Opinion
A155247
03-27-2020
THE PEOPLE, Plaintiff and Respondent, v. ROSS SIERRA FLOERSCH, Defendant and Appellant.
NOT TO BE PUBPLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 227359)
A jury convicted Ross Sierra Floersch of robbery and assault by means of force likely to cause great bodily injury. The record suggests that Floersch, a diagnosed schizophrenic, suffered from paranoid delusions at the time of the robbery. His sole argument on appeal is that he is entitled to remand for a determination whether he is eligible for mental health diversion under Penal Code section 1001.36, a statute enacted after he was convicted and sentenced. We agree that the trial court should consider Floersch's eligibility for mental health diversion and therefore conditionally remand the matter for that purpose.
All statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
We review the facts conceded by the parties in their briefing.
In March 2017, Ms. L. was waiting for a taxi outside her San Francisco apartment when Floersch approached her, repeatedly asking for her cell phone. When she refused, Floersch hit her a few times in the chest, swung her down to the ground, and took her phone. According to a witness, Floersch whipped Ms. L. around and swung her down with such momentum that he fell on top of her. When the witness—who observed the attack with his wife—shouted at him, Floersch stood up and ran away. The witness followed Floersch and was able to provide his location to the police. After the police apprehended Floersch and recovered the cell phone, they took him to a nearby parking lot where Ms. L. and the witness identified Floersch as the man who had attacked her.
As a result of this incident, the San Francisco County District Attorney filed an amended information charging Floersch with felony second degree robbery (§ 211, count 1), felony preventing or dissuading a witness by force or threat (§ 136.1, subd. (c)(1), count 2), and felony assault with force likely to cause great bodily injury (§ 245, subd. (a)(4), count 3). Count 1 was alleged to be a serious felony within the meaning of section 1192.7, subdivision (c), and a violent felony within the meaning of section 667.5, subdivision (c).
At his November 2017 jury trial, Floersch testified he had been diagnosed with schizophrenia in his early 30s. He believed people were conspiring to attack him with devices that could emit harmful magnetic waves. When he saw Ms. L., he thought her cell phone was such a device, or some kind of biological or chemical weapon, and the voices in his head told him he needed to take the phone to stop his pain. According to Floersch, he also had frightening visual hallucinations. He had gone to the hospital many times for help, and the auditory and visual hallucinations would stop when he took medication. A forensic psychologist testified for the defense that Floersch suffered from schizophrenia and was in a psychotic state and not conscious at the time of the crime. Another forensic psychologist testified in rebuttal that, while Floersch had been suffering from a psychotic spectrum disorder when he attacked Ms. L., he was nevertheless fully conscious and capable of forming intent during the incident.
At the conclusion of trial, Floersch was convicted on counts 1 and 3 and acquitted on count 2. At sentencing in February 2018, the trial court suspended the imposition of sentence on count 1, stayed the sentence on count 3 under section 654, and placed Floersch on probation for three years under various terms and conditions. Floersch was ordered to serve 341 days in county jail (with credit for 341 days already served) and complete a one-year residential treatment program at HealthRIGHT 360, among other requirements.
Several months later, in June 2018, section 1001.36 was enacted, creating a pretrial diversion program for defendants with certain qualifying mental disorders. (Stats. 2018, ch. 34, §§ 24, 37 (Assem. Bill No. 1810).) In September 2018, Floersch filed a motion for constructive filing of a notice of appeal in this court, which we granted. Floersch filed a notice of appeal in the trial court on September 13, 2018, and this matter is now before us for decision.
DISCUSSION
Floersch claims he is entitled to a remand for the trial court to consider his eligibility for mental health diversion under section 1001.36. Although this law went into effect after he was convicted and sentenced, he claims he is entitled to the law's ameliorative benefits because the judgment in his case is not yet final. The Attorney General disagrees, contending that the statute evinces a clear legislative intent to apply only to criminal prosecutions that have not yet been adjudicated. We conclude that Floersch has the better argument.
