1

Filed 4/7/21 P. v. Watson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Yuba)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBBIE GENE WATSON, JR.,

Defendant and Appellant.

C077197

(Super. Ct. No. CRF13533 )

In September 2013, defendant Robbie Gene Watson, Jr., pursuant to a plea 

bargain, pleaded guilty to one count of inflicting corporal injury on his spouse. (Former 

Pen. Code,

1 § 273.5, subd. (e), now § 273.5, subd. (f).) As part of the bargain, the trial 

court released defendant on his own recognizance and suspended sentencing pursuant to a 

1

 Undesignated statutory references are to the Penal Code in effect at the time of the 

charged offense.
2

Cruz2 waiver. In January 2014, while on release, defendant attacked his spouse again, in

violation of his Cruz waiver, which required, among other things, that he obey all laws 

and not revictimize his spouse. In June 2014, the trial court sentenced defendant for the 

September 2013 offense, to five years in prison and imposed fees and fines. A jury 

subsequently found defendant guilty of multiple charges for the January 2014 attack. 

During sentencing for the January 2014 offenses, the court reconsidered but left 

unchanged the sentence for the September 2013 offense. At that time, defendant was 

sentenced to an aggregate term of 19 years to life. 

On appeal, defendant challenges the judgment and sentence for the September 

2013 offense. He contends: (1) the trial court relied on an outdated probation report

during sentencing for the September 2013 offense; (2) he received ineffective assistance 

of counsel both during the original sentencing hearing for the September 2013 offense

and during the sentencing hearing for the January 2014 offenses when the court 

reconsidered the sentence for the September 2013 offense; (3) the trial court erroneously 

imposed fees that were not consistent with the parties’ agreement; (4) the trial court failed 

to hold a hearing to determine whether he violated his Cruz waiver; and (5) when the trial 

court sentenced defendant to prison, it erroneously imposed a domestic violence fund fee 

applicable only when a defendant is sentenced to probation. In supplemental briefing, 

defendant requests that (6) we strike, pursuant to Senate Bill No.136 (S.B. 136), his 

section 667, subdivision (b) prior prison term enhancement which was charged and found 

true as part of his 2014 case, (7) remand to allow the trial court to consider mental health 

diversion under section 1001.36 and (8) strike all fees and fines until there is a showing 

of ability to pay.

2

 People v. Cruz (1998) 44 Cal.3d 1247, 1250 (Cruz).
3

We agree the $500 domestic violence fee must be stricken and otherwise affirm 

the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with infliction of corporal injury resulting in a traumatic 

condition upon his spouse (the victim) occurring on September 6, 2013, with a prior 

domestic violence conviction (count 1; former § 273.5, subd. (e)(1), now § 273.5, subd. 

(f)(1)), and criminal threats occurring on September 6 and 8, 2013 (count 2; § 422). 

Defendant entered into a plea agreement whereby he pleaded guilty to count 1 and 

count 2 was dismissed. The trial court released defendant on his own recognizance and 

suspended sentencing pursuant to a Cruz waiver. Pursuant to the plea agreement, if 

defendant successfully completed a six-month residential treatment program to address 

domestic violence and anger management issues, the section 273.5 offense would be 

reduced to a misdemeanor. However, defendant would be sentenced to five years 

imprisonment if he failed to complete the program; failed to appear; committed any new 

offenses; battered, annoyed, threatened or harassed the victim; or failed to stay 100 yards 

away from a former spouse, who was the victim in two prior domestic violence 

convictions. Defendant also agreed that, should he violate any of the aforementioned

conditions, the court would no longer be bound by the plea bargain, and he would not 

have the right to withdraw his plea. Additionally, defendant agreed the sentencing judge 

would decide by a preponderance of the evidence whether he had violated the agreement. 

