Opinion
E081319 E081320 E081323
11-25-2024
THE PEOPLE, Plaintiff and Respondent, v. KATHERINE ANN DUPRAY, Defendant and Appellant.
Garrick Byers, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
CONSOLIDATED APPEALS from the Superior Court of Riverside County Nos. RIF2105126, RIF2200125 & RIF2202308 . Emma C. Smith, Judge.
Garrick Byers, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
INTRODUCTION
After making motions for pretrial mental health diversion (PMHD), pursuant to Penal Code, section 1001.36, in three pending criminal matters, defendant Katherine Ann Dupray entered guilty pleas in each case. Thereafter, pursuant to an indicated sentence by the court, defendant was placed on probation, and referred to mental health court as a condition of probation. Defendant filed notices of appeal in each case and obtained certificates of probable cause.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant argues (1) the trial court abused its discretion in finding she was unsuitable for PMHD, and (2) the amendments to section 1001.36, which became effective on January 1, 2023, should be applied retroactively to her cases, requiring reversal and remand. We remand for further proceedings to determine the defendant's suitability for PMHD under the current amendment to section 1001.36.
BACKGROUND
I. Factual Backgrounds of the Incidents
Because defendant pled guilty prior to a preliminary hearing in each case (§ 859a), we first look to the factual basis for the pleas, all of which were entered on November 7, 2022. At that time, the court asked defendant, "Are you entering a plea to that charge because you did commit the conduct as alleged . . ." with respect to each case, and to which questions the defendant responded in the affirmative. Additional information, however, was provided in the moving and responding papers submitted to the court in connection with the application for PMHD, presumably taken from police reports, but is cited by both parties and appears to be undisputed. We therefore provide the following additional factual history underlying the respective cases.
A. No. RIF2105126/E081319
The parties' respective moving and responding papers relating to the motion for PMHD provide the following additional information: On November 22, 2021, at around 5:36 p.m., deputies were dispatched to a location where a person had reported that defendant was attempting to open vehicle doors. Defendant took off her jacket and ran toward the freeway. She entered a car wash, while holding a bag, then dropped the contents of the bag and started to open water valves at the car wash.
Once detained, defendant said that she "took a jacket and tampons from a Nissan." Deputies located the five tampons and a notebook. The owner of the Nissan claimed that her computer tablet and watch were also missing, but defendant denied stealing those items. The only items found in defendant's possession were the jacket, tampons, and a notebook. Defendant was transported to the Moreno Valley station, and during the transport, defendant had slipped her handcuffs from behind her to her front side and damaged the antenna of the patrol vehicle.
B. No. RIF2200125/E081320
In this case, defendant was found unclothed, hiding in the bushes outside a house which she had entered unlawfully, damaging the door in the process. She had ransacked the kitchen, rummaged through the cabinets, scattered property about in the dining room, took a shower, removed the toilet lid in the bathroom, and ate some food. The court noted she was suffering from delusions, which was also reflected in the mental health records.
C. No. RIF2202308/E081323
On May 16, 2022, at around 7:45 a.m., Riverside Police Department was dispatched to a residence where defendant had been seen on a Ring camera, ringing the doorbell and walking toward the east side of the house. Defendant took off a window screen protector and opened the door. The owner of the home asked her boyfriend to come to her residence. When the boyfriend arrived, he saw defendant, who was at the rear of the residence, take some things from a box and he told her to put them down. Defendant did not do as requested and left the home with the items. The items taken included three paint brushes and a plastic spray bottle with liquid cleaner. When officers arrived at the residence, defendant walked quickly away from them. Defendant initially stopped and dropped the stolen items when directed to do so by the officer, but resisted as the officer retrieved his handcuffs, and she attempted to pull away in an aggressive manner. Defendant was ultimately detained and placed under arrest.
