Filed 9/10/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                                   2d Crim. No. B290895
                                           (Super. Ct. No. 17F-04481)
     Plaintiff and Respondent,              (San Luis Obispo County)

v.

ROBERT EUGENE TORRES, JR.,

     Defendant and Appellant.



            Robert Eugene Torres, Jr., no doubt, has some
thought disorder. But his case should not now be diverted from
the traditional criminal law process. We hold that the newly
                                                              1
enacted mental health diversion statute (Pen. Code, § 1001.36)
cannot be applied on appeal after conviction and sentence. A
contrary ruling would do violence to the language of the statute
and potentially violate double jeopardy principles. Appellant was
convicted by jury for discharging a firearm with gross negligence
(count 1: § 246.3, subd. (a)), unlawfully causing a fire to an
inhabited structure or property (count 2; § 452, subd. (b)),


      All statutory references are to the Penal Code unless
        1


otherwise stated.
unlawfully setting fire to property of another (counts 3 & 4; § 452,
subd. (d)), three counts of corporal injury to a spouse (§ 273.5,
subd. (a); counts 6, 12, 13), assault with a deadly weapon (count
7; § 245, subd. (a)(1)), dissuading a witness from reporting a
crime (count 9; § 136.1, subd. (b)(1)), misdemeanor false
imprisonment (count 10; § 236), and battery on a spouse (count
11; § 243, subd. (e)(1)). Appellant entered a plea to felony
vandalism (count 5; § 594, subd. (b)(1)). He was sentenced to
nine years state prison, and six months county jail to be served
concurrent to the prison term. We reverse the misdemeanor
conviction on count 4 for unlawfully setting fire to the property of
another, strike the six-month jail sentence with respect to count
4, and affirm the judgment as modified. (§ 1260.) The sentence
remains the same: nine years state prison.
                                 Facts
             Appellant and his wife lived in a rented condominium
in San Luis Obispo. From July 2015 to March 2017, wife was
treated for brain and lung cancer which caused her to suffer
vertigo and equilibrium problems, thin and dry skin, and weight
loss. At first, appellant acted as a responsible caregiver for her.
But his attitude toward wife changed. The continuing
predicament precipitated a reign of cruelty starting in December
2016. Appellant grabbed wife by the arms, pinned her down on
the bed, spit in her face, and while holding a pillow over wife’s
face said “‘Aren’t you dead yet.’” Her forearms were “ripped” and
bruised. Appellant told wife that if she told anyone about what
happened “it would be the last thing [she] did.”
             In February 2017, appellant again pinned wife down
on a bed, held a pillow over her face, and ripped the skin on her




                                 2
forearms. She managed to kick free but feared that appellant
would kill her if she reported the domestic violence.
              In March 2017, there were more acts of violence.
Appellant blocked wife from entering the bathroom. Appellant
stepped to the side, grabbed wife by the shoulders and shoved her
against the vanity. He remained in the bathroom doorway,
blocked wife from leaving, and threatened her and said “‘Aren’t
you dead yet?’”
              On another occasion appellant shoved wife down on a
bed and slammed the television remote control down on her foot.
On yet another day, appellant threw wife on the bed, pinned her
down, and tried to suffocate her with a pillow. Appellant
threatened to shoot wife with a pistol, pulled the trigger, and said
“‘See, it’s not loaded.’” Appellant ranted on a daily basis and said
he wished she was dead.
               On April 18, 2017 appellant pinned wife down on the
bed and held a pillow over her face. Wife almost blacked out.
The next day, appellant slammed wife into the bedroom wall,
dragged her out the house, and locked the front door. Wife beat
on the door and begged to be let inside for 10 to 15 minutes.
When a friend arrived at noon to pick her up for a lunch date,
wife was sitting in the front yard with suitcases and boxes. Wife
looked “broken” and had a swollen ear. Wife moved out to live
with her parents. She eventually reported the matter to the
police.
              On May 11, 2017, a neighbor saw broken furniture, a
coffee pot, a spice rack and a wooden chair outside the
condominium. He called 911 to report that something was
smoking behind appellant’s fence. San Luis Obispo Police
Officer Edwards responded to the call and saw household items




