People v. Schweitzer CA3

Filed 12/28/23 P. v. Schweitzer CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou) ----

THE PEOPLE, C096958

Plaintiff and Respondent, (Super. Ct. No. SCCRCRF20161304 & v. SCCRCRF20171251 )

SCOTT ALLEN SCHWEITZER,

Defendant and Appellant.

Defendant Scott Allen Schweitzer was sentenced to 15 years in prison in 2018 after pleading no contest or guilty to various crimes, including three counts of assault with two great bodily injury enhancements, one count of failure to appear, and two counts of possession of drugs, alcohol, or controlled substances while in prison. On remand in 2022 from a previous appeal, the trial court denied defendant’s petition for mental health diversion under Penal Code section 1001.36 (“the 2022 version of section 1001.36”), concluding his diagnosed post-traumatic stress disorder (PTSD) was not a significant

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factor in the commission of the offenses. (All further undesignated section references are to the Penal Code.) In January 2023, an amendment to section 1001.36 took effect and created a presumption that a defendant’s mental disorder was a significant factor in the defendant’s commission of the offenses. (§ 1001.36, subd. (b)(2) (“the 2023 version of section 1001.36”); People v. Doron (2023) 95 Cal.App.5th 1, 8 (Doron).) To rebut that presumption, there must be clear and convincing evidence that the disorder was not a motivating, causal, or contributing factor to the defendant’s involvement in the alleged offense. (§ 1001.36, subd. (b)(2); Doron, at p. 8.) Defendant contends we should reverse and remand for the trial court to reconsider his application for diversion under the 2023 version of section 1001.36. Alternatively, he contends the trial court abused its discretion in denying his petition under the 2022 version of section 1001.36. We agree with defendant’s primary argument and need not address the alternative. We reverse and remand for the trial court to consider defendant’s application under the 2023 version of section 1001.36. FACTUAL AND PROCEDURAL BACKGROUND We summarize the factual and procedural background from our opinion in defendant’s previous appeal, People v. Schweitzer (Oct. 13, 2020, C086895) [nonpub. opn.] (Schweitzer), the record of which was incorporated by reference in this appeal at defendant’s request. “In a plea proceeding, defendant . . . [pled] no contest or guilty to assault with a deadly weapon with a great bodily injury enhancement ([]§§ 245, subd. (a)(1), 12022.7, subd. (a)), and two counts of brandishing a deadly weapon (§ 417, subd. (a)(1)). In a subsequent plea proceeding, he [pled] guilty to two counts of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), possession of a controlled substance in jail (§ 4573.6), two counts of possession of alcohol in jail (§ 4573.8), felony failure to appear (§ 1320, subd. (b)), five counts of resisting an officer (§ 148, subd. (a)(1)), battery