P. v. Thompson

1
Filed 7/29/19 P. v. Thompson CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ALI HOLT THOMPSON,
Defendant and Appellant.
A151625
(Contra Costa County
Super. Ct. No. 051612092)
Ali Holt Thompson (defendant) appeals from a judgment entered after a jury
found him guilty of assault with intent to commit rape, sodomy, or oral copulation
(Pen. Code, § 220, subd. (a)(1);1 count 1), sexual battery (§ 243.4, subd. (e)(1); count 2),
and indecent exposure (§ 314, subd. (1); count 3) and the trial court placed him on five
years of probation. He contends the court erred by: (1) prohibiting the defense from
presenting certain evidence related to his mental state; and (2) denying his request for a
mistrial. Additionally, defendant has filed supplemental briefing in which he contends
the judgment must be conditionally reversed and the matter remanded to allow the trial
court to determine whether he is eligible for mental health diversion under a recently
enacted statute, section 1001.36. We affirm the judgment.
1 All further, undesignated statutory references are to the Penal Code.

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FACTUAL AND PROCEDURAL BACKGROUND
An information was filed on July 25, 2016, charging defendant with assault with
intent to commit rape, sodomy, or oral copulation (§ 220, subd. (a)(1); count 1), sexual
battery (§ 243.4, subd. (e)(1); count 2), and indecent exposure (§ 314, subd. (1); count 3).
On the morning of June 11, 2015, the victim, who was referred to as Jane Doe
below, drove to a carwash after dropping her children off at school. It was a very warm
day and Doe was wearing a long dress. The carwash was “self-service,” meaning “[y]ou
drive your car in, . . . use coins and wash your car” with a spray hose “in your own little
stall.” Doe drove into a stall, put some coins in the carwash machine, and was about to
start washing her car when a stranger, later identified as defendant, climbed over a metal
bar that separated the carwash stall from the sidewalk and approached her.
Defendant told Doe that he wanted to tell her something and said, “Yeah, bitch,
today is the day.” Doe told defendant she did not know what he was talking about and
asked him to leave. Defendant said, “No,” “I want that ass, bitch, and I’m going to have
it.” Doe told him to leave her alone, but defendant exposed himself to Doe, told Doe to
look at his penis, and said, “I know you want this.”
Doe looked away, told defendant to go away, and moved to the other side of her
car. Defendant “kept following [Doe] around” as she tried to get away from him. Doe
became nervous and used the spray hose to spray water toward defendant. This prompted
defendant to walk away momentarily, but he turned back around and said, “Ah, bitch, get
ready,” “I’m coming for that ass.” He chased Doe, grabbed her dress from behind, and
pulled it up all the way to her back “as if to take it off,” exposing her underwear.
Defendant also grabbed Doe’s rear end, and Doe thought defendant was going to rape
her.
Doe screamed and ran toward a man and a woman who were at the carwash and
asked for help, but the man and woman did not help her.2 Defendant grabbed Doe’s arm
2 The woman testified she was sitting in her car with her baby when she saw a man
grab Doe’s waist and lift her dress up. The woman held her baby and did not get out of
the car because she was “very frightened.”

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and clothes and said he was going to have her and no one was going to do anything about
it. Doe continued to scream, “Please, somebody help me. I’m not with him.”
Two men arrived at the carwash and approached Doe and defendant. One of them
said, “Hey, hey, leave her alone,” and asked Doe, “Do you know this guy?” Doe said she
did not know defendant and needed help. Defendant “buffed up” as if to ask, “What you
gonna do?” Then the other man approached and asked defendant if he was causing
problems. At that point, defendant fled, and a third man chased after defendant.
A bystander who was across the street from the carwash called 911 after he saw
Doe scream in distress and saw her trying to get away from defendant, who appeared to
be beating her. Police officers responded to the 911 call and drove Doe to a nearby
location, where she identified defendant. Doe testified she has been afraid of being alone
since the incident and avoids going anywhere if she is by herself and there are men
around.
Grady Fort, a psychotherapist who worked at a youth center for patients with
mental health diagnoses, testified he met defendant at the youth center in 2015, when he
was assigned to be defendant’s case worker. At the time, defendant was taking
medication for his mental health diagnosis and was living at a residential treatment
center. Defendant had been sober for about 90 days, received an award for good
character, and “was doing well, [and] was very coherent, very thoughtful.” He
sometimes spoke incoherently or engaged in “ritualistic behavior” such as making
crosses out of utensils and talking about conspiracy theories. He had some grandiose
thoughts such as believing he was “the greatest rapper”; he also had auditory
hallucinations.
Defendant eventually moved into his own apartment, and Fort visited defendant at
the apartment on June 2, 2015, to “check in on him.” There was broken glass, and blood
on the refrigerator and on the sink. The oven “looked like the gas had been on and there
was [sic] matches by it.” Defendant “seem[ed] off” and appeared to be “pretty paranoid
about [Fort’s] presence . . . .” Fort “deemed it to be . . . an unsafe situation in terms of
[defendant’s] being a danger to himself” and called the police to conduct a welfare check.

