Filed 11/16/20 P. v. Short CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

KIRK MARSHALL SHORT,

Defendant and Appellant.

 B293373

 (Los Angeles County

 Super. Ct. No. LA084722)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Susan M. Speer, Judge. Affirmed and remanded 

with directions.

Robert E. Scott, 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, Blythe J. Leszkay and Kristen J. Inberg, 

Deputy Attorneys General, for Plaintiff and Respondent.

______________
2

Kirk Marshall Short appeals from a judgment entered after 

a jury convicted him of battery causing serious bodily injury and 

assault by means of force likely to produce great bodily injury. 

The jury found true as to the assault that Short personally 

inflicted great bodily injury upon the victim.

On appeal, Short contends the trial court erred in revoking 

his Faretta1 right to represent himself at trial. He also argues 

there was insufficient evidence to support the trial court’s 

determination he was competent to stand trial. Further, Short 

asserts a limited remand is appropriate for the trial court to hold 

a mental health diversion eligibility hearing pursuant to Penal 

Code2 section 1001.36. In addition, Short requests we remand for 

the court to exercise its discretion under Senate Bill No. 1393 

(2017-2018 Reg. Sess.) to decide whether to strike the five-year 

enhancement the court imposed pursuant to section 667, 

subdivision (a)(1). Short also contends, the People concede, and 

we agree under Senate Bill No. 136 (2019-2020 Reg. Sess.), the 

two 1-year prior prison term enhancements imposed under 

section 667.5, subdivision (b), must be stricken. Finally, Short

requests we remand for the trial court to conduct a hearing on his 

ability to pay the court assessments and restitution fines 

pursuant to this court’s opinion in People v. Dueñas (2019) 

30 Cal.App.5th 1157 (Dueñas).

We affirm the judgment of conviction. But we remand for 

the trial court to exercise its discretion whether to strike the fiveyear sentence enhancement under section 667, subdivision (a)(1),

1 Faretta v. California (1975) 422 U.S. 806, 819 (Faretta).

2 Further undesignated statutory references are to the Penal 

Code.
3

to strike the one-year sentence enhancements for the prison 

priors, and to allow Short to request a hearing and present 

evidence demonstrating his inability to pay the court 

assessments and restitution fines.

BACKGROUND AND PROCEDURAL HISTORY

A. The Amended Information

The amended information charged Short with battery 

causing serious bodily injury (§§ 242, 243, subd. (d); count 1),

assault by means of force likely to produce great bodily injury 

(§ 245, subd. (a)(4); count 2), and dissuading a witness by force or 

threat (§ 136.1, subd. (c)(1); count 3). As to counts 2 and 3, the 

amended information specially alleged Short personally inflicted 

great bodily injury (§ 12022.7, subd. (a)) and suffered a prior 

serious felony conviction (§ 667, subd. (a)(1)). As to all counts, 

the amended information specially alleged Short suffered a prior 

conviction of a violent or serious felony under the three strikes 

law (§§ 667, subds. (b)-(j), 1170.12) and served three prior prison 

terms (§ 667.5, subd. (b)).

Short pleaded not guilty and denied the special allegations.

B. The Evidence at Trial

On August 24, 2016 Iesha Wilson was working as a cashier 

at a grocery store in Canoga Park. At approximately 3:15 p.m.

Short approached Wilson at her cash register and attempted to 

return a package of ground turkey and milk using a store receipt. 

Wilson noticed the last four numbers of the store’s club card on 

the receipt “were scribbled out,” which she found “was a little 

suspicious.” Wilson asked Short for his store club card, but he
4

did not have one.

3 Wilson contacted manager Morel So through 

the loud speaker. Wilson also called over another manager who 

was downstairs (Janie). Janie looked at the receipt and told

Short he needed a club card to return the items. Janie took the 

items to the second floor office.

So, the manager responsible for the cashiers and baggers

that day, was in the upstairs office.

4 Janie came into the office 

and stated, “He’s back again.” So looked at the security camera 

and saw Short in the front area of the store. So went downstairs 

and told Short, “You’re not allowed in the store. You’re 

trespassing. You need to leave, otherwise I’m going to call the 

cops.” Short responded, “Why am I not supposed to be here? I 

want my shit back.”

So went to the customer service desk to call the police. As 

So was calling, Short approached him from behind and punched 

him with a closed fist on the right side of his face.5 So felt a 

“tremendous amount of pain on the right of [his] face.” He felt 

ringing in his ears and his jaw bone “cracking.” So could not see 

3 Wilson testified when a customer wants to return a store 

item, the cashier typically asks for the customer’s store club card 

to match the last four numbers on the card with the numbers 

printed on the receipt.

4 So first encountered Short five years earlier when So was a 

manager at another grocery store. Short stole from the store by 

placing items in his shopping cart and obtaining a cash refund 

without a receipt. On the occasions the store refused to give 

Short a refund, he left with the items without paying. So told 

Short two or three times he needed to leave the store or So would 

call the police.

5 The prosecutor showed the video of the incident to the jury.
5

from his right eye, and he bled from his mouth. So had to have 

two teeth extracted and two titanium plates and 11 titanium 

screws implanted in his face and jaw to repair the four fractures 

to the right side of his face. As a result, So can no longer fully 

open his jaw. In addition, So sometimes has blurry vision and 

ringing in his ears, and he feels sharp pain on the right side of 

his face. As of the time of So’s October 17, 2017 trial testimony, 

he had been unable to return to work because of his injuries.

After punching So, Short ran out of the grocery store and 

entered an athletic club that shared a parking lot with the 

grocery store. Sales representative Melanie Fann interacted with 

Short after Short indicated he was interested in a club 

membership. Fann observed Short was nervous and had a 

bleeding cut on his right knuckles. Short filled out a guest 

registration form, including his name, but he picked up his bags 

and ran when an ambulance and police cars arrived outside the 

grocery store. Short was arrested on December 12, 2016, after So 

identified him from a six-pack photographic lineup.

Short did not testify or call any witnesses.

C. The Verdicts and Sentences

The jury found Short guilty on count 1 of battery causing

serious bodily injury and on count 2 of assault by means of force 

likely to produce great bodily injury. As to count 2, the jury

found Short personally inflicted great bodily injury upon So 

(§ 12022.7, subd. (a)). The jury was unable to reach a verdict on 
6

count 3 for dissuading a witness by force or threat, and the trial 

court declared a mistrial as to that count.

6

After a bifurcated court trial, the trial court found true 

Short suffered a conviction of a serious or violent felony under the 

three strikes law (assault with a deadly weapon). The court also 

found true Short served three prior prison terms within the 

meaning of section 667.5, subdivision (b).

The trial court denied Short’s motion for a new trial and his 

motion to strike his prior felony conviction under People v. 

Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The 

court also denied Short’s requests for a diagnostic evaluation 

under section 1203.03 and mental health diversion under section 

1001.36.

The trial court sentenced Short to an aggregate term of 18 

years in state prison. On count 2 for assault by means of force 

likely to produce great bodily injury, the court sentenced Short to 

the upper term of four years, doubled to eight years under the 

three strikes law, plus three years for the great bodily injury 

enhancement (§ 12022.7, subd. (a)), five years for the prior 

serious felony conviction (§ 667, subd. (a)(1)), and two years for 

two of the prior prison terms (§ 667.5, subd. (b)). On count 1 for 

battery with serious bodily injury, the court imposed the upper 

term of four years, doubled to eight years under the three strikes 

law, but the court stayed the sentence pursuant to section 654. 

