Opinion
C090626
07-26-2021
THE PEOPLE, Plaintiff and Respondent, v. VICTOR GUERRERO, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 14FE00524
RAYE, P. J.Defendant Victor Hugo Guerrero was found with methamphetamine when he was arrested for two robberies. Before trial, he moved for pretrial diversion under Penal Code section 1001.36, which the court denied based on his two charges for robbery with personal firearm use enhancements. At trial, he was found guilty of methamphetamine possession after stipulating to each element of the charge. The jury was hung on the two counts of robbery and their firearm enhancements, so the court declared a mistrial. At the second trial, the jury found defendant guilty of the two robberies but found not true the firearm use enhancements.
Undesignated statutory references are to the Penal Code.
Defendant makes two arguments on appeal: (1) he did not voluntarily and knowingly waive his constitutional rights before stipulating to the possession charge; and (2) the court erred in not reconsidering pretrial diversion after the jury found the firearm use enhancements not true. We agree with defendant's first contention and reverse the possession conviction. But we find the court did not err in refusing to reconsider pretrial diversion because section 1001.36 does not permit diversion after a finding of guilt.
BACKGROUND
Defendant lured two victims to a house, in coordination with a resident of the house, to take their jewelry, cash, phones, and other personal property as collateral for property the two victims allegedly stole from the house. The victims believed defendant had a gun to scare them into giving up their possessions, and police found guns at the scene, but defendant told police he had only a stick. When defendant was arrested five days later, the arresting officer found methamphetamine in defendant's wallet.
Defendant was charged with two counts of robbery (§ 211), both with the special allegation he personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)). He was also charged with misdemeanor methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)).
Before trial, defendant requested time for the court to consider pretrial diversion under section 1001.36, a statute that became effective a few weeks prior. Dr. Christopher Fisher filed a report concluding defendant suffered from a mental disorder identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM), this disorder played a significant role in defendant's behavior during the alleged offense, and this disorder is responsive to focused treatment. The court considered the report and counsels' arguments before determining, based mainly on the charges, that defendant had not made a prima facie showing of suitability for diversion. The court stated: “In terms of whether or not the Court is satisfied that [defendant] himself personally or this crime is one that is reasonably suitable for diversion, the Court finds, particularly as it relates to the crime, that it is not. For the reasons highlighted by the People, the fact that we have two allegations of a first degree robbery with enhancements alleged relative to firearms being used personally by [defendant].”
At trial, the parties stipulated to several facts: (1) defendant “possessed a controlled substance, ” (2) he “knew of its presence in his wallet, ” (3) he “knew of the substance's nature as a controlled substance, ” (4) the “controlled substance was methamphetamine, ” and (5) the “methamphetamine possessed weighed 0.86 grams, which is a usable amount.” This stipulation was read orally and there was no discussion of defendant's rights when the court read the stipulation at trial. Defendant's counsel stated in his closing argument the jury “will and should convict on the third count of [defendant] being in possession of methamphetamine. I can see that. Check that box.” The jury instructions also stated the jury had to accept stipulated facts as true.
The jury found defendant guilty of methamphetamine possession but could not unanimously agree on the robbery charges with the firearm use enhancements. The court declared a mistrial on the robbery counts and suspended imposition of judgment and sentence on the possession conviction, ordering defendant placed on three years' probation.
At the second trial, defendant was tried only on the robbery counts with the firearm enhancements. The jury found defendant guilty of both counts of robbery but found not true the personal gun use allegations. The court sentenced defendant to the low term of two years for the first robbery and one-third the midterm for one year on the second robbery for a total term of three years. The court also revoked probation on the methamphetamine possession conviction but imposed no further time for that conviction.
DISCUSSION
I
Stipulation
Defendant first argues the stipulation and his counsel's statement to the jury regarding methamphetamine possession violated his state and federal constitutional rights because there is no evidence defendant understood the stipulation or knowingly waived his rights. The People counter the totality of the circumstances establishes defendant was fully informed of all relevant constitutional rights before agreeing to the stipulation. They also argue the stipulation was strategically beneficial to defendant because it avoided greater robbery charges, defendant had a juvenile conviction showing his familiarity with basic trial rights, and the uncontradicted evidence established defendant possessed methamphetamine when he was arrested.
