On appeal, defendant contends the matter should be conditionally reversed and
remanded to the trial court to determine, retroactively, whether defendant qualifies for a
pretrial diversion program for individuals diagnosed with qualifying mental disorders
pursuant to recently enacted section 1001.36. The People respond that defendant’s
appeal must be dismissed because the issue raised is outside the scope of his notice of
appeal; that section 1001.36 is not retroactive; that even if retroactive, defendant’s
judgment was already final and, thus, inapplicable; that retroactive application of a
pretrial diversion program would effectively vacate defendant’s conviction violating the
separation of powers doctrine; and that the court had already rejected defendant’s mental
health defense. 2 We affirm.
1 All further statutory references are to the Penal Code.
2 We deny the People’s request for judicial notice as unnecessary for our resolution of the issues on appeal.
2
I. FACTUAL AND PROCEDURAL HISTORY
In January 2015, the victim, born in 1948, drove into his mobilehome park where
defendant waved him down. The victim rolled down his window and asked if he could
help defendant. Defendant said the victim was not a man of his word; defendant said
something about the victim owing defendant $20. The victim assumed defendant was
talking about $20 which defendant’s mother had lent the victim.
The victim exited his car. Defendant yelled: “‘Give me your money or I’m gonna
get it from you.’” Defendant quickly approached the victim and touched his nose to the
victim’s nose and his chest to the victim’s chest. Defendant told the victim to give him
the money or he was going to hurt and kill the victim. The victim was afraid of
defendant.
The victim told defendant he had already paid the money back to defendant’s
mother. Defendant pointed out a car nearby and said: “‘You see the [B]lack guy there
inside the car? All I have to do is call him, and he’ll do it for me.’” The victim “really
got very scared.” He interpreted defendant’s words as a threat to have the man kill him.
The victim told defendant he was going to call the mobilehome manager and the
police. Defendant told him: “‘Go ahead.’” The victim got into his car and drove off, but
did not return home because he was afraid of alerting the man with whom defendant had
threatened him as to the location of his residence. The victim parked and went to the
manager’s office and told her what had occurred. The manager called the police.
3
The victim testified that two nights prior to the incident, he found defendant
parked in front of his home at 2:00 a.m. The victim was worried because he had been
burglarized on several occasions. In May 2016, the victim called the police because
defendant contacted him; the victim had a restraining order against defendant. 3
The People charged defendant by second amended felony complaint with
attempted robbery (§§ 664, 211; count 1), two counts of criminal threats (§ 422; counts 2
& 4), misdemeanor elder abuse (§ 368, subd. (c); count 3), and failure to appear
(§ 1320.5; count 5). The People additionally alleged defendant had committed the
charged offenses while defendant had been released from custody. (§ 12022.1.)
The People and defendant apparently came to a resolution which involved the
instant case, four misdemeanor cases, and an admission to a violation of probation. In the
instant case, defendant pled guilty to criminal threats (§ 422; count 2) with the
understanding defendant would be sentenced to jail for 365 days with credit for 121 days.
The People agreed that defendant “could be accepted into an appropriate dual
diagnosis residential treatment program . . . .” Defendant would be required to provide
proof that the program had accepted him; if admitted to a rehabilitation program, the
court would modify the sentence, release defendant to the program, and allow him to
spend the balance of his jail time in the program. The court imposed the upper term of
3 At this point, the court recessed the preliminary hearing. Upon return from the recess, defendant entered his plea.
4
three years, execution of which the court suspended on the condition that defendant
successfully complete the terms and conditions of three years of formal, felony probation.
At a hearing on September 24, 2015, the parties confirmed that defendant had
been admitted to the Tibis House Rehabilitation Program through the Recovery Network
Resource. Upon defendant’s agreement, the court ordered defendant released from jail
the next day to complete the balance of his custody time in the residential treatment
program. The court noted: “I’m going to give you the opportunity to get clean and
sober.”
On April 5, 2016, the People filed a misdemeanor complaint and petition for
revocation of defendant’s probation alleging he had resisted arrest. (§ 148, subd. (a)(1).)
