Filed 8/17/22 P. v. Jenkins CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed as modified.

Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

In a prior appeal, we conditionally reversed a judgment against Markeith Jenkins imposing a prison sentence of 13 years plus 25 years to life based on a jury verdict convicting him of an assault causing great bodily injury and his admissions of strike and serious felony priors. (People v. Jenkins (Sept. 18, 2019, D073662) [nonpub. opn.], review granted Nov. 26, 2019 and dismissed July 29, 2020, S258729.) We remanded the matter to the trial court with directions to conduct a mental health diversion eligibility hearing under Penal Code section 1001.36,[1] and, depending on the result, either dismiss the charges if Jenkins was granted and successfully completed mental health diversion or reinstate Jenkins’s convictions and conduct a new sentencing hearing to consider whether to exercise its discretion to dismiss one or more of his prior serious felony convictions under amended sections 667, subdivision (a), and 1385, subdivision (b).

On remand, the trial court conducted a hearing and determined that Jenkins was not eligible or suitable for mental health diversion under section 1001.36. Without explicitly reinstating the original convictions, the court conducted a new sentencing hearing, declined to strike either of Jenkins’s serious felony priors, and resentenced him to the same prison term as before. Jenkins appeals, arguing that the trial court abused its discretion by finding that: (1) he was not eligible for diversion because he posed an unreasonable risk of danger to public safety; and (2) he was not suitable for diversion under section 1001.36, subdivision (b)(3). He further argues that the trial court erred when it denied his request to strike the two five-year enhancements for his serious felony priors.

We conclude that the trial court did not abuse its discretion by finding Jenkins unsuitable for mental health diversion and declining to strike his serious felony priors. We modify the judgment, however, so that it properly reflects that Jenkins’s original convictions have been reinstated as directed in our prior opinion. As modified, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prior Criminal History

Jenkins has a long history of substance abuse. He used cocaine until the first time he went to prison at age 29. At the time of his arrest for the current offense at age 49, he was using methamphetamine regularly.

Jenkins also has a history of mental health problems. He was diagnosed with schizophrenia, bipolar disorder, and post-traumatic stress disorder in 1996. His symptoms include hallucinations and erratic behavior.

In 1987, Jenkins was convicted of possessing cocaine and sentenced to three years in prison.

In 1991, Jenkins pled guilty to battery with serious injury. After a security officer detained him for stealing and then attempting to return items for a cash refund at a Robinson’s department store, Jenkins became violent and resisted arrest. He struck one officer in the head with handcuffs several times and another in the rib area several times. Jenkins threatened to do more harm to one of the officers. When an officer tried to stop him from running away, Jenkins punched him in the face. One of the officers suffered a laceration on his forehead. Jenkins was sentenced to three years’ formal probation in May 1991.

Two months later, in July 1991, Jenkins ripped a gold necklace from a pedestrian’s neck. He pled guilty to second degree robbery and was sentenced to two years in prison. His probation for the battery case was revoked, and he was sentenced to two years in state prison for that case as well, to be run concurrently.

In November 1992, soon after being released from prison on parole, Jenkins again tried to steal items from a Robinson’s department store. He pled guilty to attempted petty theft with a prior and received another two-year prison term.

In February 1994, the police apprehended Jenkins for smoking from a glass pipe on a public street. He was convicted of being under the influence of a controlled substance and received five years’ summary probation.

In July 1994, Jenkins pled guilty to another charge of petty theft with a prior and received a five-year prison term.

In March 1997, while on parole, Jenkins stole four pairs of shoes from a Mervyn’s department store. Two days later, he tried to steal more merchandise from the same store. When confronted by an employee, he hit the employee in the face with a mesh bag. For these theft charges, Jenkins received a sentence of 10 years four months in prison. After being paroled, he violated the conditions of parole six times.

In February 2007, while on parole, Jenkins was arrested for resisting an officer, being under the influence of a controlled substance, and disorderly conduct. He was sentenced to 90 days in jail.

In September 2007, Jenkins’s mother called the police because he was acting erratically and saying he wanted to go to jail. When the police arrived, Jenkins said he wanted to kill himself. Later that day, he became aggressive and assaultive with mental health staff. He was determined to be under the influence of a controlled substance. This incident did not result in any charges.

