P. v. Schweitzer

1
Filed 1/29/20 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,
Plaintiff and Respondent,
v.
SCOTT ALLEN SCHWEITZER,
Defendant and Appellant.
C086895
(Super. Ct. Nos.
SCCR-CRF-2016-1304 &
SCCR-CRF-2017-1251)
In a plea proceeding, defendant Scott Allen Schweitzer pleaded no contest or
guilty to assault with a deadly weapon with a great bodily injury enhancement (Pen.
Code, §§ 245, subd. (a)(1), 12022.7, subd. (a)),1 and two counts of brandishing a deadly
weapon (§ 417, subd. (a)(1)). In a subsequent plea proceeding, he pleaded 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
1 Undesignated statutory references are to the Penal Code.

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alcohol in jail (§ 4573.8), felony failure to appear (§ 1320, subd. (b)), five counts of
resisting an officer (§ 148, subd. (a)(1)), battery (§ 242), possession of a controlled
substance (Health & Saf. Code, § 11377, subd. (a)), misdemeanor failure to appear
(§ 1320, subd. (a)), and admitted great bodily injury and strike allegations (§§ 12022.7,
subd. (a), 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). He was sentenced to 15 years in
state prison.
His sole contention on appeal is that his conviction should be conditionally
reversed and the matter remanded to allow proceedings under the recently enacted section
1001.36 pretrial mental health diversion program. Finding section 1001.36 does not
apply retroactively to nonfinal convictions, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We dispense with the facts of defendant’s crimes as they are unnecessary to
resolve this appeal. We summarize the relevant procedural facts as follows.
Defendant’s first plea, the assault with a deadly weapon and two brandishing
counts in case No. SCCR-CRF-2016-1304, was entered on November 17, 2016. The plea
included a Cruz2 waiver. Defendant subsequently violated the Cruz waiver by failing to
appear for sentencing, which led to new charges being filed. Defendant admitted the
Cruz violation on January 31, 2017.
On February 14, 2017, defense counsel expressed doubts about defendant’s
competency to stand trial. The trial court referred defendant for a psychological
evaluation pursuant to section 1369. According to the psychologists’ reports, defendant
had suffered brain damage, posttraumatic stress disorder (PTSD), and memory loss from
an earlier gunshot wound to the head, which was compounded by early onset
2 People v. Cruz (1988) 44 Cal.3d 1247.

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polysubstance abuse, but he was nonetheless competent to stand trial. The trial court
found defendant competent to stand trial and reinstated proceedings on March 14, 2017.
Defendant’s second plea was entered on January 25, 2018. He was sentenced on
March 1, 2018.
DISCUSSION
Defendant’s sole contention on appeal is that he is entitled to seek pretrial
diversion under section 1001.36 because that provision applies retroactively to
convictions not final on appeal, such as his.
We conclude, in agreement with a recent opinion of the Court of Appeal, Fifth
Appellate District (People v. Craine (2019) 35 Cal.App.5th 744, review granted Sept. 11,
2019, S256671 (Craine))3 and other decisions, that the statute does not have retroactive
effect as to cases, like this one, that had already reached the stage of conviction before the
statute’s effective date.
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).)
3 We 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).)

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“ ‘[P]retrial 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).)
Since defendant entered his pleas and was sentenced before the effective date of
the statute, he is entitled to its benefits only if section 1001.36 applies retroactively to
him. In support of his retroactivity claim, defendant relies primarily on People v. Frahs
(2018) 27 Cal.App.5th 784, review granted December 27, 2018, S252220 (Frahs).
Although review was granted in Frahs after defendant filed his brief, as noted, we may
still consider it as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1).)
However, for the reasons given in Craine, supra, 35 Cal.App.5th 744 (rev.gr.), we
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, at p. 754.)
The Frahs court decided whether section 1001.36 is retroactive by applying the
standard retroactivity rules of In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v.
Superior Court (Lara) (2018) 4 Cal.5th 299 (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, 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, at pp. 308, 309.) Taking these rules together,
Frahs found that section 1001.36 confers an “ ‘ameliorating benefit’ ” on a class of

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accused persons and therefore must be understood to work retroactively. (Frahs, supra,
27 Cal.App.5th at p. 791, rev.gr.)4
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, rev.gr.) 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.)5
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, at p. 789, fn. 2.)
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
4 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 under consideration (Proposition 57) nor the ballot materials
rebutted the inference that the initiative was intended to apply retroactively. (Lara, at
p. 309.)
In quoting Lara, the Frahs court omits the qualifying language we have italicized.
Thus, Frahs 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, rev.gr.).
5 Frahs did not address the first part of the statutory language quoted by the Attorney
General (which is misstated as “ ‘ “postponement or prosecution” ’ ”). (Frahs, supra,
27 Cal.App.5th at p. 791, italics added, rev.gr.)