The court imposed a $30 court facilities assessment (Gov. Code, 

§ 70373) and a $40 court operations assessment (Pen. Code, 

§ 1465.8, subd. (a)(1)) on each count and a $300 restitution fine 

6 The trial court later granted the People’s motion to dismiss 

that count under section 1385.
7

(§ 1202.4, subd. (b)); and it imposed and suspended a $300 parole 

revocation restitution fine (§ 1202.45). The court ordered Short 

to pay $22,888.72 in victim restitution to So by stipulation of the 

parties. Short did not object to imposition of the assessments and 

fines or raise his inability to pay.

Short timely appealed.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Revoking 

Short’s Right To Represent Himself

1. The trial court proceedings

On March 16, 2017 Short made a Marsden7 motion to 

discharge his appointed attorney, which the trial court denied 

after a hearing. Subsequently, defense counsel requested a 

continuance to prepare for trial. Short stated, “If she’s saying 

that she’s going to waive time and I’m telling you for the record

I’m not waiving time, then I’ll go pro per then because I’m not 

waiving time, Your Honor.” The court continued the matter to 

April 6, 2017 for further pretrial proceedings. On April 6, 2017 

the parties announced they were ready for trial to commence on 

April 18, 2017.

At a hearing on April 12, 2017, Short made a Faretta 

motion to represent himself.8 In response to the court’s inquiry, 

Short indicated he had represented himself in a prior criminal 

case and he knew the charges he faced. He added, “I know 

7 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

8 Short requested a Marsden hearing, but in closed session 

he clarified that he sought to represent himself.
8

exactly what’s going on and I’m not waiving any time, Your 

Honor.” The court then inquired as to Short’s mental condition.

Short stated he had no history of mental illness and had never 

been hospitalized for a mental illness. He represented he had 

never taken psychotropic medication although he had been given 

a prescription in county jail for depression resulting from a death 

in his family. Short stated he was “mentally competent” with “no 

psychiatric problems.” He also denied he had difficulty 

controlling his behavior in the prior criminal case.

The trial court asked Short, “Sir, you’ve told me on prior 

occasions there’s lots of things that you expected to have your 

attorney do that weren’t done. How are you going to get those 

things done if you are pro per and we’re starting trial on [April] 

18th?” Short responded, “I’m going to do it myself. [¶] I studied 

my case. I know how to let the jury know that [the People] don’t 

have any evidence. I can do that myself. [¶] It’s not a complex 

case when you don’t have any medical reports, you don’t have any 

pictures, you don’t have any ambulance records, and the guy got 

on the stand and lied and said all this stuff.” When defense 

counsel informed Short the prosecutor had just turned over the 

victim’s medical records to the court, Short stated, “All, right I’ll 

review those. I can review those. [¶] . . . I have a right to my 

discovery to see all the evidence that’s used against me.” Short

added, “That’s why I want to go pro per because I can review 

those medical records all over the weekend. I’ll start trial on 

Tuesday.”

The trial court stated it could not provide So’s medical 

records to Short that day because the records had to be redacted 

to remove So’s personal information. Short replied, “You don’t 

have to turn them over to me today, that’s fine. I’m ready to go to 
9

trial.” Short added, “So when it come trial, you all don’t even 

need to have to show me the records. I’ll ask the [prosecutor] to

show the jurors the record, if that’s how you all want to play, we 

can play it like that. [¶] . . . For the record, I’m not waiving any 

more time. I’m ready to go pro per and represent myself. So 

Tuesday for jury selection because I want to represent myself as 

pro per.”

The trial court provided oral Faretta advisements to Short 

and reviewed the Faretta waiver form Short had signed. The 

court advised Short, “Your right to self-representation will be 

terminated by the court if you engage in any serious misconduct 

to obstruct the conduct and progress of the trial.” The court 

granted the Faretta motion after finding Short had “voluntarily, 

knowingly and intelligently waived the right to be represented by 

an attorney with a full understanding of that right.”

Later that day, the prosecutor provided to Short in court 

about 300 pages of So’s redacted medical records relating to So’s

injuries from the incident, discovery, and still photographs of the 

video footage of the incident. Short inquired whether the medical 

records included the same records his attorney had shown him 

three weeks earlier reflecting that So had a preexisting condition 

of “prior syndromes” for which he had been admitted to the 

hospital. The prosecutor responded she did not know to what 

records Short was referring, noting she only took custody of the 

medical records at the last court date.

At this point Short stated, “For the record, I need to waive 

time because the syndrome is a preexisting condition and I need 

to subpoena [So’s] medical records of all prior treatment 

pertaining to all his preexisting syndromes and his treatments

for all these conditions that he was treated for after August 24th. 
10

[¶] And I request $60 in auxiliary funds to prepare adequate 

defense. [¶] I am asking for [$]500 for a private investigator to 

subpoena all his prior treatment, all his prior medical records of 

his preexisting condition.” The trial court responded, “Mr. Short, 

you made it abundantly clear this morning that you were ready 

for trial. You did not want to waive time, you were ready to 

proceed on the 18th as we discussed. I would not have allowed 

you pro per status.”

The trial court asked Short what had changed since his 

refusal to waive time four hours earlier. Short admitted he was 

aware of the medical records, but he needed “a doctor specialist to 

review the syndromes of the victim to verify . . . whatever he 

went to the hospital for, if it was the same as prior to this 

incident and to compare to see if it was because of me.” The court 

stated, “Mr. Short, if you need a continuance, I’m going to deny 

your right to represent yourself and I’m going to bring back 

counsel. [¶] . . . [¶] . . . Nothing has changed that I can see 

between now and this morning.” Short replied, “Well, Your 

Honor, I just went over my case—I just talked to a few people 

that I know that know about law and they told me—let me know 

that I need to get a specialist because these medical records that 

you just gave to me are—due to the fact that he has prior 

syndrome or prior—a preexisting condition.”9

The trial court stated to Short, “Either you are ready to 

represent yourself and proceed on Tuesday or I’m bringing back 

[defense counsel].” Short stated he had a conflict with his 

defense attorney, again stating, “I want to represent myself and I 

9 The trial court asked Short’s attorney to address the 

medical records, and the attorney responded he had reviewed 

them and there was “no issue regarding preexisting conditions.”
11

want to waive time because I need to get a private investigator.” 

The court then revoked Short’s self-represented status and 

reappointed defense counsel, subject to a Marsden hearing, 

stating Short had “misrepresented to the court [his] readiness to 

proceed to trial in pro per.” The court explained, “I believe that 

you are playing games with the court, you are not ready to 

proceed, although just hours ago you told me you were not 

waiving time, you didn’t need any further discovery, you were 

ready to go. [¶] Based upon those conditions that you 

represented to the court, I allowed you to represent yourself. [¶] 

After lunch you’ve changed your mind and want a lengthy 

continuance, a private investigator, an expert, and additional 

discovery.”

2. Governing law

“The Sixth Amendment . . . grants to the accused 

personally the right to make his defense.” (Faretta, supra, 

422 U.S. at p. 819; accord, People v. Trujeque (2015) 61 Cal.4th 

227, 262 (Trujeque) [“Under Faretta, a defendant ‘must be free 

personally to decide whether in his particular case counsel is to 

his advantage,’ even though ‘he may conduct his own defense 

ultimately to his own detriment . . . .’”].) “A trial court may . . .

revoke a defendant’s right to represent himself if he ‘deliberately 

engages in serious and obstructionist misconduct.’” (Trujeque, at

p. 263, quoting Faretta, at p. 834, fn. 46; accord, People v. Carson 

(2005) 35 Cal.4th 1, 10 (Carson) [“Whenever ‘deliberate dilatory 

or obstructive behavior’ threatens to subvert ‘the core concept of a 

trial’ [citation] or to compromise the court’s ability to conduct a 

fair trial [citation], the defendant’s Faretta rights are subject to 

forfeiture.”].)
12

“When determining whether termination is necessary and 

appropriate, the trial court should consider several factors in 

addition to the nature of the misconduct and its impact on the 

trial proceedings. One consideration is the availability and 

suitability of alternative sanctions. . . . The court should also 

consider whether the defendant has been warned that particular 

misconduct will result in termination of in propria persona 

status. [¶] Additionally, the trial court may assess whether the 

defendant has ‘intentionally sought to disrupt and delay his 

trial.’ . . . In many instances, such a purpose will suffice to order 

termination; but we do not hold that an intent to disrupt is a 

necessary condition. . . . Ultimately, the relevance inheres in the 

effect of the misconduct on the trial proceedings, not the 

defendant’s purpose.” (Carson, supra, 35 Cal.4th at pp. 10-11, 

citations omitted.)

