Filed 11/3/20 P. v. Brown CA2/6

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOSEPH IRBY BROWN,

 Defendant and Appellant.

2d Crim. No. B291733

(Super. Ct. No. 1442714)

(Santa Barbara County)

OPINION ON REHEARING

Joseph Irby Brown appeals from the judgment after 

the jury convicted him of two counts of second degree robbery 

(Pen. Code,1 § 211). As to the first count (bank robbery), the jury 

also convicted Brown of resisting an officer by threats or violence 

(count 3, § 69). As to the second count (gas station robbery), the 

jury also convicted Brown of wearing a mask or disguise to avoid 

detection (count 4, § 185, a misdemeanor) and found true an 

enhancement for use of a deadly weapon (§ 12022, subd. (b)(1)). 

1 Unless otherwise noted, all subsequent statutory 

references are to the Penal Code.
2

Brown admitted that he suffered two prior serious felony 

convictions (§ 667, subd. (a)(1)) and two prior strikes (§ 667, 

subds. (d)(1), (e)(1)). The trial court sentenced him to state prison 

for a determinate term of 27 years and a consecutive

indeterminate term of 50 years to life.

Brown contends: (1) his confession was involuntary, 

(2) the trial court improperly admitted, and failed to properly 

instruct regarding, expert opinion evidence as to his mental state, 

(3) the judgment must be reversed for cumulative prejudice, (4) 

the case must be remanded for consideration of mental health 

diversion, (5) the case must be remanded to allow the trial court 

to exercise discretion whether to strike the serious felony priors, 

and (6) the term for the misdemeanor count must be stayed. 

We reverse in part. We find the confession to the gas 

station robbery involuntary and reverse counts 2 and 4. We 

conditionally reverse counts 1 and 3 and remand for the trial 

court to consider mental health diversion. We also remand for 

the trial court to exercise its discretion whether to strike the 

serious felony priors at resentencing. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Gas station robbery

Shortly before 4:00 a.m., a man entered the 

convenience store of a USA Gasoline station in Santa Barbara. 

He was wearing a black sweatshirt with the hood pulled down 

low and a bandana covering his mouth. Only his eyes were 

visible. A sock was on one hand and a glove on the other. He 

walked directly to the cash register holding a 10-inch knife.

The man pointed the knife at the employee, N.C., and 

demanded money. When she opened the cash register, he took 
3

the cash, dropping some outside as he fled. N.C. told police she 

did not believe she recognized him as a customer. 

Later that morning, Brown’s girlfriend, A.O., came 

into the store. N.C. looked scared and said she was robbed. A.O.

asked if she knew who the robber was and how many people were 

involved. She purchased beer, using cash. N.C. recognized one of 

the dollar bills with “love for me means a lot” written on it

because she was about to put it in the safe before the robbery. 

The bill was not seized by police and was not introduced at trial.

A.O. returned to the store about a week later. N.C. 

remembered that A.O. had spent the money with the writing on 

it. She also remembered seeing A.O. together with Brown. It 

was “like a puzzle getting together more.” N.C. called police and 

said that A.O.’s boyfriend was the robber.

At trial, N.C. identified Brown as the robber. She 

testified that A.O. and Brown were regular customers. She 

testified that during the robbery, she recognized Brown’s voice 

and the way he walked. She was “pretty sure” then she knew 

who he was. 

Bank robbery

Twelve days after the gas station robbery, Brown 

entered a Rabobank in Santa Barbara wearing a baseball cap, a 

grey sweatshirt with the hood over his head, sunglasses, and 

black gloves. Teller G.D. was immediately suspicious because it 

was not a cold day and the clothing was unusual. 

Brown took a deposit slip and wrote on it, “Give me 

the money[.] No one gets hurt[.] Act stupid you die.” He went to 

the teller window and set down the note. G.D. put about $4,000 

in currency on the counter. Brown asked if there was a dye pack, 
4

and G.D. assured him there was not. He put the money under 

his sweatshirt and walked out of the bank.