Defendant had difficulty finding a residential treatment program that would accept 

him. In November 2013, defendant’s attorney informed the court that defendant had not 

entered a residential treatment program. The court scheduled sentencing in December 

2013, and a probation officer’s report was prepared on December 3. The court continued 

the matter when defendant found a placement in December 2013. Defendant did not 

complete the program due to medical problems. 
4

On January 10, 2014, defendant was arrested for another domestic violence attack 

on the victim. The trial court held a hearing on January 13, 2014, to consider this new 

incident and defendant’s Cruz waiver related to the September 2013 charges. The court 

said it was “inclined to find that [defendant] has violated his Cruz waiver” and revoked 

defendant’s release on his own recognizance. The court scheduled a hearing regarding 

defendant’s compliance with his Cruz waiver, to be heard along with any charges related 

to the January 2014 incident. The court explained, “if [defendant] has committed another 

assault, then this deal is out the window and he’s going to prison.” The matter was 

rescheduled twice, and each time defendant agreed that both the September 2013 and 

January 2014 matters would be heard on the rescheduled dates. On January 24, 2014, the 

trial court expressly asked defendant if he wanted his sentencing on the 2013 case to be 

put over to the next date and defendant said he did. 

On January 31, 2014, without specifically stating that it was also considering 

whether defendant had violated his Cruz waiver, the same judge held a preliminary 

hearing regarding the January 2014 offenses. Defendant was present and had the 

opportunity to cross-examine the witnesses, including the victim, who testified defendant 

attacked and threatened to kill her.

3

 The court concluded there was probable cause to 

believe defendant committed the new offenses related to the January 2014 incident. 

Although the court did not state that it found defendant in violation of his Cruz waiver, 

when it asked the defense had it “missed anything further on behalf of the defense” 

before concluding the proceedings, defense counsel said the court had not. The court 

continued the sentencing on the charges related to the September 2013 offense to the 

same date calendared for the January 2014 offenses, and defendant consented. Defendant 

3

 We discuss this attack in more detail, post.
5

registered no objection and made no comments related to a hearing or finding on the 

violation of the Cruz waiver.

When defendant was subsequently arraigned on the information involving the 

2014 charges, the defense again made no statements concerning a hearing or finding on 

the Cruz waiver on the 2013 matter. The court indicated that matter was on for 

sentencing, which would be calendared upon conviction or acquittal of the new charges.

The 2014 case was set for discovery compliance and trial. 

At the discovery compliance hearing, the matter was continued to June 9, 2014,

defense counsel noting that they would know what they were going to do concerning the 

sentencing on the 2013 matter on that date. Again, no mention was made of a hearing or 

finding on the Cruz waiver. 

On June 9, 2014, the matter was continued to June 23, 2014, and again, no 

mention was made of a hearing or finding concerning the Cruz waiver. Before 

adjourning, the court asked counsel to let it know if it looked like the defense would not 

be prepared to proceed with sentencing on that date. 

On June 23, 2014, the court imposed sentence on the September 2013 offense and, 

consistent with the negotiated agreement, sentenced defendant to five years 

imprisonment, the upper term for a violation of section 273.5 with a prior. The court also 

imposed fines, fees, and assessments we discuss post. The court had at its disposal the 

December 3, 2013 probation report. When asked at the beginning of the proceedings 

whether there was any legal cause judgment should not be pronounced, counsel for 

defendant stated there was not. Again, no mention was made of a hearing or finding on 

the Cruz waiver.

Defendant did not ask for an updated report and registered no objection to the 

court considering the December 3, 2013 report. Counsel did explain to the court that 

defendant failed to enroll in a residential program because, as he had previously 

explained, defendant was suffering from a medical condition that limited his ability to 
6

work and that had subsequently been resolved by surgery. Making a pitch for probation, 

counsel argued that this was an unusual case because defendant was suffering from a 

mental condition, i.e., substance abuse issues. He provided the court a certificate 

indicating defendant had completed an alcohol program in the jail. Referring to the 

probation report, counsel noted no circumstances in mitigation were listed, but argued 

that his substance abuse problem was a mitigating circumstance. The prosecutor noted 

that the plea form indicated that if defendant violated a condition imposed by the court or 

committed a new offense, his sentence would be five years and further noted that 

defendant’s case was not unusual because defendant had a lengthy history of drug 

addiction. The court sentenced defendant to five years. 

In January 2015, after a jury found defendant guilty of the January 2014 domestic 

violence offenses, the court held a sentencing hearing on that case. A new probation 

report was prepared and was considered by the court. At the sentencing hearing, the 

court also reconsidered but left “as previously stated” the sentence for the conviction on 

the September 2013 offenses. Including the five year sentence on the instant case, the 

court sentenced defendant to an aggregate term of 19 years to life.