“ ‘Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.' [Citation.] These include the privilege against self-incrimination, the right to trial by jury, and the right to confrontation.” (People v. Farwell (2018) 5 Cal.5th 295, 299 (Farwell), citing Boykin v. Alabama (1969) 395 U.S. 238, 243 ; In re Tahl (1969) 1 Cal.3d 122, 130-131.) “[T]he record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights.” (Farwell, at p. 300.) This is also required for stipulations that “conclusively establish[] the stipulated facts as true and completely relieve[] the prosecution of its burden of proof” on a charge because “[a] stipulation that admits all of the elements of a charged crime necessary for a conviction is tantamount to a guilty plea.” (Id. at pp. 299, 300.)
“ ‘[A] plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.' ” (Farwell, supra, 5 Cal.5th at p. 301.) The “totality of the circumstances test applies in all circumstances where the court fails, either partially or completely, to advise and take waivers of the defendant's trial rights before accepting a guilty plea.” (Id. at p. 303.) However, “silent record cases will face their own practical hurdle. The failure to advise a defendant of any trial rights will make it much harder to demonstrate a plea was properly accepted.” (Id. at p. 306.)
In Farwell, the defendant was in a jury trial and, after a prosecution witness was called and cross-examined, his attorney made a strategic trial decision to stipulate to one count. The trial court had made comments about the right to cross-examine witnesses and the defendant's right not to testify; and, the defendant had two prior convictions and thus previous experience in the criminal justice system. (Farwell, supra, 5 Cal.5th at p. 306.) The Supreme Court concluded it was not necessary to decide whether those circumstances affirmatively demonstrated the defendant was aware of his constitutional rights because there was no affirmative showing that the defendant understood he was waiving his trial rights by virtue of the stipulation entered on his behalf. (Ibid.)
In this case, the court never discussed defendant's trial rights to ensure defendant voluntarily and intelligently waived them. There is also no written version of the stipulation in the record disclosing defendant acknowledged the waiver of these rights by virtue of the stipulation. These waivers were necessary because the stipulation conclusively established defendant's guilt as to the methamphetamine possession count. (See CALCRIM No. 2304.) As defense counsel and the jury instructions noted, the jury had to accept as true the facts establishing the charge. The jury's finding of defendant's guilt was merely perfunctory.
To overcome this silent record, the People highlight other instances where defendant acknowledged various constitutional rights to establish defendant intelligently waived his rights under the totality of the circumstances. As the People note, defendant was told of his right to remain silent and to have an attorney when interviewed by police after his arrest, but this advisement was given four years before trial. Although defendant's counsel notified the court at a pretrial hearing defendant was “fully aware of his constitutional rights, ” this statement was made in the context of defense counsel's statement that defendant “entered into not guilty pleas and denials.” And, although the court ensured defendant was aware of his right to remain silent, this occurred when defendant elected not to testify after the stipulation had been entered. The People also note that defendant (like the defendant in Farwell) was in the midst of trial and his attorney had cross-examined prosecution witnesses.
These circumstances are insufficient for two reasons: (1) none of these acknowledgements were in relation to the effect of the stipulation, and (2) none explicitly disclosed advisements of a right to jury trial or a right to confrontation. The importance of the trial rights advisements is to ensure the waiver is knowledgeably given, so these disparate mentions of rights could not affirmatively show defendant understood the specific effect of the stipulation as waiving these rights. The most compelling evidence of proper advisement is defendant's acknowledgement of his constitutional rights at the pretrial hearing. But what rights these included are not disclosed by our record, and defendant pleaded not guilty at the hearing, so this advisement could not have any bearing on the understanding of the stipulation's effects. The other instances relied on by the People happened either long before trial or after the stipulation was entered, and neither dealt with the stipulation's effect. The totality of the circumstances therefore does not affirmatively establish defendant voluntarily and intelligently waived his rights when he agreed to the stipulation, so this conviction must be reversed.
