P. v. Tardy

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Filed 2/7/20 P. v. Tardy 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
DAMIEN LEE TARDY,
Defendant and Appellant.
C086572
(Super. Ct. No. 16FE015244)
In the early morning hours of August 2, 2016, defendant Damien Lee Tardy shot a
man in the face and shoulder at close range. Shortly thereafter, defendant shot the man
three more times as he was on the ground attempting to crawl away. Remarkably, the
man survived. Following a jury trial, defendant was found guilty of willful, deliberate,
and premeditated attempted murder. (Pen. Code, §§ 187 subd. (a), 664, subd. (a).)1 The
1 Undesignated statutory references are to the Penal Code.

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jury also found that he personally used, personally and intentionally discharged, and
proximately caused great bodily injury with a firearm. (§§ 12022.5, subd. (a), 12022.53,
subds. (b), (c), & (d).) The trial court sentenced him to an aggregate term of 32 years to
life in state prison.
On appeal, defendant contends the evidence was insufficient to support a finding
of attempted willful, premeditated, and deliberate murder. Defendant also contends the
judgment must be conditionally reversed and the matter remanded for the trial court to
determine whether he is eligible for “pretrial” mental health diversion as authorized under
recently enacted section 1001.36. We conclude that substantial evidence supports
defendant’s attempted murder conviction, and that defendant is not entitled to relief under
section 1001.36. Therefore, we affirm the judgment.
FACTUAL BACKGROUND
On the morning of August 1, 2016, M.G. was suffering symptoms from heroin
withdrawal. He approached a woman he did not know, Daisy Groh, near a motel on
Stockton Boulevard in South Sacramento and asked her if she could help him obtain
heroin. After Groh placed two phone calls, a man arrived and supplied M.G. with a small
amount of heroin. Before M.G. walked away, he told Groh that his girlfriend was
expecting to receive some “government money” at midnight and indicated that he wanted
to purchase more heroin at that time. Groh agreed to help M.G. and gave him her phone
number.
Shortly after midnight on August 2, 2016, M.G. called Groh. When Groh
answered, she was in a room at the motel with four individuals—her boyfriend,
defendant, Vincent Cervantez, and another man referred to as Speedy. During the call,
Groh agreed to connect M.G. with someone who could provide him with heroin and told
him to come to the motel.
Upon his arrival at the motel around 12:30 a.m., M.G., who was dressed in all red
clothes, was introduced to everyone in the room, including defendant. When asked, M.G.

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indicated where he was from and denied being in a gang, explaining that he just liked the
color red. After purchasing $20 worth of heroin from Cervantez, M.G. left the motel.
Approximately 10 to 20 minutes later, M.G. called Groh and asked for his money
back due to the poor quality of the heroin. He said that the heroin was “garbage.” In
response, Groh informed M.G. that Cervantez would refund his money if he came back to
the motel.
When defendant learned about M.G.’s request for a refund, he was upset and mad
at M.G. for disrespecting Cervantez by complaining about the quality of the heroin.
There was also some additional tension between defendant and M.G. because M.G. was
from a different neighborhood and belonged to a rival subset of the Bloods gang.
According to Groh’s boyfriend, both defendant and Cervantez had asked M.G. where he
was from when he initially came to the motel. Groh’s boyfriend explained that there was
“some aggression behind [the conversation].” He described it as “almost intimidating.”
Although the conversation did not escalate into anything physical, there was “tension in
the air” when it ended.
Before M.G. returned to the motel, defendant and Cervantez retrieved a handgun
from Cervantez’s car and announced that they were going to rob M.G. They indicated
that they wanted to take the “government money.”
When M.G. arrived at the motel the second time, he asked Cervantez to give him a
ride so he could obtain better quality heroin. M.G. told Cervantez that he did not need a
refund if Cervantez agreed to do so. Thereafter, M.G., Cervantez, and defendant left
together in Cervantez’s car.
Cervantez made several stops after leaving the motel. First, he drove to a
residence and purchased crystal methamphetamine, which everyone in the car smoked.
He then drove to several stores so that M.G. could get “cash back” to purchase heroin.
After M.G. secured $60 or $70, Cervantez drove to a parking lot where M.G. purchased
heroin. M.G. smoked heroin in the parking lot and during the drive to his residence.