“On review, we accord ‘due deference to the trial court’s 

assessment of the defendant’s motives and sincerity as well as 

the nature and context of his misconduct and its impact on the 

integrity of the trial in determining whether termination of 

Faretta rights is necessary to maintain the fairness of the 

proceedings.’ [Citation.] The court exercises considerable 

discretion in this regard and ‘the exercise of that discretion “will 

not be disturbed in the absence of a strong showing of clear 

abuse.”’” (People v. Becerra (2016) 63 Cal.4th 511, 518.) The 

“‘erroneous revocation of pro. per. status’” is reversible per se. 

(Becerra, at p. 520; accord, People v. Butler (2009) 47 Cal.4th 814, 

825.)
13

3. The trial court did not abuse its discretion

Short acknowledges a trial court may condition the grant of 

an untimely Faretta motion on a defendant’s ability to proceed 

immediately to trial. (People v. Espinoza (2016) 1 Cal.5th 61, 80;

People v. Valdez (2004) 32 Cal.4th 73, 103.) But he contends the 

court should have denied his continuance request instead of 

revoking his self-represented status. (See Espinoza, at p. 81 

[trial court did not abuse its discretion in denying defendant’s

midtrial request for a one-day continuance where defendant’s 

self-represented status was conditioned on the trial proceeding 

within agreed upon time frame].) This contention lacks merit.

On April 6, 2017 the parties announced they would be 

ready for trial on April 18. Short made his Faretta motion four

court days before trial,

10 at which time he stated he was not 

“waiving any more time” and would be ready to start trial the 

following Tuesday, April 18. When the trial court indicated it

could not provide So’s medical records to Short that day because 

it had to redact So’s private information, Short responded, “You 

don’t have to turn them over to me today, that’s fine. I’m ready to 

go to trial.” He added, “[Y]ou all don’t even need to have to show 

me the records.” Before the trial court granted the Faretta 

motion, it cautioned Short it would terminate his self-represented 

status if he “engage[d] in any serious misconduct to obstruct the 

conduct and progress of the trial.”

Just four hours later, when the prosecutor provided So’s 

redacted medical records to Short, Short requested a continuance

to subpoena additional medical records, arguing he needed 

10 The April 12, 2017 hearing was on the Wednesday 

preceding the Tuesday, April 18 trial date.
14

information on So’s purported preexisting “syndromes.” The trial 

court responded that nothing had changed from Short’s 

representations that morning. Contrary to Short’s contention on 

appeal, the court advised Short of his options, explaining, “[I]f 

you need a continuance, I’m going to deny your right to represent 

yourself and I’m going to bring back counsel.” Short still insisted 

on a continuance to retain an investigator and medical expert. 

Under these circumstances, the trial court did not abuse its 

discretion in revoking Short’s self-represented status, concluding 

Short was intentionally “playing games with the court” by 

representing he would be ready for trial the following week so he 

could obtain self-represented status just four court days before 

trial, then four hours later claiming he needed a lengthy 

continuance to investigate the same medical records he earlier 

said he did not need to review. (Trujeque, supra, 61 Cal.4th at

p. 263; Carson, supra, 35 Cal.4th at p. 10.)

B. Substantial Evidence Supports the Trial Court’s 

Determination Short Was Competent To Stand Trial

1. The court declares a doubt as to Short’s mental

competency

On April 12, 2017, after revoking Short’s self-represented

status, the court held a Marsden hearing. During the hearing

defense counsel noted, “I’ve been battling back and forth in this 

matter because Mr. Short was evaluated by a psychiatrist or 

psychologist, not on my request but on my predecessor’s request. 

The report did come back that he was incompetent.” Defense 

counsel observed initially Short “comes across clear, cogent,” but

“as he goes along, there always seems to be that touch of 

paranoia or touch of lack of clarity, which hinders my ability to 
15

adequately assist and advise him.” Short interjected, “No, I 

don’t,” and “I don’t have any history.” Defense counsel continued, 

“So I’m really on the border as to whether to ask the court to 

declare a doubt in this matter.”

After further discussion with Short and his attorney, the 

trial court stated to Short, “You are not making any sense to me. 

Your arguments are not cogent, not reasonable. They are not 

supported by the facts as represented by your attorney and the 

knowledge that I have of this case. I’m wondering about your 

competency.” The court denied Short’s Marsden motion, at which 

time Short started yelling obscenities and called the judge a 

“stupid ass bitch.” Short was removed from the courtroom, and 

the court declared a doubt as to Short’s mental competency. The 

court explained, “The defendant’s demonstrating paranoia, 

irrationality, he’s in yellows, and apparently does have a history 

of a positive psychological evaluation and prior outbursts that 

I’ve been informed of. Doubt is declared, proceedings are 

suspended.”

2. Dr. Edward Fischer’s evaluation

At the request of Short’s prior attorney, the trial court 

appointed psychologist Dr. Edward Fischer to evaluate Short’s 

competence to stand trial. On March 17, 2017 Dr. Fischer 

interviewed Short for approximately two hours at the county jail. 

Dr. Fischer observed Short wore “the yellow clothing of [a] 

mental patient.” Short reported he was prescribed Risperdal11 in 

county jail, but he refused to take the medication because he did 

11 According to Dr. Fischer, Risperdal is “an antipsychotic 

medication appropriate to the treatment of paranoid 

schizophrenia.”
16

not need it. Short denied he had any mental illness. In his 

April 6, 2017 report, Dr. Fischer found, “There was no definite 

evidence of a thought disorder, but [Short] did articulate both 

persecutory and grandiose statements that could be construed as 

delusions. . . . He does appear to have a propensity for fighting 

with his peers. His judgment is impaired and he lacks insight.”

Dr. Fischer noted Short understood the charges and that he 

was subject to a sentence enhancement for his prior conviction for

assault with a deadly weapon. But Short “is unwilling or unable 

to work with anyone who disagrees with him, at least as long as 

he is not receiving appropriate antipsychotic medication.” 

Dr. Fischer observed, “[Short] was able to tolerate the interview 

with this examiner as long as he was not contradicted, but as 

soon as he came to believe that the examiner was not 100% 

behind him in his desire to abandon his attorney and represent 

himself, he was no longer able to rationally consider the opinions 

of this expert or his attorney that he was quite likely to lose his 

case if he attempted to represent himself without counsel.”

Dr. Fischer concluded, “[Short] is not [c]ompetent to 

rationally assist his attorney and he is incapable of putting a 

rational defense to the charges without counsel as a result of his 

mental disorder, a paranoid syndrome that includes aspects of 

paranoid schizophrenia and paranoid personality disorder.”