II. Procedural History Related to the PMHD Application
On November 24, 2021, in case No. RIF2105126 (E081319), defendant was charged with felony vandalism (§ 594, subd. (a); count 1) and misdemeanor theft (§ 488; count 2), stemming from an incident on November 22. The complaint was subsequently amended to include an allegation under the Three Strikes law, specifically, defendant's May 21, first degree burglary conviction (§§ 667, subds. (c), (e)(1) &1170.12, subd. (c)(1)).
On November 3, 2023, this Court granted defendant's motion to consolidate her three cases and designated this case as the "master file." Because the three cases were heard together, the reporter's transcript, which includes hearings from all three cases in chronological order, does not require case specific designation.
On January 10, 2022, a new complaint in case No. RIF2200125 (E081320) was filed, in which defendant was charged with first degree burglary of an inhabited dwelling house (§§ 459 &667.5, subd. (c)(21); count 1), stemming from an incident on January 6. It was further alleged that she had a prior conviction for first degree burglary of a dwelling that qualified as both a serious prior (§ 667, subd. (a)) and a strike prior (§§ 667, subds. (c), (e)(1) &1170.12, subd. (c)(1)).
Defendant filed motions in both trial court cases Nos. RIF2105126 &RIF2200125 requesting PMHD pursuant to section 1001.36. On February 25, 2022, after a hearing addressing both cases, the trial court found that defendant suffers from a mental disorder identified in the Diagnostical and Statistical Manual (DSM-5), and that the disorder played a significant role in the commission of the offenses charged in each case. It further found that defendant would not pose an unreasonable risk of danger to public safety if treated in the community. The court reserved on the issue of suitability for diversion and set a future date for both cases.
The current version is the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, commonly cited as DSM-5. There is a later text revision to the current edition, but because we do not quote from the manual, we refer only to the DSM-5.
On May 18, 2022, a third criminal complaint was filed in trial court case No. RIF2202308 (E081323), charging defendant with first degree burglary (§ 459; count 1) committed on May 16. This complaint further alleged a serious felony prior conviction (§ 667, subd. (a)), relating to the May 21, 2021, burglary prior, as well as a prior conviction under the Three Strikes law, relating to the October 30, 2020, assault conviction. (§ 245, subd. (a)(1).) Defense counsel moved for pretrial diversion in this case as well. The court found defendant suffers from a mental disorder and that the disorder played a significant role in the crime but reserved the issue of suitability to be determined at a later hearing.
Following a records check it was learned that in the prior case relating to the assault conviction the defendant pled guilty to a misdemeanor.
On August 29, 2022, the court denied defendant's petitions for pretrial diversion on all three cases. Specifically, the court's reasons "include[d] your criminal history, the fact that you were on probation at the time for a very similar offense to those, which you have been charged with now; the fact that when you were federally released, you weren't able to comply with Court orders." The court then referred the matter for evaluation of defendant's suitability for mental health court program.
"Federal release" is a term used by the court and counsel to refer to persons who were released from pretrial detention in county jail due to overcrowding. The term flows from a consent decree approved by the United States District Court, Central District, Eastern Division in the case of Gray v. Cnty. of Riverside (C.D.Cal. Dec. 22, 2015, No. EDCV 13-00444-VAP (OPx)) 2015 U.S.Dist. Lexis 186267, to ease jail crowding. The consent decree is currently operative, with modifications. (See Gray v. Cty. of Riverside (C.D.Cal. Apr. 14, 2020, No. 5:13-cv-0444-VAP-OPx) 2020 U.S.Dist. Lexis 90858 [action to modify and enforce the consent decree in light of the pandemic].)
On September 26, 2022, the court gave an indicated sentence in the event defendant pled guilty: the court would strike or dismiss the prior strike allegation pursuant to section 1385 (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497), and place defendant on formal probation with the mental health court program ordered as a condition of probation. On November 7, defendant pled guilty to all charges in all three cases, admitting the prior strike in all three cases, and admitting the serious felony prior in case Nos. RIF 2200125 and RIF2202308.