In May 2008, Jenkins’s girlfriend reported to the police that Jenkins had slapped her in the face twice while she was sleeping. She also reported that there had been prior domestic violence incidents. No charges were filed.

In January 2009, Jenkins was arrested for possession of narcotic paraphernalia. He pled guilty and was sentenced to 150 days in jail.

In November 2009, Jenkins got into an argument with his girlfriend and hit her in the head and shoulder, then pushed her into the bedroom. No charges were filed.

In May 2010, Jenkins was under the influence of a controlled substance when he got into an altercation with another man on a public street. He threw two punches at the man but missed. When the police arrived, Jenkins refused to comply with their directions. He was taken to the ground and handcuffed. Jenkins was convicted of being under the influence of a controlled substance and sentenced to a 90-day jail term, stayed pending successful completion of probation. The court later revoked his probation four times and ultimately imposed the 90-day jail term.

In June 2010, police responded to a call of a violent disturbance. They contacted Jenkins, who appeared to be under the influence and admitted using methamphetamine 72 hours earlier. The charges were later dismissed.

In July 2011, Jenkins got into an altercation with his mother. He yelled at her, “ ‘I hate you bitch! I am going to kill you.’ ” He struck her in the face with his fist, knocking her to the ground. She believed Jenkins would have continued punching her and probably would have killed her if a neighbor had not intervened. As he walked away, Jenkins kept yelling, “ ‘I’m gonna kill you bitch!’ ” Jenkins’s mother told the police that Jenkins was homeless, he was a chronic drug user with mental health issues, and he had a history of becoming very agitated when he needed a “ ‘meth fix.’ ” Jenkins pled guilty to criminal threats and battery and was sentenced to 365 days in jail and three years’ formal probation.

After Jenkins was released from custody in May 2012, he successfully completed a six-month CRASH program, then transitioned into sober housing at Joshua House.

In February 2013, Jenkins punched a security guard in the face while under the influence of a controlled substance. When police arrived, Jenkins was extremely agitated and would not stop yelling at the security guard. He made rambling statements about “ ‘tweaking’ ” and said he had not slept in three days. He told the officers: “ ‘If you want to let me go get some tweak and get high so you can take me it would be beneficial for all of us.’ ” Jenkins pled guilty to battery and received a 180-day jail sentence.

In February 2017, Jenkins entered a convenience store, attempted to cross the store counter, threatened the clerk to “ ‘kick [his] ass’ ” if he called the police, and stole a beverage and a cookie. After police arrived, Jenkins returned to the store and was arrested. He appeared to be under the influence of a controlled substance. He pled guilty to assault by means likely to produce great bodily injury and received three years’ formal probation.

In May 2017, Jenkins was cursing and yelling at pedestrians and scaring customers away from a coffee stand. When the police arrived, he was wearing only underwear and a white shirt. He showed signs of being under the influence and admitted using methamphetamine the previous night.

Before the current offense, Jenkins had received five grants of probation and reoffended after each one. He had also had his parole revoked at least seven times. His parole violations included using controlled substances and failing to complete a drug program. One parole agent reported that she had attempted to have Jenkins “placed in detox programs and/or housing, but he would walk away.”

Jenkins reported to the probation officer that he had completed several residential substance abuse treatment programs. He admitted he left one program before committing the current offense in 2017 because he “ ‘didn’t want to stay there,’ ” which resulted in him being homeless.

Jenkins’s prison records include violations for fighting, two incidents of battery on a peace officer, sexual disorderly conduct, and indecent exposure.

B. Current Offense

We take the facts of the current offense from our prior unpublished opinion and the probation report. (People v. Jenkins, supra, D073662.)

On May 12, 2017, Brooks A. and his friend David L. were walking back to their car after having dinner in Balboa Park in San Diego. Jenkins approached them from behind, yelling at them loudly. Brooks and David did not know Jenkins and had never spoken to him before. (People v. Jenkins, supra, D073662 at *4–5.)

