Opinion
C087803
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. THOMAS ANTHONY ROGERS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18FE001730)
Defendant Thomas Anthony Rogers was chronically homeless for at least a decade leading up to this case. He has a lengthy history of alcohol abuse and unsuccessful stints on informal probation for various nonviolent misdemeanors. Although defendant denied he had a mental illness, he has been diagnosed with bipolar disorder and has experienced auditory hallucinations, insomnia, and anxiety. In recognition of defendant's substantial needs and the costs to the county associated with meeting them, defendant was at one point identified for participation in a county program that would have assigned him a caseworker for life and provided assistance in securing and maintaining housing. However, rather than participating in this program, he was sentenced to state prison in this matter following his jury conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and felony vandalism (§ 594, subd. (a)) arising from a rock throwing incident occurring near his homeless encampment.
Undesignated statutory references are to the Penal Code.
Defendant now appeals contending: (1) the trial court prejudicially erred in failing to instruct the jury on the lesser included offense of simple assault requiring reversal of his assault with a deadly weapon conviction; (2) section 1001.36 should be applied retroactively to afford him the opportunity to participate in mental health diversion; and (3) the court must remand the matter for an ability-to-pay hearing in light of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We find the trial court committed prejudicial instructional error requiring reversal of his assault with a deadly weapon conviction. Finally, we determine that section 1001.36 should be applied retroactively to allow defendant the opportunity to establish his eligibility for mental health diversion for both the reversed assault count and affirmed felony vandalism conviction. We will therefore reverse defendant's conviction for assault with a deadly weapon and conditionally reverse his felony vandalism conviction with provision for reinstatement as explained herein. The judgment is otherwise affirmed.
I. BACKGROUND
Whether defendant committed assault with a deadly weapon and felony vandalism when he threw rocks at a regional transit worker was tried to a jury.
The victim testified to being a maintenance worker for a local regional transit company, responsible for fixing fencing, among other things. In January 2018, he stopped to assess a hole in the fencing in his assigned area. While assessing that fence, the victim noticed defendant, who was on the other side of the fence looking for something. Defendant was nearing the railroad tracks. The victim told defendant he was trespassing. Defendant, who appeared intoxicated and angry, yelled obscenities back at him and kicked the fence. The victim backed up, retreating towards his truck. Defendant picked up a large river rock, approximately six to seven inches around, and held it over his head. The victim warned defendant not to throw the rock. In response, defendant threw the rock at the victim when he was approximately 14 to 15 feet away from the fence. The rock had to travel over the fence, which was five to six feet tall. The victim blocked the rock with his arm at approximately chest height and then retreated to his truck. Defendant threw several more rocks at 15-to 20-second intervals with the victim approximately 15 to 20 feet away from the fence. Two of these rocks hit the victim's truck, one on the door and one on the windshield. After three or four rocks had been thrown, the victim picked up a rock and thought about throwing it at defendant to get him to stop, but then decided not to and discarded it. Defendant threw approximately eight rocks and all landed within a few feet of the victim's physical location.
An annotated photograph of the scene included in the record on appeal clearly shows a barbed wire structure extending the height of the fence, but the victim could not recall whether the barbed wire was there on the day of the incident.
K.J. testified to witnessing the altercation from the same parking lot. The initial exchange between the victim and defendant was cordial, but as the victim continued to insist that defendant leave, defendant became angry and started throwing rocks. She saw defendant throw rocks over a dumpster and a six-to seven-foot fence to reach the victim. His first rock hit the windshield of the victim's truck and the second rock hit his arm. Defendant threw about four rocks and did so with great effort, groaning and grunting like he was "chuck[ing]" them. After K.J. complained that defendant should watch where he was throwing the rocks, defendant apologized, indicating he was trying to hit the victim and not her.
K.J.'s manager was over six feet tall and shorter than the fence.