Officer Richard Washington saw Brown a few blocks 

from the bank and noted his scruffy red beard, which matched 

the description of the robber provided by the bank. Brown was 

holding a bag containing a hoodie and hat that closely resembled

those worn by the robber in a photograph transmitted by the 

bank. 

Washington had Brown sit on the curb. When 

Washington radioed for backup, Brown stood up and ran. 

Washington caught Brown and tackled him. Brown got up and 

continued running. Washington tackled him a second time. 

Brown got up again, grabbed the officer’s helmet, and wrenched 

his head back and to the right. Washington subdued Brown with 

the help of a citizen.

Washington suffered lacerations to his face and elbow

and abrasions to his hand. His uniform was ripped and his 

motorcycle helmet was broken.

Sergeant Brian Larson, who was investigating the 

gas station robbery, went to the location where Brown was 

apprehended. Larson knew Brown. He knew Brown and A.O.

were in a committed relationship, and were living together near 

the USA Gasoline station and Rabobank. 

A.O. was standing nearby. Larson arrested A.O.

because he suspected she may have been involved in both 

robberies and possessed money stolen from the gas station. She

was evasive about Brown and her whereabouts that morning.

She denied using stolen money at the gas station. 
5

Officers found a bundle of money in Brown’s 

underwear. Together with some money in his pants pocket, they 

inventoried $3,530.

First interrogation

Larson contacted Brown at the scene and told him 

A.O. had been arrested. Brown asked “for what,” and said 

“there’s no reason for her to get arrested.” Larson said, “I kinda 

agree with you,” and “I don’t want her to get arrested.” He asked, 

“Can we talk about that?” Brown agreed. Larson said, “she could 

potentially . . . get unarrested.” Larson said he wanted to “talk 

about your relationship and how we can maybe get [A.O.] out of 

trouble.” Brown was advised of his Miranda2 rights.

Brown confessed to the Rabobank robbery. He 

described handing the teller the note. He said A.O. had no idea 

about the robbery. He said he called her after being stopped by 

Officer Washington and told her he robbed a bank, they caught 

him, and he was going to jail.

Brown denied committing the gas station robbery. 

Larson said someone identified Brown as the robber, and said

A.O. came in later with some of the stolen money. Brown denied 

A.O. was involved in any robbery he had ever done. Larson said, 

“maybe she’s an innocent . . . Maybe she ends up going today.” 

“[B]ut to make her innocent in the eyes of the law I need to solve 

my case and show . . . she wasn’t the one who did it.” Brown 

responded, “okay if you need me to solve that case I’ll solve that 

case for you right here, yeah.” He added, “She didn’t have 

nothing to do with no robbery. If you need me to clear up some 

robberies for you I’ll do that and shit too.” 

2 Miranda v. Arizona (1966) 384 U.S. 436.
6

Brown said he stole “a hundred and some bucks.” He 

spent the money immediately to buy drugs from a drug dealer. If 

A.O. received any of the stolen money, it was an “accident.” 

Larson said, “so you did this thing at the gas station.” Brown 

replied, “If you need me to admit to that fine I’ll admit to that 

dude ’cause that’s what happened dude.” Larson replied, “I don’t 

want you to admit to anything . . . I want you to tell me the 

truth.” Brown responded, “That’s the truth. That’s what 

happened. She didn’t have nothin’ to do with nothin’.” “I did rob 

the gas station and yes I robbed the bank.”

Second interrogation

Larson arrested Brown and took him to the police 

station. Brown acknowledged his Miranda rights. He repeated 

his confession of both robberies and provided details. 

Brown admitted changing his clothes after the bank 

robbery and putting his other clothing into the bag. He admitted 

running from Officer Washington but denied punching him or 

doing anything other than possibly pushing back. 

Brown admitted robbing the USA Gasoline station. 