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Dr. Howard Friedman, whom the defense retained to evaluate defendant’s mental
health, testified as an expert in neuropsychology. Friedman interviewed defendant in
August and September of 2016 and reviewed police reports and medical records. He also
gave defendant three tests to determine his intellectual ability, emotional functioning, and
potential for malingering.
Friedman testified that defendant’s “full scale IQ is 74,” which “puts him at 4th
percentile” and means he is “mildly to moderately impaired.” Defendant was also
severely impaired in his ability to recall events. Defendant reported he had been
hospitalized about a dozen times for schizophrenia. He had delusions and was sometimes
unaware of what was going on around him. He occasionally believed he was Jesus and
on rare occasions was still hearing some voices. Friedman did not believe defendant was
malingering. Friedman diagnosed defendant with “schizophrenia, multiple episodes,
currently in partial remission.”
Friedman explained that a psychotic disorder like schizophrenia can affect an
individual’s decisionmaking and can take a long-term toll on the wiring of the brain. It
can affect an individual’s ability to think, store information, or utilize reasoning skills.
When an individual is actively psychotic, he or she can carry out acts but cannot
necessarily think logically about them.
Friedman reviewed a Concord police report from June 2, 2015, that stated
defendant was detained on “a 5150” for “being mentally disordered” because he was
“doing bizarre” things such as leaving the gas on in his apartment and lighting matches.
Friedman also reviewed a July 2015 report by a Dr. James House in which House
concluded that defendant was displaying schizophrenia symptoms such as being
incoherent and having paranoid ideation and fragmented speech. Based on defendant’s
mental health history and the facts that defendant was engaged in bizarre behavior on
June 2, 2015, and was actively psychotic in July 2015, Friedman opined that the
“presumption of neuropsychology” was that defendant was psychotic at the time of the
June 11, 2015 offenses.

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During cross-examination, Friedman acknowledged he was aware that defendant
had held a job for several years and was able to live on his own and carry out “usual
activities” such as paying rent and utilities, going to the store, and eating. Friedman
acknowledged that the fact that defendant was talking to a woman as opposed to an
inanimate object such as a mailbox or a tree as he made sexual comments, and the fact
that he fled when other men approached, can demonstrate that he is perceiving his
surroundings and is “in reality.”
The jury found defendant guilty as charged. The trial court placed defendant on
probation for five years with various conditions and required him to register as a sex
offender under section 290.
DISCUSSION
Background
In her opening statement, defense counsel presented a defense theory that
defendant was not guilty of the offenses because his mental illness negated the requisite
intent for each offense.3 Counsel stated: “Nine days before this incident on June 2nd of
2015, Grady Fort will tell you that he called the police in hopes of having [defendant]
51/50’ed [sic] or put on a psychotic hold and admitted into a hospital because his conduct
was so odd. They believed he was off of his medication. He believed he needed help.
Unfortunately, he was not admitted into a hospital.
“Nine days later, after the caseworker tried to have [defendant] admitted to a
hospital, Officer Lawrence, who you’ll hear from, of the Concord Police Department had
been to [defendant’s] house. When Officer Lawrence went to [defendant’s] house on the
3 The mental state required for assault (count 1) is a specific intent to commit rape,
sodomy, or oral copulation. (People v. Dillon (2009) 174 Cal.App.4th 1367, 1378.) The
mental state required for sexual battery (count 2) is a specific intent that the touching be
done for the purpose of sexual arousal, gratification, or abuse. (In re Alberto S. (1991)
226 Cal.App.3d 1459, 1463, fn. 2.) The mental state required for indecent exposure
(count 3) is a specific intent to direct public attention to the genitals for the purpose of
sexually arousing or gratifying oneself or sexually offending another person. (People v.
Massicot (2002) 97 Cal.App.4th 920, 922.)

