, 187, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd.
(a)(1); count 2), found the attempted murder was willful, deliberate, and premeditated,
1 Undesignated statutory references are to the Penal Code.
3
and found true allegations as to both counts that Magallon had personally inflicted great
bodily injury (§ 12022.7, subd. (a)). The trial court found true allegations relating to two
prior convictions, both of which were alleged to be prison priors (§ 667.5, subd. (b)), and
one of which was also alleged to be a strike prior (§§ 667, subds. (c), (e)(1), 1170.12,
subd. (c)(1)) and a serious felony prior (§ 667, subd. (a)). (People v. Magallon, supra,
E069524.)
Magallon was originally sentenced as follows: On count 1, the court imposed an
indeterminate term of 14 years to life (seven years to life, doubled by the strike prior),
plus a determinate term of nine years, consisting of three years for the great bodily injury
enhancement of count 1, five years for the serious felony prior, and one year for one of
the prison priors. On count 2, the court imposed, but stayed pursuant to former section
654, a determinate sentence of nine years (the midterm of three years, doubled by the
strike prior, plus three years for the great bodily injury enhancement). The court also
imposed, but stayed, an additional one-year sentence for the prison prior allegation
relating to the same conviction used as a serious felony prior on count 1. (People v.
Magallon, supra, E069524.)
On remand after the previous appeal, the trial court rejected Magallon’s request
for mental health diversion with reference to “prong six” of the requirements for mental
health diversion, that the court be “satisfied that the defendant will not pose an
unreasonable risk of danger to public safety . . . if treated in the community.” (§ 1001.36,
subd. (b)(1)(F).) In so doing, the court commented as follows: “[U]nder prong six, the
4
Court does not find that he’s eligible for Mental Health Diversion, as he and his conduct
in this case do constitute significant danger to the community. And I would find that he
is ineligible based on the prong six analysis as well as unsuitable for Mental Health
Diversion, the case at hand, the charge, in this instance, and he, as the defendant. So I’m
going to deny the request for Mental Health Diversion at this time.”
In January 2021, the trial court resentenced Magallon to a new term of
imprisonment that differed only slightly from his original sentence. The difference
relates to the two one-year prison priors, one of which was originally imposed and the
other stayed. The trial court apparently intended to order both prison priors stricken,
resulting in a new sentence consisting of 14 years to life, plus a determinate term of eight
years. Its comments on the issue, however, were ambiguous: “[A]s to the two 667.5(b)
priors, one of which the Court of Appeal did address in that the Court stayed the
punishment and the punishment was for the same offense which the court imposed five
years on, therefore, the Court must strike the punishment with respect to Prior 2. With
respect to Prior 3, the Court did impose one year consecutive. However, there has been a 2] change in the law as well indicating that 667.5(b) priors are no longer to be filed.[ And,
in that regard, the Court will strike that prior as well . . . which would then mean the
defendant’s total sentence would be an eight-year determinate term as opposed to nine
years. And then the 14-to-life sentence will remain . . . .” These comments were
2 More precisely, Senate Bill No. 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b), so that the enhancement only applies to prior prison terms served for sexually violent offenses. (§ 667.5, subd. (b).) It is undisputed that Magallon’s prison priors were not for sexually violent offenses.
5
reflected in the minute order of the sentencing hearing and in the abstract of judgment as
an order that the two prison priors be imposed with punishment stricken, rather than
simply stricken.
II. DISCUSSION
A. Mental Health Diversion
With exceptions not applicable here, the trial court may grant mental health
diversion under section 1001.36 if it finds: (1) the defendant suffers from an identified
mental disorder; (2) the mental disorder played a significant role in the commission of the
charged offense; (3) the defendants symptoms will respond to treatment; (4) the
defendant consents to diversion and the defendant waives his or her speedy trial rights;
(5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an
unreasonable risk of danger to public safety, as defined in section 1170.18, if the
defendant is treated in the community. (§ 1001.36, subd. (b)(1).) Section 1170.18
defines “unreasonable risk of danger to public safety” to mean an “unreasonable risk”
that the defendant will commit one of the particularly serious or violent offenses listed in
section 667, subdivision (e)(2)(C)(iv), which are “known colloquially as ‘super strikes.’”