He said he was high on cocaine. He was having a panic attack 

and he needed drugs to cope with it. He felt bad because he 

frequently went into the store and the clerk was nice. He said 

the mask was “just a . . . black piece of clothing.” He said he held 

a kitchen knife and he discarded it as he ran away. Without 

being asked about A.O., he reiterated that she had not been 

involved in either robbery and did not have advance knowledge of 

them. 

Brown said he could not keep a job because he had 

mental issues and posttraumatic stress disorder (PTSD). Since 
7

he was shot a year earlier, whenever he tried to sleep, he would 

wake up sweaty and fearful. 

Defendant’s trial testimony

Brown testified that a year before the robberies, he 

was ambushed by two men. Hospital records showed he suffered 

serious permanent injuries consistent with being shot twice with 

an assault rifle and stabbed twice with a machete. Brown 

testified that after his discharge, he suffered from physical pain, 

weakness, nerve damage, recurring fear he was being attacked, 

and memory problems. He “tried to never sleep” because he 

would have nightmares and flashbacks of his attack. 

Brown testified that he often wore hats and hoodies 

to hide from people trying to kill him. He sometimes wore gloves

because of nerve damage to his hands. 

On the day of the bank robbery, Brown had $30 in his 

pocket to buy prescription medication. He believed he began 

experiencing a blackout between 3:30 and 6:30 a.m. He stood in 

front of the drug store, then went into Rabobank across the 

street. He wrote the note, gave it to the teller, and robbed the 

bank. He said he had an out-of-body experience in the bank and 

returned to normal after exiting. 

Brown denied committing the gas station robbery. 

He visited the gas station regularly, and he frequently spoke with 

the employee. The day of the robbery, A.O. was happy because 

she found some money between their residence and the gas 

station. He told Larson he robbed the gas station because he 

believed if he did so, Larson would let A.O. go. 

Expert testimony

Dr. Nancy Kaser-Boyd, a clinical and forensic 

psychologist with extensive experience in PTSD, testified for the 
8

defense. She testified that PTSD is caused by an incident where 

a person feels they are going to die or sense a threat to their 

physical integrity. Brown had PTSD, exacerbated by substance 

abuse. She testified that Brown’s behavior during the bank 

robbery was consistent with a dissociative state. She did not 

interview Brown about the gas station robbery because he was 

adamant he did not commit it and confessed only to protect his 

girlfriend. 

In rebuttal, the prosecution called Dr. James 

Tahmisian, a clinical psychologist with 45 years’ experience. He 

concluded after interviewing Brown that Brown was not in a 

dissociative state during the bank robbery but demonstrated 

situational awareness and engaged in goal-directed behavior.

Sentence

The court denied Brown’s motion to dismiss the 

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

497, 514.) Brown was sentenced to a determinate term of 27 

years, consisting of the upper term of three years for the violation 

of section 69, doubled for the prior strikes (§ 667, subd. (e)(1)),

one year for use of a firearm, and five years for each of the 

serious felony priors for each robbery. He was sentenced to 

consecutive indeterminate terms of 25 years to life for each of the 

robberies, for a total of 50 years to life, to follow the determinate 

term. The court sentenced Brown to 180 days in county jail for

the misdemeanor (§ 185, count 4), concurrent, with credit for 180 

days served.

DISCUSSION

Voluntariness of confession

Involuntary confessions are inadmissible pursuant to 

the due process clauses of the state and federal constitutions. 
9

(People v. Weaver (2001) 26 Cal.4th 876, 920.) The prosecution 

has the burden to prove the voluntariness of a confession by a 

preponderance of the evidence. (People v. Peoples (2016) 62 

Cal.4th 718, 740.) 