Jenkins seemed incoherent, but Brooks heard him say something like, “Why—why are you walking away from me?” As Brooks and David turned around, Jenkins hit Brooks hard in the face. Jenkins was holding something in his right hand when he hit Brooks. Brooks described the blow as bone-shattering. The force of the blow “shattered” multiple teeth, “busted” open his lip, and caused significant blood loss. David and a bystander yelled at Jenkins, who turned around and walked the other way. (People v. Jenkins, supra, D073662 at *4–6.)

Brooks reported to police that he was certain Jenkins was holding a hard object when he hit him. The police concluded that Brooks’s injuries were not consistent with a bare-handed punch.

For weeks after the attack, Brooks could not eat solid food. He also had trouble breathing and swallowing, and experienced significant pain and discomfort despite taking pain medication. Months after the attack, Brooks still experienced facial swelling and discomfort from the punch. (People v. Jenkins, supra, D073662 at *5.)

Jenkins testified in his own defense. On the day of the attack, he was temporarily homeless and living in Balboa Park. As he was resting with his eyes closed, a woman stole his cigarettes and debit card from his belongings. He then saw a large man with a “giant stick” staring at him. He had seen the man in the park before and believed he was acting as a lookout for the woman who stole his belongings. Jenkins approached him and pleaded for the return of his belongings. (People v. Jenkins, supra, D073662 at *6.)

According to Jenkins, he then heard Brooks yelling, “Hit him” to the man with the stick. Jenkins believed Brooks was telling the man to hit him. Jenkins approached Brooks angrily. As he was talking to Brooks, the man with the stick started walking “fast” toward them, aggressively swinging the stick as he approached. Fearing for his own safety, Jenkins “lunged” toward Brooks and “punched” him to keep from being hit by the man with the stick. Jenkins claimed he had nothing in his hand and used only his fist when he hit Brooks. Jenkins explained that Brooks “just was in the way” as Jenkins attempted to avoid the man with the stick. (People v. Jenkins, supra, D073662 at *7.)

Brooks and David both testified that they did not see anyone threatening Jenkins with a stick. (People v. Jenkins, supra, D073662 at *5.)

C. Conviction and Original Sentence

A jury convicted Jenkins of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)) and battery with serious bodily injury (§243, subd. (d)). The jury also found true that Jenkins personally inflicted great bodily injury (§ 12022.7, subd. (a)). Jenkins subsequently admitted to having two prior strike convictions (§ 667, subds. (c) & (e)(2)(A)), two prior serious felony convictions (§§ 667, subd. (a)(1) & 1192.7, subd. (c)), and two prison priors (§ 667, subd. (b)).

At sentencing, the trial court imposed a sentence of 25 years to life under the “Three Strikes” law for the assault by means likely to produce great bodily injury. The court stayed the sentence on the battery. The court imposed consecutive sentences of three years for the great bodily injury enhancement and 10 years for the two serious felony priors, for a total sentence of 13 years plus 25 years to life.

D. Prior Appeal

Jenkins appealed his convictions and sentence. In the prior appeal, we concluded that Jenkins was entitled to a conditional remand to allow the trial court to exercise its discretion and consider whether to grant him mental health diversion under section 1001.36, a new statute that took effect after his original sentencing. We found substantial evidence in the record that Jenkins suffered from an identified mental disorder, that his mental disorder may have played a significant role in the commission of the charged offense, and that his symptoms may respond to treatment. (People v. Jenkins, supra, D073662 at *12–13.)

We acknowledged that “[t]he key issue for purposes of making a prima facie showing of eligibility [for mental health diversion] is whether defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if he is treated in the community.” (People v. Jenkins, supra, D073662 at *13, citing § 1001.36, subd. (b)(1).) We stated: “On the one hand, the record shows that defendant has a lengthy criminal history dating back to 1987, which includes at least six prison terms, and a grant of probation at the time he committed the instant offense; that he currently is serving a sentence under the Three Strikes law, which law the court found applicable when it refused to strike one or more of his strike priors, as noted; and that he also has a long history of substance abuse.” (People v. Jenkins, supra, D073662 at *13–14.)

