People v. Frahs

"On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion ... if the defendant meets all of the requirements...." ( § 1001.36, subd. (b).) There are six requirements. First, the court must be "satisfied that the defendant suffers from a mental disorder" listed in the statute. ( § 1001.36, subd. (b)(1).) Second, the court must also be "satisfied that the defendant's mental disorder played a significant role in the commission of the charged offense." ( § 1001.36, subd. (b)(2).) Third, "a qualified mental health expert" must opine that "the defendant's symptoms motivating the criminal behavior would respond to mental health treatment." ( § 1001.36, subd. (b)(3).) Fourth, subject to certain exceptions, the defendant must consent to diversion and waive his or her right to a speedy trial. ( § 1001.36, subd. (b)(4).) Fifth, the defendant must agree "to comply with the treatment as a condition of diversion." ( § 1001.36, subd. (b)(5).) And finally, the court must be "satisfied that the defendant will not pose an unreasonable risk of danger to public safety ... if treated in the community." ( § 1001.36, subd. (b)(6).)

If a trial court determines that a defendant meets the six requirements, then the court also must also determine whether "the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant." ( § 1001.36, subd. (c)(1)(A).) The court may then grant diversion and refer the defendant to an approved treatment program. ( § 1001.36, subd. (c)(1)(B).) Thereafter, the provider "shall provide regular reports to the court, the defense, and the prosecutor on the defendant's progress in treatment." ( § 1001.36, subd. (c)(2).) "The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years." ( § 1001.36, subd. (c)(3).)

If the defendant commits additional crimes, or otherwise performs unsatisfactorily in diversion, then the court may reinstate criminal proceedings. ( § 1001.36, subd. (d).) However, if the defendant performs "satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings." ( § 1001.36, subd. (e).)

2. The Rules Regarding Retroactivity

In general, statutes are presumed to apply prospectively unless they state otherwise. (See § 3.) However, the presumption against retroactivity does not apply when the Legislature reduces the punishment for criminal conduct. ( In re Estrada (1965) 63 Cal.2d 740 , 48 Cal.Rptr. 172 , 408 P.2d 948 ( Estrada ).) The Supreme Court's reasoning in Estrada is that when a statute reduces or ameliorates the punishment, it is presumed that the Legislature has determined the offense no longer merits the greater punishment, and this rationale applies even if the defendant was convicted and sentenced before the statute became effective. ( Id . at pp. 744-745, 748, 48 Cal.Rptr. 172 , 408 P.2d 948 ["where the amendatory statute mitigates punishment and there is no savings clause, the rule is that the amendment will operate retroactively"].)

The scope of the Estrada rule was recently considered in People v. Superior Court ( Lara ) (2018) 4 Cal.5th 299 , 228 Cal.Rptr.3d 394 , 410 P.3d 22 ( Lara ). In Lara , the prosecution initially filed charges in "adult" criminal court against defendant Lara, who was 14 and 15 years old at the time of the alleged sex offenses. (

Id. at p. 303, 228 Cal.Rptr.3d 394 , 410 P.3d 22 .) But as a consequence of the intervening passage of Proposition 57, a district attorney can no longer directly file charges against juveniles in criminal court. ( Lara , at p. 303, 228 Cal.Rptr.3d 394 , 410 P.3d 22 .) As it stands now, a district attorney may seek to transfer a case from a juvenile court to an "adult" criminal court, but the charges must first be filed in juvenile court. ( Ibid . ) It is now exclusively for the juvenile court to determine whether the minor should be transferred to criminal court. ( Ibid . ) In Lara , the Supreme Court held that while Proposition 57 did not mitigate punishment for any particular crime as in Estrada , supra , 63 Cal.2d 740 , 48 Cal.Rptr. 172 , 408 P.2d 948 , Proposition 57 did confer potential benefits to juveniles accused of crimes and constitutes an " 'ameliorative change[ ] to the criminal law' that ... the legislative body intended 'to extend as broadly as possible.' " ( Lara , supra , 4 Cal.5th at pp. 303-304, 308-309, 228 Cal.Rptr.3d 394 , 410 P.3d 22 .) Thus, the Court concluded that the Legislature intended Proposition 57 to apply retroactively "to all juveniles charged directly in adult court" such as Lara, "whose judgment was not final at the time it was enacted." ( Lara , at p. 304, 228 Cal.Rptr.3d 394 , 410 P.3d 22 .)