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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.6 (Craine,
supra, 35 Cal.App.5th at pp. 754-756, rev.gr.)
As to the phrase “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,
rev.gr.) 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).
(Ibid.)
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. As the Craine court found, “[P]rosecution is synonymous with ‘criminal
action,’ and it means ‘ “[t]he proceeding by which a party charged with a public offense
is accused and brought to trial and punishment.” ’ ” (Craine, supra, 35 Cal.App.5th at
pp. 755-756, rev.gr.) “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, rev.gr.)
6 See footnote 4, ante.

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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, rev.gr.)
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, rev.gr. [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].)
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.” (Craine,
supra, 35 Cal.App.5th at p. 759, fn. omitted, rev.gr.)
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

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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.
The Sixth Appellate District likewise rejected retroactive application of section
1001.36 in People v. Khan (2019) 41 Cal.App.5th 460. The Court of Appeal accepted
the Attorney General’s argument that Frahs was wrongly decided and pretrial diversion,
as used in section 1001.36, meant “ ‘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, to allow the defendant to undergo mental
health treatment,’ subject to all of the specified requirements.” (Khan, at p. 488.)
Furthermore, even if the double jeopardy issues could be solved through
conditional reversal, the Khan court was “not convinced that the reasoning in Lara
applies or that the statutory language of section 1001.36 structurally supports

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defendant’s position.” (People v. Khan, supra, 41 Cal.App.5th at p. 491.) Although the
defendant in Lara had been charged with an information in adult court, “there had been
no trial and no conviction in adult court.” (Khan, at p. 491.) Unlike the retroactive
application of section 1001.36, the retroactive application of Proposition 57 in Lara
“does not require courts to maintain a fiction that an alleged crime had never been
adjudicated. Rather, if after retroactively conducting a transfer hearing the juvenile
court finds that it would not have transferred the person to criminal adult court, the court
must treat the adult convictions as juvenile adjudications.” (Khan, at p. 492.) Agreeing
with Craine, the Court of Appeal found section 1001.36 was not retroactive to nonfinal
convictions. (Khan, at pp. 493-494.)
For the reasons stated in Craine and Khan, we disagree with Frahs and find that
“pretrial diversion” under section 1001.36 is not available to defendant because he has
already been tried, convicted, and sentenced.
DISPOSITION
The judgment is affirmed.
/s/
Butz, J.
I concur:
/s/
Murray, J.

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ROBIE, J., Dissenting.
I respectfully disagree with the majority’s conclusion that the recently enacted
Penal Code1 section 1001.36 pretrial mental health diversion program does not apply
retroactively to nonfinal convictions. As noted in the majority opinion, this question has
vexed the Courts of Appeal and resulted in a splintering of the appellate districts and, as
seen here, of justices sitting on the same court. (Compare People v. Frahs (2018) 27
Cal.App.5th 784, review granted Dec. 27, 2018, S252220; 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 Nov. 26, 2019, S258541 with People v. Craine
(2019) 35 Cal.App.5th 744, 749, review granted Sept. 11, 2019, S256671; People v.
Torres (2019) 39 Cal.App.5th 849; and People v. Khan (2019) 41 Cal.App.5th 460.)
While we wait for our Supreme Court to weigh in and provide guidance, I step
into the bramble thicket and throw my support behind Frahs and multiple other courts in
concluding that a defendant may be considered for mental health diversion under the
statute if his or her conviction is not yet final.
I add, however, that a defendant raising the issue for the first time on appeal must
show that the statute may apply to him or her before the requested relief can be granted.
In this regard, I disagree with cases finding remand appropriate solely because the record
discloses the defendant “appears to meet at least one of the threshold requirements,
namely, he suffers from a diagnosed mental health disorder.” (People v. Weaver, supra,
36 Cal.App.5th at pp. 1121-1122; see People v. Frahs, supra, 27 Cal.App.5th at p. 791.)
I believe a defendant must show the judgment results in a miscarriage of justice because
1 All further section references are to the Penal Code unless otherwise specified.

