Filed 4/21/21 P. v. Garris CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID ALLEN GARRIS,

Defendant and Appellant.

 H045657

 (Santa Clara County

 Super. Ct. No. C1502269)

I. INTRODUCTION

A jury found defendant David Allen Garris guilty of carjacking (Pen. Code, 

§ 215),1attempted second degree robbery (§§ 664, 211, 212.5, subd. (c)), and assault 

with a deadly weapon (§ 245, subd. (a)(1)) and found true the allegation that defendant 

personally used a dangerous or deadly weapon during the commission of the assault 

(§§ 667, 1192.7). Defendant admitted the allegations that he had two prior strike 

convictions (§§ 667.5, subds. (b)-(i), 1170.12), two prior serious felony convictions 

(§ 667, subd. (a)), and two prior prison terms (§ 667.5, subd. (b)). After the trial court 

denied defendant’s Romero2 motion to strike the prior strike convictions, it sentenced 

defendant to an aggregate term of 37 years to life.

1 All further statutory references are to the Penal Code unless otherwise indicated.

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

Defendant contends that the case must be conditionally remanded for a mental 

health diversion eligibility hearing pursuant to section 1001.36; remand is required to 

give the trial court an opportunity to exercise its newfound discretion to strike his serious 

felony priors; and the trial court abused its discretion when it denied his Romero motion 

and violated the constitutional prohibition against cruel and unusual punishment by 

imposing a 37 years to life sentence. The Attorney General concedes that the case should 

be remanded for the court to conduct a mental health diversion eligibility hearing and for 

the court to exercise its discretion to strike defendant’s serious felony priors. The 

Attorney General asserts that we need not resolve defendant’s Romero and constitutional 

claims because defendant can renew his Romero motion on remand.

For reasons that we will explain, we will conditionally reverse the judgment and 

remand the matter for the trial court to conduct a mental health diversion eligibility 

hearing. If the court grants defendant mental health diversion and defendant successfully 

completes it, the court shall dismiss the charges and allegations against defendant. If the 

court declines to grant defendant mental health diversion or if defendant fails to 

successfully complete it, the court shall reinstate defendant’s convictions and resentence 

defendant, exercising its discretion whether to strike defendant’s serious felony prior 

convictions for sentencing purposes. Defendant shall have the opportunity to raise his 

Romero and constitutional claims on remand.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Prosecution Case

On January 17, 2015 at approximately 5:00 p.m., J.V. was visiting a friend outside 

of the friend’s motorhome in a homeless encampment in San Jose. At some point, J.V. 

heard screaming coming from inside a trailer approximately 20 to 25 feet away. Five or 

10 minutes later, defendant came out of the trailer. Defendant walked directly toward 

J.V., who was seated. Defendant screamed at J.V., asking him where he was from and 

demanding that he give defendant money. J.V. had never seen defendant before.
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Defendant picked up a shovel, walked up to J.V., leaned over, and put his forehead 

against J.V.’s forehead. Defendant raised the shovel in a threatening manner, as if he was 

going to hit J.V. with it. The force from defendant’s forehead caused J.V. to fall off his 

chair. Defendant dropped the shovel and tried to take J.V.’s wallet by pulling it from 

J.V.’s pants while J.V. was on the ground. J.V. took his wallet out and gave defendant 

$50 because he was afraid. When J.V. handed defendant the money, defendant reached 

into J.V.’s pocket, grabbed J.V.’s keys, and left in J.V.’s pickup truck.

J.V. frantically flagged down a police officer and pointed to his truck as defendant 

drove away down Monterey Road. Traveling at approximately 100 miles per hour in 

moderate traffic, defendant sped past another officer, attempted to make a righthand turn 

at a high rate of speed, and crashed into an embankment, where he was apprehended.

B. Defense Case

Defendant testified that he had been on medication since he was 10 years old when 

he was diagnosed with hyperactive attention deficit disorder. Defendant also started 

using alcohol, marijuana, and methamphetamine when he was “really young.” Defendant 

began receiving mental health treatment at the California Youth Authority (CYA) around 

the year 2000. After he turned 18, defendant was put on an antipsychotic medication for 

hallucinations, but he had difficulty getting the medication once he was released from 

CYA. Defendant stated that he has been diagnosed with paranoid schizophrenia, bipolar 

disorder, hyperactive disorder, adjustment disorder, and posttraumatic stress disorder. 

