People v. Patella CA5

Filed 6/13/23 P. v. Patella CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F084397 Plaintiff and Respondent, (Super. Ct. No. F17900949) v.

JONATHAN PATELLA, OPINION Defendant and Appellant.

THE COURT * APPEAL from a judgment of the Superior Court of Fresno County. Carlos A. Cabrera, Judge. (Retired Judge of the Fresno Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Peña, J. and DeSantos, J.

This is the second appeal in this matter. In 2017, appellant Jonathan Patella pled no contest to two violations of carjacking (Pen. Code,1 § 215, subd. (a)) and two violations of attempted carjacking (§§ 664/215, subd. (a)). The trial court imposed a prison term of six years eight months but found unusual circumstances existed so as to justify staying appellant’s prison term for a period of three years, during which appellant would be on formal probation. In 2018, appellant admitted to a violation of probation. The sentencing court lifted the stay on appellant’s sentence. On June 27, 2018, the day after appellant was sentenced, the mental health diversion statute, section 1001.36, took effect. In People v. Patella (Apr. 1, 2021, F077821) [nonpub. opn.]) this court ordered a conditional limited remand so that the trial court could determine appellant’s eligibility for mental health diversion as agreed upon by the People, pursuant to People v. Frahs (2020) 9 Cal.5th 618 (Frahs), where the Supreme Court held section 1001.36 applied retroactively to cases not final on appeal and such cases should be remanded where the defendant appeared to meet the threshold liability requirement. We otherwise affirmed the judgment. Upon remand, appellant applied for mental health diversion and was denied. He appeals from the order denying his application, contending the court relied on improper factors, and the findings were otherwise unsupported by the evidence. Respondent agrees the order denying appellant’s application must be reversed, relying in part on recent amendments to section 1001.36 by Senate Bill No. 1223 (2021-2022 Reg. Sess.; Senate Bill 1223). In light of respondent’s concession, we reverse the court’s order denying appellant’s application and remand the matter with directions to the trial court to consider it pursuant to section 1001.36, as amended.