At a hearing on May 24, 2016, the court observed: “I . . . have this document he’s in
inpatient care at Pacific Grove Hospital.” Defendant’s attorney stated defendant was “on
a psychiatric hold.” 4 The court noted that the letter indicated defendant would not be
released from the hospital until June 3, 2016; defense counsel confirmed this. The court
issued a bench warrant, but held it until the second week of June, ordering defendant to
appear on June 9, 2016.
4 The letter to which the court referred does not reflect that the hospital was a psychiatric hospital and does not indicate why defendant had been admitted, only that he had been admitted to the hospital.
5
On June 9, 2016, the People informed the court that they had obtained a letter
reflecting defendant was admitted to College Hospital Cerritos on June 8, 2016, with an
undetermined release date. Defense counsel stated the reason for the hospitalization
“seems to be possibly schizophrenia, for all I know.” 5 The court continued the matter
and held the warrant until June 21, 2016.
On July 13, 2017, 6 August 8, 2017, October 23, 2017, November 1, 2017, and
December 18, 2017, the court continued the matter. On January 5, 2018, the court held a
hearing on the petition to revoke defendant’s probation.
A Murrieta police officer testified that on March 31, 2016, he responded to a call
regarding “a male acting strangely and being aggressive and loud at the bank.” When he
arrived, he encountered defendant, who was pacing back and forth in front of the bank
yelling. Defendant did not appear to have mental issues, but appeared to be agitated.
The officer obtained defendant’s name and date of birth; he conducted a records
check of defendant. The officer discovered defendant was on formal, felony probation
with search terms and that his driver’s license had expired on October 22, 2012. The
officer found a vehicle associated with defendant and conducted a record check on it.
The vehicle had no license plates and was registered to defendant’s mother.
5 Again, the letter from the hospital does not reflect that it was a psychiatric hospital or that defendant was admitted for any psychiatric condition.
6 There is nothing in the record to explain the more than one-year gap between the last continuance and that issued on July 13, 2017.
6
The officer told defendant he could not drive any vehicle because his license was
expired; defendant acknowledged that he could not drive until he had his license
reinstated. The officer contacted defendant’s mother, who agreed to come drive the
vehicle home. He advised defendant to wait for his mother, which defendant agreed to
do. The officer left.
Five minutes later, the officer received a call advising him that defendant had
driven the vehicle away. The officer drove to defendant’s mother’s home. A few
minutes later, defendant pulled into the mobilehome park in his mother’s vehicle.
The officer ordered defendant to stop and get out of the car. Defendant yelled:
“‘Not this time, Cop.’” Defendant backed away and drove off. The officer quickly found
the vehicle parked at the south end of the mobilehome park, adjacent to a golf course;
defendant was not in the car. The officer saw defendant running down an embankment
onto the golf course. He gave chase and ordered defendant to get on the ground.
Defendant eventually complied. Defendant physically resisted while the officer
attempted to handcuff him. The officer and his partner had to drive their patrol car onto
the golf course because defendant refused to walk.
Defendant’s counsel argued defendant was suffering from mental health issues
and, therefore, should be returned to probation. The People noted “there has been no
evidence of any kind of mental health issues that he suffers from.” The court also
observed there “really was no evidence during the violation hearing” of mental health
7
issues. The court found defendant had violated the terms of his probation. 7 The court
then indicated a tentative decision to impose the suspended sentence but observed “there
is some history of some type of either mental or substance abuse disorder[s].” The court
continued the matter for sentencing.
On March 23, 2018, defense counsel filed a mitigation letter alleging defendant
suffered physical disabilities, including a frontal lobe injury, and post-traumatic stress
disorder. Defense counsel attached to the mitigation letter an unsigned letter alleging
defendant had been admitted to a hospital on June 18, 2016, “on an involuntary basis for
treatment of profound levels of depression with [an] active suicidal plan and intent [sic]
with the patient also reporting onset of auditory hallucinations.” At the hearing on the
same date, the court imposed the suspended sentence of three years of imprisonment and
awarded defendant 903 days of total custody credits.
