Opinion
G056106
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. LAURA KUBICKSIMMONS, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting, Paige B. Hazard and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16HF0195) OPINION Appeal from a judgment of the Superior Court of Orange County, Derek G. Johnson, Judge. Conditionally reversed and remanded. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting, Paige B. Hazard and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Laura Kubicksimmons was convicted of attempted arson of another's property (Pen. Code, §§ 664, 451, subd. (d); count 1); resisting and deterring an executive officer (§ 69; count 2); misdemeanor resisting and obstructing an officer (§ 148, subd. (a)(1)), a lesser included offense of the charge of battery on an officer (§ 243, subd. (b); count 3); and misdemeanor battery on an emergency medical technician (§ 243, subd. (b); count 4), based on incidents occurring on February 8, 2016. The jury found her not guilty of arson of forest land (§ 451, subd. (c); count 5) and arson of another's property (§ 451, subd. (d); count 6) for conduct occurring on December 6, 2015. Defendant received a prison term sentence of 3 years 4 months, comprised of two years on count 2, a consecutive term of four months (one-third the midterm) on count 1, and a consecutive one-year term on count 4. Sentence on count 3 was stayed under section 654.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant raises multiple claims of instructional error relating to her conviction for resisting an executive officer in count 2. First, she contends the trial court's failure to instruct the jury on the lesser included offense of resisting a peace officer (§ 148, subd. (a)(1)) violated her right to due process and trial by jury as guaranteed by the federal and California Constitutions. Second, she contends it is an essential element of section 69 "that 'the use of force or violence' be willful" and the court's failure to modify CALCRIM No. 2652 sua sponte to reflect such was instructional error that violated her right to due process and trial by jury under the state and federal Constitutions. Third, she asserts the cumulative impact of these two instructional errors requires the reversal of her conviction in count 2. In addition to her claims of instructional error, defendant requests we conditionally reverse the judgment and remand the matter for her to have an opportunity to request mental health diversion under section 1001.36, which was enacted while her appeal was pending. (Stats. 2018, ch. 34, § 24.) We reject defendant's challenges to her conviction in count 2 but agree the judgment should be conditionally reversed and remanded for the trial court to conduct a mental health diversion eligibility hearing.
FACTS
On February 8, 2016, Deputy Johnson of the Orange County Sheriff's Department responded to a call from dispatch around 12:20 p.m. to assist the fire authority with an uncooperative female in need of medical aid in the City of San Clemente. When he arrived at the scene, Deputy Johnson found defendant lying on a blanket in a parking lot and two paramedics standing next to her. Defendant's physical appearance concerned the deputy as the skin on her legs was flaking and scabbing, and she was having difficulty talking and breathing. In talking to Deputy Johnson, defendant was uncooperative at times and incoherent and rambling at others. She initially refused to provide her name or identification and was unable or unwilling to provide her date of birth. Defendant stated she had a disability but declined treatment from the fire department's emergency medical technicians (EMTs). Given defendant's condition, Deputy Johnson believed she could not remain safely in that location.
After talking to her for a few minutes, Deputy Johnson asked defendant what she wanted to do. She responded she wanted to hurt him. He dismissed her statement because he did not think she was a threat at that time. She warned, "You underestimate me." Still lying on the blanket, defendant rolled onto her side and told Deputy Johnson she almost blew up an ambulance before and that she had "hurt people." When he asked if she was intending to threaten him or the nearby EMTs, she did not respond.
Deputy Johnson told defendant she could not sleep in the parking lot and needed to leave. Defendant did not get up. She remained on the blanket and rolled onto her left side, away from the deputy. Deputy Johnson smelled smoke. Looking down, he realized the blanket was on fire. As he stomped out the fire with his boot, defendant grabbed some napkins that were lying on top of her blanket, lit them on fire with her lighter, and threw the flaming napkins at the fire department's gurney. The burning napkins landed on the gurney, charring the sanitary paper covering it. While the EMTs tended to the gurney to prevent it from catching on fire, Deputy Johnson reached for defendant's arm to prevent her from throwing more flaming objects at the gurney, which had an oxygen tank on it. When she refused his demands to hand over her lighter, Deputy Johnson grabbed defendant's arm, twisted it behind her back, and pried the lighter from her hand. Deputy Johnson released his hold on defendant and backed away.
Defendant tried to kick the two EMTs but did not make contact. After resting for a minute, she started crawling on her hands and knees toward Deputy Johnson, who was standing about six feet away. She had a fixated look on her face and was staring straight at his feet. When Deputy Johnson asked what she was doing, defendant responded she was trying to grab ahold of him. Deputy Johnson told her to stop. She did not. Instead, she continued crawling toward him while snarling and making a "weird noise." She asked if he was scared she was "going to take [him] down."
Defendant crawled to the motorhome parked next to Deputy Johnson and used its rear bumper to pull herself up to stand and face him. Defendant appeared angry and grabbed a broom that was on the motorhome's bumper. Concerned she could use the broom as a weapon, Deputy Johnson also reached for it and the two struggled for control of the broom. During the struggle, the broom's tip hit Deputy Johnson in the head but did not cause a cut or bleeding. As he gained control of the broom, defendant swiped at his uniform and grabbed the cord to his radio microphone, pulling the microphone off his uniform and ripping a button on his shirt. Realizing defendant had control of his radio, Deputy Johnson warned her that he would tase her if she did not drop it. Defendant let go of the radio, and Deputy Johnson threw her onto the gurney and handcuffed her to it with the help of EMTs Emter and Grijalva.