The People's remaining contentions do not require a different result. Whether the stipulation was ultimately beneficial to defendant is of no moment. (People v. Cross (2015) 61 Cal.4th 164, 177 [“the fact that a defendant may derive a benefit is not itself a sufficient reason to dispense with proper advisement”].) Defendant's prior juvenile conviction by itself, without indications he received advisements or went through a trial, could not establish his awareness of the rights. (People v. Christian (2005) 125 Cal.App.4th 688, 697-698.) And the strength of evidence establishing the conviction does not eliminate defendant's right to intelligently and voluntarily waive his constitutional trial rights. (McCoy v. Louisiana (2018) 584 U.S. ___, ___ [200 L.Ed.2d 821, 830] [“a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her”].)
II
Pretrial Diversion
Defendant also asserts the case should be remanded for the court to reconsider pretrial diversion because a material factor in its original denial were the firearm use allegations, which the jury ultimately did not find true. Defendant does not contend the original denial was erroneous, instead arguing the trial court did not properly exercise its discretion in considering the jury's determination after the second trial. Defendant further asserts he suffered from ineffective assistance of counsel because his counsel did not renew the request for pretrial diversion after the second trial.
A. Legal Standards
Effective June 27, 2018, the Legislature created a discretionary diversion program for defendants with qualifying mental disorders. (§ 1001.36, subd. (a); Stats. 2018, ch. 34, § 24.) One purpose of the program is to “[i]ncrease[] 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).)
The court “may” (§ 1001.36, subd. (a)) grant pretrial diversion if a defendant meets all six enumerated requirements: (1) the court is satisfied that the defendant suffers from a mental disorder identified in the DSM; (2) the court is satisfied the “defendant's mental disorder was a significant factor in the commission of the charged offense”; (3) a qualified mental health expert opines “the defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment”; (4) the defendant “consents to diversion and waives [his or her] right to a speedy trial”; (5) the defendant “agrees to comply with treatment as a condition of diversion”; and (6) the court is satisfied “the defendant will not pose an unreasonable risk of danger to public safety... if treated in the community.” (§ 1001.36, subd. (b)(1)(A)-(F).)
Section 1001.36 provides “[a]t any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion.” (Id., subd. (b)(3).) The “court may summarily deny the request for diversion” at this stage. (Ibid.) Pretrial diversion is available at any point “until adjudication.” (Id., subd. (c).)
The use of “may” in the pretrial diversion provisions renders discretionary the court's authority to require a prima facie showing and to grant or deny a request for diversion. (See Lo v. Lee (2018) 24 Cal.App.5th 1065, 1071-1072 [“ ‘Ordinarily, when a statute provides a court “may” do something, the statute is permissive, not mandatory, and grants the court a discretionary authority' ”].) Where a discretionary power is vested in the trial court by statute, we may not disturb the exercise of that discretion except on a showing that the trial court's discretion was exercised in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
B. Initial Denial of Pretrial Diversion
To the extent defendant challenges the court's denial of pretrial diversion before the first trial, we find no abuse of discretion. The court considered Dr. Fisher's report but determined defendant's robbery charges with the personal use of firearm enhancements rendered him unsuitable for diversion. This was within its discretion as, before a court may grant pretrial diversion, it must determine it is satisfied “defendant will not pose an unreasonable risk of danger to public safety.” (§ 1001.36, subd. (b)(1)(F).) The court found persuasive the prosecutor's argument emphasizing the allegations defendant committed the crimes personally using a firearm. We find nothing arbitrary or capricious about these considerations.
C. Reconsideration of Pretrial Diversion After Jury's Verdict
Defendant's argument focuses on the jury verdict in the second trial, arguing the court failed to exercise its discretion in not having another pretrial diversion hearing because of “the material finding by the jury that firearms were not used during the incident.” This hinges on the meaning of “until adjudication” as pretrial diversion is defined in section 1001.36 as: “[T]he postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.” (§ 1001.36, subd. (c), italics added.) Defendant's argument lacks merit if this definition precludes diversion once there is a finding of guilt.