Defendant called responding Officer Matt Suehowicz in his defense. Officer Suehowicz testified that he responded to the scene of a report of assault with rocks and observed the victim's arm, which had slight swelling. Defendant also called Sergeant Joshua Kirtlan, who testified to visiting the area earlier in the day and then returning after learning of the reported assault. Sergeant Kirtlan encountered defendant, who attempted to run and asked the sergeant to shoot him. Sergeant Kirtlan told defendant he did not want to shoot him, and defendant remarked that defendant should have punched him.
Neither defendant nor the People requested lesser included instructions, and the jury was instructed only on the theory of assault with a deadly weapon and not simple assault. Nonetheless, the closing arguments did not question whether defendant was the individual who had thrown the rocks, just whether the People had established the elements necessary for the crimes charged. In fact, defendant's counsel argued at length that he had committed assault, but not assault with a deadly weapon because the rocks were not used in a way likely to cause significant or substantial injury.
The jury convicted defendant on both counts, and the court denied defendant's request for probation instead sentencing him to state prison. The court identified the assault conviction as the principle term and imposed the mid-term of three years. The court then sentenced defendant to an additional eight months consecutive for the felony vandalism. The court also imposed the minimum fines and fees: a $300 restitution fine (§ 1202.4), a $300 suspended parole revocation fine (§ 1202.45), two $30 court facility fees (Gov. Code, § 70373), and two $40 court operations fees (§ 1465.8, subd. (a)(1)). The court elected not to impose the main jail booking fee, main jail classification fee, the presentence and investigation costs, and the criminal impact fee. Defendant timely appealed.
The reporter's transcript of the sentencing hearing reflects a sentence of "one-third the midterm of 2 years and 8 months." One-third the midterm for this count is eight months. (§§ 594, subd. (b)(1), 1170, subd. (h)(1).) Given our remand for resentencing, we need not address this error.
II. DISCUSSION
A. The Trial Court Erred in Failing to Sua Sponte Instruct on Simple Assault
Defendant argues the trial court prejudicially erred in failing to sua sponte instruct the jury on the lesser included offense of simple assault (§ 240). We concur.
As our high court explained in People v. Aguilar (1997) 16 Cal.4th 1023 (Aguilar): "Section 245, subdivision (a)(1), punishes assaults committed by the following means: 'with a deadly weapon or instrument other than a firearm,' or by 'any means of force likely to produce great bodily injury.' One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. [Citation.] . . . [¶] As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]" (Id. at pp. 1028-1029.) Of paramount importance is whether the object was actually used in a manner likely to produce death or great bodily injury. (In re B.M. (2018) 6 Cal.5th 528, 532-535.)
It is undisputed that simple assault is a lesser included offense of assault with a deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747; §§ 240, 245.) Further, it is fundamental that a trial court has a duty to sua sponte instruct the jury on any lesser included offense for which there is substantial evidence that the lesser, but not the greater offense occurred. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) We review trial court failure to instruct on an alleged lesser included offense de novo. (Ibid.) Such failure has prejudiced defendant, requiring reversal if there is a reasonable probability that the error affected the outcome under People v. Watson (1956) 46 Cal.2d 818. (People v. Breverman (1998) 19 Cal.4th 142, 178 (Breverman).)
Here, the People proceeded on the theory that defendant used the rocks thrown at the victim as deadly weapons. Thus, we must determine whether the jury could have determined defendant committed only simple assault and did not use the rocks as deadly weapons. In order for the rock to be a deadly weapon for the purposes of this case, it had to have been used in a manner likely to produce death or great bodily injury. (See In re B.M., supra, 6 Cal.5th at p. 533.) Relevant to that inquiry was the nature of the object, the manner in which the rocks were used, and any other relevant facts. (See Aguilar, supra, 16 Cal.4th at p. 1029.)
