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Filed 7/29/21 P. v. Huston CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT PATRICK HUSTON,

Defendant and Appellant.

C086901

(Super. Ct. No. 15F04307)

Defendant Robert Patrick Huston appeals a judgment entered following the jury’s 

determination that he had committed infliction of corporal injury on a spouse resulting in 

a traumatic condition (Pen. Code, § 273.5, subd. (a); count one)1 and child endangerment 

(§ 273a, subd. (b); count two) for which he received five years’ felony probation. 

Defendant seeks remand to give the trial court an opportunity to consider granting him 

1 Undesignated statutory references are to the Penal Code.
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mental health diversion as authorized by section 1001.36, which became effective 

June 27, 2018. (Stats. 2018, ch. 34, § 24.) He also seeks to correct the erroneous 

inclusion of victim restitution not awarded by the trial court in the minute order following 

sentencing, as well as in his probation conditions. In supplemental briefing, defendant 

asks that we reverse his misdemeanor child endangerment conviction for instructional 

error.

During the pendency of briefing, the Supreme Court decided People v. Frahs 

(2020) 9 Cal.5th 618 (Frahs), recognizing section 1001.36 applies retroactively to 

defendants whose judgments are not final on appeal. (Frahs, at pp. 640-641.) Because 

the record shows that defendant may suffer from a qualifying mental disorder, he is 

entitled to a limited remand so that the trial court may consider defendant’s eligibility for 

mental health diversion. (Id. at p. 640.) We conditionally reverse the judgment of 

conviction and will remand for further proceedings, including the correction of the 

record. In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL HISTORY

The People’s August 19, 2016, information charged defendant with infliction of 

corporal injury on a spouse resulting in a traumatic condition (§ 273.5, subd. (a); count 

one) and misdemeanor child endangerment (§ 273a, subd. (b); count two). A few days 

into defendant’s jury trial, it was discovered that he might be eligible for veteran’s court,

and the parties agreed to a brief continuance. The People later represented that, in 

defendant’s particular case, the veteran’s court issue could be determined after trial, and 

the trial continued.

The People’s evidence showed that defendant assaulted his then wife, Jo.D., 

during a custody exchange through her partially open car window, injuring her eye, head, 

and hand, as well as damaging the car’s rain guard. Defendant’s daughter, Ja.D.,

witnessed the incident from defendant’s car, was crying, and yelled for him to stop. 

Defendant testified in his own defense that Jo.D. had been the aggressor during the 
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incident, closing the window on his arm when he reached in to grab paperwork from her. 

If he hit her, it was unintentional as he was trying to get his arm out of the car. The jury 

convicted defendant of both counts.

Sentencing in the matter was deferred pending the veteran’s court determination, 

necessitating multiple continuances. Ultimately, it was determined defendant was 

ineligible to participate in veteran’s court, although the record does not contain a decision 

articulating the basis for this denial, which was made by a different judge. On March 16,

2018, the trial court placed defendant on five years’ felony probation with 364 days in 

jail, based on defendant’s minimal record, honorable military discharge, and mental 

impairments arising from military service. Defendant timely appealed.

DISCUSSION

I

Mental Health Diversion

Effective June 27, 2018, the Legislature passed Assembly Bill No. 1810 (2017-

2018 Reg. Sess.), which added sections 1001.35 and 1001.36 to the Penal Code (Stats. 

2018, ch. 34, § 24) and authorizes pretrial diversion for qualifying defendants with 

mental health disorders that contributed to the commission of the charged offense. (See

Frahs, supra, 9 Cal.5th at pp. 624, 626.) Two express purposes of the law are to promote 

“[i]ncreased diversion of individuals with mental disorders to mitigate the individuals’ 

entry and reentry into the criminal justice system while protecting public safety” and 

provide “diversion that meets the unique mental health treatment and support needs of 

individuals with mental disorders.” (§ 1001.35, subds. (a) & (c); Frahs, at p. 626.)

The statute defines “ ‘pretrial diversion’ ” as “the postponement of prosecution, 

either temporarily or permanently, at any point in the judicial process from the point at 

which the accused is charged until adjudication, to allow the defendant to undergo mental 

health treatment . . . .” (§ 1001.36, subd. (c).) The trial court may grant pretrial diversion 

under section 1001.36 if it finds: (1) defendant suffers from an identified mental 
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disorder, including posttraumatic stress disorder (PTSD) and bipolar disorders; (2) the 

mental disorder was a significant factor in the commission of the charged offense; 

(3) defendant’s symptoms will respond to treatment; (4) defendant consents to diversion 

and waives his speedy trial rights; (5) defendant agrees to comply with treatment; and 

(6) defendant will not pose an unreasonable risk of danger to public safety if treated in 

the community. (§ 1001.36, subd. (b)(1)(A)-(F).) If diversion is granted, the court may 

postpone prosecution for a maximum of two years and refer the defendant to an inpatient 

or outpatient mental health treatment program. (§ 1001.36, subd. (c)(1)(B), (c)(3).) 