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date of this incident, he realized he had been there earlier for a welfare check, and he saw
that . . . the condition of [defendant’s] house was horrific. [¶] It was very, very odd.
There was a ceiling fan taken off of the ceiling and placed on the floor, and the different
parts of the ceiling fan were taken apart. [¶] There was butter out, and it looked like there
was butter that was written—like trying to write words with butter on the furniture. It
was in complete disarray. [¶] Dr. Friedman, who you’ll hear from, he’s a
neuropsychologist. You’ll hear from him in the defense case. He relied on information
like hearing how out of sorts [defendant’s] apartment was, the conduct in this case.”
After the People rested, the prosecutor objected to the defense’s presenting
Lawrence’s testimony regarding the condition of defendant’s apartment. The prosecutor
said that Lawrence “has no personal knowledge to lay the proper foundation that the
apartment to which he went belonged to the defendant.” The trial court asked the
prosecutor whether the evidence was relevant, and the prosecutor responded it was not.
Defense counsel stated she could establish the apartment belonged to defendant. Counsel
argued the evidence was relevant to show defendant’s “mental state. He has blood and
butter and all that.” She argued the evidence was also “highly relevant” because when
the defense expert evaluated defendant’s mental state, he relied in part on the condition of
defendant’s apartment on the date of the offense.
The trial court stated it did not believe the evidence was relevant. Defense counsel
responded, “It’s the same date that he has blood on the walls, butter on the ground. It
shows that he’s mentally unstable, which is my complete defense. And I opened about
it.” Counsel stated the prosecutor should have moved to exclude the evidence before
trial. The prosecutor responded that he did move to exclude all conduct that occurred
before the incident as irrelevant and that the defense had not indicated it would introduce
evidence of the condition of defendant’s apartment. After further argument, the court
excluded the evidence as irrelevant. Defense counsel requested a mistrial, which the
court denied.

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1. Evidentiary Ruling
Defendant contends the trial court erred in prohibiting him from presenting
Lawrence’s testimony about the condition of his apartment on the date of the offenses.
He argues the court not only abused its discretion under the Evidence Code in excluding
relevant evidence but also violated his constitutional rights under the Sixth and
Fourteenth Amendments. We conclude the court should not have excluded the testimony
but that the error did not implicate defendant’s constitutional rights, and was harmless.
All relevant evidence is admissible. (Evid. Code, § 351.) Relevant evidence is
“evidence . . . having any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.” (Evid. Code, § 210.) Evidence of a
defendant’s mental illness is admissible to show whether he formed the specific intent
underlying the charged conduct. (Pen. Code, § 28, subd. (a).) Further, an expert witness
may testify about the facts underlying his or her conclusion if the fact “is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the subject to
which his [or her] testimony relates . . . .” (Evid. Code, § 801, subd. (b).)
Here, as noted, defense counsel represented to the trial court and to the jury in
opening that Lawrence found defendant’s apartment in disarray on June 11, 2015. The
home was in “horrific” condition, and there were “very, very odd” things happening
inside, including a ceiling fan that was taken apart and placed on the floor and butter
smeared onto the furniture as if someone had tried to use the butter to write words on the
furniture. Counsel also informed the court that Friedman relied on “information like
hearing how out of sorts [defendant’s] apartment was” in reaching his conclusions about
defendant’s mental state. Lawrence’s testimony about the condition of defendant’s
apartment on the date of the offenses was admissible because it was relevant to the issue
of defendant’s mental state and because Friedman relied on it in reaching his conclusions.
The People argue the trial court “properly found the proffered evidence was
irrelevant because a disordered residence is not a definitive symptom of mental illness.”
The People also argue that while Friedman may have relied on Lawrence’s observations
in assessing defendant, “there is no indication that the fact was a necessary or significant