                                 3
and broken chairs in the yard, smoldering. Appellant was
ordered to put out the fire.
             A week later, San Luis Obispo Police Officer
Villanueva responded to a midnight call that gun shots had been
fired at the condominium. Officer Villanueva heard the sound of
breaking glass, loud thuds, and four gunshots. The officer then
saw appellant walk into the backyard, raise his arm, and fire a
shot.
             Appellant told Detective Vitale that he pointed a
handgun “up towards the hill” and fired eight rounds. The
detective visited the condominium and saw broken windows,
holes in the walls, missing doors and light fixtures, and noticed
that the kitchen cabinet and stovetop were missing. The living
room carpet had a large burn mark and the word “liar” was spray
painted on a wall. Detective Vitale found a .45 caliber
semiautomatic handgun in a laundry basket and a charred pile of
furniture, clothing, and household goods. The city fire marshal
opined that the carpet fire was started with an ignitable fluid and
that the furniture fire was not started by someone dropping a lit
match, as appellant claimed.
              Section 1001.36 Mental Health Diversion
             Appellant was sentenced on June 12, 2018 and
contends that section 1001.36 requires that his conviction be
conditionally reversed to determine whether appellant qualifies
for mental health diversion. Section 1001.36 was enacted on
June 27, 2018 and authorizes trial courts to grant “pretrial
diversion” to defendants diagnosed with certain mental disorders.
(See Stats. 2018, ch. 34, § 24; People v. Cawkwell (2019) 34
Cal.App.5th 1048, 1053.) Relying on People v. Frahs (2018) 27
Cal.App.5th 784 (Frahs), review granted Dec. 27, 2018, S252220,




                                 4
appellant argues that section 1001.36 applies to criminal
convictions that are not yet final.
              In People v. Craine (2019) 35 Cal.App.5th 744, the
Fifth District Court of Appeal held that section 1001.36 was not
intended to apply to defendants tried and convicted before the
enactment of the statute. “The primary legislative goal of
diverting mentally ill defendants from the criminal justice system
through preadjudicative intervention programs cannot be
achieved once the defendant has been tried, adjudged guilty, and
sentenced.” (Id. at pp. 749-750.) We agree with the holding and
analysis in Craine and disagree with the recent case of People v.
Weaver (2019) 36 Cal.App.5th 1103. We hold that section
1001.36 does not apply to defendants tried, convicted, and
sentenced before June 27, 2018, the effective date of section
1001.36. “[P]retrial diversion is literally and functionally
impossible once a defendant has been tried, found guilty, and
sentenced. Upon reaching this point of ‘adjudication,’ the
‘prosecution’ is over and there is nothing left to postpone.
(§ 1001.36, subd. (c).)” (Id. at p. 756.)
              We offer a further rationale for our holding. Double
jeopardy principles compel non-retroactivity. (See Cal. Const.,
art. I, § 15 [“Persons may not twice be put in jeopardy for the
same offense]; § 1023.) Jeopardy attaches when the jury is
empanelled and sworn. (Larios v. Superior Court of Ventura
County (1979) 24 Cal.3d 324, 329.) “The right not to be placed
twice in jeopardy for the same offense is as sacred as the right to
trial by jury.” (Ibid.) Appellant was fairly tried and fairly
convicted. The evidence is sufficient to support all but one of the
jury verdicts and jeopardy has attached as a matter of law. (See
People v. Hernandez (2003) 30 Cal.4th 1, 6-7.) Section 1001.36,




                                 5
subdivision (c) states that “‘pretrial diversion’ means 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 . . . .” (Italics added.) “Until
adjudication” means before the jury is impaneled and sworn. If
we agreed with appellant and he was granted mental health
diversion and he later violated diversion, double jeopardy
principles would bar a new trial or conviction. This eviscerate the
statute’s enforcement mechanism.
             Appellant contends that mental health diversion may
be invoked after guilt is adjudicated and sentenced, but this
would violate the cardinal rule of statutory construction that
courts may not add words to a statute. (People v. Guzman (2005)
35 Cal.4th 577, 587; Unzueta v. Ocean View School Dist. (1992) 6
Cal.App.4th 1689, 1698 [courts do not sit as super-legislatures].)
We cannot “add” a waiver of jeopardy amendment to section
1001.36 for those defendants seeking diversion after conviction
and sentence. Nor can we say that he who asks for such
treatment impliedly “consents” to a waiver of jeopardy. In the
cases dealing with “consent” all note that there was something
wrong with the trial for which the defendant sought a new trial.
There is nothing wrong here.
             Sentencing occurs after adjudication and section
1001.36, subdivision (c) provides that mental health diversion
may be ordered at any point in the judicial process “until
adjudication.” We, accordingly, reject the argument that section
1001.36 is an ameliorative statute that lessens punishment and
may be retroactively invoked after sentencing. (Compare Frahs,
supra, 27 Cal.App.5th at p. 791 [mental health diversion under