The rocks thrown were large. The victim estimated the rocks varied from five to seven inches around, one was bigger than his hand, and another was a little larger than a grapefruit. There was evidence that defendant "chuck[ed]" large rocks at an arched angle over a tall fence that was at least 15 feet from the victim. He grunted with the effort it took, and used his entire body to throw the rocks. The People suggest this shows defendant was throwing the rocks with sufficient force to have been necessarily used as deadly weapons. We disagree. The strain it took to throw the rocks more than 15 feet, over a fence and a dumpster, may be indicative that the rocks were heavy and difficult to throw that distance. It does not necessarily follow that a jury would necessarily determine that they were used in a manner likely to produce death or serious bodily injury. In so finding, we note the difference between lobbing a large rock some distance at a person versus wielding a rock to strike a person in the head. (See, e.g., People v. White (1963) 212 Cal.App.2d 464, 465 [upholding conviction for assault with deadly weapon where defendant struck his wife in the head with a large rock, after pulling her into the bathroom, resulting in a two-inch laceration to her head].)
Finally, "[a]lthough neither physical contact nor injury is required for a conviction, if injuries result, the extent of such injuries and their location are relevant facts for consideration." (People v. Beasley (2003) 105 Cal.App.4th 1078, 1086; accord In re B.M., supra, 6 Cal.5th at pp. 535-536.) Here, the one rock that did connect with the victim on his arm did so directly, but only caused slight swelling and redness. Further, the two rocks that hit the victim's truck did only marginal damage. We do not believe this evidence foreclosed a jury determining that simple assault, but not assault with a deadly weapon, occurred. (See, e.g., Beasley, supra, at pp. 1087-1088 [while a broomstick could be wielded as a deadly weapon, striking the victim on the arms and shoulders causing unspecified bruising was insufficient to support assault with a deadly weapon conviction].)
A jury could have used this evidence to reach the reasonable inference that the rocks were not actually used as deadly weapons. For example, there was no evidence that defendant aimed for the victim's head or otherwise acted in a way assured of causing death or great bodily injury. As such, we believe it is " 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (Breverman, supra, 19 Cal.4th at p. 178.) If presented with the alternative, it is reasonably probable the jury may have determined that defendant committed simple assault, not assault with a deadly weapon. (Cf. People v. Hayes (2006) 142 Cal.App.4th 175, 181-183 [it was prejudicial error not to instruct on lesser included offense of battery without injury where injuries sustained were susceptible to a jury determination that the injuries did not require medical treatment].) We therefore conclude the trial court prejudicially erred in failing to instruct on the lesser included offense of simple assault, requiring reversal of defendant's conviction for assault with a deadly weapon. B. Section 1001.36 Applies Retroactively to Defendant's Benefit
We find the People's suggestion the victim could have been hit in the head too speculative on this record to require a finding that the rocks were necessarily used as deadly weapons. (See In re B.M., supra, 6 Cal.5th at p. 535 [that the butter knife could have harmed the victim's face was not evidence the knife had been used as a deadly weapon given that defendant used the butter knife on the victim's blanketed legs].)
Defendant requests retroactive application of section 1001.36, which became effective June 27, 2018, so that he may be afforded the opportunity to participate in mental health diversion. (Stats. 2018, ch. 34, § 24.) Given our reversal for retrial, defendant will already have this opportunity in relation to the assault with a deadly weapon charge. We now conclude that he is also entitled to retroactive application for his felony vandalism conviction as well.
Courts of Appeal are divided on the question of retroactivity, which is now pending before the Supreme Court. (Compare People v. Frahs (2018) 27 Cal.App.5th 784, 791, review granted Dec. 27, 2018, S252220 [§ 1001.36 applies retroactively] and People v. Weaver (2019) 36 Cal.App.5th 1103, 1121, review granted Oct. 19, 2019, S257049 with People v. Craine (2019) 35 Cal.App.5th 744, 760, review granted Sept. 11, 2019, S256671 [§ 1001.36 does not apply retroactively] and People v. Torres (2019) 39 Cal.App.5th 849, 856 [same].) Our Supreme Court will soon have the last word on the subject. In the meantime, we agree with the reasoning of Frahs and Weaver and conclude that section 1001.36 applies retroactively to cases, like defendant's, which were not final on appeal when the statute became effective on June 27, 2018. Following Frahs, we conclude that remand is appropriate here. C. Fines, Fees, and Assessments
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant requests that we reverse all fines, fees, and assessments imposed and remand to the trial court for an ability to pay hearing. The People respond that this case should be distinguished from Dueñas and, in any event, the record does not establish that defendant would be unable to pay the fines and fees imposed. We are not persuaded that the analysis used in Dueñas is correct.