Pursuant to section 667, subdivision (a), a serious felony prior conviction (also referred to as a nickel prior), can only be alleged when the current offense is serious or violent felony.
On March 27, 2023, the court granted defendant's Romero motion and suspended execution of sentence, placing defendant on probation in all three cases, on conditions that included serving 365 days in jail with credit for time served, 24 months formal probation and participation in the mental health court program.
On May 15, 2023, defendant filed a notice of appeal and requested a certificate of probable cause for all three cases, which was issued by the trial court.
DISCUSSION
1. Whether the Court Abused Its Discretion in Finding Defendant Unsuitable for PMHD Under Current Law
Defendant argues that the trial court erred in finding she was unsuitable for PMHD. She also argues that she is entitled to retroactive application of the most recent amendment to section 1001.36. Because the answer to the retroactivity question will affect our review of the substantive issue of defendant's eligibility and suitability for PMHD, we address it first.
a. Retroactivity of the January 2023 Amendment to Section 1001.36
In the second argument in defendant's opening brief, she argues she is entitled to the application of the provisions of the amendment to section 1001.36, which became effective on January 1, 2023. We agree with this contention, based on the holding in People v. Frahs (2020) 9 Cal.5th 618, 626 (Frahs) and more recent opinions holding that defendant is entitled to retroactive application of subsequent amendments to section 1001.36. (People v. Doron (2023) 95 Cal.App.5th 1, 6 (Doron); People v. Braden (2023) 14 Cal.5th 791, 802.)
The People argue the defendant forfeited the issue by failing to request that the court apply the provisions of the recent amendment in the trial court. This would have been a difficult feat, given that the amendatory provisions had not yet gone into effect when the court found defendant unsuitable for the PMHD program. We recognize that a defendant may forfeit a right in a criminal case by failing to timely assert the right before the tribunal with jurisdiction to determine it. (People v. Trujillo (2015) 60 Cal.4th 850, 856.) "'However, neither forfeiture nor application of the forfeiture rule is automatic. [Citation.] Competing concerns may cause an appellate court to conclude that an objection has not been forfeited. [Citations.] Similar concerns may also cause an appellate court to refrain from applying the forfeiture bar.'" (People v. Brown (2024) 101 Cal.App.5th 113, 126 (Brown), citing People v. McCullough (2013) 56 Cal.4th 589, 593.)
The reviewing court in Brown recognized that "[c]ourts generally decline to apply the forfeiture rule to a right derived from recent, unanticipated changes to the law." (Brown, supra, 101 Cal.App.5th at p. 127.) Because the stated legislative intent was to broaden the availability of pretrial mental health diversion, we consider the amendment which became effective in January 2023 to be an ameliorative change in the law, which applies retroactively.
For this reason, in analyzing whether the trial court abused its discretion in finding her unsuitable, we do so under the amended version of the statute, which became effective in June 2023.
b. Whether the Court Abused Its Discretion, Applying the Provisions of Section 1001.36 After the January 2023 Amendment
"A trial court's ruling on a motion for mental health diversion is reviewed for an abuse of discretion, and factual findings are reviewed for substantial evidence." (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147 (Whitmill); People v. Bunas (2022) 79 Cal.App.5th 840, 847-848 (Bunas), citing People v Moine (2021) 62 Cal.App.5th 440, 449 (Moine); People v. Oneal (2021) 64 Cal.App.5th 581, 588 (Oneal).) "A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard [citations] or bases its decision on express or implied factual findings that are not supported by substantial evidence." (Moine, supra, at p. 449; see Bunas, supra, at pp. 848-849.)
To determine if the court abused its discretion, we must review the legal principles applicable to PMHD.
i. General Principles Governing Section 1001.36
"Section 1001.36 authorizes a pretrial diversion program for defendants with qualifying mental disorders. The statute defines '"pretrial diversion"' as 'the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.'" (Frahs, supra, 9 Cal.5th at p. 626.) "[S]ection 1001.36 applies retroactively to all cases not yet final on appeal." (Id. at p. 632.)
