On December 20, 2019, the trial court granted a request by defendant’s counsel to
have defendant’s competency evaluated pursuant to Evidence Code section 1017. On
August 17, 2020, defendant’s counsel declared a doubt as to defendant’s competency to
stand trial, the proceedings were suspended pursuant to Penal Code section 1368, and the
trial court appointed a doctor to examine defendant to determine if he was competent to
stand trial. After the trial court received the first doctor’s report, a second doctor was
also appointed to evaluate defendant. Both doctors submitted reports to the trial court.
While the competency determination was still pending, defendant’s counsel filed a
motion for mental health diversion pursuant to section 1001.36. As evidence,
1 The facts are taken from the opinion issued by the appellate division of the Riverside Superior Court on April 26, 2023. The facts relating to the crimes committed by defendant and the evaluations completed pursuant to Evidence Code section 1017 and Penal Code section 1368 are not relevant to the issue to be decided on appeal.
2
defendant’s counsel attached the Evidence Code section 1017 evaluation, the two doctor
reports submitted to determine defendant’s competency to stand trial, police reports, and
previous mental health records for defendant. Defendant’s counsel also filed a letter from
Compton Family Mental Health that provided defendant had been diagnosed with a
qualifying mental health disorder and had been receiving services since February 2021.
Both the People and defendant’s counsel filed bench briefs regarding the trial
court’s ability to grant diversion. The People argued that the issue of competency had to
be resolved prior to the court granting diversion. After conducting a hearing, the trial
court granted diversion and ordered that the criminal proceedings remain suspended. The
People filed an appeal to the appellate division of the superior court from the trial court’s
order pursuant to Penal Code section 1466, subdivision (a)(6), and California Rules of
Court, rule 8.104, subdivision (a).
The matter proceeded in the trial court. Defendant was evaluated by a third
doctor. On June 27, 2022, after a bench trial, the trial court found defendant mentally
competent to stand trial. On August 22, 2022, the trial court entered a new order granting
mental health diversion and imposed diversion terms.2
The parties filed briefs in the appellate division of the superior court and agreed
that the appeal was now moot. However, the People requested that the appellate division
2 This rendered the issue raised in this appeal moot as to defendant as no relief can be granted. This court has decided to review the issue as it is necessary in order to settle an important question of law.
3
decide the issue as it was in the public interest and was likely to reoccur. Defendant’s
counsel requested that the appeal be dismissed.
The appellate division of the Riverside County Superior Court exercised its
discretion to decide the matter finding that it was likely to reoccur and avoid review. It
concluded that the trial court had jurisdiction to grant mental health diversion despite the
criminal proceedings being suspended. It further found that it was not necessary for the
trial court to await the competency decision before granting diversion. It concluded, “If a
person is competent, they can consent to diversion and waive their rights; if a person is
incompetent, the court can nevertheless grant diversion. Nothing in the statute suggests
that there is something in the process of determining competency that would be required
for the court to consider when determining whether to grant mental health diversion, and
the procedure following the grant of diversion is identical whether the person is
competent or incompetent to stand trial.” (Fn. omitted.)
On June 12, 2023, this court ordered the matter transferred to this court in order to
settle an important question of law.3
DISCUSSION
The People claimed in their brief filed with the appellate division that Penal Code
section 1001.364 does not allow the grant of diversion after a doubt has been declared
3 This court ordered that the matter be decided based on the briefing filed by the parties in the appellate division and documents submitted to the trial court. (Cal. Rules of Court, rule 8.1007(b).)
4 All further statutory references are to the Penal Code unless otherwise indicated.
4
about a defendant’s competency but before competency has been resolved. The People
relied on two arguments: (1) the trial court lacked jurisdiction based on the proceedings
being suspended pursuant to section 1368, and (2) the statutory language required a
finding on competency prior to granting diversion. The appellate division rejected these
arguments. It found that the trial court could consider diversion despite the proceedings
on the criminal prosecution being suspended. Further, it found that the trial court need
not wait for a resolution on a defendant’s competency as the trial court under section
1001.36 could grant diversion whether defendant was ultimately found competent or
incompetent. We look to the statutory language of section 1001.36 and the competency
statutes to resolve the matter.
“ ‘ “ ‘ “When we interpret a statute, ‘[o]ur fundamental task . . . is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory
language, giving it a plain and commonsense meaning. We do not examine that language
in isolation, but in the context of the statutory framework as a whole in order to
determine its scope and purpose and to harmonize the various parts of the enactment. If
the language is clear, courts must generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the Legislature did not intend. If the
statutory language permits more than one reasonable interpretation, courts may consider
other aids, such as the statute’s purpose, legislative history, and public policy.’