Dr. Fischer added, “It is medically appropriate to treat [Short’s] 

psychiatric condition with medication. Medication is likely to be 

effective. The defendant does not have the capacity to make 

decisions about such medication. If untreated with medication, 

[Short] will probably suffer serious harm to his physical and 

mental health. [¶] . . . Appropriate medication is likely to make 

[Short] competent to stand trial.”
17

3. Dr. Kory Knapke’s evaluation

The trial court also appointed psychiatrist Dr. Kory 

Knapke to evaluate Short’s competency. Dr. Knapke attempted 

to interview Short on May 3 and June 7, 2017 at the county jail, 

but Short refused to talk with him. On both occasions, sheriff’s 

deputies brought Short to speak with Dr. Knapke in a dayroom at 

the jail. Short appeared calm and relaxed and did not exhibit any 

bizarre or unusual behavior. Instead, Short asked Dr. Knapke 

why he wanted to speak with him, and after learning of the 

nature of the interview, Short calmly responded, “I’m not talking 

to you.” Dr. Knapke spoke with a sheriff’s deputy who was 

familiar with Short about Short’s behavior in the county jail.

Dr. Knapke reported the deputy “stated that [Short’s] cell is 

always clean and that he does not exhibit any bizarre or unusual 

behaviors whatsoever. He also indicated that the defendant 

interacted with other inmates appropriately. He has not 

observed Mr. Short mumbling to himself or exhibiting any other 

psychotic behavior.”

Dr. Knapke reviewed the preliminary hearing transcript 

from a 2014 criminal case in which Short represented himself.

12

Dr. Knapke observed Short did “an adequate job asking [a

witness to the first offense] relevant questions for the most part.”

With respect to Short’s cross examination of the victim of the 

second offense, Dr. Knapke found, “Mr. Short kept interrupting 

12 In the 2014 criminal case, Short fled from a grocery store 

after stealing a beer can and punching a store display of potato 

chips. Short then went to a restaurant and demanded money 

from a customer. When the customer refused, Short punched 

him in the face and swung a chair at him.
18

him with objections that were overruled frequently. The court 

admonished the defendant about his outbursts during testimony 

and clearly had concerns about [Short] conforming his behavior 

with the dignity and decorum of the courtroom. However, I 

noticed that the defendant was not making any delusional 

comments and was not behaving in a way suggestive of a major 

mental illness.” Dr. Knapke opined, “It became clear as I 

reviewed the preliminary hearing transcript when [Short] was 

representing himself that the defendant at the minimum 

understood the charge against him and understood basic 

courtroom proceedings, and there [were] no symptoms of a 

mental illness that were prohibiting him from understanding the 

charges and proceedings against him at that time.”

According to Dr. Knapke, at the time of a January 2015

hearing in Short’s 2014 criminal case, “Short was taking the 

antipsychotic medication Abilify twice a day,” and Short reported 

he “had been taking the medication for five months.” In that 

case, Short pleaded no contest to assault with a deadly weapon

after the trial court found Short had expressly and intelligently 

waived his constitutional rights; his plea was free and voluntary;

and he understood the charges and the consequences of the plea.

Dr. Knapke opined as to Dr. Fischer’s conclusion in his 

report that Short may suffer from paranoid personality disorder 

or schizophrenia, “I saw no indication in Dr. Fischer’s report that 

[Short] had any overt psychotic symptoms other than his general 

mistrust of the criminal justice system, which is a very common 

characteristic of most criminal defendants that I have examined 

in the county jail.” Dr. Knapke also questioned whether 

Dr. Fischer, as a psychologist, could properly opine on whether it 

was medically appropriate to treat Short with medication or 
19

conclude medication was likely to be effective in treating his 

mental illness.

Dr. Knapke reviewed discovery from the current case and

“saw no documented psychotic symptoms.” Dr. Knapke added, 

“Simply because a defendant has a difficult personality style and 

is opposed to having a public defender represent them does not 

necessarily render them incompetent. Because the defendant 

refused my clinical interview, I am unable to render an opinion 

as to whether he lacked capacity to rationally cooperate and 

assist his attorney if he chooses to do so. It appears that his 

unwillingness to cooperate with an attorney is volitional rather 

than based on any underlying psychiatric symptoms based upon 

the discovery I reviewed.” Dr. Knapke concluded, “I am unable to 

overcome the presumption that [Short] is competent to stand 

trial. I had no clinical information provided to me, which would 

indicate that [Short] has been exhibiting psychotic symptoms or 

suffers from a diagnosis of [s]chizophrenia.”

4. The competency hearing

At the competency hearing, the parties submitted on the 

reports of Dr. Fischer and Dr. Knapke, the trial court’s 

observation of Short while in court, the circumstances of the 

offenses, Short’s criminal history, and the probation report. The 

trial court found Short failed to prove he was not competent to 

stand trial by a preponderance of the evidence. The court

reasoned based on Dr. Knapke’s report, “[Short] does not want 

any public defender, in my opinion, to be assigned to him who 

does not agree with his position of the case. [¶] His

unwillingness or unhappiness in working with his public 

defender does not render him incompetent . . . . [¶] [Short]
20

would have to actually lack the capacity to rationally cooperate 

and assist his attorney to be found incompetent, which I do not 

find to be the case here. . . . [¶] It appears that [Short’s]

unwillingness to cooperate with his attorneys is a volitional act 

rather than based upon any underlying psychological pathology.”

The court noted Short had adequately represented himself 

at the preliminary hearing in the 2014 case, and that although he 

became “argumentative and disruptive,” he did not become 

“delusional.” The court added that Short had taken Abilify and 

was prescribed Risperdal, but he refused to take his medication 

and did not receive any psychological treatment. The court noted 

Dr. Fischer was not a psychiatrist, and thus he was not qualified 

to opine about medication. The court added as to Short’s 

behavior in jail that “he has not exhibited any bizarre or unusual 

behaviors. He interacts well and properly with the other 

inmates.”

The trial court disagreed with Dr. Fischer’s opinion Short 

was unable to cooperate with his attorney, finding it was Short’s

“reluctance to cooperate with his attorney[,] not his inability.” 

The court observed, “[Short] gets extremely agitated to the court 

personnel and to this court when he doesn’t get his way . . . . [¶] 

When his pro per [status] was revoked or his Marsden hearing 

gets denied, he yells and he actually spit at the court at the last 

proceeding, or if his public defender disagrees with him. [¶] He’s 

loud, aggressive and shouts profanities to me. This is just 

malingering in his attempt to appear to be incompetent, which I 

do not find. [¶] . . . [¶] For all these reasons . . . , the court does 

find the defendant competent to stand trial within the meaning of 

[section] 1368.”
21

5. Governing law

“The due process guarantees of both the federal and state 

Constitutions forbid the trial of a criminal defendant while he or 

she is mentally incompetent.” (People v. Buenrostro (2018) 

6 Cal.5th 367, 385 (Buenrostro); accord, People v. Mickel (2016) 

2 Cal.5th 181, 194-196 (Mickel); see § 1367, subd. (a) [“A person 

shall not be tried or adjudged to punishment . . . while that 

person is mentally incompetent.”].) “A defendant is incompetent 

to stand trial if the defendant lacks ‘“sufficient present ability to 

consult with his lawyer with a reasonable degree of rational 

understanding . . . [or] a rational as well as factual 

understanding of the proceedings against him.”’” (Mickel, at

p. 195; accord, Buenrostro, at p. 386; see § 1367, subd. (a) [“A 

defendant is mentally incompetent . . . if, as a result of a mental 

health disorder or developmental disability, the defendant is 

unable to understand the nature of the criminal proceedings or to 

assist counsel in the conduct of a defense in a rational manner.”].)

“‘[A] trial court is obligated to conduct a full competency 

hearing if substantial evidence raises a reasonable doubt that a 

criminal defendant may be incompetent.’” (Buenrostro, supra, 

6 Cal.5th at p. 387; accord, Mickel, supra, 2 Cal.5th at p. 195.)

After the trial court has declared a doubt as to a defendant’s 

mental competency, section 1369, subdivision (a)(1), requires 

“[t]he court [to] appoint a psychiatrist or licensed psychologist, 

and any other expert the court may deem appropriate, to examine 

the defendant.”