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he or she was not given the opportunity to seek a mental health diversion eligibility
hearing under section 1001.36. (Cal. Const., art. VI, § 13.)
Here, I conclude defendant has shown the statute may apply to him and, thus,
remand would be appropriate for the trial court to conduct a mental health diversion
eligibility hearing.
Preliminarily, however, I address a jurisdictional argument raised by the People
and not addressed by the majority -- that is whether defendant was required to provide a
certificate of probable cause under section 1237.5. This question is no less contentious or
prickly than the question of retroactivity. (See, e.g., People v. Stamps (2019) 34
Cal.App.5th 117 [certificate unnecessary], review granted June 12, 2019, S255843;
People v. Baldivia (2018) 28 Cal.App.5th 1071 [same]; People v. Hurlic (2018) 25
Cal.App.5th 50 [same]; but see People v. Alexander (2019) 36 Cal.App.5th 827, 843
(conc. & dis. opn. of Needham, J.) [certificate necessary], review granted Oct. 16, 2019,
S257190; People v. Galindo (2019) 35 Cal.App.5th 658 [same], review granted Aug. 28,
2019, S256568; People v. Fox (2019) 34 Cal.App.5th 1124 [same], review granted
July 31, 2019, S256298.) I agree with the Stamps, Baldivia, and Hurlic line of cases that,
absent language in the plea agreement incorporating only the law in existence at the time
of execution, a certificate of probable cause is not required for a defendant to seek the
benefit of a retroactive ameliorative law on appeal if his or her conviction is not yet final.
I
Certificate Of Probable Cause Not Required
The People argue defendant’s appeal should be dismissed because “[a] defendant
who agrees to a specified maximum sentence [in a plea agreement] may not file an appeal
challenging the trial court’s legal authority to impose that sentence without first obtaining
a certificate of probable cause.” In my view, the fact that the parties stipulated to a
specific term does not insulate the plea agreement from future changes in the law that the
Legislature intended to apply retroactively. (Harris v. Superior Court (2016) 1 Cal.5th

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984, 987 [the defendant who pled no contest to grand theft offense in exchange for
stipulated six-year sentence could petition to reduce his conviction to a misdemeanor and
recall his sentence under subsequently enacted Proposition 47 and the People were not
permitted to rescind the plea agreement and reinstate dismissed charges].)
“Unless a plea agreement contains a term requiring the parties to apply only the
law in existence at the time the agreement is made” (People v. Hurlic, supra, 25
Cal.App.5th at p. 57), “the general rule in California is that the plea agreement will be
‘ “deemed to incorporate and contemplate not only the existing law but the reserve power
of the state to amend the law or enact additional laws for the public good and in
pursuance of public policy . . . ” ’ ” (Doe v. Harris (2013) 57 Cal.4th 64, 66). Although
the parties to a particular plea bargain might affirmatively agree that the consequences of
the plea will remain fixed despite amendments to the relevant law (Harris v. Superior
Court, supra, 1 Cal.5th at p. 991), courts will not amend a plea agreement to add such a
provision (Hurlic, at p. 57). I have found nothing in the record showing defendant’s plea
agreement contains a term incorporating only the law in existence at the time of
execution and decline to infer such a provision on appeal.
Moreover, dispensing with the certificate of probable cause requirement under the
present circumstances would not run afoul with the underlying legislative purposes for
requiring the certificate in the first place; i.e., to facilitate and encourage plea agreements
and “ ‘weed out frivolous or vexatious appeals.’ ” (People v. Hurlic, supra, 25
Cal.App.5th at pp. 57-58.)
I conclude defendant’s plea agreement is deemed to incorporate a retroactive
subsequent application of a law, allowing him to raise such an argument on appeal
without the need not obtain a certificate of probable cause.