No court has directly addressed the meaning of “until adjudication” outside the context of retroactivity. We ordered supplemental briefing, asking the parties whether “adjudication, ” as used in section 1001.36, is ambiguous and if so, what is its meaning. Defendant argues, in his supplemental briefing, “adjudication” is ambiguous and means “finality of a judgment.” Only this meaning, he contends, will further the Legislature's intent to provide maximum opportunity for mental health diversion and comport with the Supreme Court's recent decision in People v. Frahs (2020) 9 Cal.5th 618 (Frahs). We disagree.
In Frahs, our Supreme Court determined that the Legislature limiting pretrial diversion to “until adjudication” did not indicate its intent to preclude retroactive application. (Frahs, supra, 9 Cal.5th at pp. 632-633.) It noted that this is different than the application of section 1001.36 in “the ordinary course of procedure.” (Frahs, at p. 632.) In dicta, the court said that normally, under section 1001.36, “a trial court determines whether a defendant is eligible for pretrial diversion before judgment is entered” (Frahs, at p. 632, italics added) and also that “a trial court would determine before trial whether a defendant is eligible for pretrial diversion.” (Id. at p. 634, italics added.) But on this issue, the court declared “we have no occasion here to precisely define ‘until adjudication,' as used in section 1001.36, subdivision (c), and our analysis should not be read as tacitly adopting the People's interpretation.” (Id. at pp. 632-633 & fn. 3.) Thus, we cannot rely on the inconsistent dicta in Frahs purporting to imply meanings of “until adjudication” in the normal context of pretrial diversion because it was an issue the court chose not to consider. (People v. Martinez (2000) 22 Cal.4th 106, 118 [“Cases are not authority for propositions they do not consider”].) So, we must conduct an independent analysis of this phrase's meaning.
The People asserted in Frahs “until adjudication” means “until the charge or charges against a defendant are resolved.” (Frahs, supra, 9 Cal.5th at pp. 632-633.)
The precepts of statutory construction are well settled. “Our role in construing a statute is to ascertain the intent of the Legislature in order to effectuate the purpose of the law. [Citation.] Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning and construing them in context. [Citation.] If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction.” (People v. Johnson (2002) 28 Cal.4th 240, 244.) “On the other hand, if the language allows more than one reasonable construction, we may look to such aids as the legislative history of the measure and maxims of statutory construction.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838.) “Statutory ambiguities often may be resolved by examining the context in which the language appears and adopting the construction which best serves to harmonize the statute internally and with related statutes.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) Any meaning must also comport with the stated goals of the statutory provision. (In re DeLong (2001) 93 Cal.App.4th 562, 568.)
“Until adjudication, ” as used in section 1001.36, is ambiguous. “Adjudication” is defined as both (1) “The legal process of resolving a dispute; the process of judicially deciding a case” and (2) “JUDGMENT.” (Black's Law Dict. (10th ed. 2014) p. 50, col. 1.) These definitions are in tension as one could mean diversion is available until determination of guilt and the other until sentencing, after conclusion of trial. (People v. Guerra (2016) 5 Cal.App.5th 961, 967 [“judgment” means “ ‘[a] court's final determination of the rights and obligations of the parties in a case' [Citation] or ‘a legal decision; order, decree, or sentence given by a judge or law court' ”].) The diversion program being called “pretrial, ” meaning before trial, introduces further ambiguity. It is not clear from the plain language whether “until adjudication” means “before judgment is entered, ” “before trial, ” or some other formulation. We must look beyond the plain language of the statute to decipher the Legislature's intent.
The Legislature codified three goals of the pretrial diversion program. The one relevant here, and relied on by defendant, 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, subd. (a).) Permitting diversion after conviction would further the first part of this goal by giving more opportunities for diversion. But limiting diversion to before conviction does not necessarily cut against this goal either because all defendants would still be eligible to seek diversion. As seen here, defendant already had a hearing on pretrial diversion eligibility, which was denied. Not allowing a second opportunity does not fundamentally undermine this goal of pretrial diversion. Therefore, the stated goal of section 1001.36 does not settle whether “until adjudication” permits postverdict diversion.
