P. v. Colbert

Filed 12/27/19 P. v. Colbert CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DEBORAH COLBERT,
Defendant and Appellant.
B291207
(Los Angeles County
Super. Ct. No. BA456180)
APPEAL from orders of the Superior Court of Los Angeles
County, Karla D. Kerlin, Judge. Affirmed.
Stephanie L. Gunther, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Zee Rodriguez and Noah P. Hill, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________

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Following a jury conviction for vandalism, appellant
Deborah Colbert was placed on probation and ordered to pay a
$400 restitution fine and other court assessments. On appeal,
appellant argues that her case should be remanded so the trial
court can retroactively determine her eligibility for a pretrial
mental health diversion program under Penal Code section
1001.36.1 Appellant also argues that the trial court violated her
due process rights by imposing the restitution fine and court
assessments without making a finding as to her ability to pay.
We conclude that section 1001.36 does not retroactively apply
here, where appellant’s case was “adjudicated” before the
statute's enactment. Further, we conclude appellant forfeited
any challenge to the restitution fine and court assessments by not
raising her inability to pay in the trial court, as statutorily
required. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning of April 5, 2017, Juan Salazar
witnessed appellant repeatedly slamming a brick against
Salazar’s parked vehicle. The vehicle’s windshield and window
were broken, and there were dents and scratches to the body of
the vehicle. The total damage to the vehicle was $4,455.
On May 4, 2017, the Los Angeles County District
Attorney’s Office charged appellant with vandalism resulting in
more than $400 in damage (§ 594).
On June 26, 2017, defense counsel declared a doubt
regarding appellant’s competence. A forensic psychiatrist
diagnosed appellant with “Unspecified Schizophrenia Spectrum
1 Further unspecified statutory citations are to the Penal
Code.

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and Other Psychotic Disorder with a Rule Out of Schizophrenia.”2
The trial court found appellant incompetent and suspended
criminal proceedings. On December 18, 2017, the trial court
reinstated criminal proceedings after finding that appellant had
been restored to competence.
A jury convicted appellant of the charged offense on April 5,
2018.
On May 30, 2018, the trial court suspended the imposition
of sentence and placed appellant on three years of probation
through the Office of Diversion and Reentry. The court ordered
appellant to serve 736 days in jail as a condition of probation, and
awarded her a total of 736 days of presentence credit. The court
also ordered that she pay $4,500 in victim restitution, a $400
restitution fine (§ 1202.4), a $30 court facilities assessment (Gov.
Code, § 70373), a $40 court operations assessment (§ 1465.8), the
cost of probation services, a $10 crime prevention fine, and “any
other mandatory fines and fees.” Appellant was advised of her
right to an ability to pay hearing.
On June 27, 2018, the Legislature enacted section 1001.36,
which created a pretrial diversion program for certain defendants
with mental disorders. (§ 1001.36, subd. (a).) (Stats. 2018, ch.
34, § 24.)
Appellant timely appealed the May 30, 2018 order.3
2 The psychiatrist’s July 2017 report also contained limited
information about appellant’s financial condition. Appellant
stated “she receives SSI benefits.” Appellant’s daughter
indicated her mother was homeless, but appellant denied this
and maintained she has never been homeless.
3 An appeal may be taken by the defendant “from a final
judgment of conviction,” and “an order granting probation . . .

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DISCUSSION
I. Section 1001.36 Does Not Apply Retroactively.
Appellant contends her conviction should be conditionally
reversed and the matter remanded for the trial court to
determine, retroactively, whether defendant qualifies for a
pretrial diversion program for defendants with qualifying mental
disorders under 1001.36. Relying on In Re Estrada (1965) 63
Cal.2d 740 (Estrada) and People v. Superior Court (Lara) (2018)
4 Cal.5th 299 (Lara), appellant argues section 1001.36 should
apply retroactively because it confers an ameliorative benefit to
defendants whose judgments are not final on appeal. Respondent
contends section 1001.36 is not retroactive, focusing on the
express language of the statute which provides that pretrial
mental health diversion is available “until adjudication.”
Respondent argues that, whether “adjudication” is interpreted
narrowly to include the adjudication of guilt at trial, or broadly to
include the rendering of judgment, appellant’s claim was already
“adjudicated” by the time of the statute’s enactment.
A. Section 1001.36
Effective June 27, 2018, section 1001.36 authorizes pretrial
diversion in lieu of criminal prosecution for defendants with
qualifying mental disorders: “ ‘[P]retrial diversion’ 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, to allow the defendant to
shall be deemed to be a final judgment within the meaning of this
section.” (§ 1237; see also In re DeLong (2001) 93 Cal.App.4th
562, 571 [“Although this type of probation sentence defers the
pronouncement of sentence, the probation order is a final
judgment for purposes of appellate review.”].)