The recent amendment to section 1001.36, which became effective in June 2023, advances the ameliorative purposes of section 1001.36 and further clarifies and defines the operative terms, which promoted the legislative intent of providing "a possible ameliorating benefit for a class of persons-namely, certain defendants with mental disorders-by offering an opportunity for diversion and ultimately the dismissal of charges." (Frahs, supra, 9 Cal.5th at pp. 624, 627-630, relying on In re Estrada (1965) 63 Cal.2d 740, 744-746 &People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 308-309.)
Section 1001.36, providing for pretrial mental health diversion, has been amended multiple times since its original enactment in 2018. (Assem. Bill No. 1810, Stats. 2018,ch. 34, § 24, eff. June 27, 2018.) In 2019, the Legislature added the requirement that "the defendant and the offense" be suitable for diversion in new subdivision (b)(3). (Stats. 2018, ch. 1005, § 1, eff. Jan. 1, 2019.)
On July 1, 2024, another amendment to section 1001.36 took effect.
Effective January 1, 2023, section 1001.36 was amended again in several noteworthy ways. (See Stats. 2022, ch. 735, § 1.) The statute continues to define a qualifying mental health disorder to mean "a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia." (Former § 1001.36, subd. (b)(1)(A); § 1001.36, subd. (b)(1).)
Previously, however, a defendant could be eligible for mental health diversion only if the court was "satisfied that the defendant suffer[ed] from" such a mental disorder. (Former § 1001.36, subd. (b)(1)(A).) As amended, the statute now requires a diagnosis of a qualifying mental health disorder, and evidence of the mental disorder must be provided by the defendant and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert. (§ 1001.36, subd. (b)(1).)
Generally speaking, to be considered for diversion (1) the defendant must make a prima facie showing that he or she meets all the threshold eligibility requirements, (2) the defendant and the offense are suitable for diversion, and (3) the trial court is satisfied that the recommended program of mental health treatment will meet the defendant's specialized mental health treatment needs. (Frahs, supra, 9 Cal.5th at p. 627, citing § 1001.36, subds. (a), (b)(3) &(c)(1).) If these statutory requirements are satisfied "'then the court may grant pretrial diversion.'" (People v. Qualkinbush (2022) 79 Cal.App.5th 879, 886-887 (Qualkinbush), citing Frahs, at p. 627.)
To be deemed eligible under the current provisions of section 1001.36, subdivision (b), two criteria must be met: (a) the defendant suffers from a mental disorder identified in the most recent edition of the DSM; and (b) the defendant's mental disorder was a significant factor in the commission of the charged offense. Here, at the initial hearing, the court found defendant met the eligibility criteria, even though it applied the preamendment version of section 1001.36, and, because we agree with that determination, we need not discuss it further.
In addition to eligibility, the court must consider whether the defendant is suitable for PMHD. Pursuant to the criteria set out in the 2023 amendment regarding suitability, a defendant is considered suitable for PMHD if all the following criteria are met: "(1) In the opinion of a qualified mental health expert, the defendant's symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment. [¶] (2) The defendant consents to diversion and waives the defendant's right to a speedy trial .... [¶] (3) The defendant agrees to comply with treatment as a condition of diversion, unless the defendant has been found to be an appropriate candidate for diversion in lieu of commitment for restoration of competency .... [¶] (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community ...." (§ 1001.36, subd. (c).)
Section 1170.18, subdivision (b), provides in part, "In exercising its discretion, the court may consider all of the following: "(1) The petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes. "(2) The petitioner's disciplinary record and record of rehabilitation while incarcerated. "(3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety."