We next examine the remainder of section 1001.36 to discern which interpretation would best internally harmonize the statute. There are several provisions relevant to the timing of pretrial diversion availability and these provisions support the conclusion pretrial diversion is unavailable after conviction.
First, if a defendant successfully performs in diversion, “the court shall dismiss the defendant's criminal charges.” (§ 1001.36, subd. (e).) And if charges are dismissed, “the arrest upon which the diversion was based shall be deemed never to have occurred.” (Ibid.) Eliminating arrest records and dismissing charges indicates a legislative focus of criminal liability incurred before a conviction is delivered. The elimination of charges and arrest records provides little benefit to a defendant if his or her conviction is still valid.
Second, a defendant must also waive his or her “right to a speedy trial” to be eligible for diversion. (§ 1001.36, subd. (b)(1)(D).) This waiver would be irrelevant if the defendant had already gone through trial, and “we must avoid a construction that would render any word, phrase or provision superfluous.” (In re S.H. (2011) 197 Cal.App.4th 1542, 1552.)
Finally, in determining whether the mental disorder was a significant factor in the commission of the offense, courts may consider all “relevant and credible evidence, ” which includes evidence such as “police reports” and “preliminary hearing transcripts.” (§ 1001.36, subd. (b)(1)(B).) Trial evidence or verdicts are not included in the list. Though the list is nonexhaustive, the Legislature listing evidence typically compiled before trial further indicates a focus on pretrial relief. Consequently, reading all provisions within section 1001.36 together, interpreting “until adjudication” to permit pretrial diversion after a determination of guilt would make section 1001.36 internally inharmonious.
The legislative history for section 1001.36 further indicates the Legislature's intent to not permit pretrial diversion after trial. Committee reports of Assembly Bill No. 1810 (2017-2018 Reg. Sess.), the bill enacting section 1001.36, stated the bill's purpose was to address “[i]ncompetent to [s]tand [t]rial referrals.” (Assem. Com. on Budget, Conc. in Sen. Amends to Assem. Bill No. 1810 (2017-2018 Reg. Sess.) as amended June 12, 2018, p. 7.) Consistent with this focus on trial avoidance, the author of an amendment to Assembly Bill No. 1810 explained two months after Assembly Bill No. 1810's effective date: “[B]efore June 2018, trial courts had no ability to rehabilitate mentally ill Californians charged with even minor criminal offenses, without first convicting them .... [¶]... [¶]... By granting courts the ability to divert those suffering from mental illness into treatment at an early stage in the proceedings, [Assembly Bill No. 1810] seeks to reduce recidivism rates for mentally ill defendants, and to avoid unnecessary and unproductive costs of trial and incarceration.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 215 (2017-2018 Reg. Sess.) Aug. 28, 2018, pp. 2-3, italics added.) Though none of this legislative history by itself conclusively indicates a clear definition for “until adjudication, ” it collectively supports an inference that section 1001.36 pretrial diversion was at least not intended to be available after trial.
Interpretation and application of other pretrial diversion programs in California provide even more illumination. The statutory language of other pretrial diversion programs have many similarities with section 1001.36, including using “until adjudication” in the definition of “pretrial diversion.” (§§ 1001.1, 1001.50, 1001.70, 1001.80.) Many also require waiving the right to a speedy trial (see §§ 1001.52, subd. (a), 1001.72, subd. (a), 1001.73) and permit dismissal of charges and elimination of arrest records without mention of convictions (see §§ 1001.7, 1001.31, 1001.55).