DISCUSSION

I. The Probation Report Contention

In originally sentencing defendant on the 2013 case on June 23, 2014, to the 

negotiated term of five years, the trial court had at its disposal the probation report dated 

December 3, 2013. At the time of sentencing, defendant had been in jail the preceding 

five months. Although defendant never objected to the use of that report, he argues on 

appeal the probation report was outdated and the trial court erred by relying on it. 

A new probation report is necessary only “for sentencing proceedings that occur a 

significant period of time after the original report was prepared” or if there is an 

“indication of changed circumstances.” (Former Cal. Rules of Court, rule 4.411(c) & 
7

Advisory Com. com. foll. rule 4.411.)4 The Advisory Committee recommended updating 

reports if more than six months have passed since the previous report was issued. 

Here, even if the trial court erred by not ordering a supplemental report a little less 

than seven months after the original report, when defendant was incarcerated for more 

than five of those months, we conclude the error was harmless. (People v. Dobbins

(2005) 127 Cal.App.4th 176, 182.) Such error is reversible only if “there is a reasonable 

probability of a result more favorable to defendant if not for the error.” (Ibid.) Here, the 

result would have been the same even if a supplemental probation report had been 

prepared. Defendant would have been sentenced to five years in accordance with the 

negotiated agreement.

As for the efficacy of the December 3, 2013 probation report, we note it detailed 

defendant’s background and other relevant information, including defendant’s numerous 

prior criminal convictions and history of domestic violence offenses. According to the 

report, defendant “ha[d] no ability to comply with probation.” Defendant committed the 

current offense while on supervised release, and his prior performance on probation and 

supervised release “was unsatisfactory.” The report also detailed multiple circumstances 

in aggravation, including defendant’s history of violent conduct and felony domestic 

violence convictions in 2008 and 2012 against his former spouse. And because of the 

multiple prior felony convictions, defendant was presumptively ineligible for probation

absent unusual circumstances. (§ 1203, subd. (e)(4); Rule 4.413.) 

Defendant argues on appeal that circumstances had changed since the original 

report, including his completion of a 12-week alcohol treatment program while in jail, 

and his efforts to attend a residential treatment program, in compliance with his Cruz 

4

 Further rule references are to the California Rules of Court in effect at the time of 

sentencing.
8

waiver. However, the trial court was aware of those facts, as defendant’s counsel 

highlighted both of these circumstances at the sentencing hearing. 

Defendant also argues the trial court misunderstood the facts of the underlying 

offense and erroneously conflated the altercations between defendant and the victim on 

September 6 and 8, 2013. Regardless, the original probation report did not conflate the 

two altercations, so a supplemental probation report would not have made a difference.

We conclude that a supplemental report would have added little, if anything, to the 

trial court’s analysis of defendant and the nature of his offenses. He was sentenced 

pursuant to the negotiated agreement. And in any event, the court later had at its disposal 

a new probation report prepared for the 2015 sentencing when it reconsidered the 

sentence on the 2013 charges and imposed sentence on the 2014 charges.

For all of these reasons, any error in failing to obtain an updated supplemental 

report was harmless.

II. Ineffective Assistance of Counsel 

Defendant contends he received ineffective assistance of counsel during the June 

2014 and January 2015 sentencing hearings because counsel did not correct the trial 

court’s purported misunderstanding concerning facts related to the commission of the 

offenses in the September 2013 case and that the agreement was purportedly not for a 

stipulated upper term. The contention is meritless.

To establish ineffective assistance of counsel, a defendant must show (1) counsel’s 

performance was below an objective standard of reasonableness under prevailing 

professional norms, and (2) the deficient performance prejudiced defendant. (Strickland 

v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674] (Strickland); People 

v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) “ ‘Surmounting Strickland’s

high bar is never . . . easy.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 89 [178 

L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 

L.Ed.2d 284, 297].)
9

To establish prejudice, “[i]t is not enough ‘to show that the errors had some 

conceivable effect on the outcome of the proceeding.’ ” (Richter, supra, 562 U.S. at 

p. 104.) To show prejudice, defendant must show a reasonable probability that he would 

have received a more favorable result had counsel’s performance not been deficient. 

(Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218; 

People v. Henderson (2020) 46 Cal.App.5th 533, 549-550.) The likelihood of a different 

result must be substantial, not just conceivable. (Richter, supra, U.S. at p. 112.) 