"Ultimately, however, diversion under section 1001.36 is discretionary, not mandatory, even if all the [statutory] requirements are met" and we "review for abuse of discretion the trial court's decision whether to grant a request for mental health diversion." (People v. Gerson (2022) 74 Cal.App.5th 561, 573 (Gerson).)
"[A] trial court may deny a motion for diversion on the basis of either suitability or eligibility, [and,] if the court determines that the defendant or offense is not suitable, it makes no difference whether the defendant is eligible. Given that the statute specifies that the 'hearing on the prima facie showing shall be informal' [citation] and does not mandate that a trial court make specific findings regarding eligibility, we see no reason why a trial court could not elect to decide the motion on suitability grounds, alone." (Bunas, supra, 79 Cal.App.5th at p. 860.)
Thus, even if a defendant meets the eligibility requirements, "a trial court may still exercise its discretion to deny mental health diversion if it finds that the defendant or the offense are not suitable for diversion," (Qualkinbush, supra, 79 Cal.App.5th at p. 888; see Doron, supra, 95 Cal.App.5th at p. 9), and where the purposes of the statute would not be achieved, even after the January 2023 amendment. (Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 138 (Vaughn).)
The recent amendment, however, added specific criteria to aid the courts in making suitability determinations, and to further the '"strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community."' (Vaughn, supra, 105 Cal.App.5th at p. 138.) For this reason, "[i]n determining a defendant's suitability for mental health diversion, a trial court may not rely on general sentencing objectives set forth in rule 4.410 of the California Rules of Court and must consider the primary purposes of the mental health diversion statute as set forth in section 1001.35." (Whitmill, supra, 86 Cal.App.5th at p. 1149, fn. omitted, citing Qualkinbush, at pp. 890-892; Bunas, supra, 79 Cal.App.5th at pp. 865-866.)
Nevertheless, even after the 2023 amendment, and even if the defendant is eligible and suitable for PMHD, the trial court retains the discretion to deny the request. (Oneal, supra, 64 Cal.App.5th at pp. 588-589; Doron, supra, 95 Cal.App.5th at p. 9 ["a diversion order is expressly discretionary with the court, even when all of the criteria are met"].) This discretion is preserved in section 1001.36, subdivision (c)(4), commonly referred to as the court's "residual discretion" to find a person unsuitable for PMHD where there is an unreasonable risk of danger to public safety.
The residual discretion is not unfettered and must be exercised ""'consistent with the principles and purpose of the governing law.'"" (Vaughn, supra, 105 Cal.App.5th at p. 135, citing Qualkinbush, supra, 79 Cal.App.5th at p. 891.) As used in section 1001.36, subdivision (c)(4) (postamendment), the determination of ""'unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [667, subdivision (e)(2)(C)(iv)].' (§ 1170.18, subd. (c).)"' (People v. Brown (2024) 101 Cal.App.5th 113, 121 (Brown).) "Thus, courts have held that the "'unreasonable risk of danger'" criteria is limited to a narrow set of statutorily defined violent felonies. (Ibid., citing People v. Sarmiento (2024) 98 Cal.App.5th 882, 892.)
ii. Analysis
In the present case, the trial court had made findings on the question of eligibility at the prima facie hearing, reserving the issue of suitability to be decided at the full hearing. Thus, we do not need to address the question of whether the defendant was eligible, although if there is any question remaining, we conclude she was eligible for PMHD. Instead, we turn to the question of whether she was "suitable" for PMHD.
Addressing suitability, the trial court concluded defendant and the offenses were unsuitable because of her criminal history, the fact she was on probation at the time for an offense very similar to her new cases, and the fact that when she was released from custody, she was not able to comply with court orders. We note that defendant has a considerable criminal history, as well as a history of self-medication with illegal substances. Additionally, throughout the trial court proceedings, defendant failed to appear in court for multiple hearings when she was on her own recognizance or when she was released from custody pursuant to the consent decree, resulting in the issuance of multiple bench warrants. On one occasion, after being arrested on a bench warrant, defendant refused to leave her cell to be transported to the court.