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When they arrived, Cervantez parked on the street near the residence. M.G. rolled a
“blunt” and talked with Cervantez for about 20 minutes. During the conversation,
Cervantez agreed to pick M.G. up later. Defendant did not say anything.
As M.G. was getting out of the car, defendant asked Cervantez to open the trunk
so he could get his sweater. At that moment, a bag M.G. was carrying ripped, spilling
food in the car. After M.G. picked the food up (which he estimated took two or three
minutes), he shook Cervantez’s hand and then walked towards the back of the car. As
soon as M.G. reached the trunk area, defendant shot him in the face. Defendant
immediately shot M.G. a second time in the shoulder, causing him to fall to the ground.
Shortly thereafter, defendant shot M.G. three more times as he was attempting to crawl
away. When M.G.’s mother-in-law2 came outside and said “hey, hey, hey,” defendant
and Cervantez got into the car and sped away.
Police officers arrived at the scene around 3:35 a.m. Shortly after 4:00 a.m., M.G.
was taken to the hospital by ambulance. M.G. received treatment and was admitted to the
trauma intensive care unit.
A medical exam revealed that M.G. had five gunshot wounds. He was shot twice
in his left shoulder and once in his mouth, neck, and right leg. After multiple surgeries,
M.G. was released from the hospital on August 11, 2016.
At trial, M.G. explained that he and defendant did not have an argument prior to
the shooting; he believed “things were cool” or “okay” between them. M.G. further
explained that defendant was waiting for him behind the car with his gun drawn; it was
pointed “right at [his] face.” M.G. noted that he was not armed with a weapon and had
not “use[d] any kind of violence” on defendant prior to the shooting.
2 M.G. referred to his girlfriend’s mother as his mother-in-law.

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DISCUSSION
1.0 Insufficient Evidence
Defendant contends the evidence was insufficient to support a finding of
attempted willful, premeditated, and deliberate murder. According to defendant, his
conviction must be reversed because the shooting was “a rash, panicked, and
unconsidered impulse; an explosion of violence, rather than preexisting reflection.” We
disagree.
1.1 Applicable Legal Principles
“ ‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’
[Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v.
Edwards (2013) 57 Cal.4th 658, 715.)
“Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee
(2003) 31 Cal.4th 613, 623; People v. Pettie (2017) 16 Cal.App.5th 23, 52.) “[U]nlike
murder, attempted murder is not divided into degrees. The prosecution, though, can seek
a special finding that the attempted murder was willful, deliberate, and premeditated, for
purposes of a sentencing enhancement.” (People v. Mejia (2012) 211 Cal.App.4th 586,
605; see People v. Sedillo (2015) 235 Cal.App.4th 1037, 1049 [“attempted murder is not
a lesser included offense of attempted premeditated murder, but premeditation constitutes
a penalty provision that prescribes an increase in punishment”].)

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“We do not distinguish between attempted murder and completed first degree
murder for purposes of determining whether there is sufficient evidence of premeditation
and deliberation.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8,
disapproved on another ground in People v. Mesa (2012) 54 Cal.4th 191, 199.)
“ ‘ “In this context, ‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’
means ‘formed or arrived at or determined upon as a result of careful thought and
weighing of considerations for and against the proposed course of action.’ ” ’ [Citation.]
‘ “An intentional killing is premeditated and deliberate if it occurred as the result of
preexisting thought and reflection rather than unconsidered or rash impulse.” ’
[Citations.] ‘The true test is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly . . . .’ ” (People v. Potts (2019) 6 Cal.5th 1012,
1027.)
“We normally consider three kinds of evidence to determine whether a finding of
premeditation and deliberation is adequately supported—preexisting motive, planning
activity, and manner of killing—but ‘[t]hese factors need not be present in any particular
combination to find substantial evidence of premeditation and deliberation.’ [Citation.]
If the evidence of preexisting motive and planning activity by itself is sufficient to
support the first degree murder conviction on a theory of premeditation and deliberation,
we need not review the evidence concerning the manner of killing.” (People v. Jennings
(2010) 50 Cal.4th 616, 645-646; see People v. Streeter (2012) 54 Cal.4th 205, 242 [the
three factors are not exclusive, nor are they invariably determinative; instead, they are
simply intended to guide an appellate court’s assessment as to whether the evidence
supports the inference that the killing occurred as the result of preexisting reflection
rather than unconsidered or rash impulse].) “A first degree murder conviction will be
upheld when there is extremely strong evidence of planning, or when there is evidence of