A. Additional Background

On September 6, 2013, defendant beat and threatened to kill the victim. On 

September 8, 2013, after a lengthy argument, defendant locked the victim out of the 

house, and she kicked the house door and hit him. Defendant argues that, during the June 

2014 sentencing hearing, the trial court described September 6 and 8 as a single event. 

He claims this erroneously caused the court to conclude that defendant was “blaming the 

victim,” rather than “fess[ing] up to what he had done.” Defendant also claims the trial 

court erroneously stated defendant abused the victim because of his temper and his 

disposition, rather than because of his alcohol abuse. Defendant contends his counsel 

should have corrected these factual errors, which were purportedly prejudicial and caused 

the trial court to not grant probation a second time.

Additionally, defendant contends the trial court “mistakenly believed” defendant 

had stipulated to the upper term and that defense counsel was ineffective for failing to 

point this out. 

B. Analysis

Regarding the stipulated term, the plea form initialed and signed by defendant 

noted in no less than two places on the form that if defendant fails to complete a 

residential program or violates the Cruz waiver conditions, he will be sentenced to five 

years. During the plea hearing, the court noted that not only would he be sentenced to 

five years, he would also face 180 days concerning two felonies for which he was on 
10

mandatory supervision at the time.5 Accordingly, we reject appellate counsel’s assertion 

that trial counsel was ineffective for not informing the trial court the negotiated term of 

imprisonment was not stipulated.

Moreover, defendant has not established prejudice. Because defendant had 

multiple prior felony convictions, he was presumptively ineligible for probation and 

could only be granted probation if the court found this to be an unusual case. (§ 1203, 

subd. (e)(4); Cal. Rule 4.413.) There was insufficient evidence establishing that the 

presumption against probation had been overcome and ample evidence of multiple 

aggravating factors supporting the denial of probation and imposition of the upper term. 

As previously discussed, defendant had a history of violent conduct and criminal 

convictions, including prior domestic violence offenses. (See People v. Black (2007) 

41 Cal.4th 799, 815 [a single valid factor is enough to justify imposition of an aggravated 

term].) The court stated that the five-year upper term “was certainly the only resolution I 

could have reached, . . . given this first assault on the victim and his previous conduct 

towards [his previous spouse].” 

As such, there is no reasonable probability the sentencing outcome would have 

been different during either the June 2014 or January 2015 hearings. We reject 

defendant’s claim of ineffective assistance of counsel. 

III. The Cruz Waiver

Defendant contends the trial court sentenced defendant on the September 2013 

case without providing him a hearing concerning the violation of his Cruz waiver. The 

People contend defendant may not raise his challenges to the Cruz waiver hearing, and 

fees and fines on appeal because he failed to raise them in the trial court, citing People v. 

Scott (1994) 9 Cal.4th 331, 352-354. 

5

 It may be that the sentencing on these two matters fell off the court’s radar screen. The 

record before us does not reflect a sentence on those matters.
11

We note that defendant never questioned whether the preliminary hearing served 

as an evidentiary hearing on the Cruz waiver and never mentioned the need for such a 

hearing or an express finding on multiple occasions when there were opportunities to do 

so. Even if defendant has not forfeited the contention and the court only implicitly 

considered the preliminary hearing for the offenses related to the January 2014 altercation 

to also be a hearing about defendant’s compliance with his Cruz waiver, there was no 

violation of the plea bargain or defendant’s due process rights. Defendant indicated in 

the plea agreement that he “underst[ood] and agree[d] that whether or not there has been 

a willful violation of [the terms of his Cruz waiver] will be decided by the sentencing 

judge sitting without a jury and that the burden of proof to find a willful violation of the 

Cruz waiver is the very low standard of ‘by a preponderance of the evidence.’ ” (Italics 

addded.) 

It is undisputed that defendant had prior notice of the terms of his Cruz waiver, 

including the prohibition on battering, annoying, threatening, or harassing the victim. In 

addition, defendant was present and had the opportunity to submit and rebut evidence 

during the January 2014 preliminary hearing and the subsequent sentencing hearings, 

when the trial court heard ample evidence that defendant threatened, harassed, and 

battered the victim in January 2014. 