3. Retroactivity Analysis

Here, similar to Proposition 57, the mental health diversion program under section 1001.36 does not lessen the punishment for a particular crime. However, for a defendant with a diagnosed mental disorder, it is unquestionably an "ameliorating benefit" to have the opportunity for diversion-and ultimately a possible dismissal-under section 1001.36. Further, it appears that the Legislature intended the mental health diversion program to apply as broadly as possible: "The purpose of this chapter is to promote.... [¶] (a) Increased diversion of individuals with mental disorders to mitigate the individuals' entry and reentry into the criminal justice system while protecting public safety." (§ 1001.35, subd. (a), italics added.)

Applying the reasoning of the Supreme Court, we infer that the Legislature "must have intended" that the potential "ameliorating benefits" of mental health diversion to "apply to every case to which it constitutionally could apply." (See Estrada , supra , 63 Cal.2d at pp. 744-746, 48 Cal.Rptr. 172 , 408 P.2d 948 .) Further, Frahs' case is not yet final on appeal and the record affirmatively discloses that he appears to meet at least one of the threshold requirements (a diagnosed mental disorder). Therefore, we will direct the trial court on remand to make an eligibility determination regarding diversion under section 1001.36.

The Attorney General argues that: "Subdivision (c) of the statute defines 'pretrial diversion' as the 'postponement or prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication.' This language indicates the Legislature did not intend to extend the potential benefits of ... section 1001.36" as broadly as possible. We disagree. 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. 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 , 228 Cal.Rptr.3d 394 , 410 P.3d 22 , from finding that such a hearing must be made available to all defendants whose convictions are not yet final on appeal.

Here, although Frahs' case has technically been "adjudicated" in the trial court, his case is not yet final on appeal. Thus, we will instruct the trial court-as nearly as possible-to retroactively apply the provisions of section 1001.36, as though the statute existed at the time Frahs was initially charged.

4. Instructions on Remand

In Lara , after determining that Proposition 57 applied retroactively, the Supreme Court then went on to endorse a remand procedure described by this court in People v. Vela (2018) 21 Cal.App.5th 1099 , 230 Cal.Rptr.3d 880 ( Vela ). ( Lara , supra , 4 Cal.5th at p. 313, 228 Cal.Rptr.3d 394 , 410 P.3d 22 ["we believe remedies like those provided in Vela ... are readily understandable, and the courts involved can implement them without undue difficulty"].)

The remand procedure we outlined in Vela was as follows: "Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. [Citation.] When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Vela's cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela to a court of criminal jurisdiction because he is 'not a fit and proper subject to be dealt with under the juvenile court law,' then Vela's convictions are to be reinstated. [Citation.] The court is to resentence Vela consistent within the bounds of its discretion as discussed within the following section of this opinion. On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela's convictions as juvenile adjudications and impose an appropriate 'disposition' within its discretion." ( Vela , supra , 21 Cal.App.5th at p. 1113, 230 Cal.Rptr.3d 880 .)

In this case, similar to our disposition in Vela , we conditionally reverse Frahs' convictions and sentence. On remand, the trial court is to conduct a mental health diversion eligibility hearing under the applicable provisions of section 1001.36. When conducting the eligibility hearing, the court shall, to the extent possible, treat the matter as though Frahs had moved for pretrial diversion after the charges had been filed, but prior to their adjudication. ( § 1001.36, subd. (c).)

If the trial court finds that Frahs suffers from a mental disorder, does not pose an unreasonable risk of danger to public safety, and otherwise meets the six statutory criteria (as nearly as possible given the postconviction procedural posture of this case), then the court may grant diversion. If Frahs successfully completes diversion, then the court shall dismiss the charges. However, if the court determines that Frahs does not meet the criteria under section 1001.36, or if Frahs does not successfully complete diversion, then his convictions and sentence shall be reinstated. The judgment shall include the prior "strike" conviction, as stated in the next section of this opinion.

B. Prior Strike Conviction

The prosecution is required to prove a prior strike conviction beyond a reasonable doubt, and when a defendant challenges the decision, we ordinarily review the record for substantial evidence. ( People v. Delgado (2008) 43 Cal.4th 1059 , 1065, 77 Cal.Rptr.3d 259 , 183 P.3d 1226 ( Delgado ).) However, the definition of terms within a particular statute is a question of statutory interpretation, which we review de novo. (

Here, the trial court was presumably unaware of the underlying facts of the 2015 assault conviction during the bench trial. But Frahs had admitted on the plea form a factual basis for his plea. Further, Frahs had pleaded guilty to violating section 245, subdivision (a)(1): "an assault upon the person of another with a deadly weapon or instrument other than a firearm." (See People v. Ward (1967) 66 Cal.2d 571 , 574, 58 Cal.Rptr. 313 , 426 P.2d 881 ["A guilty plea amounts to an admission of every element of the crime and is the equivalent of a conviction"].) Moreover, Frahs had acknowledged that he was pleading to a strike. Thus, there was substantial evidence to support the court's true finding on the prior strike conviction. (§ 1192.7, subd. (c)(31) ["an assault with a deadly weapon"].)