After hearing Larson testify and reviewing the audio 

recording of the first interrogation and the video recording of the 

second interrogation, the trial court found that Brown did not 

exhibit signs of impairment from drug use or mental disability 

from PTSD. The court ruled the confessions were voluntary and 

admissible. Because the interrogations were recorded and the 

relevant facts are undisputed, we review the voluntariness of the 

confessions de novo. (People v. Peoples, supra, 62 Cal.4th at p.

740.)

A confession may be involuntary if obtained by direct 

or implied promises. (People v. McWhorter (2009) 47 Cal.4th 318, 

347 (McWhorter).) To establish an involuntary confession, there 

must be a causal link between coercive police activity and the 

suspect’s statement. (Ibid.) A confession is involuntary if the

defendant’s will has been overborne, even if the confession is 

reliable. (Jackson v. Denno (1964) 378 U.S. 368, 384-385.)

An offer of more lenient treatment in exchange for 

making a statement may render the statement involuntary and 

inadmissible. (People v. Jackson (1980) 28 Cal.3d 264, 299, 

overruled on other grounds by People v. Cromer (2001) 24 Cal.4th 

889, 901, fn. 3.) “The offer or promise of such benefit need not be 

expressed, but may be implied from equivocal language not 

otherwise made clear.” (Ibid.)

An involuntary confession may be based on an 

express or implied promise to release a family member from 

custody. (People v. Trout (1960) 54 Cal.2d 576, 585, overruled on 
10

other grounds by People v. Cahill (1993) 5 Cal.4th 478, 509 & fn. 

17.) In Trout, an officer told defendant his wife would be released 

from custody “if it were shown that she was not involved.” (Id. at 

p. 584.) Because the officer was seeking a confession from the 

defendant, “it could have been understood as suggesting that 

defendant’s wife would be released from custody upon his 

confession.” (Ibid.) Similarly, in McWhorter, the defendant’s 

statements were involuntary and inadmissible after police 

promised to release the defendant’s wife if he gave enough details 

about the crime. 

Here, Sergeant Larson sought a confession to the gas 

station robbery, and stated that A.O. could not be deemed

innocent unless Larson solved the case. Although A.O. and 

Brown were not married, Larson knew she was his live-in 

girlfriend in a committed relationship for over a year. (See 

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1403 [promises of 

leniency for defendant’s girlfriend].)

Larson clearly implied that to ensure A.O.’s release, 

Brown needed to admit committing the gas station robbery. 

Larson said, “she could potentially . . . get unarrested” and he 

wanted Brown to talk about “how we can maybe get [A.O.] out of 

trouble.” Throughout the interrogation Brown asserted A.O.’s 

innocence. Larson responded, “but to make her innocent in the 

eyes of the law I need to solve my case and show . . . she wasn’t 

the one who did it.” This statement reversed the burden of proof 

and implied that Brown could secure her release by admitting he 

robbed the gas station. He responded by admitting to the gas 

station robbery and offered to “clear up” additional robberies. We 

conclude that the implied promise to release A.O. if Brown 
11

confessed rendered the confession to robbing the gas station 

involuntary and inadmissible. 

The second interrogation occurred at the police 

station about an hour after the first. Although Brown continued 

to assert A.O.’s innocence, she was not released until after the 

second interrogation was concluded. The confession to the gas 

station robbery in the second interrogation was thus involuntary 

because there was no “‘intervening independent act by the 

defendant or a third party’ to break the causal chain in such a 

way that the second confession is not in fact obtained by 

exploitation of the illegality.” (McWhorter, supra, 47 Cal.4th at p.

360.)

Because the gas station robbery confession was 

involuntary, the conviction must be reversed unless it was 

harmless beyond a reasonable doubt. (Chapman v. California

(1967) 386 U.S. 18, 24; Arizona v. Fulminante (1991) 499 U.S. 

279, 296.) “The standard is satisfied only if ‘[t]here is no 

reasonable possibility that the verdict would have been more 

favorable to defendant had [the] statements not been admitted.’ 

[Citation.]” (People v. Henderson (2020) 9 Cal.5th 1013, 1029.) 