(People v. Valencia (2017) 3 Cal.5th 347, 351.) Among other listed offences, “[a]ny
homicide offense, including any attempted homicide offense,” is a super strike. (§ 667,
subd. (e)(2)(C)(iv)(IV).) In considering whether a defendant poses an unreasonable risk
of danger to public safety, the court “may consider the opinions of the district attorney,
the defense, or a qualified mental health expert, and may consider the defendant’s
6
violence and criminal history, the current charged offense, and any other factors that the
We review the trial court’s ruling on a request for mental health diversion for
abuse of discretion. (People v. Williams (2021) 63 Cal.App.5th 990, 1000.) “A court
abuses its discretion when it makes an arbitrary or capricious decision by applying the
wrong legal standard [citations], or bases its decision on express or implied factual
findings that are not supported by substantial evidence [citation].” (People v. Moine
(2021) 62 Cal.App.5th 440, 449.)
Magallon asserts that the trial court applied the wrong legal standard, arguing that
its comments indicate he was denied mental health diversion based entirely on his current
offenses and criminal history, and “without taking into account the effect of treatment on
the risk of danger posed by appellant’s behavior if mental health diversion is granted.”
While the trial court’s comments are not a model of clarity, we are not persuaded by
Magallon’s interpretation. The trial court expressly acknowledged reading and
considering the defense’s arguments and evidence, including mental health reports and
expert opinions. The defense emphasized, among other things, that Magallon’s mental
health symptoms were alleviated when he received treatment while incarcerated, such
that he is “able to control his behavior,” arguably suggesting he is unlikely to commit a
super strike offense if treated in the community. Taken in that context, the trial court’s
comments are best understood to indicate it was not persuaded by Magallon’s arguments,
and that it weighed the evidence, and particularly the evidence of Magallon’s current
7
offenses (which include a super strike) and criminal history, differently than Magallon
would prefer. That is not an abuse of discretion, but rather an appropriate exercise of
discretion. We therefore will not disturb the trial court’s ruling.
B. Assembly Bill No. 518
Under the law in effect at the time of Magallon’s resentencing, a defendant who
committed an act punishable by different laws had to be punished under the law that
provided for the longest possible term of imprisonment. (Former § 654, subd. (a).)
Effective January 1, 2022, Assembly Bill No. 518 amended section 654 to allow the trial
court discretion to choose to punish the defendant under any of the applicable laws.
(§ 654, subd. (a); see Stats. 2021, ch. 441, § 1.) The People concede, and we agree, that
Magallon is entitled to the benefit of this ameliorative change in the law, since his case is
not yet final. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308
[discussing In re Estrada (1965) 63 Cal.2d 740].) The matter must therefore again be
remanded for resentencing so that the trial court can consider how to exercise its new
sentencing discretion.
C. Prison Priors
The parties agree, as do we, that the two prison prior enhancements alleged against
Magallon and previously found true are not viable under current law because the
underlying convictions were not for sexually violent offenses. (See § 667.5, subd. (b).)
We trust that in resentencing Magallon, the trial court will order those enhancements
8
stricken, to the extent that has not already been done, and that the minute order of the
resentencing hearing and new abstract of judgment will so indicate.
III. DISPOSITION
The denial of Magallon’s request for mental health diversion is affirmed.
Magallon’s sentence is vacated and the matter is remanded to the trial court with
directions to resentence Magallon, including by considering which punishments should
be stayed under section 654 as amended by Assembly Bill No. 518. The clerk of the
court shall then prepare an amended abstract of judgment reflecting Magallon’s new
sentence. The clerk of the court shall then send a certified copy of the amended abstract
of judgment to the Department of Corrections and Rehabilitation. The judgment is
affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
MILLER Acting P. J.
CODRINGTON J.
9
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of mental health diversion but vacated the defendant's sentence and remanded for resentencing to allow the trial court to exercise discretion under amended Penal Code section 654 and to strike invalid prison prior enhancements.
Issues
Did the trial court abuse its discretion in denying mental health diversion?
Is the defendant entitled to resentencing under the amended Penal Code section 654?
Should the prison prior enhancements be stricken under current law?
Disposition. Affirmed in part, vacated in part, and remanded.
Quotations verified verbatim against the opinion
“We are not persuaded that the trial court applied the wrong standard in considering whether to grant mental health diversion.”
“The People concede, and we agree, that Magallon is entitled to the benefit of this ameliorative change in the law, since his case is not yet final.”
“The parties agree, as do we, that the two prison prior enhancements alleged against Magallon and previously found true are not viable under current law”