Assuming the defendant performs satisfactorily during the period of diversion, the court 

must dismiss his criminal charges. (§ 1001.36, subd. (e).)

The Courts of Appeal were divided on the question of whether section 1001.36 

applies retroactively to persons who were tried, convicted, and sentenced before section 

1001.36 went into effect, but as to whom judgment is not yet final. In June 2020, our 

Supreme Court resolved the issue in Frahs. The Supreme Court held that because section 

1001.36 provides a possible ameliorating benefit for a class of persons, namely, certain 

defendants with qualifying mental disorders, and neither the statute’s text nor its 

legislative history clearly signals the Legislature’s intent to overcome Estrada’s

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inference of retroactivity, section 1001.36 applies retroactively to cases where the 

judgment is not yet final. (Frahs, supra, 9 Cal.5th at p. 624.)

In Frahs, our Supreme Court also rejected the People’s argument that the 

defendant was not entitled to remand because he failed to demonstrate that he satisfied all 

six threshold eligibility requirements for diversion. (Frahs, supra, 9 Cal.5th at pp. 637-

638; see § 1001.36, subd. (b).) The Supreme Court concluded “a conditional limited 

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

2

 In re Estrada (1965) 63 Cal.2d 740.
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warranted when, as here, 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.” (Frahs, at p. 640.) Here, the 

record discloses defendant suffers from depression, a traumatic brain injury, PTSD, and 

bipolar disorder. Thus, defendant “appears to meet at least the first threshold eligibility 

requirement for mental health diversion.” (Ibid.)

Relying on People v. Jefferson (2019) 38 Cal.App.5th 399, the People argue that

remand would be futile because defendant was found ineligible to participate in veteran’s 

court. Jefferson is distinguishable. In that case, there was a jury trial on whether 

Jefferson was not guilty by reason of insanity, and the record contained “evidence of 

defendant’s mental health history including defendant’s medical records, his testimony 

regarding his mental health history, the prosecution’s expert testimony regarding 

defendant’s mental state, video evidence of the attempted store robbery, and the police 

interview with defendant shortly after the crimes took place.” (Id. at p. 408; see id. at 

pp. 403-404.) It was against this background that “the trial court clearly indicated 

defendant’s alleged mental health disorder was not a significant factor in his commission 

of the charged offenses, making him ineligible for diversion.” (Id. at p. 408.)

Here, the record only contains defendant’s request for a referral to veteran’s court 

and certain papers from the veteran’s administration that document his diagnoses and 

disability status. As the defendant’s trial and sentencing occurred before section 1001.36 

went into effect, the record does not contain any reports or testimony concerning how 

defendant’s diagnosed mental conditions may have contributed to the offenses at issue in 

this case.

3

 However, we note the sentencing judge identified defendant’s conditions as 

3 At oral argument, the People argued, for the first time, that a defendant forfeits mental 

health diversion if he/she disavows that his/her mental health had anything to do with the
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substantially contributing to the decision not to send defendant to prison. Given the state 

of the record, the trial court is in the best position to determine whether defendant is 

eligible for mental health diversion.

Moreover, the qualifications for veteran’s court and mental health diversion do not 

align in such a way that we can determine that defendant is necessarily ineligible for 

mental health diversion based solely on the denial of his veteran’s court application. 

(Compare § 1001.36, subd. (b)(1)(B) [mental health diversion requiring the mental 

disorder to be a “significant factor in the commission of the charged offense,” which is 

defined as “defendant’s mental disorder substantially contribut[ing] to the defendant’s 

involvement in the commission of the offense”] with § 1170.9, subd. (a) [veteran’s court 

requiring defendant “commit[] the offense as a result of a . . . traumatic brain injury . . . 

or mental health problems stemming from service”].)

Based on this record, we conclude that conditional reversal of judgment and 

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

hearing. (See Frahs, supra, 9 Cal.5th at p. 640; § 1001.36, subd. (b)(3).)