“On the other hand,” we noted, Jenkins’s current convictions alone did not automatically disqualify him for diversion under section 1001.36. (People v. Jenkins, supra, D073662 at *14.) “Moreover, the record shows when defendant committed the instant offenses, he had not taken his psychotropic medication for days, as his backpack had been stolen while he was temporarily homeless and living in Balboa Park, as he waited for his ‘case worker’ to provide him with new housing.” (People v. Jenkins, supra, D073662 at *15.)

Although we found “the issue is close,” we concluded that Jenkins “should be allowed an opportunity to make a ‘prima facie showing’ that he meets the ‘minimum requirements of eligibility for diversion and that [he] and the offense[s] are suitable for diversion’ within the meaning of section 1001.36.” (People v. Jenkins, supra, D073662 at *15.)

We also found that Jenkins was entitled to a remand to allow the trial court to exercise the discretion newly granted to it by Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill No. 1393), effective January 1, 2019, to strike one or more of his serious felony priors. (People v. Jenkins, supra, D073662 at *15–16.)

We conditionally reversed the judgment and remanded to the trial court with directions to conduct a mental health diversion hearing under section 1001.36. We further directed the court to dismiss the charges if it determined that Jenkins qualified for diversion, the court granted diversion, and Jenkins successfully completed diversion. Otherwise, we directed the court to reinstate the convictions and conduct a new sentencing hearing to consider whether to strike one or more of Jenkins’s felony priors. (People v. Jenkins, supra, D073662 at *24.)

E. Mental Health Diversion Hearing

On remand, the parties submitted additional points and authorities and evidence regarding Jenkins’s eligibility for mental health diversion. The defense argued that Jenkins was eligible and would not pose an unreasonable risk of danger to public safety. The prosecution argued that Jenkins was ineligible, that any community treatment plan would not meet Jenkins’s mental health treatment needs, and that the court should not exercise its discretion to grant mental health diversion.

The defense submitted a letter from a psychologist who had previously submitted a psychological evaluation and written report for the original sentencing hearing. The psychologist diagnosed Jenkins with schizophrenia (paranoid type) and bipolar disorder with psychotic features, as well as significant substance abuse problems. The psychologist believed that Jenkins’s criminal behavior was a direct result of his mental health problems, which also led to his substance abuse problems. In the psychologist’s opinion, Jenkins would benefit from a mental health diversion program, specifically, a dual diagnosis program that would provide psychotropic medication as well as substance abuse treatment. In neither his original report nor his letter did the psychologist give an opinion as to whether Jenkins posed an unreasonable risk of danger to public safety.

The defense submitted some of Jenkins’s mental health and therapy records from the UCSD Hillcrest Owen Clinic and his prison commitments. Jenkins also wrote two letters to the court. The prosecution submitted a CD containing Jenkins’s prison disciplinary records. The prosecution also asked the court to consider the probation officer’s reports.

After delays related to COVID-19, the trial court held a hearing on Jenkins’s request for mental health diversion. Before the hearing, the defense provided the court with a proposed treatment plan. Although the proposed treatment plan is not included in the appellate record, defense counsel at the hearing identified the program as “Vida ACT,” an independent living facility with a multidisciplinary team specifically designed for individuals who have been in and out of the criminal justice system and have both a mental health diagnosis and substance abuse problems. The goal of the program is to get residents out of the facility and into their own housing. According to defense counsel, Jenkins had been officially accepted to the program. Defense counsel acknowledged that residents are “free to leave at times.”

The prosecutor argued that: (1) Jenkins was ineligible for mental health diversion because it would pose an unreasonable risk of danger to public safety; and (2) even if he was eligible, Jenkins and his offenses were not suitable for mental health diversion.

At the end of the hearing, the court permitted Jenkins to make his own statement requesting mental health diversion.

F. Ruling on Mental Health Diversion

The court issued a 12-page ruling denying Jenkins’s request for mental health diversion on two grounds: (1) Jenkins was not eligible for mental health diversion because he would pose an unreasonable risk of danger to public safety (as defined in section 1170.18) if treated in the community; and (2) even if eligible, Jenkins was not “suitable” for mental health diversion.

