Filed 9/24/20 P. v. Young CA2/8

Opinion following transfer from Supreme Court

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

BARRICK YOUNG,

Defendant and Appellant.

B291756

(Los Angeles County

Super. Ct. No. YA097437)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Hector M. Guzman, Judge. Conditionally 

reversed and remanded with directions.

Robert F. Somers, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Wyatt E. Bloomfield and Nicholas J. Webster,

Deputy Attorneys General, for Plaintiff and Respondent.

____________________________
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INTRODUCTION

Defendant and appellant Barrick Young was convicted of 

first degree burglary. He was sentenced to eight years for the 

burglary, plus 10 years for two prior serious felony convictions.

After Young was convicted, the Legislature enacted Penal 

Code section 1001.36,1 which created a pretrial diversion 

program for defendants with mental disorders. While Young’s 

case was pending on appeal, the Legislature also enacted 

amendments to sections 1385 and 667, subdivision (a), which 

gave trial courts discretion to dismiss sentencing enhancements 

for prior serious felony convictions.

In a prior appeal, we agreed sections 1385 and 667 applied 

retroactively, but we rejected Young’s contention section 1001.36 

applied retroactively to his case. The California Supreme Court 

granted review and remanded for reconsideration in light of 

People v. Frahs (2020) 9 Cal.5th 618 (Frahs), which held section 

1001.36 applies to cases pending on appeal. 

In light of Frahs, we conditionally reverse Young’s 

conviction and sentence and remand for the trial court to conduct 

a mental health diversion eligibility hearing pursuant to section 

1001.36 in accordance with our instructions infra. If the court 

denies diversion, or if the court grants diversion but Young fails 

to complete it, his conviction and sentence shall be reinstated and 

the court shall conduct a sentencing hearing to consider whether 

to strike either or both prior serious felony enhancements 

pursuant to sections 1385 and 667.

1 All further statutory references refer to the Penal Code.
3

FACTUAL AND PROCEDURAL BACKGROUND

On December 27, 2017 at approximately 12:15 a.m., 

Los Angeles County Sheriff’s Deputy Raymond Zavala was 

dispatched to a residence to investigate a report of a prowler on 

private property. After he arrived, Zavala approached the 

detached garage and observed that the area around the door lock 

was broken and the door frame was cracked. Zavala also 

observed a shoe print on the door. Zavala entered the garage and 

saw Young going through some boxes. After Zavala ordered 

Young to show his hands, Young took a glass pipe out of his front 

shirt pocket, placed it on a box in front of him, and then put up 

his hands. Young also had batteries, a lighter, and a charger in 

his other hand.

According to victim Walter White, neatly stored items in 

his garage had been strewn about the area by Young. White was 

the only person with access to the garage, and he did not give 

Young permission to enter. White testified the lighter, batteries, 

and charger did not belong to him.

Young testified he had been homeless for five months and, 

in the days leading up to December 27, he had been up for several 

days smoking methamphetamine. Young stated he entered the 

garage not to steal anything, but to sleep. He testified the items 

in the garage were strewn about because he was trying to hide 

his methamphetamine pipe. The batteries, charger, and lighter 

belonged to him. Young testified he sometimes heard voices, for 

which he was taking medication.

On May 16, 2018, after a bench trial, Young was convicted 

of one count of first degree burglary. (§ 459.) The court also 

found Young suffered two prior serious felony convictions 

(§ 667, subd. (a)(1)) and two strikes under the Three Strikes law 
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(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court also 

found Young served five prior prison terms (§ 667.5, subd. (b)). 

Sentencing was conducted on July 25, 2018. The court 

granted Young’s Romero2 motion as to one of the two strike 

priors. The court sentenced Young to an aggregate term of 18 

years in prison, consisting of the middle term of four years for the 

burglary, doubled due to the prior strike, plus two five-year 

enhancements for two prior serious felony convictions. The court 

struck the five enhancements for Young’s five one-year prior 

prison terms. 