On May 16, 2018, defendant filed a notice of appeal, checking the boxes reflecting
he was challenging the validity of the plea, alleging another basis for the appeal, and
requesting issuance of a certificate of probable cause. Defendant’s request for certificate
of probable cause alleges contextually vague instances of ineffective assistance of
counsel. The court granted the request for a certificate of probable cause.
7 On the same day, defendant entered a plea to the court in another misdemeanor case and admitted a violation of probation in yet another case.
8
II. DISCUSSION
Defendant contends the matter should be conditionally reversed and remanded to
the trial court to determine, retroactively, whether defendant qualifies for a pretrial
diversion program for individuals diagnosed with qualifying mental disorders pursuant to
recently enacted section 1001.36. Defendant maintains that section 1001.36 may be
retroactively applied to defendant’s case, citing In re Estrada (1965) 63 Cal.2d 740,
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, and People v. Frahs (2018) 27
Cal.App.5th 784 (Frahs), review granted December 27, 2008, S252220. 8
The People respond that defendant’s appeal must be dismissed because the issue
raised is outside the scope of his notice of appeal; that section 1001.36 is not retroactive;
that even if retroactive, defendant’s judgment was already final; that retroactive
application of a pretrial diversion program effectively vacating defendant’s conviction
would violate the separation of powers doctrine; and that the court had already rejected
defendant’s mental health defense. We agree with the People that regardless of whether
section 1001.36 may be applied retroactively, such application would be limited to cases
which are not final, and that defendant’s judgment was final. Therefore, defendant would
not be entitled to retroactive application of relief under section 1001.36.
8 The California Supreme Court limited its review of Frahs to the following issues: “(1) Does Penal Code section 1001.36 apply retroactively to all cases in which the judgment is not yet final? (2) Did the Court of Appeal err by remanding for a determination of defendant’s eligibility under Penal Code section 1001.36?” <https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id =2268844&doc_no=S252220&request_token=NiIwLSIkTkw6WzBJSCJNUEpIQEg0UD xTJiI%2BTzhTMCAgCg%3D%3D&bck=yes> (as of Aug. 23, 2019).
9
A. Appealability
The People contend defendant’s appeal must be dismissed because the issue raised
is outside the scope of his notice of appeal. We disagree.
“No statute or rule purports to restrict criminal appeals to issues stated in the
notice of appeal. The rules do not suggest the notice of appeal is to operate as a
statement of claims, or that it must include all contentions that may be raised in the
briefs.” (People v. Jones (1995) 10 Cal.4th 1102, 1109 [in case stating noncertificate
grounds of appeal, defendant is not required to enumerate all potential issues to be raised
on appeal in order to allow the court authority to review them], disapproved of on another
ground in In re Chavez (2003) 30 Cal.4th 643, 656; People v. Hoffard (1995) 10 Cal.4th
1170, 1177-1180 [once a defendant obtains a certificate of probable cause he may raise
other cognizable issues not specified in the notice appeal].) “[A] notice of appeal will be
liberally construed to permit a hearing on the merits and avoid a dismissal because of
some technical defect or irregularity. [Citations.]” (People v. Robinson (1954) 43 Cal.2d
143, 145; accord, People v. Maggart (1961) 194 Cal.App.2d 84, 87, fn. 1; see In re
Gregory M. (1977) 68 Cal.App.3d 1085, 1089-1090 [juvenile court would address issues
respecting jurisdictional hearing on appeal even though notice of appeal specified it was
from an order granting probation].)
We agree that the issue raised on appeal was not specified in defendant’s notice of
appeal. However, the original version of section 1001.36 was passed and became
immediately effective on June 27, 2018, after defendant filed his appeal. (Stats. 2018, ch.
10
34 (Assem. Bill No. 1810), § 24, eff. June 27, 2018.) Defendant could not be expected to
have the prescience to know that this issue might become cognizable in this appeal.
Moreover, defendant obtained a certificate of probable cause; thus, he may raise the issue
even if he did not specify it in his notice of appeal.