[Citation.] ‘Furthermore, we consider portions of a statute in the context of the entire
statute and the statutory scheme of which it is a part, giving significance to every word,
phrase, sentence, and part of an act in pursuance of the legislative purpose.’ ” ’ ”
5
[Citation.] The interpretation of a statute presents a question of law that this court
reviews de novo.’ ” (People v. Braden (2023) 14 Cal.5th 791, 804 (Braden).)
A. GRANT OF DIVERSION PRIOR TO COMPETENCY
DETERMINATION
“Enacted in 2018, section 1001.36 authorizes pretrial diversion for defendants
with qualifying mental disorders.” (Braden, supra, 14 Cal.5th at p. 801.) Section
1001.36, subdivision (a)5 provides, “On an accusatory pleading alleging the commission
of a misdemeanor or felony offense not set forth in subdivision (d), the court may, in its
discretion, and after considering the positions of the defense and prosecution, grant
pretrial diversion to a defendant pursuant to this section if the defendant satisfies the
eligibility requirements for pretrial diversion set forth in subdivision (b) and the court
determines that the defendant is suitable for that diversion under the factors set forth in
subdivision (c).” Subdivision (e) of section 1001.36 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
5 The current version of section 1001.36 is effective until July 1, 2024. The amendments effective July 1, 2024, do not impact this appeal. (Stats. 2023 c. 687 (A.B. 1412), § 1.2, eff. Jan. 1, 2024, operative July 1, 2024.) This case was decided in the appellate division under the previous version of section 1001.36 (Stats. 2022, c. 735 (S.B. 1223), § 1, eff. Jan. 1, 2023) but again no changes impact the decision on appeal. Any references to section 1001.36 refer to the current version effective January 1, 2024.
6
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.”
Pursuant to section 1001.36, the trial court can grant diversion to a defendant at
any time leading up to attachment of jeopardy at trial or the entry of a guilty or no contest
plea. (Braden, supra, 14 Cal.5th at p. 800.) Standing alone, section 1001.36 authorized
the trial court to consider the request for diversion that was made prior to the trial.
However, we must also consider the competency statutes in determining whether the trial
court had the authority to consider granting diversion prior to a competency
determination. (See Braden, at pp. 813-814 [“By incorporating the provisions of section
1001.36 into the competency statutes, the Legislature signaled its intent to have mental
health diversion operate in tandem with an incompetency finding, whenever it arises
before judgment”].) Based on the plain language in sections 1001.36 and 1368 et. seq.,
we conclude a determination of competency was not required in order for the trial court
to consider diversion.
Once a defendant’s competency has been questioned, the trial court can suspend
the criminal prosecution proceedings and order that defendant’s competency be
evaluated. (§ 1368)6 If a defendant is found competent, the matter can proceed to trial,
or the trial court can consider diversion, as it did in this case. (§§ 1370, sub. (a)(1)(A),
1370.01, subd. (a), 1001.36, subd. (a).)
6 We will discuss the suspension of the proceedings, post.
7
The competency statutes also permit a trial court to consider diversion if the
defendant is found incompetent when a defendant is charged with either a felony or a
misdemeanor. Section 1370, subd. (a)(1)(B)(iv)(I) provides that, “If, at any time after the
court finds that the defendant is mentally incompetent and before the defendant is
transported to a facility pursuant to this section, the court is provided with any
information that the defendant may benefit from diversion pursuant to Chapter 2.8A
(commencing with Section 1001.35) of Title 6, the court may make a finding that the
defendant is an appropriate candidate for diversion.” Section 1370, subdivision
(a)(1)(B)(v), further provides that “If a defendant is found by the court to be an
appropriate candidate for diversion pursuant to clause (iv), the defendant’s eligibility
shall be determined pursuant to Section 1001.36.”
Section 1370 applies to defendants who are charged with a felony. “Section 1370
applies to a person who is charged with a felony or alleged to have violated the terms of
probation for a felony or mandatory supervision and is incompetent as a result of a
mental health disorder.” (§ 1367, subd. (b).) “Section 1370.01 applies to a person who is
charged with a misdemeanor or misdemeanors only, or a violation of formal or informal
probation for a misdemeanor, and the judge finds reason to believe that the defendant has
a mental health disorder, and may, as a result of the mental health disorder, be
incompetent to stand trial.” (§ 1367, subd. (b).) Subdivision (b) of section 1370.01
provides, “If the defendant is found mentally incompetent, the trial, judgment, or hearing
on the alleged violation shall be suspended and the court may do . . . the following: [¶]
(1)(A) Conduct a hearing, pursuant to Chapter 2.8A (commencing with Section 1001.35)
8
of Title 6, and, if the court deems the defendant eligible, grant diversion pursuant to
Section 1001.36 for a period not to exceed one year from the date the individual is
accepted into diversion or the maximum term of imprisonment provided by law for the
most serious offense charged in the misdemeanor complaint, whichever is shorter.”