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component of his evaluation or that it was an actual symptom of mental illness.” There
is, however, no requirement that evidence be “definitive” or “significant” for it to be
admissible. Rather, “ ‘[t]he test of relevance is whether the evidence tends “logically,
naturally, and by reasonable inference” to establish material facts such as identity, intent,
or motive.’ ” (People v. Bivert (2011) 52 Cal.4th 96, 116–117.) “The evidence need not
be dispositive of the disputed fact,” and a claim that the evidence is weak “goes to the
weight, not the admissibility, of the evidence.” (People v. Richardson (2008) 43 Cal.4th
959, 1002, 1003.) We conclude that while the fact that defendant’s apartment was in
“horrific” or “very, very odd” condition on the date of the offenses may not be
“definitive” or “significant” in showing defendant’s mental state, it was relevant to the
issue and was not inadmissible on relevance grounds.
We conclude, however, that defendant’s constitutional rights were not implicated.
Defendant argues “the error took on a constitutional dimension” because the exclusion of
the testimony “circumvented his right to present a complete defense,” prevented defense
counsel from presenting testimony she had promised the jury in opening, and “impacted
the jury’s view of Dr. Friedman’s credibility . . . .” “[T]he routine application of
provisions of the state Evidence Code law,” however, “does not implicate a defendant’s
constitutional rights.” (People v. Jones (2013) 57 Cal.4th 899, 957.) Where a trial court
“merely reject[s] some evidence concerning a defense and [does] not preclude defendant
from presenting a defense, any error is one of state law . . . .” (People v. McNeal (2009)
46 Cal.4th 1183, 1203.)
The record shows defendant was not precluded from presenting a defense. Rather,
he presented the testimony of Fort, who testified that defendant had a mental health
diagnosis in 2015 and was evaluated just nine days before the incident for being “off”
and “paranoid” and having multiple things of concern in his apartment, including broken
glass, blood on the refrigerator and sink, and an oven that appeared to be on, with
matches nearby. The defense also presented the testimony of Friedman, who provided
detailed testimony regarding the various tests and interviews he conducted, the reports he
reviewed regarding defendant’s mental health history shortly before and after the

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incident, and the effect schizophrenia may have on an individual’s ability to perceive
reality. The jury therefore heard ample evidence from which it could evaluate the
defense theory, including making credibility determinations and determining defendant’s
mental state.
We further conclude the error in excluding the evidence as irrelevant was
harmless. Because “the routine application of provisions of the state Evidence Code law
does not implicate a defendant’s constitutional rights” (People v. Jones, supra, 57 Cal.4th
at p. 957), “any error is one of state law and is properly reviewed under People v. Watson
[(1956)] 46 Cal.2d [818,] 836” (People v. McNeal, supra, 46 Cal.4th at p. 1203). Having
examined all the evidence, we conclude it is not reasonably probable defendant would
have achieved a more favorable result if Lawrence had been permitted to testify.
The question for the jury was whether defendant lacked the specific intent to
commit the offenses. As noted, the jury heard detailed testimony from Fort and Friedman
regarding defendant’s psychotic state and about the effect schizophrenia may have in
negating intent. In light of Fort’s testimony regarding defendant’s mental state and the
condition of his apartment on June 2, 2015, Lawrence’s proffered testimony that the
apartment was also in disarray nine days later was not likely to have much impact on the
jury. In addition, because Friedman relied on many factors—including interviews, tests,
and reports—in reaching his expert opinion about defendant’s mental state, Lawrence’s
testimony was not likely to bolster Friedman’s conclusion or credibility. In light of other,
significant evidence of defendant’s mental state on the date of the offenses, we do not
believe the jury would have been swayed had it heard additional evidence about the
condition of defendant’s apartment.
Defendant argues he was prejudiced because the trial court’s ruling “occurred
midway through trial, thereby forcing the defense into the unenviable position of not
being able to present evidence it had promised the jury in its opening statement.”
Defense counsel’s reference to Lawrence’s testimony, however, was brief, and the
prosecutor did not comment on her failure to present any evidence or argue to the jury
that it should infer anything from that omission. Moreover, the court instructed the jury