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motive with evidence of either planning or manner.” (People v. Romero (2008) 44
Cal.4th 386, 401.)
1.2 Analysis
Viewing the evidence in the light most favorable to the judgment, we conclude a
rational trier of fact could have found, beyond a reasonable doubt, that the attempted
killing of M.G. was willful, premeditated, and deliberate. The evidence that defendant
went to the trunk of Cervantez’s car a few minutes prior to the shooting and waited for
M.G. with his gun drawn shows planning activity and that he had time to reflect upon his
plan to shoot M.G. Further, there was evidence from which the jury could infer that
defendant had a motive to shoot M.G. The evidence at trial showed that defendant was
upset and mad at M.G. for disrespecting Cervantez by complaining about the quality of
his heroin, including calling it “garbage.” There was also evidence that there was tension
between defendant and M.G. because M.G. was from a different neighborhood and
belonged to a rival subset of the Bloods gang. Finally, the fact that defendant shot M.G.,
who was unarmed, in the face and shoulder at close range and then shot him three more
times after M.G. fell to the ground and was attempting to crawl away showed a deliberate
intent to kill. That there was no evidence of any provocation or struggle immediately
prior to the shooting supports an inference of a deliberate plan to kill. “The lack of
provocation by the victim leads to an inference that an attack was the result of a
deliberate plan rather than a ‘rash explosion of violence.’ ” (People v. Miranda (1987)
44 Cal.3d 57, 87, disapproved on another ground in People v. Marshall (1990) 50 Cal.3d
907, 933, fn. 4; see People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295 [“a close-
range shooting without any provocation or evidence of a struggle . . . supports an
inference of premeditation and deliberation”].)
2.0 Pretrial Mental Health Diversion
Defendant contends the judgment must be conditionally reversed and the matter
remanded to the trial court to determine whether he is eligible for “pretrial” mental health

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diversion due to specified mental disorders3 under the recently enacted section 1001.36,
which he argues is retroactive as to all cases not yet final. In support of his contention,
defendant relies on the retroactivity rules of In re Estrada (1965) 63 Cal.2d 740 (Estrada)
and People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara). Defendant additionally
argues that equal protection principles require that the statute have retroactive effect. We
disagree.
2.1 Retroactivity Rules of Estrada and Lara
Courts are divided as to whether section 1001.36 applies retroactively to cases not
yet final on appeal under Estrada and Lara. (Compare People v. Frahs (2018) 27
Cal.App.5th 784, review granted Dec. 27, 2018, S252220 (Frahs), 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 (Craine),
People v. Torres (2019) 39 Cal.App.5th 849, review den. Dec. 11, 2019, S258491, and
People v. Khan (2019) 41 Cal.App.5th 460, review granted Jan. 29, 2020, S259498.)4
We conclude, in agreement with Craine, that the statute does not have retroactive effect
as to cases, like this one, that had already reached the stage of conviction (whether by
jury or by plea) before the statute’s effective date.
3 Defendant points to evidence in the record indicating that he suffers from mental health
disorders that qualify for diversion under section 1001.36, including bipolar disorder and
posttraumatic stress disorder (PTSD). (See § 1001.36, subd. (b)(1)(A).)
4 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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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).)
“ ‘[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).)
Here, defendant was convicted and sentenced before the statute’s effective date.
Defendant, however, contends that the statute applies to him because it should be given
retroactive effect. In support of his position, defendant relies on Frahs. For the reasons
given in Craine, we conclude that 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, 35 Cal.App.5th at p. 754, rev.gr.)
The Frahs court decided whether section 1001.36 is retroactive by applying the
standard retroactivity rules of Estrada and 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, supra, 63 Cal.2d 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, supra, 4 Cal.5th at pp. 308, 309.)

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Taking these rules together, Frahs found that section 1001.36 confers an “ ‘ameliorating
benefit’ ” on a class of accused persons and therefore must be understood to work
retroactively. (Frahs, supra, 27 Cal.App.5th at p. 791, rev.gr.)
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, supra, 27 Cal.App.5th at p. 789, fn. 2,
rev.gr.)
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 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. (Craine, supra, 35 Cal.App.5th at pp. 754-756, italics omitted, 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,
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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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).
(Id. at pp. 755-756.)
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: “ ‘ “[t]he proceeding by which a party charged with a public offense is accused
and brought to trial and punishment. [Citations.]” ’ ” (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.)
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, italics omitted, 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].)

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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.)
For all the reasons stated in Craine, 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.
2.2 Equal Protection
Defendant alternatively contends that equal protection principles require that
section 1001.36 be applied retroactively to all defendants whose convictions are not yet
final. According to defendant, if the statute is given prospective-only application, the
result will be a state-adopted classification that affects two similarly situated groups
(eligible and non-eligible defendants for pretrial diversion) in an unequal manner in
violation of the equal protection clauses of the federal and California Constitutions. We
disagree.
As the parties agree, we apply the “rational basis” test to defendant’s equal
protection argument. If the two subject groups or classes are similarly situated for
purposes of the law challenged, we determine whether “the challenged classification
bears a rational relationship to a legitimate state purpose.” (People v. Hofsheier (2006)
37 Cal.4th 1185, 1200 (Hofsheier), overruled on another ground in Johnson v.
Department of Justice (2015) 60 Cal.4th 871, 875.) The rational relationship test, as
articulated by our Supreme Court in Hofsheier, states that “ ‘ “ ‘a statutory classification