B. Finality of Defendant’s Judgment
Defendant contends the matter must be conditionally reversed and remanded to the
trial court to determine, retroactively, whether defendant qualifies for a pretrial diversion
program for individuals diagnosed with qualifying mental disorders pursuant to recently
enacted section 1001.36. Defendant maintains that section 1001.36 may be retroactively
applied to defendant’s case. The People contend that whether section 1001.36 may be
applied retroactivity in this case is irrelevant because it would apply only to nonfinal
judgments. The People maintain defendant’s judgment became final after he failed to file
a timely appeal from the court’s imposition of sentence on August 31, 2015. We agree. 9
“Effective June 27, 2018, the Legislature created a diversion program for
defendants with diagnosed and qualifying mental disorders such as schizophrenia, bipolar
disorder, and posttraumatic stress disorder. [Citation.] One of the stated purposes of the
legislation was to promote ‘[i]ncreased diversion of individuals with mental disorders . . .
while protecting public safety.’ [Citation.] ‘As used in this chapter, “pretrial diversion”
means the postponement of prosecution, either temporarily or permanently, at any point
9 We do not address the People’s other contentions as they are unnecessary for resolution of the appeal.
11
in the judicial process from the point at which the accused is charged until adjudication
. . . .’ [Citation.]” (Frahs, supra, 27 Cal.App.5th at p. 789, fn. omitted.)
“‘On an accusatory pleading alleging the commission of a misdemeanor or felony
offense, the court may, after considering the positions of the defense and prosecution,
grant pretrial diversion . . . if the defendant meets all of the requirements . . . .’
[Citation.] There are six requirements. First, the court must be ‘satisfied that the
defendant suffers from a mental disorder’ listed in the statute. [Citation.] Second, the
court must also be ‘satisfied that the defendant’s mental disorder played a significant role
in the commission of the charged offense.’ [Citation.] Third, ‘a qualified mental health
expert’ must opine that ‘the defendant’s symptoms motivating the criminal behavior
would respond to mental health treatment.’ [Citation.] Fourth, subject to certain
exceptions, the defendant must consent to diversion and waive his or her right to a speedy
trial. [Citation.] Fifth, the defendant must agree ‘to comply with the treatment as a
condition of diversion.’ [Citation.] And finally, the court must be ‘satisfied that the
defendant will not pose an unreasonable risk of danger to public safety . . . if treated in
the community.’ [Citation.]” (Frahs, supra, 27 Cal.App.5th at p. 789.)
“If a trial court determines that a defendant meets the six requirements, then the
court also must also determine whether ‘the recommended inpatient or outpatient
program of mental health treatment will meet the specialized mental health treatment
needs of the defendant.’ [Citation.] The court may then grant diversion and refer the
defendant to an approved treatment program. [Citation.] Thereafter, the provider ‘shall
12
provide regular reports to the court, the defense, and the prosecutor on the defendant’s
progress in treatment.’ [Citation.] ‘The period during which criminal proceedings
against the defendant may be diverted shall be no longer than two years.’ [Citation.]”
(Frahs, supra, 27 Cal.App.5th at p. 789.)
“If the defendant commits additional crimes, or otherwise performs
unsatisfactorily in diversion, then the court may reinstate criminal proceedings.
[Citation.] However, if the defendant performs ‘satisfactorily in diversion, at the end of
the period of diversion, the court shall dismiss the defendant’s criminal charges that were
the subject of the criminal proceedings.’ [Citation.]” (Frahs, supra, 27 Cal.App.5th at p.
790.)
“[T]he Legislature ‘must have intended’ that the potential ‘ameliorating benefits’
of mental health diversion to ‘apply to every case to which it constitutionally could
apply.’ [Citation.]” (Frahs, supra, 27 Cal.App.5th at p. 791.) Thus, because the
defendant’s case was not then final on appeal and the record affirmatively disclosed that
he appeared “to meet at least one of the threshold requirements (a diagnosed mental
disorder)”, the court remanded the matter the trial court “to make an eligibility
determination regarding diversion under section 1001.36.” (Ibid.)
“The imposition of the sentence is equated with entry of a final judgment.