As for the first ground (unreasonable risk of danger), the trial court summarized in detail Jenkins’s past criminal conduct, prison commitments, probation violations, parole violations, and some of his prison disciplinary violations. The court concluded that Jenkins had a “substantial criminal history” that demonstrated “a significant violent tendency.” Moreover, “[h]is actions also demonstrate a pattern of inflicting injury to the head of his victims.” “He has more than 10 documented instances of violence in the community and he has repeatedly targeted the head area of those he attacks, even his own mother. Blows to the head are known to cause death. In this case, he used an object that created an even greater than average impact.”

The court further explained: “As was pointed out by the CDC mental health staff, defendant’s mental disorder is characterized by impulsivity and irritab[ility], even when appropriately medicated and monitored. Add his past pattern of resorting to drug use when released from custody and, undoubtedly, he will revert to his violent aggressive conduct and predictably will do violence to another person with a significant risk of killing his next victim because his behavior is so erratic and impulsive.”

The court concluded that the treatment program proposed by the defense would not prevent or significantly reduce this risk because it “does not provide the necessary structure and control necessary for this defendant. There are too many opportunities for the defendant to leave and revert to his usual pattern, thus putting the public at significant risk again.” The court therefore concluded that Jenkins was “not eligible for mental health diversion due to the unreasonable risk to the public safety.”

As for the second ground, the court found that Jenkins was “not suitable for mental health diversion based on the totality of the circumstances presented.” The court incorporated by reference the “reasons discussed above” for its finding of unreasonable risk. The court also found that “[t]he likelihood of the defendant being successful for a two-year period is very minimal at best.” “He has completed multiple programs to address his substance abuse without any long range success . . . . n the end, even if he does not walk away from the programs early, he repeatedly falls back into his pattern of drug use which then aggravates his mental health issues and particularly the hallucinations.”

G. [i]Resentencing

Immediately after denying Jenkins’s motion for reconsideration, the court resentenced Jenkins to the same prison term as before: 13 years plus 25 years to life. The court heard arguments and denied Jenkins’s request to strike the two five-year serious felony priors. The court noted that Jenkins was “somebody who commits an offense then commits another offense and then commits another offense . . . just one right after the other.” “It’s either the drugs or it’s the violence. [¶] . . . I mean, it’s just so consistent.” The court concluded that Jenkins had been “so consistent” in reoffending that he “earned those nickel priors.”

DISCUSSION

I

Jenkins argues that the trial court abused its discretion by finding that: (1) he was not eligible for diversion because he posed an unreasonable risk of danger to public safety; and (2) he was not suitable for diversion under section 1001.36, subdivision (b)(3). Because we find no abuse of discretion in the trial court’s unsuitability ruling, we need not decide the eligibility question. (See People v. Bunas (2022) 79 Cal.App.5th 840, 860 (Bunas) [“if the court determines that the defendant or offense is not suitable, it makes no difference whether the defendant is eligible”].)

A. Standard of Review

A trial court’s ruling that the defendant is unsuitable for mental health diversion is reviewed for abuse of discretion. (Bunas, supra, 79 Cal.App.5th at pp. 848–849.) A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence. (Ibid.)

B. Governing Law

Section 1001.36 authorizes a pretrial diversion program for criminal defendants with qualifying mental disorders to undergo mental health treatment while their prosecution is postponed for up to two years. (People v. Frahs (2020) 9 Cal.5th 618, 626–627.) Defendants who successfully complete the diversion program are entitled to have the charges against them dismissed. (§ 1001.36, subd. (e).)

The stated purpose of the diversion statute “is to promote all of the following: [¶] (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. [¶] (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. [¶] (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.” (§ 1001.35.)

Section 1001.36, subdivision (b)(1) sets forth six threshold eligibility requirements, including that the defendant “will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.” (§ 1001.36, subd. (b)(1)(F).) Section 1170.18, subdivision (c), defines “ ‘unreasonable risk of danger to public safety’ ” to mean “an unreasonable risk that the petitioner will commit” one of the violent felonies listed in section 667, subdivision (e)(2)(C)(iv). These violent felonies (which include murder) are colloquially referred to as “ ‘super strikes.’ ” (Bunas, supra, 79 Cal.App.5th at p. 851, fn. 11.)