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undergo mental health treatment . . . .” (§ 1001.36, subd. (c),
italics added.)
A trial court may grant pretrial diversion under section
1001.36 if the court finds: (1) the defendant suffers from an
identified mental disorder; (2) the mental disorder was a
significant factor in the commission of the charged offense; (3) the
defendant’s symptoms will respond to treatment; (4) the
defendant consents to diversion and waives his or her speedy
trial rights; (5) the defendant agrees to comply with the
treatment; and (6) the defendant will not pose an unreasonable
risk of danger to public safety if treated in the community.
(§ 1001.36, subd. (b).)
If the trial court grants pretrial diversion, the defendant
will undergo mental health treatment by an approved mental
health program that will provide regular reports of the
defendant’s progress. Criminal proceedings may be diverted for
“no longer than two years.” (§ 1001.36, subds. (c)(1)(B) &
(c)(2)―(3).) If the defendant performs satisfactorily in diversion,
“the court shall dismiss the defendant’s criminal charges that
were the subject of the criminal proceedings at the time of the
initial diversion” and “the arrest upon which the diversion was
based shall be deemed never to have occurred.” (§ 1001.36,
subd. (e).) Under certain circumstances, if the defendant
commits additional crimes or performs unsatisfactorily in
diversion, the court may reinstate criminal proceedings.
(§ 1001.36, subd. (d).)
A stated purpose of the new law is to promote “[i]ncreased
diversion of individuals with mental disorders to mitigate the
individuals’ entry and reentry into the criminal justice system
while protecting public safety.” (§ 1001.35.)

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B. Retroactivity of Section 1001.36
Penal statutes are generally presumed to apply
prospectively unless they expressly state otherwise. (§ 3.)
However, under Estrada, “ ‘an amendatory statute lessening
punishment is presumed to apply in all cases not yet reduced to
final judgment as of the amendatory statute’s effective date.’ ”
(People v. Weaver (2019) 36 Cal.App.5th 1103, 1116, review
granted October 9, 2019, S257049 (Weaver).) “ ‘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, distinguishing
only as necessary between sentences that are final and sentences
that are not.’ ” (Lara, supra, 4 Cal.5th at p. 308.) Lara extended
retroactivity principles under Estrada to an amendment in the
law that did not reduce punishment for a particular crime, but
did reduce the possibility of punishment for a class of persons,
namely, juveniles. (Id. at p. 308.)
The Courts of Appeal are currently divided on the question
of whether section 1001.36 applies retroactively to persons who
were tried, convicted, and sentenced before section 1001.36 went
into effect, but as to whom judgment is not yet final. In People v.
Frahs (2018) 27 Cal.App.5th 784, review granted December 27,
2018, S252220 (Frahs), the Fourth District followed the
reasoning of Estrada and Lara to hold that section 1001.36
provides an “ ‘ameliorating benefit’ ” that should be applied as
broadly as possible to further the legislative purpose of increasing
diversion of individuals with mental disorders. (Frahs, at p. 791.)
Because the defendant’s case was not yet final on appeal, the
court found he was potentially eligible for section 1001.36
diversion, notwithstanding that his current criminal action had

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“technically been ‘adjudicated’ in the trial court.” Frahs reasoned
that “[t]he 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.” (Frahs, at p. 791; see also Weaver, supra, 36
Cal.App.5th at p. 1122, rev. granted; People v. Hughes (2019) 39
Cal.App.5th 886, 895, review granted November 26, 2019,
S258541.)
The Fifth District disagreed with Frahs in People v. Craine
(2019) 35 Cal.App.5th 744 (Craine), review granted September
11, 2019, S256671. Craine held that “section 1001.36 and its
legislative history contraindicate a retroactive intent with regard
to defendants, like Craine, who have been found guilty of the
crimes for which they were charged.” (Id. at p. 749.) The court
concluded that the statute’s reference to pretrial diversion up to
the point of “adjudication” referred to the “adjudication of guilt or
acquittal.” (Id. at p. 755; see also People v. Torres (2019) 39
Cal.App.5th 849, 855 (Torres) [citing Craine’s holding that
“section 1001.36 was not intended to apply to defendants tried
and convicted before the enactment of the statute”].) “At most,
‘adjudication’ could be synonymous with the rendition or
pronouncement of judgment, which occurs at the time of
sentencing.” (Craine, at p. 755.) According to Craine, the intent
of the Legislature was evident from the text of the statute, which
uses “preadjudicative” terms to describe its benefits, such as the
“postponement of prosecution,” the dismissal of “criminal
charges,” and the expungement of the “record of the arrest.”
(Id. at pp. 755―757.) Thus, “pretrial diversion is literally and
functionally impossible once a defendant has been tried, found
guilty, and sentenced.” (Id. at p. 756.) The intent of the

