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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE

,

Plaintiff and Respondent,

v.

KIRK MARSHALL SHORT

,

Defendant and Appellant

. B2 93373

(Los Angeles County Super. Ct. No. L A084 722 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Susan M. Speer , Judge. Affirmed and remanded
with directions

. R obert 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

. T he jury found true as to the assault that Short personally
inflic ted great bodily injury upon the victim

. On appeal, Short contends the trial court erred in revoking
his Faretta 1 right to represent himself at trial

. He also argues there was insufficient evidence to support the trial court’s
determination he was compet ent 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
Code 2 section 1001. 36. In addition , Short request s we remand for
the court to exercise its discretion under Senate Bill No. 1393 (2017

- 201 8 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 enhancement s imposed under section 667.5, subdivision (b)

, must be stricken. Finally, Short requests we remand for the trial court to con duct 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 ( Due ñ as ).
We affirm the judgment of conviction

. B ut we remand for
the trial court to exercise its discretion whether to strike the five

year sentence enhancement under section 667, subdivision (a)(1)

,

1 Faretta v. California (1975) 422 U.S. 806, 8 19 ( 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 a nd present evidence demonstrating his inability to pay the court
assessments and restitution fines.

BA CKGROUND AND PROCEDURAL HISTORY

A. The Amended Information The amended information charged Short with battery causing serious bodily injury (§ § 242, 243, s ubd. (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 alleg ed 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 se rious 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 wor king 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 st ore’s club card on the receipt “were scribbled out

, ” which she found “was a little suspicious.” Wi l son asked Short for his store club card, but he4

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’r e trespassing. You need to leave, otherwise I’m going to call the cops.” Short responded, “Why am I not supposed to be her e? 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 ear s 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 c an no longer fully

open his jaw

. In addition , So sometimes has blurry vision and ringing in his ear s , and he feels sharp pain on the right side of
his f ace

. A s 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 knuckle s

. 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 on6

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).
T he trial court denied Short’s moti on 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 request s for a diagnostic evaluation
under section 1203.03 and mental health diversion under section
1001.36

. The trial court sentenced Short to an aggr egate term of 18

years in state prison

. On count 2 for assault by means of force
lik ely 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 ( § 66 7 , subd. ( a ) (1) ) , and two years f or
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 an d 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 T

o Represent Himself

1. The trial court proceedings
On March 16, 2017 Short made a Mars d en 7 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 wa i ve 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 commen ce 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 h ad
never taken psychotropic medication although he had been given a prescription in county jail for d epression 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 ge t 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 d efense
counsel informed Short the prosecutor had ju st 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 re move 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 to9

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 sho w 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 represe nt 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 intel ligently 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 S o ’s redacted medical records relating to So’s injuries from the incident

, dis covery, 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 ne ed to subpoena [So’s] medical records of all prior treatment pertaining to all his preexisting syndromes and his treatment s for all th ese conditions that he was treated for after August 24 th

.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 v erify

. . . 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 to ld 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 ha s 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

yo u 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 cour t, 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. 8 19; accord, People v. Truje q ue (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
h is 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. ’ ” ( Truj eque , 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

a ddition 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
mi sconduct 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 w e do not hold that an i ntent 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 p p

. 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 t ermination 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 it s 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 ) 3 2 Cal.4th 73
, 1 03

. ) B ut he contends the

court should have denied his continuance r equest 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.
O n April 6, 2017 the parties announced they w ould be ready for trial o n 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 t he following Tuesday, April 18. When the trial court indicated it could not provide So’s medical records to Short that da y 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 t he trial court granted the Faretta
motion

, it cautioned Sh ort 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
reda cted 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 goi ng to bring back counsel .” Short still insisted

on a continuance to retain a n 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 inten tionally “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 investiga te the same medical records he earlier
said he did not need to review

. ( Trujeque , supra , 61 Cal.4th at

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

B. Substantial Evidence Supports the Trial Court’s Determination Short Was Competent T o Stand Trial

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

y On April 12, 2017, after revoking Short’s self

- represented status, the court held a Marsden hearing

. During the hearing
d efense counsel noted

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

mat t er 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 to15

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

t he court dec lared a doubt as to Short’s mental competenc y . The

court explained, “ The defendant’s demonstrating paranoia, irrationality, he’s in yellow s, 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
competenc e to stand trial. On March 17 , 2017 Dr. Fischer
interviewed Shor t 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 R is perdal 11 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 a ny mental illness

. In his April 6, 2017 report, Dr. Fischer found , “There was no definite evidence of a though t disorder, but [Short] did articulate both

p er secutor y and grandiose statements that could be construe d as
delusions.

. . . He does appear to have a propensity for fighting with his peers. His judgment is impaired and he lacks insight.”
Dr. Fis c her noted S hort understood the charge s and th at 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 o r his attorney that he was quite likely to lose his case if he attempted to represent himself without co u nsel. ”
Dr. Fischer concluded

, “[Short] is not [c]ompetent to rationally assist his attorney and he is incapable of putting a

r ational defense to the charges without counsel as a result of his
mental disor der, 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
decision s about such medication. If untreated with medication, [Short] will prob ably 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 spok e 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 exhibitin g any other psychotic behavior.”
Dr. Knapke review ed 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 question s 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 custome r. 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
notice d that the defendant was not making an y 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 d efendant 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 un derstanding the charges and proceedings against him at that time. ”
Accor ding 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 ; hi s plea was free and voluntary ; and he understood the charges and the consequences of the plea.
Dr. Knap ke 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 opin e on whether it was medically ap propriate to treat Short with medication or19