Our Supreme Court will soon have the last word on this subject as well. It granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp), review granted November 13, 2019, S257844, which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, supra, at pp. 95-96.)
In the meantime, we join those authorities that have concluded the principles of due process do not require determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant's Dueñas challenge to the above-referenced fines, fees, and assessments.
III. DISPOSITION
Defendant's conviction for assault with a deadly weapon is reversed. We also conditionally reverse and vacate defendant's felony vandalism conviction with provision for reinstatement if either the trial court finds him unsuitable for section 1001.36 diversion or, alternatively, if he fails to successfully complete that diversion. We recognize that resentencing on the felony vandalism conviction is required if defendant fails to qualify for or complete diversion. The judgment is otherwise affirmed.
/S/_________
RENNER, J. Hull, J.
I concur in the majority's decision in Part I and II(A); as to the majority's decision in Part II(B) relating to the retroactive application of Penal Code section 1001.36, I dissent. (Statutory section references that follow are to the Penal Code unless otherwise set forth.)
On June 21, 2018, defendant was found guilty by a jury of a violation of section 245, subdivision (a)(1) (assault with a deadly weapon) and section 594, subdivision (a) (vandalism).
On August 3, 2018, the trial court sentenced defendant to three years and eight months in state prison and assessed fees and fines.
Defendant then brought this appeal, defendant asks us to remand the matter so the trial court can determine whether he is eligible for "pretrial diversion" due to a specified mental disorder under the recently enacted section 1001.36, which he argues is retroactive as to all cases not yet final. The majority agrees with his argument; but I do not.
Put simply, the majority here decides the defendant should have the benefit of pretrial diversion as defined in section 1001.36 posttrial.
In support of his contention, defendant relies on the retroactivity rules of In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara). The Attorney General contends section 1001.36 is not retroactive and it does not apply to appellant's case because his guilt was adjudicated before the statute's effective date.
Courts are divided as to whether section 1001.36 applies retroactively to cases not yet final on appeal under Estrada and Lara. (Compare People v. Frahs (2018) 27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220 (Frahs), People v. Weir (2019) 33 Cal.App.5th 868, review granted June 26, 2019, S255212, People v. Weaver (2019) 36 Cal.App.5th 1103, review granted Oct. 9, 2019, S257049, People v. Burns (2019) 38 Cal.App.5th 776, review granted Oct. 30, 2019, S257738, and People v. Hughes (2019) 39 Cal.App.5th 886, review granted Sept. 11, 2019, S258541 with People v. Craine (2019) 35 Cal.App.5th 744, 749, review granted Sept. 11, 2019, S256671 (Craine), People v. Torres (2019) 39 Cal.App.5th 849, and People v. Khan (2019) 41 Cal.App.5th 460.) I conclude, given the statutory language that is clear and unambiguous, the plain meaning of the statute must govern. Agreeing with Craine, I conclude the statute does not have retroactive effect as to cases, like this one, that has already been adjudicated (whether by jury or by plea) before the statute's effective date.
I note that courts may consider, as persuasive authority, the cases that have been granted review by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)
I
Principles of Statutory Construction
We are required here to determine the meaning of section 1001.36 regarding the retroactive application of that statute.
"In construing the relevant provisions of subdivision (c)(6), 'as with any statute, we strive to ascertain and effectuate the Legislature's intent.' (People v. Loeun[ (1997)] 17 Cal.4th [1, 8].) Because statutory language generally provides the most reliable indicator of that intent (Hsu v. Abbara (1995) 9 Cal.4th 863, 871[]), we turn to the words themselves, giving them their 'usual and ordinary meanings' and construing them in context. (People v. Loeun, supra, [at p. 9]). ' "If there is no ambiguity in the language of the statute, ' . . . the Legislature is presumed to have meant what it said, and the plain meaning of the statute governs.' " ' (Ibid.)" (People v. Lawrence (2000) 24 Cal.4th 219, 230-231.)