Even if a defendant meets the six threshold eligibility requirements, “a trial court may still exercise its discretion to deny mental health diversion if it finds that the defendant or the offense are not suitable for diversion.” (People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888 (Qualkinbush), italics added.) Section 1001.36, subdivision (b)(3) provides: “At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion. The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3), italics added.)

In determining a defendant’s suitability for mental health diversion, a trial court may not rely on general sentencing objectives set forth in rule 4.410 of the California Rules of Court and must consider the primary purposes of the mental health diversion statute as set forth in section 1001.35. (Qualkinbush, supra, 79 Cal.App.5th at pp. 890–892; Bunas, supra, 79 Cal.App.5th at pp. 865–866.) “[T]he court must treat the matter as if the charges against the defendant have not yet been adjudicated; the court is not sentencing the defendant.” (Qualkinbush, at p. 892, fn. 11.)

At the same time, however, the court is “free to rely on the evidence pertaining to the circumstances of the charged offenses in determining [a defendant]’s eligibility and suitability for mental health diversion.” (Bunas, supra, 79 Cal.App.5th at pp. 866–867.) “[T]here is nothing in section 1001.36, with respect to either eligibility or suitability, that precludes a trial court from relying primarily, or even entirely, on the circumstances of the charged offense or offenses in denying a motion for diversion.” (Id. at p. 862.)

C. Analysis

Jenkins argues the trial court abused its discretion in finding him unsuitable for mental health diversion for three reasons: (1) the court ignored the purposes of the statute spelled out in section 1001.35; (2) the court misused the psychological report submitted by the defense; and (3) the court failed to use appropriate discretion in relying on “arbitrary, unsubstantiated, and inconsistent” reports of Jenkins’s disciplinary violations in prison.

We find no abuse of discretion. First, the record does not support Jenkins’s claim that the trial court failed to consider the primary purposes of mental health diversion as set forth in section 1001.35. As noted, the statutory purposes listed in section 1001.35 include increased diversion of individuals with mental health disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety, and providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders. (§ 1001.35.) The trial court addressed these objectives in its order denying Jenkins’s request and finding that he was “not suitable for mental health diversion based on the totality of the circumstances presented.”

As to the first statutory purpose identified in section 1001.35, the court reasonably concluded that the likelihood of successfully mitigating Jenkins’s entry and reentry into the criminal justice system was “very minimal at best.” (See § 1001.35, subd. (a).) The court explained that Jenkins “has completed multiple programs to address his substance abuse without any long range success” and that, “in the end, even if he does not walk away from the programs early, he repeatedly falls back into his pattern of drug use which then aggravates his mental health issues and particularly the hallucinations.” Granting diversion is thus unlikely to mitigate Jenkins’s entry and reentry into the criminal justice system.

The court also addressed the issue of protecting public safety in its discussion of whether Jenkins was eligible for mental health diversion, which it incorporated by reference into its suitability analysis. (See § 1001.35, subd. (a).) The court found that Jenkins “has a substantial criminal history and a close look at the circumstances of those convictions demonstrates a significant violent tendency.” The court also found that Jenkins “still has violent and/or aggressive behaviors even when appropriately medicated.” Jenkins’s pattern of violent conduct, which included “more than 10 documented instances of violence in the community,” led the court to conclude that Jenkins presented an unreasonable risk to public safety. Moreover, the court believed that Jenkins’s proposed mental health treatment program would provide “too many opportunities for the defendant to leave and revert to his usual pattern, thus putting the public at significant risk again.” The court properly considered Jenkins’s history of violence in determining his suitability for mental health diversion. (See Bunas, supra, 79 Cal.App.5th at pp. 866–867 [upholding denial of mental health diversion based on defendant’s history of violence].)

The court further analyzed whether Jenkins’s proposed program would meet his unique mental health treatment and support needs, and concluded that it would not. (See § 1001.35, subd. (c).) As the court explained, “the proposed program does not provide the necessary structure and control necessary for this defendant. [¶] . . . [¶] Simple monitoring of the defendant in a sober living setting with some drug testing and medication management is not sufficient. The opportunity for him to react to his perceptions of others’ actions or statements is constant, and without any external restrictions or controls. Once he becomes agitated, the likelihood of a downward spiral is great, and predictable. The plan proposed by the defense would not be able to adequately respond to these types of situations.” Thus, the court did not ignore the primary purposes of the mental health diversion statute as set forth in section 1001.35.