Frahs argues that the meaning of "deadly weapon" only applies to "inherently" deadly weapons. He then goes on to argue that a broken beer bottle does not qualify as an inherently deadly weapon. But no statute states that a deadly weapon must be "inherently" deadly. And Frahs cites no case law in support of this proposition.

We must therefore adhere to the long-standing definition of "deadly weapon" as stated by our Supreme Court. (See People v. Aguilar , supra , 16 Cal.4th at pp. 1028-1029, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 ["a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury' "]; see also Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 , 455, 20 Cal.Rptr. 321 , 369 P.2d 937 ["Under the doctrine of stare decisis , all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction"].) Indeed, the cases cited by Frahs generally concern an unrelated issue regarding an earlier version of section 245, subdivision (a)(1). (See, e.g., Delgado , supra , 43 Cal.4th 1059 , 77 Cal.Rptr.3d 259 , 183 P.3d 1226 .)

In Delgado , supra , 43 Cal.4th at page 1065, 77 Cal.Rptr.3d 259 , 183 P.3d 1226 , a jury convicted defendant of second degree robbery and related offenses. In a bench trial, the prosecution alleged that defendant had a prior serious felony conviction for an assault under section 245, subdivision (a)(1). ( Delgado , at p. 1065, 77 Cal.Rptr.3d 259 , 183 P.3d 1226 .) At that time, there were two separate assault crimes included under subdivision (a)(1). One offense included "all assaults committed with a deadly weapon other than a firearm," the other offense included all assaults committed by " 'means of force likely to produce great bodily injury.' " ( Id . at pp. 1065, 1067, 77 Cal.Rptr.3d 259 , 183 P.3d 1226 .) The Supreme Court held that because it could not determine precisely which offense the defendant had committed, the trial court's finding of "an assault with a deadly weapon" could not stand. ( Id. at pp. 1065-1073, 77 Cal.Rptr.3d 259 , 183 P.3d 1226 .)

In 2011 though, "the Legislature amended section 245, removing assaults 'by any means of force likely to produce great bodily injury' from subdivision (a)(1), and placing the language in newly added subdivision (a)(4) of section 245." ( People v. Puerto (2016) 248 Cal.App.4th 325 , 330, 203 Cal.Rptr.3d 518 ( Puerto ).) In Puerto , the defendant made the same claim that Frahs is advancing in this appeal (that his prior section 245, subdivision (a)(1), conviction was not a strike). But the appellate court held that the defendant's "reliance on Delgado is misplaced because that case concerned a version of section 245[, subdivision] (a)(1) that was not in effect when defendant committed his prior assault offense." ( Puerto , at p. 329, 203 Cal.Rptr.3d 518 .) The Puerto court concluded that:

"Defendant pleaded ... to 'commit[ting] an assault upon the person of another with a deadly weapon or instrument other than a firearm.' The version of section 245[, subdivision] (a)(1) in effect when defendant committed the assault to which he pleaded ... in 2013 could not be violated in a way that did not constitute a serious felony under section 1192.7, subdivision (c)(31). Accordingly, sufficient evidence supports the trial court's prior strike conviction finding." ( Id . at p. 331, 203 Cal.Rptr.3d 518 , italics added.)

We agree with the rationale and holding of the Second District Court of Appeal in Puerto , supra , 248 Cal.App.4th 325 , 203 Cal.Rptr.3d 518 . Here, as in Puerto , Frahs committed an assault with a deadly weapon after the Legislature's 2011 amendment of section 245. Thus, just as in Puerto , Frahs could not have committed the assault " in a way that did not constitute a serious felony under section 1192.7, subdivision (c)(31). Accordingly, sufficient evidence supports the trial court's prior strike conviction finding." ( Puerto , supra , 248 Cal.App.4th at p. 331, 203 Cal.Rptr.3d 518 , italics added.)

DISPOSITION

The judgment is conditionally reversed. The cause is 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.

If the trial court determines that Frahs qualifies for diversion under section 1001.36, then the court may grant diversion. If Frahs successfully completes diversion, then the trial court shall dismiss the charges. However, if the court determines that Frahs is ineligible for diversion, or Frahs does not successfully complete diversion, then his convictions and sentence shall be reinstated.

WE CONCUR:

FYBEL, J.

THOMPSON, J.