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that “[n]othing that the attorneys say” throughout the trial, including during “their
opening statements,” “is evidence.” The court also instructed the jury that neither side is
required to call all witnesses who may have information about the case. In light of the
brief reference to Lawrence’s testimony, the instructions, and the fact that the testimony
was not critical to the defense, we believe it is unlikely the jury was influenced by the
lack of Lawrence’s testimony in a way that prejudiced defendant.
Defendant also argues that Lawrence’s testimony would have made a difference
because this was a close case. Defendant points out that the jury took a full day to
deliberate and submitted questions, including one concerning mental intent. The length
of deliberations or questions or requests for read-backs from the jury, however, do not
compel the conclusion that the case was close. (See, e.g., People v. Jennings (2010) 50
Cal.4th 616, 691.) Here, there was strong evidence that defendant had the specific intent
to commit the crimes of which he was convicted. His conduct and words exhibited a
purposefulness and intent to pursue Doe for his own sexual gratification. He approached
a woman who was alone at a carwash, and he was explicit in telling her he wanted her for
a sexual purpose. He exposed himself to her, grabbed her body and dress, and continued
to pursue her as she screamed for help and tried to get away.
Further, while there was evidence of mental illness, there was also evidence that
defendant had held a job for years, was able to live on his own, and could carry out some
“usual activities” such as paying rent and going to the store and eating. He had also
directed his sexual comments and acts to Doe, a woman, as opposed to an inanimate
object such as a tree, and fled when the third man approached, which indicated he was
perceiving his surroundings and was “in reality.” From all of the evidence before it, the
jury was left with the overwhelming conclusion that defendant knew what he was doing
in accosting and assaulting Doe to satisfy his sexual desires and that his conduct was not
excused by mental illness.
2. Mistrial
Defendant contends the trial court erred in denying his request for a mistrial. We
reject this contention.

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A mistrial should be granted where “ ‘ “ ‘the court is apprised of prejudice that it
judges incurable by admonition or instruction. [Citation.] Whether a particular incident
is incurably prejudicial is by its nature a speculative matter, and the trial court is vested
with considerable discretion in ruling on mistrial motions. . . .’ [Citation.]” ’ ” (People v.
Harris (2013) 57 Cal.4th 804, 848.) “[A] motion for mistrial should be granted only
when ‘ “a party’s chances of receiving a fair trial have been irreparably damaged.” ’ ”
(People v. Ayala (2000) 23 Cal.4th 225, 282.) A trial court’s ruling on a motion for
mistrial is reviewed for an abuse of discretion. (Ibid.)
Here, the trial court’s exclusion of Lawrence’s testimony did not cause irreparable
damage to defendant’s prospects of having a fair trial. Defendant asserts a mistrial was
warranted not “merely because the excluded evidence was actually relevant, but [also]
because defense counsel had previously promised the admission of Officer Lawrence’s
testimony during her opening statements.” In light of our conclusion above that the
evidentiary error did not implicate defendant’s constitutional rights, and that there was no
prejudice resulting from the timing of the court’s ruling or the exclusion of Lawrence’s
testimony, we also reject defendant’s contention that the court should have granted his
request for a mistrial.
3. Mental Health Diversion
In his supplemental brief, defendant contends the judgment must be conditionally
reversed and the matter remanded to allow the trial court to determine whether he is
eligible for mental health diversion under section 1001.36. We reject his contention.
Section 1001.36 was enacted while this appeal was pending and became effective
on June 27, 2018. (Stats. 2018, ch. 34, §§ 24, 37, No. 2 Deering’s Adv. Legis. Service,
pp. 230, 250–252, 269.) Under this statute, a trial court has discretion to grant “pretrial
diversion” to a defendant who suffers from a mental disorder and meets the criteria
specified in the statute. (§ 1001.36, subd. (b).) If the court grants diversion, it may
postpone criminal proceedings for up to two years to allow the defendant to undergo
mental health treatment. (§ 1001.36, subds. (a), (c).) If the defendant performs
satisfactorily in diversion, the court “shall dismiss the defendant’s criminal charges that