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II
Defendant Has Shown Section 1001.36 May Apply To Him
The next pertinent question is whether defendant has shown section 1001.36 may
apply to him (i.e., that he may fall within the class of persons who may seek discretionary
relief under the statute) such that, if the statute applies retroactively, he would be entitled
to remand for the trial court to conduct a mental health diversion eligibility hearing.
“Perhaps the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct” (People v. Sanghera (2006) 139 Cal.App.4th
1567, 1573), and we shall not set aside a judgment unless we find “the error complained
of has resulted in a miscarriage of justice” (Cal. Const., art. VI, § 13). As this court
explained in Waller, “[p]rejudice is not presumed, and the burden is on the appealing
party to demonstrate that a miscarriage of justice has occurred.” (Waller v. TJD, Inc.
(1993) 12 Cal.App.4th 830, 833.) Here, the error complained of is that defendant was not
given the opportunity to seek a mental health diversion eligibility hearing under
section 1001.36.
Section 1001.36 provides pretrial diversion may be granted if the trial court finds
all of the following criteria are met: (1) the defendant suffers from a recently diagnosed
mental disorder enumerated in the statute; (2) the disorder was a significant factor in the
commission of the charged offense, and that offense is not one of the offenses
enumerated in subdivision (b); (3) “[i]n the opinion of a qualified mental health expert,
the defendant’s symptoms of the mental disorder motivating the criminal behavior would
respond to mental health treatment”; (4) the defendant consents to diversion and waives
his right to a speedy trial; (5) the defendant agrees to comply with treatment as a
condition of diversion; and (6) the defendant will not pose an unreasonable risk of danger
to public safety, as defined in section 1170.18, if treated in the community. (§ 1001.36,
subd. (b)(1)-(2).)

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“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 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.” (§ 1001.36, subd. (b)(3).)
I disagree with Frahs and Weaver that a defendant meets his or her burden of
demonstrating a miscarriage of justice occurred merely by arguing he or she has a
diagnosed mental health disorder within the meaning of section 1001.36, subdivision
(b)(1)(A), as defendant attempts to do here. (See People v. Frahs, supra, 27 Cal.App.5th
784; People v. Weaver, supra, 36 Cal.App.5th at pp. 1121-1122.) Rather, I find it
appropriate to require a defendant to show that he or she may fall within the class of
persons who may seek discretionary relief under the statute such that affirming the
judgment would result in a miscarriage of justice. Practically speaking this means a
defendant must meet the requirements of section 1001.36, subdivision (b)(3) -- that is,
showing he or she “will meet the minimum requirements of eligibility for diversion and
that the defendant and the offense are suitable for diversion.”
Here, defendant explains he suffers from mental illness including a qualifying
mental disorder -- post-traumatic stress disorder. (§ 1001.36, subd. (b)(1)(A).) He states
his mental illness “possibly may have been exacerbated even further” when he was
“attacked and beat up by” one of his victims; he stabbed the victim “when he later ran
into [him]” because “he was afraid [the victim] was going to attack him again.” This
connects defendant’s qualifying mental disorder with the commission of one of the
charged offenses. (§ 1001.36, subd. (b)(1)(B).) Defendant further explains he has been
treated with medication for his post-traumatic stress disorder by a jail psychiatrist,
suggesting his symptoms may respond to treatment. (§ 1001.36, subd. (b)(1)(C).) And,

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he points out he was not charged with any of the crimes that would disqualify him from
consideration for diversion. (§ 1001.36, subd. (b)(2).) His convictions also are not
super-strike offenses within the meaning of section 667, subdivision (e)(2)(C)(iv) to
establish an “unreasonable risk of danger to public safety” as defined in section 1170.18.
(§ 1001.36, subd. (b)(1)(F).) Finally, defendant’s appeal requesting an opportunity to
seek diversion indicates he will likely consent to diversion and treatment. (§ 1001.36,
subd. (b)(1)(D)-(E).)
Given that defendant has shown he may fall within the class of persons who may
seek discretionary relief under section 1001.36, I next consider whether the statute
applies retroactively such that remand is appropriate for the court to conduct a mental
health diversion eligibility hearing.
III
Section 1001.36 Is Retroactive
As a general rule, statutes are presumed to apply prospectively. (People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 307.) Where, however, a statute reduces the
punishment for a crime or a class of persons, an “inference of retroactivity applies” to
cases not yet final on appeal. (Id. at p. 303, citing In re Estrada (1965) 63 Cal.2d 740.)
This “ ‘rule rests on the 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, distinguishing only as necessary between sentences that are final and
sentences that are not.’ ” (Lara, at p. 308.) Potential contrary indications include “a
saving clause or other indicia of a contrary legislative intent.” (People v. Nasalga (1996)
12 Cal.4th 784, 793.) “ ‘[W]hat is required is that the Legislature demonstrate its
intention with sufficient clarity that a reviewing court can discern and effectuate it.’ ”
(Ibid.)
No one disputes, as far as I am aware, that section 1001.36 is an ameliorative
change to the criminal law; indeed, it ameliorates the possible punishment for persons