A defendant is presumed competent to stand trial. 

(Buenrostro, supra, 6 Cal.5th at p. 387; accord, People v. 

Blacksher (2011) 52 Cal.4th 769, 797 (Blacksher).) “When the 

defendant puts his or her competence to stand trial in issue, the 
22

defendant bears the burden of proving by a preponderance of the 

evidence that he or she lacks competence.” (People v. Mendoza 

(2016) 62 Cal.4th 856, 871; accord, Buenrostro, at p. 387.) “In 

reviewing on appeal a finding of competency, ‘an appellate court 

must view the record in the light most favorable to the verdict 

and uphold the verdict if it is supported by substantial evidence.’” 

(Blacksher, at p. 797; accord, Mendoza, at p. 871.) “When the 

sufficiency of the evidence to support the verdict is challenged, 

our review is limited to the evidence presented at the competency 

trial.” (Mendoza, at pp. 871-872; accord, People v. Marks (2003) 

31 Cal.4th 197, 218, fn. 3.)

6. Short forfeited his challenge to Dr. Knapke’s report,

and substantial evidence supports the trial court’s 

finding of mental competency

Short contends there is insufficient evidence to support the

trial court’s finding he was competent to stand trial because the 

court relied on Dr. Knapke’s evaluation, and Dr. Knapke did not 

personally examine Short. Short has forfeited this argument by 

submitting on the experts’ reports and failing to object. 

(Blacksher, supra, 52 Cal.4th at p. 797 [“Because defendant 

submitted the question of his competency on [the psychiatrist’s] 

report, he has forfeited the claims that the court abused its 

discretion by determining competency on the ‘majority vote’ of the 

experts or by relying on allegedly insufficient reports.”]; People v. 

Weaver (2001) 26 Cal.4th 876, 904 [“Having submitted the 

competency determination on the two psychiatric reports, 

defendant may not now relitigate that question [of the effect of 

medication] with arguments he did not make below.”]; People v. 

Kirvin (2014) 231 Cal.App.4th 1507, 1514 (Kirvin) [“[D]efendants 
23

may not attack the validity of expert reports to which they 

submit with arguments they did not present to the trial court.”].)

Even if Short had not forfeited his challenge to 

Dr. Knapke’s report, his argument the court should not have 

relied on Dr. Knapke’s report absent an in-person evaluation 

lacks merit. It was Short who refused to meet with Dr. Knapke

on two occasions. A trial court “may rely upon a report not based 

on a face-to-face interview when the subject refuses to meet with 

the expert.” (Kirvin, supra, 231 Cal.App.4th at p. 1514; accord, 

People v. Hightower (1996) 41 Cal.App.4th 1108, 1112 [experts’ 

reports supported trial court’s finding defendant was competent 

to stand trial even though “examination of [defendant] was 

limited by his refusal to participate”].)

Further, substantial evidence supports the trial court’s 

finding of mental competency. Both Dr. Fischer and Dr. Knapke 

found Short understood the charges against him, and Short’s selfrepresentation in the 2014 criminal case showed he understood 

the criminal court proceedings. The experts disagreed on 

whether Short could rationally “assist counsel in the conduct of a 

defense” because of a mental health disorder. (§§ 1367, subd. (a),

1369, subd. (a)(2).) But the court was entitled to credit 

Dr. Knapke’s finding there was no evidence of psychosis or 

delusions in the preliminary hearing transcripts in Short’s 2014 

criminal case or the discovery in the present case. (See People v.

Mendoza, supra, 62 Cal.4th at p. 882 [in reviewing the sufficiency 

of the evidence for a competency finding, an appellate court does 

not substitute its judgment for that of the factfinder or reweigh 

the evidence]; Kirvin, supra, 231 Cal.App.4th at p. 1514 [“It is 

‘not the role of this court to redetermine the credibility of experts 

or to reweigh the relative strength of their conclusions.’”].)
24

In addition, when Dr. Knapke attempted to interview Short

at the county jail, Short was calm and relaxed and did not exhibit 

any bizarre or unusual behavior, instead declining to talk with 

Dr. Knapke once he learned the nature of the interview. And, as 

Dr. Knapke noted, the sheriff’s deputy at the county jail reported 

Short’s cell at the county jail was “always clean” and Short did 

not “exhibit any bizarre or unusual behaviors whatsoever.” Short 

interacted appropriately with other inmates, and he did not 

mumble to himself or exhibit any other psychotic behavior. As 

discussed, Dr. Knapke concluded based on this information and 

his review of the record that Short was competent to stand trial 

and his “unwillingness to cooperate with an attorney is volitional 

rather than based on any underlying psychiatric symptoms.” We 

reject Short’s argument the court erred in relying on 

Dr. Knapke’s conclusion instead of that of Dr. Fischer. “The 

testimony of a single witness, if believed by the fact finder, is 

sufficient to prove any fact.” (People v. Kerley (2018) 

23 Cal.App.5th 513, 530; accord, Kirvin, supra, 231 Cal.App.4th

at p. 1514; see Evid. Code, § 411 [“Except where additional 

evidence is required by statute, the direct evidence of one witness

who is entitled to full credit is sufficient for proof of any fact.”].)

Finally, the trial court properly relied in its own 

observations in court, noting Short becomes “extremely 

agitated . . . when he doesn’t get his way,” including when his 

self-represented status was revoked and his Marsden motion was

denied. The court found Short’s loud and aggressive behavior, 

including yelling obscenities at the court, was “just malingering 

in his attempt to appear to be incompetent, which I do not find.”

Further, “[v]oluntary barriers to communication with counsel on 

the part of a defendant who was able to cooperate do not 
25

demonstrate incompetence.” (People v. Mendoza, supra, 

62 Cal.4th at p. 879; accord, People v. Mai (2013) 57 Cal.4th 986, 

1034 [“[A]n uncooperative attitude is not, in and of itself, 

substantial evidence of incompetence.”]; People v. Medina (1995) 

11 Cal.4th 694, 735 [“[d]efendant’s cursing and disruptive actions 

displayed an unwillingness to assist in his defense, but did not 

necessarily bear on his competence to do so”]; People v. 

Hightower, supra, 41 Cal.App.4th at p. 1112 [“[Defendant] 

asserts that his disruptive behavior in the courtroom and 

disputes with defense counsel prove that he was not competent to 

stand trial. His conduct demonstrates an unwillingness to 

cooperate with defense counsel but does not constitute proof of 

mental incompetence.”].)

C. The Trial Court Did Not Err in Denying Short’s Request for 

Mental Health Diversion

1. Short’s request for mental health diversion

At sentencing, defense counsel requested the trial court

grant Short mental health diversion pursuant to section 1001.36,

arguing Short suffered from schizophrenia and he was 

hospitalized in 2011 because he was delusional and aggressive.13 

13 Short relied on his medical records from his May 3 to 10, 

2011 hospitalization at Olive View UCLA Medical Center.

According to a May 4, 2011 medical note, Short was homeless and 

sleeping in the hospital lobby when security told him to leave. 

Short was placed on a psychiatric hold because he “was 

disorganized with grandiose delusion including that he was a 

boxer that put a famous boxer into retirement”; “he wanted to 

hurt all black women and get high until he died”; and he had 

“affective flattening and paranoid delusions consistent with 
26

Defense counsel claimed Short was willing to be treated for his 

mental health disorder. She also argued that despite Short’s

lengthy criminal record and a conviction for assault with a deadly 

weapon, he was not a violent person.

The trial court denied Short’s request on multiple grounds. 