Since defendant was given both notice and the opportunity to be heard, the trial 

court complied with the plea agreement, and there was no violation of defendant’s due 

process rights. (See People v. Carr (2006) 143 Cal.App.4th 786, 791-792 [finding no 

violation of due process where defendant who allegedly violated a People v. Vargas 

(1990) 223 Cal.App.3d 1107, waiver had ample notice and opportunity to be heard, and 

noting that a court is not required to make a detailed statement of reasons for finding 

defendant in violation of a Vargas waiver].) Moreover, any error is harmless because the 

jury in the 2014 matter ultimately found defendant guilty beyond a reasonable doubt and 
12

the victimization for which defendant was convicted in the 2014 case provided the basis 

for finding defendant in violation of the Cruz waiver in the 2013 case.

IV. Fees and Fines

Defendant contends the court imposed fines in violation of his plea agreement. He 

argues he only agreed to have fines imposed should he receive a grant of probation, and 

therefore the trial court violated the plea bargain by imposing: a $1,400 restitution fine 

(§ 1202.4, subd. (b)); a suspended $1,400 parole revocation fine (§ 1202.45); a $500 

“domestic violence fee”; a $40 court operations assessment (§ 1465.8); and a $30 

conviction assessment (Gov. Code, § 70373). Defendant also argues the trial court had 

no authority to impose a “domestic violence fee.”

The assessments, restitution fine, and parole revocation fines are mandated by 

statute. (See §§ 1202.4, subd. (b), 1202.45, 1465.8; Gov. Code, § 70373.) Here, the 

court imposed the statutory amounts for the court operations assessment and conviction 

assessment. (§ 1465.8; Gov. Code, § 70373.) The court imposed restitution and parole 

revocation fines of $1400, within the statutory minimum ($300) and maximum ($10,000)

range. (§§ 1202.4, subd. (b), 1202.45.)

On the plea form, defendant indicated he understood that fines and fees could be 

imposed, including restitution, statutory fees, assessments, “other” unspecified amounts, 

and a parole revocation fine. The form did not specify an amount for any fine, fee, or 

assessment. The record reflects no indication by the court that fees and fines would not 

be imposed unless defendant was granted probation. Nor does the record reflect that only

the mandatory minimum restitution fines were contemplated as part of the bargain.

A trial court does not violate a plea agreement when it imposes statutorily 

mandated fines with set amounts, such as the court operations assessment and conviction 

assessment. (See People v. Villalobos (2012) 54 Cal.4th 177, 183; see also § 1465.8; 

Gov. Code, § 70373.) Further, where, as here, the parties have not agreed to other 

amounts, a trial court does not violate a plea agreement when it exercises its discretion 
13

and sets restitution and parole revocation fine amounts above the statutory minimum. 

(Villalobos, at p. 186 [“where neither the parties nor the trial court has specified the fine 

amount in the context of a plea bargain, ‘[t]he restitution fine shall be set at the discretion 

of the court.’ ”], quoting § 1202.4, subd. (b)(1).) 

With respect to the $500 “domestic violence fee,” as noted, defendant agreed in 

the plea agreement to “other” fines and fees. Defendant pleaded guilty to former section 

273.5, subd. (e)(1), which permits punishment by both a fine up to $10,000 and 

imprisonment. (Former § 273.5, subd. (e)(1), now § 273.5, subd. (f).) On the other hand, 

where a defendant is granted probation, section 1203.097, subd. (a)(5)(A) provides for 

“[a] minimum payment by the defendant of a fee of five hundred dollars ($500) . . . .” 

(§ 1203.097, subd. (a), italics added.) Two-thirds of the fee goes to “the domestic 

violence programs special fund created pursuant to Section 18305 of the Welfare and 

Institutions Code,” and the remaining one-third goes to “the Domestic Violence 

Restraining Order Reimbursement Fund” and “the Domestic Violence Training and 

Education Fund.” (§ 1203.097, subds. (a)(5)(B) & (a)(5)(C).) Because defendant was 

sentenced to prison, it could not have imposed a fee under section 1203.097, subdivision 

(a). 

The trial court referred to the assessment as a “domestic violence fee,” not a fine. 

Consequently, it seems clear the court did not intend to impose a fine under former 273.5, 

subd. (e)(1). We will strike that fee as unauthorized.

In supplemental briefing, defendant asserts the trial court erred by imposing 

mandatory fees and fines without a showing of ability to pay. He relies on People v. 

Dueñas (2019) 30 Cal.App.5th 1157. 