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that neither proceeds along suspect lines nor infringes fundamental constitutional rights
must be upheld against equal protection challenge if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification. [Citations.]
Where there are “plausible reasons” for [the classification], “our inquiry is at an
end.” ’ ” ’ ” (Hofsheier, at pp. 1200-1201.) The court explained that, “ ‘[T]hose
attacking the rationality of the legislative classification have the burden “to negative
every conceivable basis which might support it,” ’ ” stressing that the factual basis for
that rationale must be “reasonably conceivable.” (Id. at p. 1201.)
A purpose may be sufficient to uphold a classification regardless of whether it is
the actual or expressly stated legislative purpose. (Hofsheier, supra, 37 Cal.4th at p.
1201.) “[I]t is irrelevant whether the perceived reason for the challenged distinction
actually motivated the Legislature.” (Ibid.) A proffered reason is sufficient if it
“ ‘conceivably or “may reasonably have been the purpose and policy” of the relevant
governmental decisionmaker’ [citation] and that ‘the relationship of the classification to
its goal is not so attenuated as to render the distinction arbitrary or irrational.’ ” (Ibid.)
We must inquire “whether ‘ “the statutory classifications are rationally related to the
‘realistically conceivable legislative purpose[s]’ [citation]” . . . and . . . by declining to
“invent[] fictitious purposes that could not have been within the contemplation of the
Legislature . . . .” ’ ” (Ibid.)
Even assuming for the sake of argument that the two classes identified by
defendant are similarly situated, we conclude there is a rational basis for the challenged
classification here. The prospective-only application of section 1001.36 is rationally
related to the purpose of avoiding the expenditure of additional court resources and
public funds on pretrial diversion assessments after a defendant has been convicted.
This purpose is “ ‘ “ ‘realistically conceivable’ ” ’ ” and plausibly could have been
within the contemplation of the Legislature. (Hofsheier, supra, 37 Cal.4th at p. 1201.)
Indeed, as discussed above, the legislative history of section 1001.36 makes clear that

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the statute was intended to allow early intervention wherever possible, partly to avoid
unnecessary and unproductive costs of trial and incarceration. But early intervention
and the avoidance of costs of trial and incarceration cannot be achieved where, as here,
a defendant has been tried, convicted, and sentenced. Accordingly, we reject
defendant’s equal protection claim.
DISPOSITION
The judgment is affirmed.
/s/
Butz, J.
I concur:
/s/
Hoch, J.

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RAYE, P. J., Concurring and Dissenting.
I concur in part 1.0 of the opinion. The evidence of willfulness, premeditation,
and deliberation is so overwhelming as to make defendant’s argument to the contrary
lacking in credibility. I respectfully dissent from part 2.0 of the opinion.
The arguments on the retroactivity of Penal Code section 1001.36 are explicated in
the cases cited by the majority. I will not bother to repeat the many well-stated views in
support of retroactivity articulated in some of those cases. The Supreme Court has the
issue before it and, in time, will articulate the definitive opinion on the issue. As noted
by the majority, defendant suffers from mental health disorders that make him a
candidate for diversion. The majority insists, however, that Penal Code section 1001.36
creates a “temporal bar” to retroactive relief, a bar that in defendant’s case came crashing
down on February 7, 2018, when the trial court sentenced him, fewer than six months
before the statute became effective. According to the majority, “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.” ’ ”
(Maj. opn. ante, at p. 11.) Because those costs had already been incurred, the majority
insists that diversion is not available to defendant, no matter how compelling a case he
might make before the trial court.
While cost savings were a consideration in the enactment of Penal Code section
1001.36, there is nothing in the history of the legislation that accords cost savings the
importance attributed by the majority. Indeed, cost savings is not even mentioned in the
statement of purpose set forth in the statute’s preamble. There may be sound reasons to
deny defendant the benefits of mental health diversion, but that should be a decision
made by the trial court after considering his individual circumstances in light of the
factors set forth in the statute. There is no sound reason to deny the benefits of the statute
to a whole class of defendants based on cost savings and in light of the Supreme Court’s

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command that the rule of retroactivity expressed in In re Estrada (1965) 63 Cal.2d 740
must apply “to every case to which it constitutionally could apply . . . provided the
judgment convicting the defendant of the act is not final.” (Id. at p. 745.)
Accordingly, I believe the judgment should be conditionally reversed and the
cause remanded to the superior court with directions to conduct a diversion eligibility
hearing, as discussed within this opinion, no later than 90 days from the filing of the
remittitur. Defendant would not be assured of diversion but would be granted his day in
court to assert his case.
/s/
RAYE, P. J.

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