                                6
section 1001.36 does not lessen the punishment for a particular
crime but is an “‘ameliorating benefit’”], with In re M.S. (2019) 32
Cal.App.5th 1177, 1192 [section 1001.36 does not apply to
juvenile dependency proceeding which is not a criminal
proceeding].) “[T]he primary purpose of the diversion statutes is
to treat the mentally ill adult outside the criminal justice system
rather than to punish them inside the system.” (Id. at p. 1193.)
                 Appellant’s Lack of Mental Illness
             Even if we assumed that section 1001.36 is
retroactive, appellant is not eligible for mental health diversion
because he does not suffer from a qualifying mental disorder that
played a significant role in the commission of the charged
offenses. (§ 1001.36, subds. (b)(1) & (b)(2); Frahs, supra, 27
Cal.App.5th at p. 791 [remand is appropriate when “the record
affirmatively discloses that [defendant] appears to meet at least
one of the threshold requirements (a diagnosed mental
disorder)”].) As reflected in the probation sentencing report,
appellant denied any history of mental illness and insisted that
he was of sound mind and fully aware of his actions during the
commission of the crimes. Before trial, three doctors examined
appellant to determine his competency to stand trial (§ 1368) but
none of the doctors diagnosed appellant as suffering from a
mental disorder identified in the Diagnostic and Statistical
                             2
Manual of Mental Disorders. (§ 1001.36, subd. (b)(1)(A).)


       Doctor Brandi Mathews reported that appellant suffered
      2


from a thought disorder. Doctor David Fennell reported that
appellant suffered from a “circumstantial thought process”
consistent with a brief reactive psychosis. Doctor Kevin Perry
reported that appellant suffered no significant psychiatric
impairment and offered no diagnosis.




                                 7
           Discharging a Firearm with Gross Negligence
             Appellant argues that the evidence does not support
his conviction for discharging a firearm with gross negligence
(count 1; § 246.3). As in any substantial evidence case, we draw
all reasonable inferences and resolve all conflicts in favor the
judgment. (People v. Tafoya (2007) 42 Cal.4th 147, 170.) “The
test is whether substantial evidence supports the [jury’s]
decision, not whether the evidence proves guilt beyond a
reasonable doubt. [Citations.]” (People v. Mincey (1992) 2
Cal.4th 408, 432.)
             Appellant asserts that firing a handgun into the air
does not pose a significant risk of injury or death to others.
(§ 246.3.) The jury was instructed that gross negligence “involves
more than ordinary carelessness, inattention, or mistake in
judgment. A person acts with gross negligence when: [¶] 1. He
or she acts in a reckless way that creates a high risk of death or
great bodily injury. [¶] AND [¶] 2. A reasonable person would
have known that acting in that way would create such a risk.”
(CALCRIM No. 970.)
             In People v. Alonzo (1993) 13 Cal.App.4th 535,
defendant discharged a handgun into the air in front of a 7-
Eleven store at 2:00 in the morning. There were other
commercial businesses nearby. (Id. at pp. 537-538.) The Court of
Appeal held that “shooting a gun in a commercial area where
people are present constitutes gross negligence . . . . [¶] . . . The
fact that the gun was pointed up in the air does not change this
reality. In fact, this was precisely the type of behavior that the
statute was intended to deter.” (Id. at p. 540.)
              Appellant claims the shots were fired straight up
and away from the city, but the jury discredited this “defense”




                                  8
argument. Appellant lived in a densely populated residential
area. Officer Villanueva responded to the 911 call, heard
someone fire four shots inside the garage, and saw appellant step
out of the garage and fire a shot into the air. Fearing for their
safety, Officer Villanueva and his fellow officers took cover
behind their patrol cars.
             It took no leap of logic for the jury to find that
appellant fired the shots in a grossly negligent manner and that
it created a risk of death or great bodily injury. “The
phenomenon that gave rise to [section 246.3] was celebratory
gunfire in an urban setting. It seems clear that the Legislature
intended to proscribe such grossly negligent conduct precisely
because it could cause injury or death. . . . No one knows where
shots fired recklessly into the air are likely to land.” (People v.
Ramirez (2009) 45 Cal.4th 980, 990 (Ramirez).) In Ramirez, our
Supreme Court rejected the argument that section 246.3,
subdivision (a), requires “‘the actual presence of a person in
harm’s way’” of “that a given person was actually . . .
endangered.” (Ibid.) Instead, the question is whether “it was
reasonably foreseeable that human injury or death might result
under the circumstances?” (Ibid.)
                        Dissuading a Witness
             Appellant argues that the evidence is insufficient to
convict on count 9 for dissuading a witness (§ 136.1, subd. (b)(1))
because the prosecution failed to prove the offense was committed
reasonably close to the time alleged in the First Amended
Information, i.e. “[on] or between April 1, 2017 and April 30,
2017.” Appellant threatened to kill wife in December 2016 if she
told anyone about the domestic violence and continued to
threaten her in February and March 2017. Wife was threatened