Section 1001.36 also specifically provides that a defendant found incompetent to
proceed to trial can nonetheless be considered for diversion. “Section 1001.36
specifically excepts incompetent persons from the statutory requirements that they
consent to diversion, waive speedy trial rights, and agree to comply with treatment.”
(Braden, supra, 14 Cal.5th at p. 815.) “[T]he availability of diversion for individuals
found incompetent to be tried was added to reduce the burden of housing such individuals
by the State Department of State Hospitals.” (Id. at p. 814.)
The applicable provisions include section 1001.36, subdivision (c)(2), which
provides the trial court can grant diversion if, “The defendant consents to diversion and
waives the defendant’s right to a speedy trial, unless a defendant has been found to be an
appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of
subparagraph (B) of paragraph (1) of subdivision (a) of Section 1370 and, as a result of
the defendant’s mental incompetence, cannot consent to diversion or give a knowing and
intelligent waiver of the defendant’s right to a speedy trial.” Section 1001.36,
subdivision (c)(3), provides that a trial court can grant diversion if, “The defendant agrees
to comply with treatment as a condition of diversion, unless the defendant has been found
to be an appropriate candidate for diversion in lieu of commitment for restoration of
competency treatment pursuant to clause (iv) of subparagraph (B) of paragraph (1) of
9
subdivision (a) of Section 1370 and, as a result of the defendant's mental incompetence,
cannot agree to comply with treatment.”
Based on the foregoing, the trial court had the same options for granting mental
health diversion whether defendant was found competent or incompetent to stand trial.
Nothing in the statutory language requires a finding on competence prior to granting
diversion. The trial court in considering whether to grant diversion looks to the
defendant’s mental state during the commission of the crime. (Braden, supra, 14 Cal.5th
at p. 814 [“To support a diversion request, the condition in question must exist at the time
of the offense”].) The statutes on competency and section 1001.36 support the trial
court’s decision to grant diversion prior to a finding as to defendant’s competence to
stand trial as that finding had no bearing on the decision to grant diversion.
This conclusion comports with the Legislative intent of section 1001.36. “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.’ ” (People v. Frahs (2020) 9
Cal.5th 618, 626.) Granting diversion at the earliest time pretrial, rather than waiting for
a competency determination, promotes each of these factors.
10
Additionally, as noted by the appellate division, the Legislature enacted section
1001.36 in part to avoid “unnecessary and unproductive costs of trial and incarceration.”
(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 215
(2108-2019 Reg. Sess.) as amended August 23, 2018, p. 2.) The earlier in the process
that the trial court considers diversion helps reduce unnecessary court costs.
Finally, the Legislature recently enacted section 17.2. It provides, “(a) It is the
intent of the Legislature that the disposition of any criminal case use the least restrictive
means available. [¶] (b) The court presiding over a criminal matter shall consider
alternatives to incarceration, including, without limitation, collaborative justice court
programs, diversion, restorative justice, and probation. [¶] (c) The court shall have the
discretion to determine the appropriate sentence according to relevant statutes and the
sentencing rules of the Judicial Council.” Consideration of mental health diversion
certainly presents a less restrictive alternative to the placement of such individuals in a
state hospital. (See Braden, supra, 14 Cal.5th at p. 814.)
The appellate division properly determined that a finding of competency was not
required in order for the trial court to grant diversion. Diversion is based on the
defendant’s mental state during the commission of the crime and can be determined at
any time prior to jeopardy attaching or a plea. Diversion may be granted to both those
defendants who are found competent to stand trial and those who are found incompetent.
11
There is no reason to restrict the trial court’s ability to consider diversion only after a
determination on competency.7
B. SUSPENSION OF CRIMINAL PROCEEDINGS
We further reject the argument made by the People that the trial court lacked
jurisdiction to grant diversion to defendant based on the criminal proceedings being
suspended. Section 1368, subdivision (b) provides, “If counsel informs the court that he
or she believes the defendant is or may be mentally incompetent, the court shall order that
the question of the defendant’s mental competence is to be determined in a hearing which
is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she
believes the defendant is mentally competent, the court may nevertheless order a hearing.