Section 1001.36 was enacted as a budget trailer bill on June 27, 2018, taking effect immediately. (Stats. 2018, ch. 34, §§ 24, 37.) The law gives trial courts the discretion to "grant pretrial diversion" to defendants with qualifying mental disorders, and it directs courts to dismiss charges against participants who successfully complete the diversion program. (§ 1001.36, subds. (a), (c), & (e).) Under the law, a court may grant mental health diversion if the following six criteria are met: (1) The defendant must suffer from a qualifying mental disorder; (2) the mental disorder must have been a significant factor in the commission of the charged offense; (3) in the opinion of a qualified medical expert, the symptoms of the mental disorder motivating the defendant's 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) if treated in the community, the defendant will not pose an unreasonable risk of danger to public safety, defined as an unreasonable risk that the petitioner will commit a new specified violent felony. (§§ 1001.36, subd. (b)(1)(A)-(F), 1170.18, subd. (c).)
Floersch is entitled to be considered for diversion under this statute because his case is not final. Although laws are generally presumed to apply prospectively, this presumption can be overcome as " 'the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication.' " (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara).) Whether a statute applies prospectively or retroactively is a question of legislative intent. (Ibid.)
Under In re Estrada (1965) 63 Cal.2d 740 (Estrada), courts presume that the Legislature intended statutes reducing criminal punishment to apply to defendants in nonfinal cases: "When the Legislature amends a statute so as to lessen [a criminal] punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Id. at p. 745.) " '[A]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date' [citation], unless the enacting body 'clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent.' " (People v. DeHoyos (2018) 4 Cal.5th 594, 600).
The Courts of Appeal are divided over whether the Legislature has "clearly signal[ed] its intent" to overcome Estrada's presumption that section 1001.36 will apply to defendants whose cases are not yet final. At least four courts have concluded in published cases that it has not, entitling such defendants to a diversion eligibility hearing. (See People v. Hughes (2019) 39 Cal.App.5th 886, 896 [First District], review granted Nov. 26, 2019, S258541; People v. Burns (2019) 38 Cal.App.5th 776, 787 [Fourth District], review granted Oct. 30, 2019, S257738 (Burns); People v. Weaver (2019) 36 Cal.App.5th 1103, 1120-1122 [Sixth District], review granted Oct. 9, 2019, S257049; People v. Frahs (2018) 27 Cal.App.5th 784, 791 [Fourth District], review granted Dec. 27, 2018, S252220 (Frahs).) And at least three courts have reached the opposite conclusion. (See People v. Khan (2019) 41 Cal.App.5th 460, 493-494 [Sixth District] (Khan), review granted Jan. 29, 2020, S259498; People v. Torres (2019) 39 Cal.App.5th 849, 855 [Second District], review den. Dec. 11, 2019, S258491; People v. Craine (2019) 35 Cal.App.5th 744, 760 [Fifth District], review granted Sept. 11, 2019, S256671.) We need not recount in detail the thoughtful analyses of these decisions since the Supreme Court has granted review to resolve the conflict.
Until it does, however, we agree with the courts that have concluded that the statute applies to defendants whose cases are not final. In reaching our conclusion, we are primarily guided by the Supreme Court's holding and analysis in Lara, which considered the retroactive effect of the Public Safety and Rehabilitation Act of 2016 (Prop. 57, as approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition 57)). Proposition 57 changed then-existing law to make juvenile court judges, rather than prosecutors, responsible for determining whether juveniles charged with criminal offenses should be prosecuted as adults. Lara concluded that Proposition 57 applies to offenders whose judgments are not final, even if they were already tried as adults. (Lara, supra, 4 Cal.5th at p. 304.) The conclusion requires appellate courts to conditionally remand those cases in which juveniles were tried as adults before Proposition 57 was passed to enable the juvenile court to consider whether they should have been so tried. (See Frahs, supra, 27 Cal.App.5th at p. 791-792.) Given Lara's holding that Proposition 57 applies to already-tried juvenile offenders with nonfinal judgments, we see no reason why section 1001.36 should not be deemed to apply to already-tried adult offenders with nonfinal judgments. While the language of the two laws differs, section 1001.36 is no clearer than Proposition 57 in evincing a legislative intent to alter Estrada's presumption of applicability.