Defendant was receiving medication in county jail.

Defendant testified that on January 17, 2015, he was living with his mother on 

Monterey Road. A man named “Carlos” had a trailer across from his mother. Defendant 

had used methamphetamine the night before when he was “partying with [J.V.] and 

Carlos.” Defendant had become acquainted with J.V., whom he knew as “ ‘Chewy,’ ” 

on a couple of occasions when defendant helped J.V. get drugs.
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Defendant testified that on the night before the incident, defendant asked to 

borrow J.V.’s truck to look for his girlfriend. Defendant offered to pay J.V. with an 

eight-ball of methamphetamine, which was worth approximately $80. Defendant gave 

J.V. $30 worth of methamphetamine and said he would give him the remainder when he 

returned.

Defendant stated that he spent all night looking for his girlfriend. When he 

returned to the encampment around 3:00 a.m., J.V. was no longer there and neither was 

Carlos. Defendant went to his mother’s trailer to go to sleep.

When defendant’s mother woke defendant up, defendant began arguing with her 

about his girlfriend because defendant felt that his mother was hiding something from 

him. Defendant heard a couple of people laughing outside. Defendant looked out the 

window and saw that it was J.V. and another man he had never seen before. Defendant 

felt like “something’s not adding up . . . like everything’s a lie.” Defendant thought that 

his girlfriend might be in Carlos’s trailer and may have been there “the whole time.”

Defendant stated that he went outside, approached the man he did not know, and 

asked, “ ‘Who the F are you?’ ” The man responded, “ ‘Mind your own business, or I’ll 

mess you up.’ ” The man had his hand in his coat, causing defendant to think he may 

have a gun. Defendant tried to open the door to Carlos’s trailer, told the man he did not 

want “ ‘no problem with [him],’ ” and said he “ ‘just want[ed] the keys [to the trailer].’ ” 

Defendant knocked on the door to Carlos’s trailer saying, “ ‘Open the door.’ ” Defendant 

was angry.

J.V. asked defendant about the $50 defendant owed him for using his truck. When 

defendant turned to look at J.V., he saw that J.V. had a knife in his hand. Defendant 

“freaked out” because he did not want to get stabbed. Defendant began backing up and 

said, “ ‘[D]on’t hurt me.’ ” Defendant took J.V.’s car keys out of his own pocket and told 

J.V. to either take his keys back or let him use the truck so that defendant could get him 

the money. Defendant then threw J.V.’s keys towards him. Defendant tripped over a 
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cement block and fell next to a shovel. Defendant got up and swung the shovel at J.V. 

once or twice. Defendant was scared for his life. J.V. fell over. Defendant picked up 

J.V.’s keys, got in the truck, and took off.

As defendant drove away, he saw an officer on the side of the road. Defendant 

honked and pulled alongside the officer because he was trying to get help. Defendant 

saw that J.V. was already talking to the officer on the other side of the patrol car. 

Defendant sped away. Defendant drove for a couple of minutes before crashing.

Defendant admitted that he was convicted of assault with a deadly weapon in 

June 2000, and he was convicted of attempted robbery in October 2007. Defendant also 

stated that he had been convicted of felony resisting arrest.3

Neuropsychologist Brent Hughey testified that when he evaluated defendant in 

2012, he diagnosed him with bipolar disorder with psychotic features and multiple 

substance use disorder. When Dr. Hughey evaluated defendant in 2016, he again 

concluded that defendant had bipolar disorder but also “raise[d] the prospect of a 

schizoaffective disorder.”

Forensic and clinical neuropsychologist Ashley Cohen diagnosed defendant with 

post-traumatic stress disorder with disassociation, mixed polysubstance use disorder, and 

mild neurocognitive impairment.4 Dr. Cohen also opined that it was possible that 

defendant had schizophrenia but she “lean[ed] more not . . . than yes.”

C. Charges, Verdicts, and Sentencing

Defendant was charged by second amended information with carjacking (§ 215; 

count 1), attempted second degree robbery (§§ 664, 211, 212.5, subd. (c); count 2), and 

assault with a deadly weapon (§ 245, subd. (a)(1); count 3). It was also alleged that 

defendant personally used a deadly or dangerous weapon during the commission of 

3 Defendant’s brother also testified. We do not summarize his testimony here 

because it is not relevant to the issues on appeal.