II

The Record Corrections

Defendant requests we correct the erroneous inclusion of victim restitution not 

awarded by the trial court in the minute order following sentencing. The People agree the 

trial court did not award restitution at sentencing, and its inclusion in the minute order 

was erroneous. We agree with the parties. Because the amount of victim restitution was 

disputed, the court did not award victim restitution at sentencing. Accordingly, the 

minute order reflecting a restitution award on the day of sentencing must be corrected.

crime. Here, the record is not clear on this point. We need not decide this issue and 

direct the trial court to consider this issue if raised by the parties.
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III

The Instructional Error

The parties agree that the trial court erred when it used the jury instruction 

intended for direct infliction of pain or mental suffering, a general intent crime, rather 

than the instruction for indirect child endangerment, which would have included a

criminal negligence instruction. We conclude this error was harmless beyond a 

reasonable doubt.

Section 273a, subdivision (b) proscribes four categories of conduct: (1) willfully 

causing or permitting a child to suffer, (2) inflicting unjustifiable physical pain or mental 

suffering, (3) having care or custody of a child, willfully causing or permitting the child 

to be injured, or (4) willfully causing or permitting a child to be placed in a situation 

where his health may be endangered. (See People v. Valdez (2002) 27 Cal.4th 778, 783 

(Valdez).)

The second category involves “ ‘direct infliction,’ ” the remaining three categories 

involve “ ‘indirect infliction.’ ” (In re L.K. (2011) 199 Cal.App.4th 1438, 1445.) Direct 

infliction requires general criminal intent, similar to battery or assault with a deadly 

weapon. Indirect infliction requires criminal negligence. (Ibid.)

“Criminal negligence is ‘ “aggravated, culpable, gross, or reckless . . . conduct . . . 

[that is] such a departure from what would be the conduct of an ordinarily prudent or 

careful [person] under the same circumstances as to be incompatible with a proper regard 

for human life . . . .” ’ [Citation.] ‘Under the criminal negligence standard, knowledge of 

the risk is determined by an objective test: “[I]f a reasonable person in defendant’s 

position would have been aware of the risk involved, then defendant is presumed to have 

had such an awareness.” ’ [Citations.]” (Valdez, supra, 27 Cal.4th at p. 783.) “ ‘[T]here 

can be no criminal negligence without actual or constructive knowledge of the risk.’ ”

(Ibid.) 
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Here, the jury was instructed with the second category, that defendant’s mens rea 

must be willful, rather than criminally negligent. Specifically, the trial court instructed:

“The defendant is charged in Count 2 with child abuse in violation of Penal Code section 

273a[ subdivision ](b). To prove the [d]efendant is guilty of this crime, the People must 

prove the following: One, the [d]efendant willfully inflicted unjustifiable mental 

suffering upon a child. Someone commits an act willfully when he or she does it 

willingly or on purpose. A child is any person under the age of 18 years. Unjustifiable

mental suffering is pain or sufferings [sic] that is not reasonably necessary or is excessive 

under the circumstances.” (See CALCRIM No. 823.) 

The jury asked in deliberations: “Does [defendant] willfully causing physical 

trauma to his wife in front of their child, automatically make him guilty of [CALCRIM 

No.] 823(a) which states 1) the defendant willfully inflicted unjustifiable mental suffering 

on a child.” The court responded that: “The term ‘willful’ as utilized in section 

273a[ subdivision ](b) does not require intent to injure the child but implies simply a 

purpose or willingness to commit the act. It does not require any intent to violate law, or 

to injure another, or to acquire any advantage.” Further, the court clarified that the 

intentional act at issue was defendant’s actions toward the mother. We agree with the 

parties that defendant’s conduct is more aptly described as indirect abuse, and thus the 

court should have instructed on indirect abuse. Nevertheless, we conclude any error in 

instructing on direct abuse was harmless beyond a reasonable doubt. (See People v. 

Chun (2009) 45 Cal.4th 1172, 1201 [harmlessness of instructional error on elements of 

offenses must be established beyond a reasonable doubt]; Chapman v. California (1967) 

386 U.S. 18, 24 [17 L.Ed.2d 705].) 

A review for harmless error of the trial court’s failure to instruct on an omitted 

element requires a “ ‘thorough examination of the record.’ ” (People v. Mil (2012) 53 

Cal.4th 400, 417 (Mil).) “ ‘If, at the end of that examination, the court cannot conclude 

beyond a reasonable doubt that the jury verdict would have been the same absent the 
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error—for example, where the defendant contested the omitted element and raised 

evidence sufficient to support a contrary finding—it should not find the error harmless.’ 

[Citation.] On the other hand, instructional error is harmless ‘where a reviewing court 

concludes beyond a reasonable doubt that the omitted element was uncontested and 

supported by overwhelming evidence.’ [Citations.] Our task, then, is to determine 

‘whether the record contains evidence that could rationally lead to a contrary finding with 

respect to the omitted element.’ ” (Ibid.)