Second, the court’s use of the report written by the psychologist who evaluated Jenkins was not an abuse of discretion. The court noted that the psychologist offered no opinion in his report or his follow-up letter on the question of whether Jenkins poses an unreasonable risk to public safety. Jenkins argues that the court improperly relied on the psychologist’s lack of conclusion in this regard to justify its finding that Jenkins was unsuitable for diversion, because the psychologist was not asked to opine on whether Jenkins posed an unreasonable risk to public safety. However, the defense could have asked the psychologist to offer an opinion on the public safety factor in his December 2020 follow-up letter to the court, but apparently chose not to do so. In any event, the court did not rely solely on the psychologist’s lack of opinion as to whether Jenkins poses an unreasonable risk to public safety. Rather, the court found “[m]ost important[] . . . the doctor’s recognition that the defendant ‘turns to drug use and this causes his problems to escalate, particularly the hallucinations and erratic behavior.’ ” This was true despite the fact that Jenkins had successfully completed several inpatient and outpatient drug programs.

Finally, the court did not abuse its discretion in considering the prison records from the California Department of Corrections and Rehabilitation (CDCR), which contained Jenkins’s disciplinary records as well as his programing accomplishments.[2] How much weight to accord the CDCR records was within the court’s discretion. (Cf. People v. Willover (2016) 248 Cal.App.4th 302, 323 [“When the sentencing decision involves an assessment of various factors, the trial court has discretion to accord different weight to each factor”].) Moreover, the court did not rely solely, or even substantially, on the CDCR records. Instead, it considered the totality of the circumstances presented, including: Jenkins’s lengthy criminal record and pattern of violence; his failure to complete substance abuse programs or stay sober and crime-free when he did complete them; his violent and erratic conduct, even while in prison and appropriately medicated; his mental disorder was characterized by impulsivity and irritably; the current offense indicated increasing violence because he hit the victim in the head with a hard object and caused serious injuries; his proposed treatment program would not provide sufficient structure and control; and there was a risk that he would leave the program, discontinue use of his medication, return to illegal drug use, and commit another violent crime.

We therefore conclude that the trial court acted within its discretion in denying Jenkins’s motion for mental health diversion.

II

Jenkins also argues on appeal that the trial court erred when it denied his request to strike the two five-year enhancements for his serious felony priors. We are not persuaded.

A. Standard of Review

We review a trial court’s decision not to strike a five-year prior serious felony enhancement for abuse of discretion. (People v. Shaw (2020) 56 Cal.App.5th 582, 586 (Shaw); see also People v. Carmony (2004) 33 Cal.4th 367, 375.) “No error occurs if the trial court evaluates all relevant circumstances to ensure that the punishment fits the offense and the offender.” (Shaw, at p. 587.)

B. Governing Law

Senate Bill No. 1393 amended sections 667, subdivision (a), and 1385, subdivision (b), to allow a trial court to exercise its discretion to strike or dismiss a five-year enhancement for a defendant’s prior serious felony conviction when it is in the furtherance of justice. (Stats. 2018, ch. 1013, §§ 1–2; People v. Garcia (2018) 28 Cal.App.5th 961, 971.) A court must evaluate the nature of the offense and the offender in deciding whether to strike a five-year enhancement. (Shaw, supra, 56 Cal.App.5th at p. 586; People v. Brugman (2021) 62 Cal.App.5th 608, 637–638 (Brugman).) “In the absence of evidence to the contrary, we presume that the trial court considered all of the relevant factors and properly applied the law.” (Brugman, at p. 638.)

C. Analysis

Jenkins argues that the court abused its discretion because it failed to consider the length of Jenkins’s sentence without the enhancements and the extent to which Jenkins’s mental health contributed to his criminal history and the current offense. He contends that proper consideration of the relevant factors supports the striking of at least one of his prior serious felony convictions for sentencing purposes.