4 Dr. Cohen did not state when she evaluated defendant.
6

count 3 (§§ 667, 1192.7) and had sustained two prior strike convictions (§§ 667, 

subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and two 

prior prison terms (§ 667.5, subd. (b)).

The jury found defendant guilty of all counts and found the deadly or dangerous 

weapon allegation true. Defendant admitted the prior conviction and prior prison term 

allegations.

The trial court denied defendant’s Romero motion to strike his prior strike 

convictions. The court sentenced defendant to 27 years to life on count 1 and imposed 

and stayed 25 years to life sentences on counts 2 and 3. The court imposed a consecutive 

10-year sentence for defendant’s prior serious felony convictions and struck the 

punishment for the prior prison term sentence enhancements.

III. DISCUSSION

A. Mental Health Diversion

Defendant contends that the matter should be remanded for the trial court to 

determine his eligibility for mental health diversion under section 1001.36, which was 

enacted after he was sentenced. Effective June 27, 2018, section 1001.36 authorizes the 

trial court to grant pretrial diversion to defendants who are diagnosed with a qualifying 

mental disorder and meet other requirements. (Id., subds. (a) & (b); see Stats. 2018, 

ch. 34, § 24.) Defendant, who was sentenced on March 2, 2018, argues that 

section 1001.36 applies retroactively to cases, such as his, that are not yet final on appeal. 

He also contends that the record establishes that he “suffers from serious mental health 

disorders.” The Attorney General concedes that the case should be remanded for the 

court to conduct a mental health diversion eligibility hearing.

A trial court may grant pretrial diversion pursuant to section 1001.36 if the 

defendant has not been charged with a disqualifying offense and the court finds: “(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 
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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. [Citation.]” (People v. Frahs (2020) 9 Cal.5th 618, 626-627 (Frahs).)

“If the defendant makes a prima facie showing that he or she meets all of the threshold 

eligibility requirements and the defendant and the offense are suitable for diversion, and 

the trial court is satisfied that the recommended program of mental health treatment will 

meet the specialized mental health treatment needs of the defendant, then the court may 

grant pretrial diversion. (§ 1001.36, subds. (a), (b)(3) & (c)(1).) The maximum period of 

diversion is two years. (Id., subd. (c)(3).) If the defendant is subsequently charged with 

an additional crime, or otherwise performs unsatisfactorily in the assigned program, then 

the court may reinstate 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’ and ‘the arrest upon which the diversion was based 

shall be deemed never to have occurred.’ (Id., subd. (e).)” (Id. at p. 627.)

In Frahs, the California Supreme Court held that section 1001.36 applies 

retroactively to cases where, as here, the judgment is not yet final. (Frahs, supra, 

9 Cal.5th at p. 624.) The court further determined “that a conditional limited remand 

for the trial court to conduct a mental health diversion eligibility hearing is warranted 

when . . . the record affirmatively discloses that the defendant appears to meet at least 

the first threshold eligibility requirement for mental health diversion—the defendant 

suffers from a qualifying mental disorder.” (Id. at p. 640.)

Here, the record affirmatively discloses that defendant appears to suffer from 

bipolar disorder and/or post-traumatic stress disorder, and thus he “appears to meet at 

least the first threshold eligibility requirement for mental health diversion.” (Frahs, 

supra, 9 Cal.5th at p. 640; see § 1001.36, subd. (b)(1)(A) [bipolar disorder and post-
8

traumatic stress disorder are qualifying mental disorders].) Further, in Frahs, the 

California Supreme Court rejected the argument that probation ineligibility, having a 

prior strike, or a trial court’s refusal to strike an enhancement for a prior serious felony 

conviction categorically disqualifies a defendant from mental health diversion. (Frahs, 

supra, at pp. 638-640.)

Therefore, pursuant to the California Supreme Court’s decision in Frahs and 

based on the record before us, we conclude that a conditional remand is appropriate for 

the trial court to conduct a mental health diversion eligibility hearing. (See Frahs, supra, 

9 Cal.5th at p. 640.) We express no opinion on whether defendant will be able to 

demonstrate eligibility for mental health diversion under section 1001.36 on remand or 

whether the trial court should exercise its discretion to grant diversion if it finds 

defendant eligible.

B. Amendment to Section 667, Subdivision (a)

Pursuant to section 667, subdivision (a), the trial court imposed a consecutive 

10-year sentence for defendant’s prior serious felony convictions. Defendant contends 

that the matter must be remanded to give the trial court an opportunity to exercise its 

newly enacted discretion to strike the prior serious felony convictions. The Attorney 

General agrees.