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

, “S imply 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 unwilling n ess to c o operate with an attorney is volitional rather than based on any underlying psychiatric sympto ms based upon
the disco very 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 f rom 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 def

ender, 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 incompeten t

. . . . [¶] [Short]20

would have to actually lack the c apacity 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 und erlying 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. ” T he court adde d 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 m edication. 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 d isagreed with Dr. Fischer ’s opinion Short was unable to cooperate with h is attorney , finding it was Short ’s

“ reluctance to cooperate with his attorney [,] not his in ability

. ” 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 Mar s den hearing gets denied, he yells and he actually spit at the court at the last proceeding, or if h is public defender disagrees with him. [¶] He’s loud, aggressive and shout s 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 th e defendant competent to stand trial within the meaning of [section] 1368.”21 5. Governing law
“T he 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 3 67, 385 ( Buenrostro ) ; accord, People v. Mickel (2016)

2 Cal.5th 181, 19 4

- 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. 19 5 ; 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 und erstand 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, s ection 1369 , subdivision (a) (1)

, requires

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

, and any other expert t he 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, the22

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 supporte d by substantial evidence. ’ ” ( Blacksher

, at p. 797 ; accord, Mendoz a , 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 p p

. 871

- 872 ; accord, People v. Marks (2003)
31 Cal.4th 197, 218, fn. 3. )

6. S hort forfeit ed 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 su pport 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

. Shor t has forfeit ed this argument by submitting on the experts’ reports and failing to objec t

. ( 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] efendants23

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
relie d 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, s ubstantial 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 self

representation in the 20 14 criminal case showed he understood
the criminal court proceedings

. The e xperts 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 r ole of this court to redetermine the credibility of experts or to reweigh the relative strength of their conclusions.’” ] .)24 In addition, w hen Dr. Knapke attempted to interview Short at the county jail, Short was calm and relaxed and did not exhibit any biza rre or unusual behavior, instead declining to talk with
Dr. Knapke once he learned the nature of the interview. And, a s 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 co urt erred in relying on
Dr. Knapke’s conclusion instead of that of Dr. Fischer

. “ T he 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, t he 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 Mar s den motion was denied

. T he 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 pa rt of a defendant who was able to cooperate do not25

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 o f incompetence .” ] ; People v. Medina (1995)

11 Cal.4th 694, 735 [“[d]e fendant ’ 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 inc ompetence. ” ].)

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 hospit alized 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 h omeless 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 h urt all black women and get high until he died”; and he had “affective flattening and paranoid delusions consistent with26

D efense counsel claimed Short was willing to be treated for his
mental health disorder

. Sh e 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 1001.3 6 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

me ntal 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 p l ay a significant

ro le in the charged offense . The court explain ed

, “ 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 f urther found

, “ T here’s no treatment plan in place that would address his mental health issue s or

schizophrenia.” After Short was given notice of the hold, “he banged doors and cussed at people, exposed himself and urinated in the h allway 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 Abilif y , 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 ill ness and I think you are just proving my point. [¶] He’s been hospitalized extensively. He’s been examined multiple times. He’s been prescribe d psychotropic drugs, which he refused to take, and has
not been deterred from his criminal behavior. His cri minal
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 in fections 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 me ntal 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 cou r t 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. Governi ng 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
flex ibility 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 point29

at w hich 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) th e 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. 6 2 6

- 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 men tal 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 of fense 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, man slaughter, 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 de emed never to have
occurred

. . . .” ( Ibid

. ; accord, Frahs, supra

, 9 Cal.5th at p. 627. )
Short contends

, and we agree

, s ection 1001.36 appl ies 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 suff

er 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.” ( Peop le 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 suffer ing from a mental disorder

. The trial court did not abuse its discretion. A lthough 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 sc hizophrenia
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 w as 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 hi m from engaging in
future criminal conduct.” ( I d.

, 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.” ( I d.

, 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 pre sent 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 T o Exercise Its
Discretion Whether T

o Strike the Five

- y ear 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 retroa ctively 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 [Abse nt 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 k nown 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 convictio n was mandatory. ( § 1385, former subd. (b).) The People po int to statements made by the trial court finding aggravating factors and no mitigati ng factors. T he 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 attac ked 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 attempt ed 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 batter y 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 count s 1 and 2

, this does not provide a clear indicati on 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 1 1

- year sentence Short would still face on remand34

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 st atements 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 r eviewing 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
im posing 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 w here 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 co urt here expressed its view Sho rt ’s conduct

was vicious and callous , it did not make the type of statements
the Jones and McVey trial courts made that provided a clear35

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, Peop le v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

E. The Two 1

- Year Prior Prison Term Enhancements Must B e Stricken Short argues, the People concede, and we agree both one

year 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 s ection 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 hi s 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, 87 2 [“ Because [defendant’s] conviction is not yet final, he is entitled to the retroactive benefit of the change in law. ”] ; J ennings , 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 , supr a , 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) enhancements36

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 c ontends 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. 5 th 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 determi nation 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 a nd the California

16 To the extent Short contends he is entitled to an ability

- to

pay hearing on the $22,888.72 victim restitution order, he is incorrect. T he tri al 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. E vans (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 secti on 1202.4, subdivision (b), “is intended to be, and is recognized as, additional punishment for a crime.” ( D ueñas , 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 bef

ore 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 gr anted 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,

s upra , 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 unt il 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 an d 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 t ime 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 unconstitutional39

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 new ly 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 (2 019) 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 a nd to present evidence of his inability to pay the assessments and fines. 18

DISPOSITIO N

The judgment of conviction is affirmed. We re mand for the
trial court to exercise its discretion whether to strike the five

year sen tence 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.

W e concur :

PERLUSS, P. J.

SEGAL, J.