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were the subject of the criminal proceedings at the time of the initial diversion.”
(§ 1001.36, subd. (e).)
Shortly after the enactment of section 1001.36, the Legislature amended the
statute, effective January 1, 2019, to preclude relief to certain individuals, including those
like defendant who are charged with crimes that require sex offender registration.
(§ 1001.36, as amended by Stats. 2018, ch. 1005, § 1; see § 290, subd. (c) [list of crimes
that require sex offender registration, including section 220].) Defendant acknowledges
this amendment (the January 1, 2019 amendment) eliminated his eligibility for diversion
but argues he is nevertheless entitled to relief.
First, defendant argues he is entitled to relief under section 1001.36 as originally
enacted because ameliorative amendments to criminal statutes generally apply
retroactively, absent a contrary expression of legislative intent. (Citing In re Estrada
(1965) 63 Cal.2d 740, 744–745.) He notes there is a split in authority as to whether
section 1001.36 applies retroactively, points out that the issue is currently before the
Supreme Court, and urges us to follow cases holding the statute applies retroactively.
(Citing People v. Frahs (2018) 27 Cal.App.5th 784, 791 [retroactive], review granted
Dec. 27, 2018, S252220; People v. Craine (2019) 35 Cal.App.5th 744, 760 [not
retroactive].)
Second, defendant argues the January 1, 2019 amendment that eliminated his
eligibility for diversion does not apply retroactively because unlike section 1001.36 as
originally enacted, which provided defendants with an ameliorative benefit, the
January 1, 2019 amendment took away the benefit. He argues that the “removal of [an]
ameliorative benefit may only be enforced prospectively” under the ex post facto clauses
of the state and federal Constitutions.
We need not, and therefore will not, decide whether section 1001.36 as originally
enacted applies retroactively because even assuming it does, we conclude that application
of the January 1, 2019 amendment does not violate ex post facto prohibitions and that
defendant is therefore statutorily ineligible for mental health diversion.

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The Court of Appeal in People v. Cawkwell (2019) 34 Cal.App.5th 1048, 1053
(Cawkwell) recently addressed the same argument defendant raises here, i.e., that
application of the January 1, 2019 amendment violates the ex post facto clauses of the
state and federal Constitutions. In Cawkwell, the defendant was found guilty of sex
crimes that required him to register as a sex offender. (Id. at p. 1051.) The defendant
argued on appeal that “the ameliorative provisions of the mental health diversion statutes
apply retroactively to his case, while the subsequent amendment eliminating eligibility
for sex offenders (like him) cannot apply retroactively due to ex post facto
considerations.” (Id. at p. 1053.) The Court of Appeal rejected the latter contention and
therefore did not reach the issue of whether the statutes “otherwise apply retroactively.”
(Ibid.)
The Court of Appeal explained that a statute violates the prohibition against
ex post facto laws “ ‘if it punishes as a crime an act that was innocent when done or
increases the punishment for a crime after it is committed.’ (People v. White (2017) 2
Cal.5th 349, 360 [citation].)” (Cawkwell, supra, 34 Cal.App.5th at p. 1054.) “The
ex post facto prohibition ensures that people are given ‘fair warning’ of the punishment to
which they may be subjected if they violate the law; they can rely on the meaning of the
statute until it is explicitly changed.” (Ibid.) The Court of Appeal went on to state that
“[w]hen Cawkwell [committed his crimes] between November 2015 and April 2016, the
possibility of pretrial mental health diversion did not exist. The initial version of
section 1001.36 was not enacted until more than two years later, in June 2018.
Consequently, Cawkwell could not have relied on the possibility of receiving pretrial
mental health diversion when he [committed his crimes].” (Ibid.)
The Court of Appeal also held the January 1, 2019 amendment “did not make an
act unlawful that was not formerly unlawful, nor did it increase the punishment for the
offenses with which Cawkwell was charged.” (Cawkwell, supra, 34 Cal.App.5th at
p. 1054, citing People v. White, supra, 2 Cal.5th at p. 360.) “That is, Cawkwell was
subject to the same punishment when he committed his offenses as he was after the
Legislature narrowed the scope of defendants eligible for diversion. Thus, the

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amendment does not violate the ex post facto clauses of the state or federal Constitutions,
and Cawkwell is ineligible for mental health diversion.” (Ibid.)
Similarly, here, defendant committed his crimes over two years before the
Legislature enacted section 1001.36. Because all relevant legislative activity occurred
years after defendant committed his offenses, he could not have relied on the possibility
of receiving mental health diversion when he committed his crimes. We agree with the
analysis set forth in Cawkwell that application of the January 1, 2019 amendment does
not violate ex post facto considerations. Accordingly, defendant is statutorily ineligible
for mental health diversion because of the crimes with which he was charged, and a
conditional reversal and/or remand is improper.
DISPOSITION
The judgment is affirmed.

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_________________________
Wiseman, J.*
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Petrou, J.
A151625/People v. Ali Holt Thompson
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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