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Legislature was confirmed by the legislative history, which
envisioned diversion “ ‘at an early stage in the proceedings,’ ” with
a focus on reducing the number of referrals to state hospitals
based on findings of incompetency to stand trial. (Id. at
pp. 758―759, citing 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; Assem. Conc.
Sen. Amends. to Assem. Bill 1810 as amended June 12, 2018,
item 17, p. 7).) As Craine observed, the purpose of a pretrial
diversion program is precisely to “ ‘avoid the necessity of a trial.’ ”
(Craine, at p. 755.)
C. Analysis
In analyzing the retroactive application of section 1001.36,
we apply the principles of statutory interpretation. “ ‘ “ ‘As in any
case involving statutory interpretation, our fundamental task
here is to determine the Legislature’s intent so as to effectuate
the law’s purpose. [Citation.] We begin by examining the
statute’s words, giving them a plain and commonsense
meaning.’ ” ’ [Citation.]” (People v. Gonzalez (2017) 2 Cal.5th
1138, 1141.)
By the plain language of section 1001.36, which
circumscribes the scope of its application “from the point at which
the accused is charged until adjudication,” pretrial diversion is
not retroactively available to appellant, whose case had already
been “adjudicated” by the time of the statute’s enactment.
(§ 1001.36, subd. (c), italics added.) We employ the commonsense
meaning of “adjudication,” that is, the adjudication of a
defendant’s guilt, whether based on a plea of guilt or trial on the
merits. (See Craine, supra, 35 Cal.App.5th at pp. 755―756, rev.
granted [“We agree with respondent’s position that ‘adjudication,’

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which is an undefined term, is shorthand for the adjudication of
guilt or acquittal.”]; People v. Clancey (2013) 56 Cal.4th 562, 570
[“ ‘ “guilt is adjudicated at trial or admitted by plea” ’ ”].)
“Sentencing occurs after adjudication and section 1001.36,
subdivision (c) provides that mental health diversion may be
ordered at any point in the judicial process ‘until adjudication.’ ”
(Torres, supra, 39 Cal.App.5th at p. 856, first italics added.)
Thus, by the time appellant was sentenced to probation following
a jury conviction, her case had been “adjudicated.”4 There is no
re-adjudication of guilt by trial or plea following an order
granting probation. A subsequent probation revocation does not
“initiate a second criminal prosecution, nor is it intended to
authorize criminal punishment because ‘the sole consequence of
revocation of probation is that the offender must commence to
serve a term for an offense of which he previously was properly
convicted.’ ” (People v. McGavock (1999) 69 Cal.App.4th 332, 337,
citing In re Coughlin (1976) 16 Cal.3d 52, 61].) Because
4 When probation is imposed and the imposition of sentence
suspended, the trial court retains “undisputed authority to choose
from all the initially available sentencing options” if the
defendant’s probation is later revoked (see § 1203.2, subd. (c).)
Thus, we construe an order granting probation and suspending
imposition of sentence as “a form of sentencing” for purposes of
this analysis. (Cf. In re DeLong, supra, 93 Cal.App.4th at
pp. 570―571, citing People v. Howard (1997) 16 Cal.4th 1081,
1092 [observing that “an order granting probation and
suspending imposition of sentence is a form of sentencing” in
effectuating purpose of amendatory law]; see also Cal. Rules of
Court, rule 4.405(5) [“ ‘Sentence choice’ means the selection of
any disposition of the case that does not amount to a dismissal,
acquittal, or grant of a new trial.”].)