If possible, significance should be given to every word of a statute and any construction which renders a word surplusage should be avoided. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798-799.)
II
Section 1001.36
Section 1001.36, effective June 27, 2018, provides that a trial court, "[o]n an accusatory pleading alleging the commission of a misdemeanor or felony offense" (with exclusions not relevant here), may grant "pretrial diversion" to a defendant who meets all of the requirements specified in the statute. (§ 1001.36, subd. (a).) These include, among others, "a mental disorder . . . including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or [PTSD]," as established by "a recent diagnosis by a qualified mental health expert" (§ 1001.36, subd. (b)(1)(A)), and proof to the court's satisfaction that the mental disorder "was a significant factor in the commission of the charged offense" or "substantially contributed to the defendant's involvement in the commission of the offense." (§ 1001.36, subd. (b)(1)(B).)
"Pretrial diversion" as used in the statute 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[.]" (§ 1001.36, subd. (c).)
When a defendant enters a plea of guilty or no contest and the trial court accepts the plea, there has been an "adjudication" of the charges brought against him for purposes of section 1001.36. (Craine, supra, 35 Cal.App.5th at p. 755[, review granted] ["adjudication" is "shorthand for the adjudication of guilt or acquittal"]; see In re Harris (1989) 49 Cal.3d 131, 135 [no distinction between adjudication of guilt based on plea and that predicated on trial on merits]; People v. Allexy (2012) 204 Cal.App.4th 1358, 1361, 1363 [under § 290.006, entry of no contest plea to felony child endangerment is "time of conviction," as distinct from "time of sentencing"].)
Defendant argues that we should give the statute retroactive effect as to him. He relies on Frahs, supra, 27 Cal.App.5th 784, review granted. Although review was granted in Frahs, we may still consider it as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1).) However, for the reasons given in Craine, I conclude Frahs was wrongly decided and the statute does not apply retroactively to persons, like defendant, "who have already been found guilty of the crimes for which they were charged." (Craine, supra, 35 Cal.App.5th at p. 754, review granted.)
The Frahs court decided whether section 1001.36 is retroactive by applying the standard retroactivity rules of Estrada and Lara. In Estrada, the court held that when the Legislature amends a criminal statute so as to lessen the punishment for the offense, it must be inferred that the Legislature's intent was to apply the lighter penalty to all cases not yet final. (Estrada, supra, 63 Cal.2d at pp. 745, 748.) In Lara, the court extended this rule to situations in which new legislation, though not lessening punishment, provides an " 'ameliorating benefit[]' " for accused persons or constitutes an " 'ameliorative change[] to the criminal law[.]' " (Lara, supra, 4 Cal.5th at pp. 308, 309.) Taking these rules together, Frahs found that section 1001.36 confers an " 'ameliorating benefit' " on a class of accused persons and therefore must be understood to work retroactively. (Frahs, supra, 27 Cal.App.5th at p. 791, review granted.)
I note that Lara summarizes Estrada's holding as follows: " 'The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible . . . .' " (Lara, supra, 4 Cal.5th at p. 308; italics added.) Lara then concludes that neither the language of the initiative there under consideration (Proposition 57) nor the ballot materials rebutted the inference that the initiative was intended to apply retroactively. (Id. at p. 309.)
I note further that, in quoting Lara, the Frahs court omits the qualifying language I have italicized in the previous paragraph. Thus, Frahs, unintentionally no doubt, but in effect, mischaracterizes the Estrada/Lara rule as one that applies automatically to all legislation conferring an "ameliorating benefit" on persons charged with crimes, regardless of any "contrary indications" (Lara, supra, 4 Cal.5th at p. 308) in the legislation on its face or the legislative history. (Frahs, supra, 27 Cal.App.5th at p. 790, review granted.)