Nothing in the record indicates that the court here failed to consider any factor relevant to the motion to strike or improperly applied the law. (See Brugman, supra, 62 Cal.App.5th at pp. 638–639.) In declining to strike the enhancements, the court considered Jenkins’s criminal history, including his drug use and pattern of violence, as well as his mental health disorder. The court noted that Jenkins was “somebody who commits an offense then commits another offense and then commits another offense . . . just one right after the other. . . . It’s either the drugs or it’s the violence. [¶] . . . I mean, it’s just so consistent.” Earlier in the same hearing, the court had also addressed Jenkins’s mental health disorder, noting that Jenkins was unwilling or unable to stay on his medication and that, “even when he is on the meds, when he is in the state prison system, he still has issues.”[3] The court ultimately concluded that because Jenkins had been “so consistent” in reoffending, he had “earned those nickel priors,” and it would not be appropriate for the court to exercise its discretion to strike the priors under the circumstances.

Jenkins’s criminal history and the circumstances of his current offenses—discussed at length, ante, and in the trial court’s order denying mental health diversion—support the court’s conclusion. The cases Jenkins cites on appeal do not compel a different result. (People v. Bishop (1997) 56 Cal.App.4th 1245; People v. Garcia (1999) 20 Cal.4th 490; People v. Cluff (2001) 87 Cal.App.4th 991.) These cases are distinguishable because the defendants in each of these cases either had no history of violence or were being sentenced for a non-violent offense. Jenkins, by contrast, has “a definite pattern of violence,” and his most recent offense resulted in convictions for assault by means likely to produce great bodily injury and battery with serious injury (People v. Jenkins, supra, D073662 at *2). Jenkins’s victim described the assault as a “bone-shattering punch” that “ ‘shattered’ multiple teeth, ‘busted’ open his lip, and caused significant blood loss from his mouth and nose.’ ” (People v. Jenkins, supra, D073662 at *5.) The court properly considered these factors in making its decision.

We therefore conclude that the court acted within its discretion in declining to strike the enhancements for Jenkins’s prior serious felony convictions.[4]

III

In our prior opinion, we directed the trial court to reinstate Jenkins’s convictions and conduct a new sentencing hearing if it denied the request for mental health diversion. (People v. Jenkins, supra, D073662 at *24.) After determining that Jenkins was not suitable for mental health diversion, the court resentenced Jenkins but did not expressly reinstate his convictions. Our directions were binding on the trial court, and it lacked discretion to deviate from them. (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655–656.) Accordingly, we will modify the new judgment ourselves to reflect that the original convictions have been reinstated.

DISPOSITION

The judgment is modified to reinstate Jenkins’s original convictions for assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and battery with serious bodily injury (§ 243, subd. (d)), with the true findings on the great bodily injury allegation (§ 12022.7, subd. (a)), and Jenkins’s admissions of two prior strike convictions (§ 667, subds. (c) & (e)(2)(A)), two prior serious felony convictions (§§ 667, subd. (a)(1) & 1192.7, subd. (c)), and two prison priors (§ 667, subd. (b)). As so modified, the judgment is affirmed.

BUCHANAN, J.

WE CONCUR:

IRION, Acting P. J.

DO, J.

[1] All further statutory references are to the Penal Code unless otherwise noted.

[2] Defense counsel stated during the mental health diversion hearing that he had reviewed the CDCR records and did not object to their admission into evidence.

[3] As detailed ante, the court had also previously conducted a lengthy hearing on Jenkins’s diversion request, during which it thoughtfully considered Jenkins’s mental health disorder and substance abuse issues. In connection with that hearing, the court conducted a review of court files (including opinions offered by the psychologist who evaluated Jenkins), relevant case law, prison behavioral records submitted by the parties, argument by defense counsel and the prosecution, and statements made by Jenkins at the hearing.

[4] Jenkins also argues in a section heading in his opening brief that the trial court violated his constitutional right to due process. He notes that he “has a due process right to be sentenced by a judge who is aware of the scope of his sentencing discretion and has accurate information about the defendant’s criminal record[,]” but he does not develop this argument or demonstrate that the court here was unaware of the scope of its discretion or had inaccurate information. We therefore reject this argument.