Young timely appealed.

DISCUSSION

I. Mental Health Diversion Is Retroactive

Section 1001.36 authorizes pretrial diversion for defendants 

with qualifying mental disorders such as schizophrenia, bipolar 

disorder, and posttraumatic stress disorder. “ ‘[P]retrial diversion’ 

means the postponement of prosecution, either temporarily or 

permanently, at any point in the judicial process from the point at 

which the accused is charged until adjudication, to allow the 

defendant to undergo mental health treatment.” (§ 1001.36, 

subd. (c).)

A trial court may grant pretrial diversion under section 

1001.36 if the court finds: (1) defendant suffers from a qualifying 

mental disorder; (2) the mental disorder played a significant role 

in the commission of the charged offense; (3) a qualified mental 

health expert must opine that defendant’s symptoms will respond 

to treatment; (4) defendant consents to diversion and waives his 

or her speedy trial rights; (5) defendant agrees to comply with the 

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
5

treatment as a condition of diversion; and (6) defendant will not 

pose an unreasonable risk of danger to public safety, as defined 

in section 1170.18, if he is treated in the community. (§ 1001.36, 

subds. (b)(1)(A)–(F).) Pretrial diversion is not available to 

defendants charged with murder, voluntary manslaughter, 

certain enumerated sex offenses, and certain offenses involving 

the use of weapons of mass destruction. (§ 1001.36, subds. 

(b)(2)(A)–(H).)

If the trial court grants pretrial diversion and the 

defendant performs “satisfactorily in diversion, at the end of the 

period of diversion, the court shall dismiss the defendant’s 

criminal charges that were the subject of the criminal 

proceedings at the time of the initial diversion.” (§ 1001.36, subd. 

(e).)

Here, the record reflects Young has a history of mental 

health issues, including episodes of auditory hallucinations. 

Young testified he took medication to treat the auditory 

hallucinations and the probation report submitted to the court 

reflects Young previously received mental health treatment from 

the California Department of Corrections and Rehabilitation. 

Additionally, Young was not charged with any of the disqualifying 

offenses described above. 

Young contends he should be considered for mental health 

diversion under section 1001.36 because his case is not yet final 

on appeal. We previously rejected his position, but the California 

Supreme Court in Frahs held section 1001.36 does, in fact, apply

to cases pending on appeal. (Frahs, supra, 9 Cal.5th at p. 640.) 

Our high court granted review in this case and remanded for 

reconsideration in light of Frahs. The parties have filed 

supplemental briefs agreeing that under Frahs Young is entitled 
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to “a conditional limited remand for the trial court to conduct a 

mental health diversion eligibility hearing” because “the record 

affirmatively discloses that the defendant appears to meet at 

least the first threshold eligibility requirement for mental health 

diversion—the defendant suffers from a qualifying mental 

disorder (§ 1001.36, subd. (b)(1)(A).)” (Frahs, supra, 9 Cal.5th at 

p. 640.) 

We agree as well. We will conditionally reverse the 

judgment and remand for a mental health diversion eligibility 

hearing pursuant to the instructions we set forth below. 

“We express no view regarding whether defendant will be able to 

show eligibility on remand or whether the trial court should 

exercise its discretion to grant diversion if it finds him eligible.” 

(Frahs, supra, 9 Cal.5th at p. 625.) 

II. Discretionary Dismissal of The Five-Year 

Enhancements Is Retroactive

While this case was pending on appeal, the Legislature 

enacted amendments to sections 1385 and 667, subdivision (a) 

giving trial courts discretion to dismiss punishment for prior 

serious felony convictions. The amendments, which became 

operative on January 1, 2019, are retroactive to cases not yet 

final on appeal. (People v. Garcia (2018) 28 Cal.App.5th 961, 

972.) A remand is required in such cases unless the record shows 

it would not have exercised its discretion to lessen the sentence at 

the time of sentencing. (People v. Johnson (2019) 32 Cal.App.5th 

26, 69.)