The Frahs court rejected the Attorney General's argument that by expressly restricting its scope to the "postponement of prosecution . . . at any point in the judicial process from the point at which the accused is charged until adjudication" (§ 1001.36, subd. (c)), the statute set a temporal limit on its retroactive effect. (Frahs, supra, 27 Cal.App.5th at p. 791, review granted.) The court reasoned: "The fact that mental health diversion is available only up until the time that a defendant's case is 'adjudicated' is simply how this particular diversion program is ordinarily designed to operate." (Ibid.) Frahs did not address the first part of the statutory language quoted by the Attorney General (which the opinion misstates as " ' "postponement or prosecution" ' "). (Ibid., italics added.)
Concluding the issue could be resolved by applying Estrada and Lara to the plain language of the statute, the Frahs court denied the Attorney General's request for judicial notice of the statute's legislative history. (Frahs, supra, 27 Cal.App.5th at p. 789, fn. 2, review granted.)
In Craine, however, the court held that the Frahs analysis was flawed because it did not pay sufficient attention to how section 1001.36, subdivision (c), defines the timing of the "ameliorative benefit" it confers. In other words, Frahs did not properly consider either the phrase " 'postponement of prosecution' " or the phrase " 'until adjudication,' " instead relying only on a mechanical application of the Estrada and Lara rules. (Craine, supra, 35 Cal.App.5th at pp. 754-756, review granted.)
As to "until adjudication" (§ 1001.36, subd. (c)), Craine pointed out that " '[t]he purpose of [diversion] programs [in the criminal process] is precisely to avoid the necessity of a trial.' [Citation.]" (Craine, supra, 35 Cal.App.5th at p. 755, review granted.) In other words, absent clear statutory language showing otherwise, it makes no sense to say that a defendant can be given the benefit of "pretrial diversion" after a case has already gone through trial to conviction (or its equivalent, a guilty or no contest plea). (Id. at pp. 755-756.)
I note, in addition, that the legal term "adjudication" is commonly known to mean "the legal process of resolving a dispute." (Black's Law Dict. (11th ed. 2019) p. 52, col. 1.) In a criminal case the dispute is whether a defendant is guilty or not guilty of a particular crime. That dispute is resolved with a finding of guilt or an acquittal. What comes after that resolution does not extend the meaning of the word "adjudication."
By the same token, the meaning of the phrase "the postponement of prosecution" (§ 1001.36, subd. (c)) depends on the normal usage of "prosecution" in the criminal process: " ' "[t]he proceeding by which a party charged with a public offense is accused and brought to trial and punishment. [Citations.]" ' " (Craine, supra, 35 Cal.App.5th at pp. 755-756, review granted.) "A prosecution 'commences when the indictment or information is filed in the superior court and normally continues until . . . the accused is "brought to trial and punishment" or is acquitted.' " (Id. at p. 756.)
Therefore, "[p]ursuant to the Legislature's own terminology, pretrial 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." (Craine, supra, 35 Cal.App.5th at p. 756, review granted.)
According to Craine, Lara is distinguishable because the ameliorative benefit discussed there (the initial processing of accused juveniles in juvenile court, and trial in adult court only upon transfer) did not create a temporal bar to retroactive relief, as does section 1001.36. (Craine, supra, 35 Cal.App.5th at pp. 756-757, review granted.) The statute itself defines the population of those who are entitled to its benefit by the language of section section 1001.36, subdivision (c) as those who have been charged but whose charges have not yet been adjudicated.
Craine also examines the legislative history of section 1001.36 (which Frahs refused to consider) and finds that it points to the same conclusion. The history makes clear that the statute was intended to make it possible to use early intervention wherever possible, partly " 'to avoid unnecessary and unproductive costs of trial and incarceration.' " (Craine, supra, 35 Cal.App.5th at pp. 758-759, italics omitted [quoting Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 215 (2017-2018 Reg. Sess.) as amended Aug. 23, 2018, pp. 2-3], review granted.)
As Craine points out: "Early intervention cannot be achieved after a defendant is tried, convicted, and sentenced. The costs of trial and incarceration have already been incurred. Moreover, because mental health diversion is generally only available for less serious offenses, the reality is many defendants would already be eligible for parole or some other form of supervised release by the time their cases were remanded for further proceedings. Since mental health services are already available to parolees . . . , it is hard to imagine the Legislature intended for additional court resources and public funds to be expended on 'pretrial diversion' assessments at such a late juncture. [Fn. omitted.]" (Craine, supra, 35 Cal.App.5th at p. 759, fn. omitted, review granted.)