Such a conditional reversal avoids potential double jeopardy problems. (See Khan, supra, 41 Cal.App.5th at p. 491 ["Unconditional reversal of a defendant's valid conviction merely to facilitate pretrial diversion may raise a double jeopardy bar that precludes the government from reinstating criminal proceedings where such a defendant either was ultimately found not to qualify for diversion or did not perform satisfactorily in diversion."].)
The appellate courts that have concluded section 1001.36's language is sufficiently clear to overturn Estrada's presumption have largely focused on the statute's references to pretrial diversion, as well as its provision authorizing diversion "from the point at which the accused is charged until adjudication." (§ 1001.36, subd. (c), italics added). But we agree with the courts that have construed these references as more aptly describing how the law is to operate generally, rather than as reflecting a legislative intent to preclude the application of the law to the relatively small class of defendants whose judgments are not final but whose trials took place before the statute was enacted. (See Burns, supra, 38 Cal.App.5th at p. 787; Frahs, supra, 27 Cal.App.5th at p. 791.)
Proposition 57 is similar to section 1001.36 in that it also includes timing and procedural references that do not track neatly to the circumstances of offenders whose cases are not final but who were tried before the law went into effect. Its objective of allowing courts to decide whether juvenile offenders should be tried as adults applies awkwardly in cases in which juveniles were already so tried. And, more specifically, it requires prosecutors to file motions to try juvenile in adult court "prior to the attachment of jeopardy." (Welf. & Inst. Code, § 707, former subd. (a)(1), now subds. (a)(1) & (a)(2), as amended by Stats. 2018, ch. 1012, § 1.) This requirement cannot technically be satisfied in cases in which a trial has occurred since jeopardy attaches when the jury is sworn. (People v. Riggs (2008) 44 Cal.4th 248, 278-279, fn. 12.) Such requirement, like the references to "pre-trial" and "adjudication" in section 1001.36, could be interpreted to suggest the law applies only to offenders whose case had not yet proceeded beyond that procedural point. But the Supreme Court declined to so interpret it, and we see no convincing reason to come to a different conclusion about the analogous references in section 1001.36.
For the same reason, we find unpersuasive the Attorney General's citation to other diversion statutes in support of the argument that the Legislature knows how to allow posttrial diversion when it wants to. (See, e.g., § 1001.21, subd. (a) [authorizing diversion for defendants with cognitive developmental disabilities "at any stage of the criminal proceedings"].) As Lara illustrates, how a diversion statute is typically intended to apply is not necessarily reflective of the Legislature's intent with respect to that statute's retroactive application.
In addition to section 1001.36's unclear language, the timing of the statute's enactment suggests the law's applicability to nonfinal cases. The law was passed on June 27, 2018, as a trailer to the budget bill. Lara was announced five months earlier, so the Legislature must have known about it when it enacted section 1001.36. (See People v. Overstreet (1986) 42 Cal.3d 891, 897.) We can assume that if the Legislature had wanted section 1001.36 to have a different effect than Lara gave to Proposition 57—i.e., to have a prospective-only application—it would have said so in plain terms. (See In re Pedro T. (1994) 8 Cal.4th 1041, 1049 [to counter Estrada presumption of retroactivity of ameliorative statutory changes, Legislature must "demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it"].) We can infer that the Legislature's failure to do so was on purpose.