As a threshold matter, the court observed section 1001.36 

provided for “pre-conviction diversion.” However, the court then 

proceeded to consider the factors applicable to mental health 

diversion. The court relied on Dr. Knapke’s opinion there “was 

no clinical basis to support that the defendant had a major 

mental illness or disorder”; Short denied any history of a mental 

illness or disorder; and Short did not exhibit any bizarre or 

unusual behavior while he was in jail. The court also found any 

mental disorder Short suffered from did not play a significant 

role in the charged offense. The court explained, “There’s no 

report that I’m aware of that shows that his schizophrenia or any 

other mental illness played a significant role in the defense in 

this case. He was simply stealing and then hitting the manager 

to avoid being arrested. He could have simply walked out the 

store. [¶] Based on [the store’s] policy, he never would have even 

been chased down or arrested probably, but he chose instead to 

assault the manager, in my opinion, out of revenge for the 

manager threatening or telling him to leave and threatening to 

call the police.” The court further found, “There’s no treatment 

plan in place that would address his mental health issues or 

schizophrenia.” After Short was given notice of the hold, “he 

banged doors and cussed at people, exposed himself and urinated 

in the hallway and threw milk and juice on the floor.” At the 

time of his May 10, 2011 discharge, Short was diagnosed with 

schizoaffective disorder, bipolar type.
27

prevent him from engaging in future criminal conduct, . . . and I 

think he represents a substantial threat to the safety of the 

community.”

Defense counsel then requested the trial court consider and 

mark as an exhibit Short’s medical records.14 The court asked, 

“What are the records going to tell me that we haven’t received 

from Dr. Fischer and Dr. Knapke?” Defense counsel responded 

Short’s medical records show he was diagnosed with 

schizoaffective disorder and had been prescribed Abilify, and the 

records would provide “a full picture of what he suffers from.”

The court replied, “Well, as I mentioned earlier, he doesn’t fit 

within the six criteria even if it is applicable to him post 

conviction. And we know he has a history of mental illness and I 

think you are just proving my point. [¶] He’s been hospitalized 

extensively. He’s been examined multiple times. He’s been 

prescribed psychotropic drugs, which he refused to take, and has 

not been deterred from his criminal behavior. His criminal 

conduct is continuous.”

14 The medical records included his 2011 records from Olive 

View UCLA Medical Center and records from a 2014 outpatient 

visit in which Short sought “medication for mood and anxiety.” 

The 2014 notes indicate Short did not exhibit paranoia, and he 

denied any mania. Short also submitted medical records from 

2015 and 2016 reflecting outpatient visits for infections and back 

pain. The records consistently describe Short’s condition as not 

consistent with a mental disorder. During a 2015 outpatient visit 

for back pain, the notes reflect Short was “welcome” to visit the 

psychiatry department to discuss his mental health issues, but 

the records do not show Short followed up. In addition, Short’s 

list of medications in the 2015 and 2016 records did not include 

any psychotropic medications.
28

The prosecutor objected to Short’s request for a mental 

health diversion order, arguing Short was “sophisticated and 

calculated,” lashing out at the court whenever he was confronted 

with authority or denied relief. The court declined to review the 

medical records, finding the records would not make a difference 

in the court’s decision. At the request of defense counsel, the 

court admitted Short’s mental health records “for purposes of 

review on appeal if so allowed.”

2. Governing law

Effective June 27, 2018, “the Legislature enacted

sections 1001.35 and 1001.36 as part of Assembly Bill No. 1810 

(2017-2018 Reg. Sess.) . . . . [Citation.] Section 1001.36 gives 

trial courts the discretion to grant pretrial diversion for 

individuals suffering from certain mental health disorders. 

(§ 1001.36, subd. (a).)” (People v. Frahs (2020) 9 Cal.5th 618, 626

(Frahs).) “The stated purpose of the diversion statute ‘is to 

promote all of the following: [¶] (a) Increased diversion of 

individuals with mental disorders to mitigate the individuals’ 

entry and reentry into the criminal justice system while 

protecting public safety. [¶] (b) Allowing local discretion and 

flexibility for counties in the development and implementation of 

diversion for individuals with mental disorders across a 

continuum of care settings. [¶] (c) Providing diversion that 

meets the unique mental health treatment and support needs of 

individuals with mental disorders.’ (§ 1001.35, subds. (a)-(c).)” 

(Ibid.)

Under section 1001.36, subdivision (c), “‘pretrial diversion’ 

means the postponement of prosecution, either temporarily or 

permanently, at any point in the judicial process from the point 
29

at which the accused is charged until adjudication . . . .” If a 

defendant is charged with qualifying offenses,15 “a trial court may 

grant pretrial diversion if it finds all of the following: (1) the 

defendant suffers from a qualifying mental disorder; (2) the 

disorder played a significant role in the commission of the 

charged offense; (3) the defendant’s symptoms will respond to 

mental health treatment; (4) the defendant consents to diversion 

and waives his or her speedy trial right; (5) the defendant agrees 

to comply with treatment; and (6) the defendant will not pose an 

unreasonable risk of danger to public safety if treated in the 

community.” (Frahs, supra, 9 Cal.5th at pp. 626-627; accord, 

People v. Weaver (2019) 36 Cal.App.5th 1103, 1115, fn. 13; see 

§ 1001.36, subd. (b)(1)(A)-(F).)

If all six criteria in section 1001.36, subdivision (b)(1), are 

met, and if the trial court “is satisfied that the recommended 

inpatient or outpatient program of mental health treatment will 

meet the specialized mental health treatment needs of the 

defendant” (id., subd. (c)(1)(A)), then the trial court may order 

pretrial diversion into an approved mental health treatment 

program for up to two years (id., subd. (c)(1), (3)). If the 

defendant commits an additional offense or otherwise performs 

unsatisfactorily in the diversion program, the trial court may 

reinstate the criminal proceedings. (Id., subd. (d).) “If the 

defendant has performed 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.” (Id., subd. (e).) 

15 A defendant may not be placed into a diversion program for 

murder, manslaughter, use of a weapon of mass destruction, or 

certain enumerated sex offenses. (§ 1001.36, subd. (b)(2).)
30

Upon successful completion of diversion, “the arrest upon which 

the diversion was based shall be deemed never to have 

occurred . . . .” (Ibid.; accord, Frahs, supra, 9 Cal.5th at p. 627.)

Short contends, and we agree, section 1001.36 applies

retroactively to Short’s case even though the question of diversion 

arose postconviction. (Frahs, supra, 9 Cal.5th at pp. 624-625.) 

As the Frahs court observed, section 1001.36 “offers a potentially 

ameliorative benefit for a class of individuals—namely, criminal 

defendants who suffer from a qualifying mental disorder.” 

(Frahs, at p. 631.) We review the trial court’s decision whether to 

grant mental health diversion for an abuse of discretion. (See id.

at p. 626 [“Section 1001.36 gives trial courts the discretion to 

grant pretrial diversion for individuals suffering from certain 

mental health disorders. (§ 1001.36, subd. (a).)”].) “[A] trial court 

does not abuse its discretion unless its decision is so irrational or 

arbitrary that no reasonable person could agree with it.” (People 

v. Carmony (2004) 33 Cal.4th 367, 377.)

Short argues a limited remand is appropriate to allow the

trial court to conduct a mental health diversion eligibility hearing 

in light of Short’s medical records, which show Short had been 

diagnosed as a paranoid schizophrenic, contrary to Dr. Knapke’s 

opinion he was not currently suffering from a mental disorder. 

The trial court did not abuse its discretion. Although the court 

declined to review Short’s medical records, it acknowledged Short 

suffered from a qualifying mental disorder, stating Short “has a 

history of mental illness” and had been “hospitalized extensively.”