The issue is not whether the evidence without the error would 

have been sufficient for a reasonable jury, but whether the basis 

on which “‘the jury actually rested its verdict’” was “surely 

unattributable to the error.” (People v. Quartermain (1997) 16 

Cal.4th 600, 621.)

Without the confession, it is not clear the jury would 

have found Brown guilty of robbing the gas station. N.C. 

identified Brown at trial even though the robber’s face was 

covered with only his eyes visible. N.C. testified she recognized 

Brown as a customer and recognized his voice and the way he 
12

walked. But she initially told police the robber was not a 

customer and she did not recognize him. The morning of the 

robbery, A.O. spent a bill that N.C. said she recognized, but it

was not produced at trial. N.C. did not make a connection 

between A.O. and Brown until a week later. Because we cannot 

conclude that the jury did not rely on the confession in reaching 

its verdicts relating to the gas station robbery, the error in 

admitting the confession was not harmless. But because the 

evidence without the confession would have been sufficient for a 

rational trier of fact to find Brown guilty, he may be retried for 

counts 2 and 4. (People v. Morgan (2007) 42 Cal.4th 593, 613 

[erroneous jury instructions]; People v. Cooper (2007) 149 

Cal.App.4th 500, 522-523 [erroneous admission of accomplice’s

statement].)

Brown does not challenge the voluntariness of his 

confession to the bank robbery. But he contends the admission of 

his involuntary confession to the gas station robbery prejudiced 

him as to the bank robbery because it made it more likely the 

jury would find he robbed the bank intentionally, and less likely 

it would accept that he was in a dissociative state. We conclude 

that the error in admitting the confession was harmless beyond a 

reasonable doubt as to the bank robbery committed twelve days 

later. His purposeful conduct in the bank, including asking about 

a dye pack and concealing the money under his clothing, showed

situational awareness and goal-directed behavior inconsistent 

with a dissociative state.

Expert opinion evidence

Brown contends the trial court erred in permitting 

rebuttal testimony by Dr. Tahmisian, and erred when it 

“implicitly denied the request to strike the rebuttal testimony.”
13

Brown forfeited this issue. (Evid. Code, § 353; People 

v. Dowl (2013) 57 Cal.4th 1079, 1087.) A single sentence in a 

pretrial motion in limine requested a hearing to establish the 

expertise and relevance of psychological opinions by a prosecution 

expert. (Evid. Code, § 402.) The court reviewed the 

qualifications of the defense and prosecution experts, and

concluded they both had sufficient qualifications to testify. The 

defense said nothing further about Dr. Tahmisian’s qualifications 

before he took the stand.

Nor did the defense move to strike Dr. Tahmisian’s

testimony. The record shows only that after both sides had 

rested, during settlement of jury instructions regarding expert 

testimony, counsel said, “I’d ask that those comments . . . about 

Post Traumatic Stress Disorder be disallowed.” This untimely 

and ambiguous comment did not preserve the issue for appeal.

Even if the defense had objected, Dr. Tahmisian had 

extensive training and experience as a psychologist, and the trial 

court properly exercised its broad discretion to permit him to

testify as an expert. (People v. Jones (2013) 57 Cal.4th 899, 949.) 

“[Q]uestions about the depth or scope of his . . . knowledge or 

experience go to the weight, not the admissibility, of the witness’s 

testimony.” (Id. at pp. 949-950.)

Brown also contends the court erred in refusing 

pinpoint jury instructions. The defense requested an instruction 

that if the jury did not believe Dr. Tahmisian was qualified to 

give an opinion on PTSD, it should consider disregarding his 

comments and opinions on that subject, and that the jury should

disregard his opinion regarding specific intent because that was 
14

an issue for the jury. The court denied the request.3

“The jury must be instructed on general principles 

‘“‘closely and openly connected to the facts and that are necessary 

for the jury’s understanding of the case’”’ including those 

instructions that ‘pinpoint’ a defense theory. [Citation.] Pinpoint 

instructions are not warranted, however, when they are 

argumentative, such as when requested only to highlight 

particular evidence. [Citation.] Pinpoint instructions may also 

be refused if, among other reasons, the proposed instruction is 

duplicative.” (People v. Mora and Rangel (2018) 5 Cal.5th 442, 

498-499.) We independently review whether jury instructions 

correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 

218.)

