People v. Smith CA4/3

Filed 3/13/24 P. v. Smith CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G062785

v. (Super. Ct. No. SWF1707619)

DEVIN MICHAEL SMITH, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Riverside, Irma Poole Asberry, Judge. Reversed and remanded with directions. Brad J. Poore, 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, Eric A. Swenson and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Devin Michael Smith appeals from the judgment convicting him of first degree burglary (Pen. Code1 § 459), grand theft of a firearm (§ 487, subd. (d)(2)), possession of a firearm by a prohibited person (§ 29800), and vandalism (§ 594, subd. (a)). He argues only that the trial court erred by failing to consider his suitability for mental health diversion pursuant to section 1001.36. The Attorney General does not concede the court erred in applying the version of the statute in effect at the time of its ruling but concludes that reversal and a limited remand for purposes of conducting a suitability hearing is appropriate in light of statutory changes that became effective after the court ruled and apply retroactively to this case. We agree with the Attorney General; we therefore need not consider whether the court erred under the prior version of the statute. The current version of the statute, while not in effect at the time of the court’s ruling, does apply retroactively pursuant to In re Estrada (1965) 63 Cal.2d 740 (Estrada). It requires that the court consider whether Smith is suitable for pretrial mental health diversion in the circumstances of this case. Consequently, we reverse and remand the case to the trial court with directions to make that determination.