[Citation.] Once a sentence is imposed, the trial court does not have jurisdiction to
modify or change the final judgment and is required to order that judgment into
execution. [Citations.]” (People v. Mora (2013) 214 Cal.App.4th 1477, 1482.) Once the
13
trial court revokes a defendant’s probation and executes the previously imposed but
suspended sentence, it lacks jurisdiction to modify the term of that sentence. (Ibid.;
People v. Howard (1997) 16 Cal.4th 1081, 1087.) “[I]f the court has actually imposed
sentence, and the defendant has begun a probation term representing acceptance of that
sentence, then the court has no authority, on revoking probation, to impose a lesser
sentence at the precommitment stage.” (People v. Howard, supra, at p. 1095.)
Where a defendant fails to challenge “the validity of the sentence the court
imposed when granting probation[,] [n]o good reason exists for allowing [him] to do so
once the court revoke[s] [his] probation.” (People v. Howard, supra, 16 Cal.4th at p.
1095; accord, People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1318,
1325-1326 [to hold otherwise would have the “absurd effect of encouraging defendants to
violate the terms of their probation in the hopes of extending the probation term to take
advantage of any beneficial changes in the law during the probationary period.”]; see
People v. McKenzie (2018) 25 Cal.App.5th 1207, 1217-1218 [“Had the trial court
initially imposed sentence . . . and suspended its execution, we would agree that
defendant’s judgment would have become final 60 days later and he could not now obtain
the retroactive benefit of a change in law under Estrada.”], review granted Nov. 20,
2018, S251333; People v. Grzymyski (2018) 28 Cal.App.5th 799, 805 [where the court
imposed split sentences from which the defendant failed to appeal, the defendant was not
entitled to retroactive relief pursuant to Estrada upon appeal from execution of sentence
because the judgments were final when the court initially imposed the sentences], review
14
granted Feb. 13, 2019, S252911; see People v. Scott (2014) 58 Cal.4th 1415, 1419
[realignment act not applicable to defendants whose sentences were imposed and
suspended prior to its enactment].)
Here, defendant’s judgment was final when the time for filing an appeal from the
court’s order imposing but suspending execution of sentence on August 31, 2015,
expired. (Cal. Rules of Court, rule 8.308(a) [appeal must be filed within 60 days of
rendition of judgment]; People v. DeLouize (2004) 32 Cal.4th 1223, 1232-1233 [the
defendant has 60 days from the date of the judgment to file an appeal; failure to file a
timely appeal shows acquiescence in the judgment].) Here, the court did not simply stay
imposition of judgment; rather, it imposed judgment and suspended execution of that
judgment. Therefore, the judgment was final long before the court issued its ruling
revoking defendant’s probation, its ruling imposing the suspended sentence, and
defendant’s filing of the notice of appeal. The fact that the defendant’s judgment in
Frahs was not yet final was a dispositive factor in its holding that retroactive relief was
appropriate. (Frahs, supra, 27 Cal.App.5th at p. 790.) Therefore, because defendant
acquiesced in the judgment entered on August 31, 2015, by failing to file an appeal, the
judgment was final, and defendant is not entitled to any retroactive relief pursuant to
section 1001.36.
15
III. DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
McKINSTER Acting P. J.
We concur:
FIELDS J.
RAPHAEL J.
16
AI Brief
AI-generated · verify before citing
Holding. The court held that Penal Code section 1001.36, which provides for pretrial mental health diversion, does not apply retroactively to cases where the judgment was already final at the time of the statute's enactment. Because the defendant's judgment became final when he failed to timely appeal the initial imposition and suspension of his sentence, he is ineligible for such relief.
Issues
Whether Penal Code section 1001.36 applies retroactively to cases where the judgment is final.
Whether the defendant's judgment was final when he failed to appeal the initial imposition and suspension of his sentence.
Disposition. affirmed
Quotations verified verbatim against the opinion
“The imposition of the sentence is equated with entry of a final judgment.”
“because defendant acquiesced in the judgment entered on August 31, 2015, by failing to file an appeal, the judgment was final, and defendant is not entitled to any retroactive relief pursuant to section 1001.36.”