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appellant’s case had been “adjudicated” by the time of the
statute’s enactment, she is precluded from the class of persons
who may retroactively benefit from mental health diversion
under section 1001.36.
Courts have recognized the inherent conflict in Frahs’s
reasoning that “[t]he 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,” not a limit on its retroactivity.
(Frahs, supra, 27 Cal.App.5th at p. 791, rev. granted; see, e.g.,
Weaver, supra, 36 Cal.App.5th at p. 1120, rev. granted [“We
recognize that application of section 1001.36 to individuals who
have already been convicted but whose convictions are not yet
final on appeal may appear to conflict with several aspects of the
provision’s text.”].) The term “until adjudication” is “rendered
surplusage” when a case is remanded to the trial court for
potential diversion after the defendant has been convicted.
(Weaver, at p. 1120.) To reconcile this conflict, Weaver viewed
“these portions of the statute as demonstrating the Legislature’s
intent that individuals who commit their crimes after the
effective date of section 1001.36 and whose guilt has been
adjudicated in the form of a plea of guilty or no contest or a
conviction after trial are no longer eligible for pretrial diversion
under the statute.” (Ibid.) By extension, individuals who
committed their crimes before the statute’s effective date and
whose guilt has been adjudicated would be eligible for the
program. However, this interpretation concedes that “how this
particular diversion program is ordinarily designed to operate” is
prospectively—going forward “after the effective date of section
1001.36.” (Frahs, at p. 791; Weaver, at p. 1120.)

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Further, the language of the statute describes the
implementation of the diversion program prior to trial, and
makes no provisions for its implementation at a later time. To be
eligible for diversion, the defendant must “waive[] his or her right
to a speedy trial.” (§ 1001.36, subd. (b).) The statute explains
that prosecution will be postponed until adjudication, not
judgment (§ 1001.36, subd. (c)), and discusses the implications of
successful diversion on a defendant’s criminal charges and record
of arrest, not conviction (§ 1001.36, subds. (e)―(g).) We find no
indication in the language of the statute that the Legislature
contemplated a retroactive application of section 1001.36
following an adjudication of guilt. Therefore, “[i]t would be
impertinent for this court to place a strained interpretation upon
a statute merely to bring about a result which, in the enactment
of that statute, was neither contemplated nor intended.” (People
v. Borja (1980) 110 Cal.App.3d 378, 382.) Under the
unambiguous terms of section 1001.36, appellant’s request for
posttrial diversion is simply not authorized.
We find the reasoning in Craine persuasive, and we
therefore conclude that defendants who were tried, convicted, and
sentenced to probation before the adoption of section 1001.36 are
not eligible for pretrial mental health diversion. Although the
statute reduces the possibility of punishment for a class of
persons—mentally ill defendants whose cases have not been
“adjudicated”—the plain language of the statute and our
understanding of the Legislature’s intent compel our conclusion
that appellant is not a member of this intended class.

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II. Appellant has forfeited any challenge to the
restitution fine and court assessments.
Appellant challenges the imposition of the $400 restitution
fine and court assessments on due process grounds. Relying on
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), appellant
urges us to stay execution of the restitution fine and vacate the
court assessments because appellant is allegedly indigent and the
trial court failed to consider whether she had the ability to pay.
We disagree because the issue was forfeited.
Section 1202.4, subdivision (d) allows a court to consider a
defendant’s inability to pay a restitution fine if the fine is more
than the minimum fine of $300. (§ 1202.4, subd. (d); People v.
Avila (2009) 46 Cal.4th 680, 729 (Avila).) The statute provides
that a defendant who is unable to pay more than the minimum
fine must raise a challenge in the trial court: “A defendant shall
bear the burden of demonstrating his or her inability to pay.”
(§ 1202.4, subd. (d).) Thus, to preserve the issue on appeal,
appellant was obligated to object to the amount of the fine and
demonstrate her inability to pay anything more than the $300
minimum in the trial court. (See Avila, supra, at p. 729.)
Dueñas is distinguishable because the court imposed the
minimum restitution fine under section 1202.4, subdivision (b),
and the defendant clearly advised the court of her inability to
pay. (Dueñas, supra, 30 Cal.App.5th at pp. 1162, 1169.) Here,
the trial court did not impose the minimum restitution fine, and
appellant did not object to the fine and assessments or indicate
an inability to pay, as statutorily required, even after the trial
court advised appellant of her right to an ability-to-pay hearing.
Appellant concedes her trial counsel failed to object to the
fine and assessments, but argues there was no forfeiture because:

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(1) she presents a pure question of law based on undisputed facts
that can be raised for the first time on appeal; and (2) it would
have been futile to object before the trial court. We are not
persuaded. By claiming indigence, appellant requests a factual
determination of her inability to pay based on facts respondent
disputes and which the record does not conclusively establish.
Further, an objection based on her inability to pay would not
have been futile, especially in light of the court’s advisement and
under governing law which clearly contemplates such an
objection. (§ 1202.4, subd. (d); see also Avila, supra, 46 Cal.4th at
p. 729.) Having failed to object in the trial court based on her
inability to pay, appellant has forfeited this issue as to the
restitution fine and court assessments. (See People v. Scott
(1994) 9 Cal.4th 331, 353.)
DISPOSITION
The orders of the trial court are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J. DHANIDINA, J.

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