As noted, the trial court imposed a $1400 restitution fine and a $1400 parole 

revocation restitution fine. In the trial court, defendant did not assert an inability to pay 

more than the mandatory minimum. Therefore, the contention as to those assessments is 

forfeited. (People v. Avila (2009) 46 Cal.4th 680, 729; People v. Lowery (2020) 43 
14

Cal.App.5th 1046, 1053-1054 [“appellants had a statutory right, and were obligated, to 

object to the imposition of the restitution fines above the $300 minimum.”]; People v. 

Frandsen (2019) 33 Cal.App.5th 1126, 1154; People v. Gutierrez (2019) 35 Cal.App.5th 

1027, 1032-1033.) And because defendant failed to object to the restitution fines, we 

likewise reject his contention related to the court operations (§ 1465.8, subd. (a)(1)) and 

criminal conviction assessments (Gov. Code, § 70373). (Lowery, at p. 1054.) 

Further, even if defendant has not forfeited his inability to pay contention, we 

would nevertheless reject his contention on appeal, because we join the courts concluding 

Dueñas was wrongly decided and hold that defendant was not entitled to an ability to pay 

hearing. (People v. Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 

41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, review granted 

Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. 

Caceres (2019) 39 Cal.App.5th 917, 923-929.) 

V. Senate Bill No. 136

A. Additional Background and Defendant’s Contention

As noted, in sentencing defendant on the 2014 case, the trial court selected the 

instant case as the base determinate term without making any changes. Including the five 

year determinate term on this case, the court imposed an aggregate term 19 years to life. 

Included within the sentence on the 2014 case is a one-year term for a prior prison 

commitment under section 667.5, subdivision (b). 

S.B. 136 became effective January 1, 2020. (Sen. Bill No. 136 (2019-2020 Reg. 

Sess.) § 1.) It amended 667.5, subdivision (b), to eliminate the one-year prior prison term 

enhancement for except for convictions on sexually violent offenses defined in Welfare 

and Institutions Code section 6600, subdivision (b). 

Defendant contends under In re Estrada (1965) 63 Cal.2d 740 (Estrada), S.B. 136 

must be applied retroactively to the instant case as it was not final prior to the effective 

date for the amendment to 667.5, subdivision (b). Recognizing that the 2014 case has 
15

long since been final for Estrada purposes, defendant argues that the sentence in that case 

merged with the sentence in this case and since the judgment in this case is not final, 

Estrada still applies. We disagree.

It is true that a status enhancement like a prior prison term enhancement does not 

attach for to a particular case for purposes of sentencing, but rather is added to the 

aggregate sentence involving multiple cases. (People v. Acosta (2018) 29 Cal.App.5th 

19, 21.) Defendant’s argument fails, however, because he conflates a merged sentence 

involving two cases with the separate judgments in those cases. The key date for Estrada

is the date of final judgment. (People v. McKenzie (2020) 9 Cal.5th 40, 44.) “In a 

criminal case, judgment is rendered when the trial court orally pronounces sentence.” 

(People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) For Estrada purposes, “[a] 

judgment becomes final when the availability of an appeal and the time for filing a 

petition for certiorari with the United States Supreme Court have expired.” (People v. 

Buycks (2018) 5 Cal.5th 857, 876, fn. 5.) Thus, while the judgment in this case was not 

final before the effective date of S.B. 136, the judgment in the 2014 case has long since 

been final.

6

 And because that judgment is final, Estrada does not apply here. 

Accordingly, we decline to strike the one-year term imposed under section 667.5, 

subdivision (b).

VI. Mental Health Diversion

Defendant asserts that he suffers from post-traumatic stress disorder and 

alcoholism.7 He argues he is eligible for mental health diversion, an ameliorative 

6

 The judgment in the 2014 case was affirmed on May 10, 2016 and the remittitur was 

issued on August 11, 2016. (People v. Watson, C078754, 2016 WL 2765094 (Watson).) 

We take judicial notice of the appellate opinion in the 2014 case. (Evid. Code, § 452, 

subd. (d)(1).)

7

 The December 3, 2013 probation report states that defendant reported he had been 

treated for post-traumatic stress disorder that resulted from his father putting a gun to his 
16

provision enacted in Assembly Bill No. 1810, which became effective January 1, 2019. 

(Stats. 2018, Assem. Bill No. 1810 (Reg. Sess. 2017-2018) ch. 1005, § 1 (A.B. 1810).) 