The jury instructions given were correct and 

sufficient. The court instructed that the prosecution must prove 

beyond a reasonable doubt that the defendant acted with the 

required intent and mental state. (CALCRIM No. 225, modified.) 

It further instructed that the jury was not required to accept 

expert testimony as true or correct, that it must “consider the 

expert’s knowledge, skill, experience, training, and education,”

and that it “may disregard any opinion that you find

unbelievable, unreasonable, or unsupported by the evidence. [¶] 

If the expert witnesses disagreed with one another, you should 

weigh each opinion against the others. . . . You may also compare 

the experts’ qualifications.” (CALCRIM No. 332.) 

3 The record does not include a proposed written special 

instruction regarding expert testimony. Brown refers to it as 

“defense counsel’s thinking-out-loud proposed pinpoint 

instruction.”
15

In light of the defense’s extensive cross-examination 

regarding Dr. Tahmisian’s opinions and his limited training 

regarding PTSD, and closing argument urging the jury to 

disregard his opinions, the instructions given were sufficient for 

the jury to evaluate his testimony.

Cumulative prejudice

Brown asserts cumulative prejudice, i.e., that “the 

aggregate prejudicial effect of . . . errors was greater than the 

sum of the prejudice of each error standing alone.” (People v. Hill

(1998) 17 Cal.4th 800, 845.) In light of our conclusion that the 

gas station robbery and mask convictions (counts 2 and 4) must 

be reversed based on the involuntary confession, it is unnecessary 

to determine whether a combination of other errors would also 

warrant reversal. 

As to counts 1 and 3, any error in admitting the

confession to the gas station robbery was harmless. The jury 

might have acquitted him of bank robbery if it believed he was in 

a dissociative state. But Brown forfeited a challenge to Dr. 

Tahmisian’s testimony and has not shown that its admission was 

erroneous. As to the resisting charge, the evidence did not 

establish that Brown was in a dissociative state after “coming 

back into [himself]” when he left the bank. We conclude that 

Brown’s guilt “was fairly adjudicated” as to counts 1 and 3 and no 

cumulative error has been shown. (People v. Hill, supra, 17 

Cal.4th at p. 844.)

Mental health diversion

On June 27, 2018, the Governor signed Assembly Bill 

No. 1810 (2017-2018 Reg. Sess.), providing for diversion of 

individuals with mental disorders. (§§ 1001.35, 1001.36, enacted 

by Stats. 2018, ch. 34, § 24.) The legislation took effect the same 
16

day. (Stats. 2018, ch. 34, § 37.) It provides that the court may 

divert from prosecution a defendant who “suffers from a mental 

disorder as identified in the most recent edition of the Diagnostic 

and Statistical Manual of Mental Disorders, including, but not 

limited to . . . post-traumatic stress disorder” that “was a 

significant factor in the commission of the charged offense” and 

that “would respond to mental health treatment,” if “[t]he court is 

satisfied that the defendant will not pose an unreasonable risk of 

danger to public safety.” (§ 1001.36, subd. (b)(1).)

Brown was sentenced five days after the legislation 

went into effect. The mental health diversion statute is 

retroactive to cases not final on appeal, including cases where the 

defendant has been tried and sentenced. (People v. Frahs (2020) 

9 Cal.5th 618, 640 (Frahs).) 

There was evidence that Brown suffered from PTSD

and substance-related and addictive disorders. (Diagnostic and 

Statistical Manual of Mental Disorders: DSM-5 (5th ed. 2013), 

pp. 271-280, 481-589.) We remand for consideration of diversion 

because “the record affirmatively discloses that the defendant 

appears to meet at least the first threshold eligibility 

requirement for mental health diversion—the defendant suffers 

from a qualifying mental disorder.” (Frahs, supra, 9 Cal.5th at p.