                                9
with a pistol, suffocated with a pillow, and thrown around the
house on numerous occasions including the last incident on April
19, 2017. Although there was no verbal threat to kill on April 19,
2017, appellant by his actions and words discouraged wife from
reporting the domestic violence. (§ 136.1, subd. (b).) The
incongruence, if any, between the alleged dates (on or between
April 1, 2017 and April 30, 2017) and the trial evidence “is
nothing more than a pleading error.” (People v. Garcia (2016)
247 Cal.App.4th 1013, 1022.)
             The jury was instructed that the prosecution was not
required to prove that count 9 took place exactly on the day or
dates alleged in the information “but only that it happened
reasonably close to that day or days.” (CALCRIM No. 207.) That
is an accurate statement of law because time is not a material
ingredient of the offense. (§ 955; People v. Rojas (2015) 237
Cal.App.4th 1298, 1304.) Section 136.1 contemplates a
continuous course of conduct or a series of acts over a period of
time. (People v. Salvato (1991) 234 Cal.App.3d 872, 883.) “The
language of section 136.1 focuses on an unlawful goal or effect,
the prevention of testimony rather than on any particular action
taken to produce that [result]. ‘Prevent’ and ‘dissuade’ denote
conduct which can occur over a period of time as well as
instantaneously. The gravamen of the offense is the cumulative
outcome of any number of acts, any one of which alone might not
be criminal.” (Ibid.) Appellant, by his words and action
continuously discouraged wife from reporting the domestic
violence from December 2016 through April 19, 2017, the day he
ejected wife out of the condominium.




                                10
                Multiple Convictions for Setting Fire to
                  Property of Another: Counts 3 & 4
              Appellant asserts that the act of setting fire to a pile
of property, some of which belonged to wife and some of which
belonged to the landlord, does not support two convictions for the
same offense, i.e., counts 3 and 4 (§ 452, subd. (d)). We agree.
Section 452 provides that a person is guilty of unlawful causing a
fire if he or she sets fire to or burns another person’s property,
including a spouse’s community property interest in personal
property. The jury was so instructed (CALCRIM No. 1531) and it
is uncontroverted that appellant set a single fire that burned a
pile of property belonging to wife and the landlord. Although
section 954 “‘authorizes multiple convictions for different or
distinct offenses, [it] does not permit multiple convictions for a
different statement of the same offense when it is based on the
same act or course of conduct.’ [Citation.]” (People v. Vidana
(2016) 1 Cal.5th 632, 650.) “‘If only a single act is charged as the
basis for multiple convictions, only one conviction can be
affirmed, notwithstanding that the offenses are not necessarily
included offenses. . . .’ [Citation.]” (People v. Beamon (1973) 8
Cal.3d 625, 637.) The error cannot be corrected by simply staying
the sentence on count 3 or count 4 (§ 654) because counts 3 and 4
are not crimes of violence committed against different victims.
(People v. Deegan (2016) 247 Cal.App.4th 532, 541-542.)
              The Attorney General argues that the act of setting a
single fire can be parsed into two separate acts because the fire
burned property owned by two individuals.3 There is no


        The convictions on counts 3 and 4 are based on the burnt
      3


property on the yard deck. Appellant also burned the carpet
inside the condominium, but that pertained to count 2 for arson




                                 11
authority for that. (See People v. Rouser (1997) 59 Cal.App.4th
1065, 1073 [“A single crime cannot be fragmented into more than
one offense”].) The Attorney General’s reliance on People v.
Bailey (1961) 55 Cal.2d 514 is misplaced. Although the Bailey
doctrine permits the aggregation of certain misdemeanors into a
single felony offense when the misdemeanors are committed
pursuant to one general intent, no felony offense results when
two counts of section 452, subdivision (d) are aggregated.
Because appellant can only be convicted of a single violation of
section 452, subdivision (d), we reverse the conviction on count 4
(setting fire to the landlord’s property) and affirm the conviction
on count 3 (setting fire to wife’s property).
                         False Imprisonment
              Appellant argues that the conviction for
misdemeanor false imprisonment (count 10; § 236) must be
reversed because appellant only blocked wife’s access to the
bathroom and wife was free to go elsewhere in the house. Wife
stated that appellant blocked the doorway to the bathroom so she
could not use the toilet. Appellant eventually allowed wife to use
the toilet. When she did so, appellant grabbed her and shoved
her into the bathroom vanity which was the basis for the battery
charge (count 11). Appellant then stood in the bathroom
doorway, blocked her from leaving, and “mov[ed] whichever way I
would move” by outstretching his arms and threatening her. “It
took a few minutes because he was kind of backing up and trying
to keep me from leaving that area.” It is compelling evidence and