We have found that these other pretrial diversion programs have a two-fold purpose: (1) sparing appropriately selected offenders the “stigma of a criminal record by prompt exposure to community educational and counseling programs and (2) relieving the congested criminal courts of some relatively minor... prosecutions.” (People v. Padfield (1982) 136 Cal.App.3d 218, 228.) Permitting diversion after trial violates both purposes by exposing defendants to criminal convictions after costly trials. (See also Gresher v. Anderson (2005) 127 Cal.App.4th 88, 111 [“The purpose of those programs is precisely to avoid the necessity of a trial”].) Given the high degree of similarity between these earlier-enacted pretrial diversion programs and Assembly Bill No. 1810, especially in defining “pretrial diversion, ” we can assume the Legislature approved of this judicial understanding of pretrial diversion programs when it adopted the same language for section 1001.36. (See Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785 [“ ‘Where... legislation has been judicially construed and a subsequent statute on the same or an analogous subject uses identical or substantially similar language, we may presume that the Legislature intended the same construction, unless a contrary intent clearly appears' ”].)
Overall, considering the full context of section 1001.36, the statute's legislative history, and application of other similar pretrial diversion programs, we find the phrase “until adjudication” does not mean “until finality of judgment” and therefore pretrial diversion under section 1001.36 is unavailable after conviction. We do not decide whether pretrial diversion is precluded even earlier, such as once trial commences. (See People v. Torres (2019) 39 Cal.App.5th 849, 855 [in examining retroactivity, finding “ ‘[u]ntil adjudication' means before the jury is impaneled and sworn”].) It is enough for purposes of this case to find defendant could not seek pretrial diversion after the jury rendered its verdict in the second case. The trial court therefore did not err here because it could not reexamine defendant's eligibility for pretrial diversion and rely on the jury's verdict.
Further, defendant's ineffective assistance of counsel claim must fail for the same reasons-his counsel had no ability to again seek diversion. (People v. Kipp (1998) 18 Cal.4th 349, 377 [failure to assert a meritless position does not demonstrate ineffective assistance of counsel].)
Our reasoning herein is consistent with that of the court in People v. Graham (2021) 64 Cal.App.5th 827 (Graham), which also held that a request for pretrial diversion is timely only if made prior the jury's guilty verdict. The court found this holding “is a function of the plain language of the statute, is consistent with its purpose and steers clear of the likely practical consequences of a contrary reading.” (Id. at p. 833.) The statute's use of the phrase “pretrial diversion, ” the command that diversion occur before “adjudication, ” a term that typically refers to an adjudication of guilt-whether by plea or by jury verdict.
Like Graham, “Our analysis is consistent with our Supreme Court's decision in Frahs, supra, 9 Cal.5th 618. The question presented in Frahs was whether the defendants who went to trial before section 1001.36 took effect could seek pretrial diversion after their guilt was adjudicated as long as their convictions were not yet final. The resolution of that question turned on whether the Legislature, in enacting section 1001.36, had ‘ “clearly signal[ed] its intent”' to overcome the presumption erected by In re Estrada (1965) 63 Cal.2d 740 that statutes having an ameliorative effect in criminal cases apply retroactively to convictions that are not yet final. (Frahs, at pp. 631-632.) Frahs ruled that the ‘ “until adjudication”' language in section 1001.36 did not constitute that ‘clear' signaling (Frahs, at p. 633) such that defendants whose convictions were in the ‘pipeline' of direct appellate review when section 1001.36 took effect could still take advantage of the statute. But Frahs was careful to limit its analysis to the availability of section 1001.36 to these pipeline defendants, and to note that its holding involved a ‘quite different' question from how the ‘statute normally will apply going forward' as to the defendants who had had the opportunity [to] seek pretrial diversion from the very beginning. (Frahs, at p. 633.)” (Graham, supra, 64 Cal.App.5th at p. 834.)
Retroactivity is not an issue here. The pretrial diversion statute had been enacted and was operative at the outset of defendant's case but, for whatever reason, defendant chose not to avail himself of it. Defendant was through the pipeline. The issue is whether defendant, who did not request pretrial diversion prior to trial may seek diversion after the trial has taken place and his guilt has been adjudicated. As we have explained, he cannot.
DISPOSITION
Defendant's conviction for methamphetamine possession is reversed and the matter is remanded for further proceedings not inconsistent with this opinion. The judgment is otherwise affirmed.
We concur: HULL, J., ROBIE, J.