640.) 

We conditionally reverse counts 1 and 3 pending 

resolution of the diversion issue. As in Frahs, “[w]e express no 

view regarding whether defendant will be able to show eligibility 

on remand or whether the trial court should exercise its 

discretion to grant diversion if it finds him eligible.” (Frahs, 

supra, 9 Cal.5th at p. 625.)
17

Serious felony priors

At the time of sentencing, sections 667, subdivision 

(a), and 1385, subdivision (b), prohibited the court from striking 

an enhancement for a prior serious felony conviction. (People v. 

Garcia (2008) 167 Cal.App.4th 1550, 1560-1561.) These sections 

were amended effective January 1, 2019, to allow a court to 

exercise its discretion to strike or dismiss a prior serious felony 

conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2

(SB 1393).) This legislation is retroactive here because the case

is not final on appeal. (People v. Stamps (2020) 9 Cal.5th 685,

699.)

“Remand is required unless the record reveals a clear 

indication that the trial court would not have reduced the 

sentence even if at the time of sentencing it had the discretion to 

do so.” (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)

The trial court here did not so indicate. Instead, it correctly 

noted that it was compelled by People v. Williams (2004) 34 

Cal.4th 397, 405, to impose two five-year enhancements to each 

of the 25-year-to-life terms. “[S]peculation about what a trial 

court might do on remand is not ‘clearly indicated’ by considering 

only the original sentence.” (Almanza, at pp. 1110-1111.) 

Accordingly, we remand for the trial court to exercise its 

discretion pursuant to Senate Bill No. 1393 to determine whether 

to strike the priors pursuant to section 667, subdivision (a).

Misdemeanor sentence

The Attorney General concedes that the punishment 

for count 4 should be stayed because “section 654 precludes 

punishment under both sections 185 and 211 for his wearing a 

disguise during . . . robberies.” (People v. Sering (1991) 232 

Cal.App.3d 677, 681-682, fn. 2 [accepting concession by Attorney 
18

General], overruled on other grounds in People v. Posey, supra, 32 

Cal.4th at pp. 205, 215 & fn. 5.) Wearing a mask and robbing the 

gas station were indivisible parts of one course of conduct 

incident to one objective. (People v. Corpening (2016) 2 Cal.5th 

307, 311.) Although our reversal of counts 2 and 4 renders this 

issue moot, the sentence for count 4 must be stayed should Brown 

be convicted of counts 2 and 4 after remand.

DISPOSITION

Counts 2 and 4 are reversed. Counts 1 and 3 are 

conditionally reversed. The case is remanded to the superior 

court with directions to conduct a diversion eligibility hearing as 

to all counts no later than 90 days from the filing of the 

remittitur. If the trial court determines that Brown qualifies for 

diversion pursuant to section 1001.36, the court may grant 

diversion. If Brown successfully completes diversion, the trial 

court shall dismiss the charges. If the court determines that 

Brown is ineligible for diversion, or he does not successfully 

complete diversion: (1) he may be retried for counts 2 and 4 and 

the deadly weapon enhancement, (2) the conviction for counts 1 

and 3 and the admission of the prior serious felony convictions 

and prior strikes shall be reinstated, (3) he shall be resentenced, 

and (4) the court shall exercise its discretion whether to strike 

the serious felony priors.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J. PERREN, J.
James E. Herman, Judge

Superior Court County of Santa Barbara

______________________________

Sylvia W. Beckham, 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, Michael C. Keller, Noah P. Hill and 

Marc A. Kohm, Deputy Attorneys General, for Plaintiff and 

Respondent.