Any hearing shall be held in the superior court.” Subdivision (c) of section 1368
provides, “Except as provided in Section 1368.1, when an order for a hearing into the
present mental competence of the defendant has been issued, all proceedings in the
criminal prosecution shall be suspended until the question of the present mental
competence of the defendant has been determined.”
Section 1368.1, subdivision (b) provides what actions can take place when the
case involves a misdemeanor charge. “If the action is on a complaint charging a
misdemeanor, counsel for the defendant may either demur, move to dismiss the
complaint on the ground that there is not reasonable cause to believe that a public offense
7 We note that there may be a circumstance in which a trial court considers diversion sua sponte and there is evidence that the defendant may not want diversion. In those situations, a finding of competency may be more appropriate. We do not address such a situation in this case as counsel requested diversion on behalf of defendant.
12
has been committed and that the defendant is guilty thereof, or make a motion under
Section 1538.5.” (§ 1368.1, subd. (b).)
We conclude the trial court could proceed with granting defendant diversion
despite the proceedings being suspended pursuant to section 1368. First, in People v.
Superior Court (Marks) (1991) 1 Cal.4th 56, the California Supreme Court addressed a
trial court’s failure to conduct a competency hearing after suspending the proceedings. In
addressing jurisdiction, the court held, “[W]e conclude that the failure to comply with the
mandate of section 1368 does not effect a fundamental loss of jurisdiction, i.e., ‘an entire
absence of power to hear or determine the case, an absence of authority over the subject
matter or the parties. [Citation.]’ [Citation.] Rather, the trial court suffers an inability
‘to act except in a particular manner, or to give certain kinds of relief, or to act without
the occurrence of certain procedural prerequisites.’ [Citations.] Thus, while the court
retains jurisdiction over the cause, it acts in excess of that authority in failing to hold a
competency hearing.” (Id. at p. 66, fn. omitted; see also People v. Ramirez (2008) 159
Cal.App.4th 1412, 1426 [“[W]hen a court has jurisdiction of the subject matter and the
parties, actions in substantial disregard of constitutional or statutory limitations, or that
deny fundamental rights or defenses, are acts in excess of jurisdiction”].) The trial court
had not lost jurisdiction of the case by suspending the proceeding pursuant to section
1368. As found in Marks, the trial court still had subject matter jurisdiction over the
matter.
Second, as stated, section 1368.1, subdivision (b) allows for the trial court to
conduct some actions while the proceedings are suspended. Each of these actions
13
involves disposition of the matter prior to the competency proceeding without proceeding
to trial, which is similar to diversion. Further, the plain language of section 1368,
subdivision (c) provides all “proceedings in the criminal prosecution shall be suspended.”
This only suspends proceedings on the “criminal prosecution” and does not necessarily
exclude diversion, which would resolve the case without prosecution just as a demur or
motion under section 1538.5 would resolve the case.
Several cases have found that actions that can be taken by the trial court while
criminal proceedings are suspended pursuant to section 1368 are beyond those listed in
section 1368.1. In People v. Cadogan (2009) 173 Cal.App.4th 1502, 1509, the trial court
conducted a conditional examination of a witness who had cancer while the proceedings
were suspended pursuant to section 1368. The appellate court first concluded, “[I]t must
be true that section 1368, subdivision (c) does not literally suspend all proceedings
pending a competency hearing.” (Braden, at p. 1511.) It also found that the trial court
had the inherent discretion to control the proceedings “ ‘ “to ensure the efficacious
administration of justice.” ‘ “ (Id. at p. 1512.) It upheld the trial court’s decision to
conduct an examination of the witness despite the suspension of proceedings under
section 1368 and an examination of a witness not being listed in section 1368.1. In
addition, the California Supreme Court found that granting a request for substitution of
counsel did not violate section 1368. (See People v. Stankewitz (1990) 51 Cal.3d 72, 87-
90, abrogated on other grounds as recognized in People v. Mataele (2022) 13 Cal.5th
372, 417 [granting substitution of counsel did not violate prohibition against conducting
proceedings after the need for a competency hearing is established].) Nothing supports
14
that the Legislature intended to bar consideration of diversion while proceedings
involving criminal prosecution were suspended under section 1368.
Finally, section 1370.01 allows for a determination that diversion is appropriate,
while the proceedings are suspended, while a defendant is incompetent to stand trial. It
would be nonsensical to find that a trial court could not grant diversion while the
proceedings are suspended to determine competency when the trial court can act when
the proceedings are suspended while the defendant is considered incompetent.
Based on the foregoing, the trial court did not lack jurisdiction to consider
diversion while the proceedings on criminal prosecution were suspended under section
1368.
DISPOSITION
In all respects, the opinion of the appellate division of the Riverside Superior