The Attorney General argues that, even if we cannot find a clear intent for a prospective-only application in the text of section 1001.36, we can find such an intent in the statute's legislative history and evolution. We are not persuaded. We agree with the Attorney General that the law was enacted in part to help reduce costs, and we can accept that a prospective-only application might save certain state and local expenses. But applying the law to defendants with nonfinal judgments will save other costs, and these savings may be substantial. In any event, "[t]he question . . . is not the motivation for the legislation" but rather "the Legislature's intent concerning whether [the amendment] should apply prospectively only." (People v. Nasalga (1996) 12 Cal.4th 784, 795-796 [ameliorative amendment was retroactive even though its stated purpose was to address inflation].) We simply do not see how the Legislature's desire to save public funds supports a conclusion that the law was intended to apply prospectively only.
Allowing trial courts to grant mental health diversion for defendants who were given prison sentences, for example, will eliminate further incarceration costs whenever diversion is granted and successful. (See Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 215 as amended Aug. 23, 2018, pp. 2-3 [a purpose of mental health diversion is to "avoid unnecessary and unproductive costs of trial and incarceration," italics added].) Moreover, successful intervention in one case might very well avoid the costs associated with subsequent cases triggered by a lack of effective treatment. (See § 1001.35, subd. (a) [stating one purpose of mental health diversion is "to mitigate the individuals' entry and reentry into the criminal justice system"].)
Nor are we convinced by the Attorney General's reliance on the Legislature's use of non-urgency legislation in amending section 1001.36 to exclude defendants charged with certain crimes, such as murder and rape. (See Stats. 2018, ch. 1005, § 1.) The Attorney General argues that if the statute was intended to apply retroactively, the Legislature "would have taken urgent action in order to avoid allowing convicted murderers and rapists with nonfinal judgments to avoid conviction in the interim." But even the Attorney General recognizes that, because the amendments did not go into effect until January 1, 2019, people charged with murder and rape were entitled to seek diversion during the six months between June 27, 2018 (the effective date of section 1001.36) and January 1, 2019 (the effective date of the amendments). In our view, it is a stretch to discern a legislative intent that the law apply prospectively only based on the theory that it would have been "absurd" for the Legislature—while authorizing eligibility for diversion to people charged with these crimes during the six-month period—to authorize eligibility during this period to defendants with nonfinal convictions of these crimes. It is at least equally plausible the Legislature did not consider the matter urgent because it recognized that trial courts were unlikely to grant diversion to defendants convicted of these crimes.
Finally, it is noteworthy that the Attorney General does not dispute that Floersch may be eligible for mental health diversion under section 1001.36. In Frahs, the court concluded that conditional reversal was appropriate where "the record affirmatively discloses that [the defendant] appears to meet at least one of the threshold requirements" of section 1001.36. (Frahs, supra, 27 Cal.App.5th at p. 791.) Here, the record could be read to support many of the threshold requirements. The defense's forensic psychologist opined that Floersch suffers from schizophrenia, a condition the statute expressly identifies as a qualifying mental disorder. (§ 1001.36, subd. (b)(1)(A).) His testimony also supports the conclusion that Floersch's mental disorder was a significant factor in the commission of the charged offenses, as does Floersch's own recitation of events. (Id., subd. (b)(1)(B).) In addition, Floersch testified that his symptoms improve with treatment. (Id., subd. (b)(1)(C).) Under such circumstances, we deem it appropriate to conditionally reverse the judgment with directions for the trial court to hold a hearing under section 1001.36 to determine whether to grant mental health diversion. (Frahs, supra, 27 Cal.App.5th at p. 792.) We express no opinion on the merits of any such determination.
DISPOSITION
The judgment is conditionally reversed. The case is remanded to the trial court with directions to hold a hearing under Penal Code section 1001.36. The court may exercise its discretion to grant diversion if it determines that Floersch is eligible for it, and it shall dismiss the charges if he successfully completes the diversion program. (§ 1001.36, subd. (e).) If the court declines to grant diversion, or if it grants diversion but Floersch fails satisfactorily to complete the diversion program (§ 1001.36, subd. (d)), the court shall reinstate Floersch's convictions and conduct further proceedings consistent with this opinion.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Humes, P.J. /s/_________
Banke, J.