of an inhabited structure (§ 451, subd. (b)) which includes
fixtures such as the yard deck or carpet. (CALCRIM No. 1502.1.)
On count 2, the jury returned a guilty verdict on the lesser
offense of setting fire to an inhabited structure. (§ 452, subd. (b).)




                                 12
supports the conviction for false imprisonment. (See People v.
Bamba (1997) 58 Cal.App.4th 1113, 1123 [exercise of express or
implied force compelling the victim to remain where he or she
does not wish to remain is false imprisonment]; People v.
Fernandez (1994) 26 Cal.App.4th 710, 717 [same].)
           Dueñas – Present Ability to Pay Fines and Fees
             Appellant argues that the trial court erred in
imposing a $320 court operations assessment (§ 1465.8), a $240
criminal conviction assessment (Gov. Code, § 70373), and a
$10,000 restitution fine (§ 1202.4) without finding that appellant
had the present financial ability to pay. In People v. Dueñas
(2019) 30 Cal.App.5th 1157, the Court of Appeal concluded that
the failure to conduct an ability to pay hearing for driving with a
suspended license case violated the due process rights of a
homeless probationer. Unlike Dueñas, appellant did not object to
the fine and fees, or request a hearing on ability to pay, thus
forfeiting the issue. (See, e.g., People v. Avila (2009) 46 Cal.4th
680, 729 [defendant forfeited issue by failing to object to
imposition of restitution fine based on inability to pay]; see also
People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [Dueñas
error forfeited]; People v. Bipialaka (2019) 34 Cal.App.5th 455,
464 [same].) A timely objection is required to claim constitutional
                                          4
violations, such as appellant makes here. (People v. Trujillo


      4
        Appellant’s argument that his constitutional right to due
process, equal protection and right to be free from excessive fines
was forfeited and lacks merit. Appellant makes no showing that
the $10,000 restitution fine is grossly disproportionate to the
gravity of the offenses, impacts a fundamental liberty interest, or
will result imprisonment or revocation of parole if not paid.
(Bearden v. Georgia (1983) 461 U.S. 660, 672-673; In re Antazo




                                13
(2015) 60 Cal.4th 850, 859 [no constitutional rights are
implicated by counsel not objecting at sentencing to imposition of
fees].) Appellant did not object to the $10,000 restitution fine and
cannot be heard to complain that the trial court erred in not
considering his ability to pay the $400 court security fee and $300
criminal conviction assessment. (People v. Gutierrez (2019) 35
Cal.App.5th 1027, 1033.)
                             Disposition
             The conviction on count 4 for unlawfully setting fire
to the property of another (§ 452, subd. (d)) is reversed and the
six-month jail sentence on count 4 is stricken. (§ 1260.) The
clerk of the superior court is directed to prepare an amended
abstract of judgment and forward a certified copy to the
Department of Corrections and Rehabilitation. The sentence
remains the same: nine years state prison on counts 1, 2, 5, 6, 7,
9, 12 and 13, and concurrent six month jail terms on counts 3, 10,
and 11. As modified, the judgment, is affirmed.
             CERTIFIED FOR PUBLICATION.


                                           YEGAN, J.
We concur:
             GILBERT, P. J.                PERREN, J.



(1970) 3 Cal.3d 100,115-116; People v. Long (1985) 164
Cal.App.3d 820, 826-827 [rejecting due process challenge to
restitution fine]; People v. Glenn (1985) 164 Cal.App.3d 736, 739-
740 [rejecting equal protection challenge]; People v. Alford (2007)
42 Cal.4th 749, 758-759 [court security fee not punishment];
People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [court
facilities assessment not punishment].)




                                14
                     Gayle L. Peron, Judge

           Superior Court County of San Luis Obispo
                ______________________________


            Valerie G. Wass, under appointment by the Court of
Appeal for Defendant and Appellant.

            Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, David E. Madeo, Stephanie C. Santoro, Deputy
Attorneys General, for Plaintiff and Respondent.