Here, the trial court instructed that in order to find defendant guilty, he had to have

willfully inflicted suffering on his daughter, Ja.D. Further, the court clarified that the 

willful act at issue to that mental suffering was defendant’s assault of Ja.D.’s mother.

Thus, the jury necessarily determined that defendant inflicted mental suffering upon Ja.D.

by virtue of her witnessing her mother’s brutal beating.4 Under these circumstances, we 

are satisfied that the omission of the indirect child endangerment and criminal negligence

instructions was harmless beyond a reasonable doubt. (Mil, supra, 53 Cal.4th at p. 417.)

Indeed, there is overwhelming evidence that defendant subjected Ja.D. to indirect 

child endangerment by virtue of her witnessing defendant’s brutal assault of mother, 

4 This is consistent with the People’s closing argument that defendant “unjustifiab[ly]” 

inflicted emotional suffering on Ja.D. because he had no reason to approach mother’s car 

at the custody exchange after Ja.D. was in his car. Nonetheless, defendant chose to 

assault mother in front of Ja.D., thus inflicting emotional harm. His actions were “not 

reasonable” and “excessive under the circumstances.” In response, defendant argued 

even if he had punched mother in front of Ja.D. that would not constitute willful infliction 

of emotional distress on a child; rather it would just be “inappropriate conduct” and “bad 

parenting” that would cause “the corollary or secondary impact of . . . some sort of 

trauma to his daughter.” In reply, the People argued defendant would not have to 

“intentionally” harm Ja.D., rather, he would have to “intentionally [do] the act that led to 

her emotional turmoil.” This argument is not inconsistent with a finding of criminal 

negligence, which focuses on the objective reasonableness of the conduct. (See Valdez, 

supra, 27 Cal.4th at pp. 785, 789-790; id. at p. 791 [noting “willfulness and criminal 

negligence are not necessarily inconsistent”].)
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which occurred during a custody exchange through her partially open car window, and 

which caused injuries to mother’s eye, head, and hand, as well as damaging the car’s rain 

guard. This assault included defendant grabbing mother by her hair and slamming her 

head into the car window. He then smashed her sunglasses into her head and punched 

her in the eye, resulting in partial blindness in her left eye that had mostly, but not 

completely, resolved by the time of trial. When mother tried to protect herself, defendant 

grabbed her right hand and twisted her fingers so severely that they swelled and could not 

be used for weeks. Ja.D. saw her father grab mother’s hair and shake her. She also heard 

defendant screaming and mother crying. Ja.D., who was seated in defendant’s car, cried 

and screamed for her father to stop.

Immediately after the assault when they were driving away, defendant tried to 

convince Ja.D. that mother had been the aggressor, which Ja.D. knew was false because 

she had been there. Ja.D. repeated defendant’s version of events to an uncle and 

defendant’s girlfriend because she was afraid defendant would hurt her if she did not. 

She still loved defendant, but no longer trusted him, nor did she think he was a good 

person. Thereafter, Ja.D. required counseling, presumably to help her with the resulting

nightmares, difficulty sleeping, trouble eating, protective feelings regarding her mother,

and her fear of going home because defendant would come and find them.

It is clear to this court that defendant’s actions were a gross departure from those 

of a reasonable person, showed indifference to the risk of harm that would be inflicted by 

savagely beating Ja.D.’s mother in front of her, and were of such a nature that a 

reasonable person in defendant’s position would have been aware that witnessing such an 

assault held a natural and probable risk of harming Ja.D. (People v. Valdez, supra, 27 

Cal.4th at pp. 783; CALCRIM No. 823.) Based on the jury’s findings that defendant 

willfully inflicted mental suffering on Ja.D. premised upon willful harm to mother and 

that defendant inflicted corporal injury on mother resulting in a traumatic condition, we 
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conclude the failure to give the indirect child endangerment and criminal negligence

instructions was harmless beyond a reasonable doubt. (Mil, supra, 53 Cal.4th at p. 417.)

DISPOSITION

The judgment is conditionally reversed. The case is remanded to the trial court 

with instructions to determine whether defendant is eligible for diversion under section 

1001.36 and, if so, to exercise its discretion within the procedures set forth in the statute. 

If the court does not grant diversion, or if the court grants diversion but later determines 

the criminal proceedings should be reinstated, the court shall reinstate the judgment. The 

trial court shall also correct the March 16, 2018, minute order which erroneously lists 

restitution not awarded to the victim. In all other respects, the judgment is affirmed.

 /s/

HOCH, J.

We concur:

 /s/

RAYE, P. J.

 /s/

HULL, J.