The structure of the relief provided by the statute also indicates that the Legislature intended to grant such relief only prospectively. In addition to the precise definition of "pretrial diversion" found in section 1001.36, subdivision (c), which we have already discussed, we note the following:
The period allowed for pretrial diversion is limited to a maximum of two years. (§ 1001.36, subd. (c)(3).) The defendant must prove he has a qualifying mental disorder that would respond to treatment; this proof must include "a recent diagnosis by a qualified mental health expert" (what constitutes "recent" is undefined) who may rely on "any . . . relevant evidence" including examination of the defendant, the defendant's medical records, and arrest reports, inter alia. (§ 1001.36, subd. (b)(1)(A), (C).) Once the defendant has met this burden, the trial court must determine whether the defendant's mental disorder was "a significant factor in the commission of the charged offense" by reviewing "any relevant and credible evidence," including all of the evidence considered by the mental health expert and more. (§ 1001.36, subd. (b)(1)(B).) At the end of the two-year diversion period, if the defendant has "performed satisfactorily" according to specified criteria, the court "shall dismiss the . . . criminal charges that were the subject of the criminal proceedings at the time of the initial diversion" and the defendant's record shall be expunged. (§ 1001.36, subd. (e).)
It would greatly strain scarce judicial resources to extend this complex scheme to persons who have already gone through the criminal process to the point of conviction. When added to the "contrary indications" (Lara, supra, 4 Cal.5th at p. 308) contained in the statutory definition of "pretrial diversion" and the legislative history, this consideration compels the conclusion that section 1001.36 was not intended to have retroactive application.
For all the reasons stated in Craine, I disagree with Frahs and find that "pretrial diversion" under section 1001.36 is not available to the defendant here because he has already been tried, convicted, and sentenced.
The cases that have found the statute to have retroactive application have relied primarily on the holdings in Estrada and Lara. But the Estrada rule " 'is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of an express saving clause or its equivalent.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 185, (Floyd), italics added.)
Here, the legislature has clearly signaled its intent regarding who should have the benefit of the statute by defining the population of those who are to benefit from its provisions as those persons who have been formally accused of a crime but who have not yet had those accusations adjudicated, that is, those who have not yet had their prosecutions resolved by a finding of guilt or an acquittal. The charges against this defendant were "adjudicated" long ago.
And, while the statute arguably provides a certain "ameliorative benefit" (Lara), that can be of no moment given the language of the statute as a whole and its history and the holding in Floyd.
Finally, in order to find the statute has retroactive effect, one must turn many venerable principles of statutory construction on their head, including reading the word "pretrial" out of the statute's reference to "pretrial diversion" thus treating the word in this procedural context as surplusage, ignoring what has been the traditional legal meaning of the word "adjudication," ignoring the phrase "postponement of prosecution," ignoring the plain wording of the statute and ignoring the legislative history discussed in Craine including the comments of the author of the bill regarding its purposes.
I would hold that defendant is not entitled to pretrial diversion as provided for in section 1001.36 at this stage of his criminal proceedings. While an argument can be made that, given our reversal and remand of the section 245, subdivision (a)(1) conviction, that charge has not yet finally been "adjudicated" and therefore section 1001.36 "pretrial diversion" remains an option as to that charge. But, if section 1001.36 is not retroactive, we have affirmed defendant's conviction for felony vandalism. That conviction, having been adjudicated takes defendant beyond the scope of section 1001.36.
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HULL, J. Mauro, J., Concurring and Dissenting.
I fully concur in the majority opinion except for part II.C. of the Discussion, pertaining to fines, fees and assessments. As to that portion of the opinion, I dissent.
In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas's legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court has had an opportunity to resolve the current split in authority, I would remand the matter to give the trial court an opportunity to consider defendant's ability to pay the fines, fees and assessments.
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MAURO, J.