After defendant was sentenced, the Governor signed Senate Bill No. 1393, which 

amended section 667, subdivision (a), and section 1385, subdivision (b), to allow a trial 

court to exercise its discretion to strike a prior serious felony conviction for sentencing 

purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the previous version of section 667, the 

court was required to impose a five-year consecutive term for “[a]ny person convicted of 

a serious felony who previously has been convicted of a serious felony . . . .” (Former 

§ 667, subd. (a).) The court had no discretion to “strike any prior conviction of a serious 

felony for purposes of enhancement of a sentence under Section 667.” (Former § 1385, 
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subd. (b).) Senate Bill No. 1393 applies retroactively to nonfinal judgments. (People v. 

Stamps (2020) 9 Cal.5th 685, 699.)

“ ‘Defendants are entitled to sentencing decisions made in the exercise of the 

“informed discretion” of the sentencing court. [Citations.]’ ” (People v. Gutierrez (2014) 

58 Cal.4th 1354, 1391.) When the record shows that the trial court proceeded with 

sentencing on the assumption that it lacked discretion, remand for resentencing is 

necessary “unless the record ‘clearly indicate[s]’ that the trial court would have reached 

the same conclusion ‘even if it had been aware that it had such discretion.’ [Citations.]” 

(Ibid.)

Here, the trial court did not express an intent to impose the maximum sentence 

permitted and exercised its discretion to strike the punishment for the section 667.5, 

subdivision (b) prior prison term enhancements pursuant to section 1385. Although 

the court denied defendant’s Romero motion to strike his prior strike convictions, the 

court’s ruling on the Romero motion reflects solely its finding that defendant did not 

fall outside of the Three Strikes sentencing scheme. (See People v. Carmony (2004) 

33 Cal.4th 367, 376.) Thus, the record before us does not clearly indicate that the trial 

court would have declined to strike defendant’s prior serious felony convictions if it 

had the discretion to do so for the purposes of sentencing him under section 667, 

subdivision (a). (Cf. People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [declining 

to remand for resentencing because “the trial court indicated that it would not, in any 

event, have exercised its discretion to lessen the sentence”].)

Accordingly, we conclude that remand is appropriate to allow the trial court to 

exercise its discretion regarding whether to strike defendant’s prior serious felony 

convictions for sentencing purposes. We express no opinion on how the court should 

exercise its discretion.
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C. Denial of Romero Motion

Defendant contends that the trial court abused its discretion when it denied his 

Romero motion to strike at least one of his prior strike convictions and that his 37 years 

to life sentence constitutes cruel and unusual punishment in violation of the state and 

federal constitutions. The Attorney General asserts that we need not resolve defendant’s 

claims because defendant can renew his Romero motion on remand.

As stated, we are remanding the matter to the trial court for a mental health 

diversion eligibility hearing and to give the court an opportunity to exercise its discretion 

to strike defendant’s prior serious felony convictions. If the court declines to grant 

defendant mental health diversion or if defendant does not successfully complete 

diversion, the trial court shall resentence defendant, exercising its discretion regarding 

whether to strike defendant’s prior serious felony convictions for sentencing purposes. 

Because we must remand the matter for resentencing, defendant may raise his Romero

and constitutional claims before the trial court on remand.

IV. DISPOSITION

The judgment is conditionally reversed with the following instructions: If the trial 

court finds that defendant suffers from a qualifying mental disorder, does not pose an 

unreasonable risk of danger to public safety, and otherwise meets the relevant statutory 

criteria in Penal Code section 1001.36, the court may grant defendant diversion. If 

defendant successfully completes diversion, the court shall dismiss the charges and 

allegations against defendant. However, if the court declines to grant defendant diversion 

under Penal Code section 1001.36, or if defendant does not successfully complete 

diversion, the court shall reinstate defendant’s convictions and resentence defendant. At 

the resentencing hearing, the trial court shall determine whether to exercise its discretion 

pursuant to Penal Code section 1385 to strike defendant’s prior serious felony convictions

for the purposes of sentencing him under Penal Code section 667, subdivision (a). 

Defendant may renew his Romero motion at the resentencing hearing.
BAMATTRE-MANOUKIAN, J.

WE CONCUR:

ELIA, ACTING P.J.

GROVER, J.

People v. Garris

H045657