A.B. 1810 established mental health diversion in section 1001.36. Relying on People v. 

Frahs (2020) 9 Cal.5th 618, defendant asserts A.B. 1810 must be applied retroactively to 

him. On the facts of this case, we conclude remand for the purpose of considering mental 

health diversion would be futile.

Mental health diversion under section 1001.36 provides discretionary pretrial 

diversion for qualifying defendants with mental health disorders who could benefit from 

inpatient or outpatient community treatment. (§ 1001.36, subd. (b)/(c)(1).) Defendant is 

serving a life term on the 2014 case, so a trial court could not grant mental health 

diversion into a community treatment program on this case. 

Moreover, from our review of the record in this case and this court’s opinion in the 

2014 case, it would be an abuse of discretion to grant mental health diversion because 

defendant clearly does not satisfy subdivision (b)(1)(F) of section 1001.36. Section 

1001.36, subdivision (b) sets forth certain criteria a defendant must satisfy to be qualify 

for mental health diversion. Subdivision (b)(1)(F) requires the trial court to find “that the 

defendant will not pose an unreasonable risk of danger to public safety, as defined in 

Section 1170.18, if treated in the community.” Among the things a trial court can 

consider are the “defendant’s violence and criminal history, the current charged offense, 

and any other factors that the court deems appropriate.” Unreasonable risk of danger to 

public safety is defined in section 1170.18 as “an unreasonable risk that the petitioner 

will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) 

of paragraph (2) of subdivision (e) of Section 667.” Section 667(e)(2)(C)(iv) includes 

any homicide or attempted homicide offense. 

face in 1998 when he was sixteen years old. Defendant told he probation officer he had 

not been treated for mental or emotional problems as an adult. 
17

As set forth in the opinion from the appeal on the 2014 case for which we have 

taken judicial notice (see fn. 6, ante), the events in that case clearly disqualify defendant. 

Those events began when defendant was talking to his mother over the phone about the 

2013 case. Defendant told his mother, “ ‘if we didn’t fix this, that he was going to kill 

us.’ ” (Watson, supra, 2016 WL 2765094, *1.) Defendant then hung up and threw the 

phone at the victim. Thereafter, “[d]efendant followed her and punched her in the face 

four or five times, and when she fell to the ground, he told her not to get up. She tried to 

get up, so defendant shoved her into the refrigerator and, taking hold of her hair, slammed 

her head into the floor. She grabbed a spatula and hit defendant, causing him to let go of 

her momentarily and call his mother. Defendant got hold of his wife again and told his 

mother he was ‘going to kill us.’ [The victim] begged in the background for his mother 

to call the police.” (Ibid., italics added.) When the children began to scream, the victim 

went to their room to calm them. With their two-year old daughter in her arms, defendant 

hit the victim on the head, knocking her to the bed. When she grabbed the phone to call 

911, defendant repeatedly punched her in the face. Defendant continued to beat her when 

a friend came in and tried to intercede, telling the victim “ ‘You’re dead.’ ” (Ibid., italics 

added.) When the friend left with the daughter, defendant walked outside to the front 

porch. Meanwhile, the victim locked the front door. Defendant kicked the door in, threw 

the victim to the ground, and began hitting her with a posthole digger. He then grabbed 

an aluminum pole and hit the victim on the head with it multiple times and stopped when 

the police arrived. Defendant was found guilty of multiple crimes, including torture.

At the January 15, 2015 sentencing hearing, the court remarked about defendant’s 

conduct in this case, specifically the blow that was inflicted when defendant struck the 

victim while she was holding their baby daughter. The court stated: “To me, that’s for a 

sadistic purpose. He’s using her like a punching bag. She is defenseless. She’s holding 

the baby. And then I reviewed the evidence, and that’s where she got 16 stitches in the 

facial or the head area.” The court also noted that this was defendant’s fifth domestic 
18

violence related offense. We conclude it would be an abuse of discretion to find that 

defendant does not present an unreasonable risk to public safety as defined in section 

1170.18.

Based on the record before us, we conclude remand for purposes of mental health 

diversion would be futile.

DISPOSITION

The judgment is modified to strike the $500 “domestic violence fee.” The trial 

court is directed to amend the abstract of judgment accordingly and forward a copy the 

Department of the Corrections and Rehabilitation. The judgment is otherwise affirmed. 

 /s/

MURRAY, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

RENNER, J.