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with certain mental disorders, if the mental disorder was a significant factor in the
commission of a nonexcluded offense. (§ 1001.36, subds. (a), (b), (e).) The principal
dispute is whether the definition of pretrial diversion in section 1001.36, subdivision (c),
presents a clear contraindication of retroactivity. The majority believes it does; I
disagree.
I do not quibble regarding the statute’s language. The definition of pretrial
diversion indeed contemplates that diversion, if any, should occur prior to adjudication.
But, does the definition clearly signal the Legislature’s intent to make section 1001.36
prospective? (People v. Nasalga, supra, 12 Cal.4th at p. 793.) To this question, I must
answer, “no”; and, agree with Frahs that the definition merely reflects “how this
particular diversion program is ordinarily designed to operate.” (People v. Frahs, supra,
27 Cal.App.5th at p. 791.)
Indeed, “the fact that a juvenile transfer hearing under Proposition 57 ordinarily
occurs prior to the attachment of jeopardy, did not prevent the Supreme Court in Lara,
supra, 4 Cal.5th 299, from finding that such a hearing must be made available to all
defendants whose convictions are not yet final on appeal.” (People v. Frahs, supra, 27
Cal.App.5th at p. 791.) The absence of an express discussion of the “timing” language of
Proposition 57 in Lara does not, in my mind, create a material distinction. “The
relevance of the timing language in [Proposition 57 and section 1001.36] is that it reflects
legislative intent as to how the new procedure will normally operate. If that intent is not
enough to dictate prospective application in Lara as to Proposition 57, [I] do not see how
it can require prospective application as to mental health diversion in section 1001.36.
And to reject Lara on the basis that a decision is not authority for a proposition not
specifically discussed would be to conclude that the Supreme Court reached the wrong
result because it overlooked crucial statutory language. Absent further guidance from our
high court, [I] believe our institutional role compels us to . . . [apply] Lara to permit

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retroactive application of section 1001.36.” (People v. Burns, supra, 38 Cal.App.5th at
p. 787.)
The majority next relies on Craine’s discussion of the legislative history of section
1001.36, stating it “makes clear that the statute was intended to make it possible to use
early intervention wherever possible, partly” for cost savings. (Maj. opn. ante, at p. 7.) I
believe the express statutory purpose set forth in section 1001.35 is more instructive and
clearer. Section 1001.35 states: “The purpose of this chapter 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.”
The Legislature’s express purposes in section 1001.35, subdivisions (a) and (c)
would be furthered by retroactive application of section 1001.36. “A similar legislative
purpose, to stop the revolving door of criminal justice for juveniles, was found in Lara to
‘support the conclusion that Estrada’s inference of retroactivity is not rebutted.’ ”
(People v. Burns, supra, 38 Cal.App.5th at p. 788.) While the Legislature may have
considered the cost savings of section 1001.36 when it enacted the statute, I do not find
the legislative history in that regard to clearly signal the Legislature’s intent to make
section 1001.36 prospective. (People v. Nasalga, supra, 12 Cal.4th at p. 793.) The
Legislature spoke clearly of its intent in section 1001.35, and its express intent does not
overcome the normal application of Estrada; it supports it.
Finally, I find no merit in the argument that retroactive application of the statute
would implicate double jeopardy principles. The conditional reversal utilized in Frahs
appropriately obviates any such concern. (See People v. Frahs, supra, 27 Cal.App.5th at
p. 796.) If a defendant is found ineligible for diversion on remand or is found eligible

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and later violates diversion, the judgment would be reinstated without the need for a new
trial.
Under the existing tapestry of our Supreme Court’s analysis on retroactivity, I
believe section 1001.36 applies retroactively to benefit a defendant whose case is not yet
final. Thus, I would conditionally reverse the judgment and remand the cause to the
superior court with directions to conduct a diversion eligibility hearing no later than 90
days from the filing of the remittitur.
/s/
Robie, Acting P. J.

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