As the court stated in denying Short’s Romero motion, “He has a 

history of mental illness. He was diagnosed with schizophrenia 

in 2011.” (See § 1001.36, subd. (b)(1)(A) [mental disorder 

includes schizophrenia and schizoaffective disorder].)
31

Instead, the trial court concluded Short did not meet three 

of the six requirements for eligibility for mental health diversion.

As to the second statutory requirement, the trial court stated

there was no report showing Short’s schizophrenia or any other 

mental illness played a significant role in the commission of the 

offense. (See § 1001.36, subd. (b)(1)(A), (B).) Short has not 

pointed to evidence to the contrary. As to the third requirement,

the court found there was “no treatment plan in place that would 

address his mental health issues or prevent him from engaging in 

future criminal conduct.” (Id., subd. (b)(1)(C).) Although 

Dr. Fischer opined that medication would address Short’s mental 

illness, Short did not present evidence of a treatment plan, and 

Short had refused to take medication doctors had previously 

prescribed for him. As to the sixth requirement, the court 

determined Short represented “a substantial threat to the safety 

of the community.” (Id., subd. (b)(1)(F).) Although the court did 

not provide further detail, in the context of sentencing, the court 

found Short was “a clear and present danger to the community”

based on his violent conduct during the incident and his prior 

offenses of increasing seriousness.

D. Remand Is Appropriate for the Trial Court To Exercise Its 

Discretion Whether To Strike the Five-year Enhancement 

Under Section 667, Subdivision (a)(1)

In 2018 the Governor signed into law Senate Bill No. 1393 

(2017-2018 Reg. Sess.), which went into effect on January 1, 

2019. Senate Bill No. 1393 amended section 1385 by deleting 

subdivision (b), which prohibited trial courts from exercising 

discretion “to strike any prior conviction of a serious felony for 

purposes of enhancement of a sentence under [s]ection 667.” 
32

(§ 1385, former subd. (b).) As the People concede, Senate Bill 

No. 1393 applies retroactively to Short because his sentence was 

not final at the time the new law became effective on January 1, 

2019. (People v. Stamps (2020) 9 Cal.5th 685, 699; People v. 

Jones (2019) 32 Cal.App.5th 267, 272; see In re Estrada (1965) 

63 Cal.2d 740, 744 [Absent contrary legislative intent, “[i]f the 

amendatory statute lessening punishment becomes effective prior 

to the date the judgment of conviction becomes final then, in our 

opinion, it, and not the old statute in effect when the prohibited 

act was committed, applies.”].)

“Remand is required unless ‘the record shows that the trial 

court clearly indicated when it originally sentenced the defendant 

that it would not in any event have stricken [the] enhancement’ 

even if it had the discretion.” (People v. Franks (2019) 

35 Cal.App.5th 883, 892; accord, People v. Billingsley (2018) 

22 Cal.App.5th 1076, 1081 [remand is required when “the record 

does not ‘clearly indicate’ the court would not have exercised 

discretion to strike the firearm allegations had the court known it 

had that discretion”]; People v. McDaniels (2018) 22 Cal.App.5th 

420, 425 [same].) “In reviewing whether the trial court made 

such an unequivocal indication, we consider the trial court’s 

statements and sentencing decisions.” (Franks, at p. 892.)

Short contends remand is appropriate for the trial court to 

exercise its discretion whether to strike the prior serious felony 

conviction enhancement imposed pursuant to section 667, 

subdivision (a)(1). The People respond the trial court’s 

statements at sentencing show it would not have stricken the 

five-year enhancement even if it had the discretion to do so. 

Short has the better argument.
33

At the time Short was sentenced on October 16, 2018, the 

five-year enhancement for a prior serious felony conviction was 

mandatory. (§ 1385, former subd. (b).) The People point to 

statements made by the trial court finding aggravating factors 

and no mitigating factors. The trial court stated, “My tentative 

sentence is 18 years, which I planned to give him all along.” The 

court explained, “The crime involved great violence, disclosing a 

high degree of cruelty, viciousness and callousness.” The court 

noted the victim suffered serious injuries and was vulnerable 

because he had his back turned to Short when Short attacked 

him without any warning. The court also found, “[Short] has 

engaged in violent conduct that indicates a serious danger to 

society. [¶] The defendant inflicted great bodily injury and 

risked killing the victim just to avoid being arrested for 

attempted petty theft.” The court noted Short’s “record spans 

seven years reflecting multiple convictions for crimes such as 

drug possession, theft, burglary, assault with a deadly weapon, 

and battery conviction,” and Short’s “prior performance on 

probation” was “unsatisfactory.” The court added, “The 

defendant is erratic, his criminal conduct continuous[,] frequent 

and increasing in seriousness, and he does not appear amenable 

to treatment in an outpatient setting. He is a clear and present 

danger to the community.”

Although the trial court emphasized Short’s vicious and 

callous conduct that supported both denial of his Romero motion 

and imposition of the upper term on counts 1 and 2, this does not 

provide a clear indication the court would have declined to strike 

the five-year sentence enhancement under section 667, 

subdivision (a)(1), if it had the discretion to do so, especially given 

the significant 11-year sentence Short would still face on remand 
34

absent the five-year enhancement. (See People v. Bell (2020) 

47 Cal.App.5th 153, 200 [“As for the court’s statement about

[defendant’s] Romero motion, it is only a ‘clear indication’ of its 

views on that particular sentencing decision. We cannot 

speculate from the court’s statements and decision as to one 

sentencing issue to divine what the court would have done if it 

had broadened discretion on another sentencing issue.”]; People v. 

McDaniels, supra, 22 Cal.App.5th at p. 427 [“Given these high 

stakes, it seems to us that a reviewing court has all the more 

reason to allow the trial court to decide in the first instance 

whether these enhancements should be stricken, even when the 

reviewing court considers it reasonably probable that the 

sentence will not be modified on remand.”].)

People v. Jones, supra, 32 Cal.App.5th at page 272, relied 

on by the People, is distinguishable. The Court of Appeal in 

Jones concluded “the trial court made clear its intention to 

impose the most stringent sentence it could justifiably impose,” 

noting the “defendant’s actions were premeditated, dangerous, 

senseless and absurd, . . . and the court took ‘great satisfaction’ in 

imposing the ‘very lengthy sentence’ it imposed.” (Id. at pp. 274-

275; see People v. McVey (2018) 24 Cal.App.5th 405, 419 

[declining to remand for resentencing because there was no 

possibility the trial court would strike the firearm enhancement 

on remand where it explained in imposing the upper term on the 

enhancement, “‘[T]his is as aggravated as personal use of a 

firearm gets,’ and ‘the high term of 10 years on the enhancement 

is the only appropriate sentence on the enhancement’”].) 

Although the trial court here expressed its view Short’s conduct 

was vicious and callous, it did not make the type of statements 

the Jones and McVey trial courts made that provided a clear 
35

indication the courts would not have stricken the five-year 

enhancement even if they had the discretion to do so. We 

therefore remand for resentencing to afford Short a “‘“sentencing 

decision[] made in the exercise of the ‘informed discretion’ of the 

sentencing court.”’” (People v. Billingsley, supra, 22 Cal.App.5th 

at p. 1081; accord, People v. Gutierrez (2014) 58 Cal.4th 1354,

1391.)

E. The Two 1-Year Prior Prison Term Enhancements Must Be 

Stricken

Short argues, the People concede, and we agree both oneyear enhancements under section 667.5, subdivision (b), must be 

stricken. Effective January 1, 2020, Senate Bill No. 136 (2019-

2020 Reg. Sess.) amended section 667.5, subdivision (b), to 

provide for a one-year prior prison term sentence enhancement 

only for sexually violent offenses, as defined in Welfare and 

Institutions Code section 6600, subdivision (b). (People v. 