The People acknowledge the amendments are retroactive to 

Young’s case, but contend the case should not be remanded 

because the court “clearly indicated” it would not have struck the 

prior felony enhancements even if it had the discretion at the 
7

time of sentencing. The crux of the People’s argument is that the 

court did not exercise its discretion to impose the low term on the 

burglary conviction, and only struck one of two of Young’s prior 

strikes. The People also point to the court’s comment that there 

was “no question” that a life term would be warranted in Young’s 

case. We are not convinced. 

With respect to the court’s comments, the People quote a 

small portion of a fuller statement that, in proper context, reveals 

the court was sympathetic to Young. The court began its 

statement with a caveat that, “[i]f you look at Mr. Young’s record, 

just the cold facts, in my mind there’s no question he warrants 

the life term. He has a number of serious offenses in the past, 

and once again, he faces another serious conviction.” The court 

then explained that although some might be surprised the court 

only imposed a determinate 18-year sentence, “I have seen 

Mr. Young in court. I’ve listened to him. He has always been 

respectful at every court appearance. He has expressed remorse.” 

The court commented it was “somewhat of a sad situation 

because I honestly do feel he is trying, but he always seems to put 

himself in a position where he’s back in court facing significant 

time . . . [¶] . . . the other reasons why I showed mercy, is that 

there are these stretches of time where [Mr. Young] doesn’t seem 

to be getting himself in any serious trouble, but he always seems 

to be somewhat on the edge of falling off and back into trouble.” 

The court also observed that Mr. Young’s crimes had decreased in 

severity since “the very beginning,” when he used a weapon and 

was involved in some serious and violent offenses. The court 

stated it was impressed with Mr. Young’s humility, respect for 

the court, and desire to change. In other words, the court made 

clear that while on paper Mr. Young’s criminal history could 
8

justify a more severe sentence, the court believed mercy and 

leniency were warranted based on a closer analysis of Mr. 

Young’s record and due consideration of his more positive 

attributes. We therefore cannot definitively conclude the court 

would not have fashioned a more lenient sentence, or perhaps 

have structured the sentence in a different way to maximize 

parole consideration, if it had had the discretion to do so.

In any event, it is undisputed that the court had no 

discretion at the time of Young’s sentencing and was compelled to 

impose two five-year enhancements for two prior serious felony 

convictions. Neither did the People nor Mr. Young’s trial counsel 

have an opportunity to present arguments related to the 

amended provisions. Accordingly, Mr. Young and his counsel did 

not have a “ ‘full and fair opportunity to marshal and present the 

evidence supporting a favorable exercise of discretion.’ ” 

(People v. Rocha (2019) 32 Cal.App.5th 352, 358, citing People v. 

Rodriguez (1996) 17 Cal.4th 253, 258.) Thus, we will remand the 

case for the trial court to conduct a new sentencing hearing to 

determine whether to exercise its discretion to strike Young’s 

prior felony enhancements.

DISPOSITION

In accordance with Frahs, Young’s conviction and sentence 

are conditionally reversed for a limited remand with the following 

instructions:

If the trial court finds that defendant suffers from a

qualifying mental disorder, does not pose an unreasonable risk of 

danger to public safety, and otherwise meets all of the statutory 

criteria set forth in section 1001.36, then the court may grant 

mental health diversion in accordance with the statutory scheme. 
9

If defendant successfully completes diversion, then the court 

shall dismiss the charges.

However, if the court determines that defendant does not 

meet the criteria under section 1001.36, or if defendant does not 

successfully complete mental health diversion, then his 

convictions and sentence shall be reinstated. In the event 

defendant’s conviction is reinstated, the trial court shall exercise 

its discretion whether to strike the five-year enhancements

pursuant to section 667, subdivision (a) and shall thereafter 

prepare and forward a new abstract of judgment to the 

Department of Corrections and Rehabilitation.

BIGELOW, P. J. 

We Concur:

GRIMES, J. 

STRATTON, J.