In addition, defendant committed the first of the three current crimes while on probation for a prior burglary offense that resulted in the strike prior that was alleged in the current cases, and a violation of probation. Then, after committing the burglary which formed the basis for case No. RIF2105126 (E081319), when she was released on her own recognizance, she committed the second offense, in case No. RIF2200125 (E081320) and she committed the third offense, in case No. RIF2202308 (E081323) while again out of custody. These factors may still be considered in determining suitability even after the 2023 amendment, to the extent that section 1001.36, subdivision (c)(4), refers to section 1170.18.
In addition, she had a history of being noncompliant with her medications, prior to being referred to mental health court following her guilty plea. The trial court therefore concluded she was unsuitable based on her criminal history, the fact that she was on probation at the time for an offense very similar to the crimes with which she was currently charged, and the fact that when she was federally released, she failed to comply with court orders.
Under the deferential abuse of discretion standard of review, "'"we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (Brown, supra, 101 Cal.App.5th at p. 121, quoting Gerson, supra, 80 Cal.App.5th at p. 1079.)
"'A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard [citations], or bases its decision on express or implied factual findings that are not supported by substantial evidence [citation].'" (People v. Graham (2024) 102 Cal.App.5th 787, 795, citing Moine, supra, 62 Cal.App.5th at p. 449.) Abuse of discretion is a deferential standard of review. (People v. Williams (1998) 17 Cal.4th 148, 162.) This standard of review asks whether the ruling in question "'falls outside the bounds of reason'" under the applicable law and the relevant facts. (Ibid.) "We could therefore disagree with the trial court's conclusion, but if the trial court's conclusion was a reasonable exercise of its discretion, we are not free to substitute our discretion for that of the trial court." (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882.)
All discretionary authority is contextual, however. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) "Thus, we cannot determine whether a trial court has acted irrationally or arbitrarily without considering the legal principles and policies that should have guided the court's action." (People v. Strother (2021) 72 Cal.App.5th 563, 571, citing People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) A trial court can therefore abuse its discretion if it bases its decision on impermissible factors, or an incorrect legal standard. (Wade v. Superior Court (2019) 33 Cal.App.5th 694, 709, citing People v. Knoller (2007) 41 Cal.4th 139, 156 .)
In Vaughn, the trial court's denial of diversion denial was based on its view that "Vaughn lacked sufficient seriousness to participate in diversion" and "did not examine Vaughn's behaviors that motivated its decision." (Vaughn, supra, 105 Cal.App.5th at p. 139.) The reviewing court reversed the order because the "trial court's speculation that Vaughn was not serious about treatment [was not] based on the evidence before it did not 'reflect consideration of the underlying purposes of the statute' nor did it 'explain why diversion would not meet those goals.'" (Ibid.)
Here, the court did not have the opportunity to determine if defendant was suitable using the clarified factors of the 2023 amendment. Instead, it relied on defendant's inability to comply with probation as well as with her medication regimen in denying diversion. All the current offenses were committed while she was on probation and noncompliant with taking her medication. While these factors are relevant to the question of whether the defendant would benefit from PMHD and the inclusion of specific factors pertaining to the question of suitability, we are not free to substitute our judgment for that of the trial court, which has not had the opportunity to consider her suitability using the current statutory factors.
Instead, the better approach, taking into account the retroactivity of the 2023 amendment, would be to remand the matter to the trial court to give it an opportunity to consider the defendant's suitability for PMHD using the current criteria.
We therefore remand the matter to the superior court for further proceedings on the question of whether defendant is suitable for PMHD.
DISPOSITION
The judgment is reversed and the matter remanded for further proceedings to determine whether defendant is suitable for PMHD under the 2023 amendment to section 1001.36, subdivision (c).
We concur: MILLER J. RAPHAEL J.