Matthews (2020) 47 Cal.App.5th 857, 862; People v. Gastelum 

(2020) 45 Cal.App.5th 757, 772; People v. Jennings (2019) 

42 Cal.App.5th 664, 681.) Senate Bill No. 136 applies 

retroactively to Short because his sentence was not final at the 

time the new law became effective on January 1, 2020. (People v. 

Winn (2020) 44 Cal.App.5th 859, 872 [“Because [defendant’s]

conviction is not yet final, he is entitled to the retroactive benefit 

of the change in law.”]; Jennings, at p. 682 [“Senate Bill No. 136’s 

amendment to section 667.5, subdivision (b) applies retroactively 

to all cases not yet final as of its January 1, 2020, effective 

date.”]; see In re Estrada, supra, 63 Cal.2d at pp. 744-745.)

None of Short’s prior convictions was for a sexually violent 

offense; thus, the section 667.5, subdivision (b) enhancements
36

must be stricken. (People v. Smith (2020) 46 Cal.App.5th 375, 

396; People v. Gastelum, supra, 45 Cal.App.5th at p. 772.)

F. On Remand Short Is Entitled To Request an Ability-to-pay 

Hearing on the Fines and Assessments Imposed by the Trial 

Court

Short contends he is entitled to an ability-to-pay hearing as 

to the $60 in court facilities assessments, $80 in court operation 

assessments, $300 restitution fine, and parole revocation 

restitution fine in the same amount, relying on this court’s 

opinion in Dueñas, supra, 30 Cal.App.5th 1157.16 We agree Short 

is entitled to request a hearing upon remand to the trial court.

1. Dueñas and its progeny

In Dueñas, this court concluded “the assessment provisions 

of Government Code section 70373 and Penal Code section 

1465.8, if imposed without a determination that the defendant is 

able to pay, are . . . fundamentally unfair; imposing these 

assessments upon indigent defendants without a determination 

that they have the present ability to pay violates due process 

under both the United States Constitution and the California 

16 To the extent Short contends he is entitled to an ability-topay hearing on the $22,888.72 victim restitution order, he is 

incorrect. The trial court ordered Short to pay restitution to So 

pursuant to section 1202.4, subdivision (f)(3). “Dueñas does not 

apply to victim restitution under section 1202.4, subdivision (f).” 

(People v. Abrahamian (2020) 45 Cal.App.5th 314, 338; accord,

People v. Evans (2019) 39 Cal.App.5th 771, 777 [“a defendant’s 

ability to pay victim restitution is not a proper factor to consider 

in setting a restitution award under section 1202.4, subdivision 

(f)”].)
37

Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord, 

People v. Belloso (2019) 42 Cal.App.5th 647, 654-655 (Belloso), 

review granted Mar. 11, 2020, S259755.)17 In contrast to court 

assessments, a restitution fine under section 1202.4, subdivision 

(b), “is intended to be, and is recognized as, additional 

punishment for a crime.” (Dueñas, at p. 1169; accord, Belloso, at

p. 655.) Section 1202.4, subdivision (c), expressly provides a 

defendant’s inability to pay a restitution fine may not be 

17 Several Courts of Appeal have applied this court’s analysis 

in Dueñas (e.g., People v. Santos (2019) 38 Cal.App.5th 923, 

929-934; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review 

granted Nov. 13, 2019, S257844 [applying due process analysis to 

court assessments]; People v. Jones (2019) 36 Cal.App.5th 1028, 

1030-1035), or partially followed Dueñas (e.g., People v. Valles

(2020) 49 Cal.App.5th 156, 162-163, review granted July 22, 

2020, S262757 [concluding due process requires ability-to-pay 

hearing before imposition of court facilities fee, not restitution 

fines]). Other courts have rejected this court’s due process 

analysis (e.g., People v. Cota (2020) 45 Cal.App.5th 786, 794-795; 

People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. 

Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 

2019, S258946), or concluded the imposition of fines and fees 

should be analyzed under the excessive fines clause of the Eighth 

Amendment (e.g., People v. Cowan (2020) 47 Cal.App.5th 32, 42, 

review granted June 17, 2020, S261952; People v. Aviles (2019) 

39 Cal.App.5th 1055, 1061; Kopp, at pp. 96-97 [applying excessive 

fines analysis to restitution fines]). The Supreme Court granted 

review of the decision in Kopp to decide the following issues: 

“Must a court consider a defendant’s ability to pay before 

imposing or executing fines, fees, and assessments? If so, which 

party bears the burden of proof regarding defendant’s inability to 

pay?” (Supreme Ct. Minutes, Nov. 13, 2019, p. 1622; see Kopp, 

supra, 38 Cal.App.5th 47.)
38

considered as a “compelling and extraordinary reason” not to 

impose the statutory minimum fine. However, as this court held 

in Dueñas, to avoid the serious constitutional questions raised by 

imposition of a restitution fine on an indigent defendant, 

“although the trial court is required by . . . section 1202.4 to 

impose a restitution fine, the court must stay the execution of the 

fine until and unless the People demonstrate that the defendant 

has the ability to pay the fine.” (Dueñas, at p. 1172; accord, 

Belloso, at p. 655.)

In Belloso we rejected the argument the People make here 

that “a constitutional challenge to imposition of fines and fees on 

an indigent defendant should be analyzed under an excessive 

fines analysis instead of a due process framework.” (Belloso, 

supra, 42 Cal.App.5th at p. 660.) We observed, “As the California 

Supreme Court explained in [People ex rel. Lockyer v. R.J. 

Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728], in its analysis 

of the constitutionality of civil penalties imposed by the trial 

court, ‘It makes no difference whether we examine the issue as an 

excessive fine or a violation of due process.’” (Ibid.)

2. Short did not forfeit his challenge to the imposition of 

the assessments and fees

The People contend Short forfeited his challenge to 

imposition of the assessments and fines because he did not assert 

his inability to pay at sentencing. However, at the time Short

was sentenced, Dueñas had not yet been decided, and we have 

declined to find forfeiture based on a defendant’s failure to object 

to fines and fees prior to our opinion in Dueñas. As we explained 

in People v. Castellano (2019) 33 Cal.App.5th 485, 489, “[N]o 

California court prior to Dueñas had held it was unconstitutional 
39

to impose fines, fees or assessments without a determination of 

the defendant’s ability to pay. . . . When, as here, the defendant’s 

challenge on direct appeal is based on a newly announced 

constitutional principle that could not reasonably have been 

anticipated at the time of trial, reviewing courts have declined to 

find forfeiture.” (Accord, Belloso, supra, 42 Cal.App.5th at p. 662; 

People v. Santos (2019) 38 Cal.App.5th 923, 931-932; People v. 

Johnson (2019) 35 Cal.App.5th 134, 137-138; contra, People v. 

Bipialaka (2019) 34 Cal.App.5th 455, 464 [defendant forfeited 

challenge by not objecting to the assessments and restitution fine 

at sentencing]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 

1153-1154 [same].)

In light of Short’s burden to prove his inability to pay 

(People v. Castellano, supra, 33 Cal.App.5th at p. 490), on remand

the trial court must afford Short an opportunity to request an 

ability-to-pay hearing and to present evidence of his inability to 

pay the assessments and fines.18

DISPOSITION

The judgment of conviction is affirmed. We remand for the 

trial court to exercise its discretion whether to strike the fiveyear sentence enhancement under section 667, subdivision (a)(1) 

and to allow Short to request a hearing and present evidence 

demonstrating his inability to pay the court assessments and 

restitution fines.

18 We note the only evidence in the record as to Short’s ability 

to pay is the statement in the probation report that Short was 

unemployed.
40

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.