EMT Emter transported defendant to the hospital in an ambulance. While in the emergency room, defendant was uncuffed and sitting on the gurney; Deputy Johnson was sitting next to the gurney. Defendant began using her right hand to pick at the top of her left hand, causing her left hand to bleed profusely. As Deputy Johnson grabbed defendant's hand to stop her, defendant flung her bleeding left hand and made contact with Deputy Johnson's forearm. Later that day, defendant scratched EMT Emter's arm with her fingernails when he returned to the hospital with another patient.
Dr. Adrienne Meier, a licensed clinical psychologist, testified on behalf of the defense. She diagnosed defendant as having schizophrenia and opined defendant was exhibiting symptomology of the illness at the time of the charged incidents. On a scale of one to 10, with one being mild and 10 being severe, Dr. Meier categorized defendant's symptomology as a nine.
DISCUSSION
Defendant's first three contentions on appeal concern her conviction for resisting an executive officer by force or violence (§ 69) in count 2. She contends (1) the court erred by failing to instruct on resisting a peace officer (§ 148, subd. (a)(1)) as a lesser included offense; (2) the court erred by failing to modify CALCRIM No. 2652 sua sponte to instruct the jury that they must find her use of force or violence was willful in order to convict; and (3) the cumulative impact of these two instructional errors requires reversal of her conviction. While we reject her claims of instructional error, we agree with her claim that section 1001.36 applies retroactively to her case because the judgment was not final at the time the statute took effect. Accordingly, we conditionally reverse the judgment and remand the matter to the trial court for it to consider granting defendant mental health diversion under section 1001.36.
There was no Instructional Error
Section 69 provides: "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty" violates the statute. Our Supreme Court has "explained that section 69 'sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty.'" (People v. Smith (2013) 57 Cal.4th 232, 240 (Smith).) The first way of violating section 69 has "'been called "attempting to deter"'" and the second way "'"actually resisting an officer."'" (People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1418.)
Although count 2 of the information alleged both ways of violating section 69, the prosecutor proceeded only on the second type—actually resisting an officer—and the jury was instructed only on this theory. The court instructed the jury with CALCRIM No. 2652 as follows:
"The defendant is charged in Count 2 with resisting an executive officer in the performance of that officer's duty in violation of Penal Code section 69."
"To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant unlawfully used force or violence to resist an executive officer; [¶] 2. When the defendant acted, the officer was performing his lawful duty; [¶] AND [¶] 3. When the defendant acted, she knew the executive officer was performing his duty."
"An executive officer is a government official who may use his or her own discretion in performing his or her job duties. A peace officer is an executive officer. [¶] A sworn member of the Orange County Sheriff's Department is a peace officer. [¶] The duties of a peace officer include responding to calls to assist medical personnel."
Neither counsel objected to the wording of this instruction nor requested the jury be instructed on a lesser included offense as to this count. We now turn to defendant's appellate contentions.
The Court was Not Required to Instruct the Jury on Resisting an Officer as a Lesser Included Offense
Defendant contends the court erred by failing to instruct sua sponte on resisting a peace officer in the discharge of his duties (§ 148, subd. (a)(1)) as a lesser included offense of resisting an executive officer by force or violence (§ 69) in count 2. Our Supreme Court has explained that under the accusatory pleading test, section 148, subdivision (a)(1), is a necessarily included lesser offense of the actually resisting theory of section 69 because "[a] person who violates section 69 in the second way—by 'knowingly resist[ing], by the use of force or violence, such officer, in the performance of his duty'—also necessarily violates section 148(a)(1), by 'willfully resist[ing] . . . any public officer . . . in the discharge or attempt to discharge any duty of his or her office or employment.'" (Smith, supra, 57 Cal.4th at p. 241.) Thus, the parties agree misdemeanor resisting arrest under section 148, subdivision (a)(1), is a lesser included offense of section 69, given the way the prosecution charged the offense in count 2 and then proceeded on the actually resisting theory at trial. They disagree, however, on whether the court was required to instruct on the lesser included offense based on the evidence in this case.
Section 148, subdivision (a)(1), states in pertinent part: "Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her . . . employment . . . shall be punished [as a misdemeanor]."
"A trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense. [Citation.] '"Substantial evidence" in this context is "'evidence from which a jury composed of reasonable [persons] could . . . conclude[]"' that the lesser offense, but not the greater, was committed.'" (People v. Manriquez (2005) 37 Cal.4th 547, 584.) "In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "[O]n appeal we employ a de novo standard of review and independently determine whether an instruction on the lesser included offense . . . should have been given." (Manriquez, at p. 584.)
Because we review de novo whether there was substantial evidence warranting an instruction on resisting a peace officer as a lesser included offense, we need not address defendant's contention that the court gave an "unsatisfactory" explanation at the sentencing hearing as to why the lesser included instruction was not given.
Here, the court was required to instruct on the lesser included offense if there was substantial evidence from which a reasonable jury could conclude defendant was guilty of resisting under section 148, subdivision (a)(1), but not under section 69. (Smith, supra, 57 Cal.4th at p. 244.) The difference between the actually resisting theory of section 69 and resisting an officer under section 148, subdivision (a)(1), is that section 69 requires the resisting be committed with force or violence. (Smith, at p. 241.) Defendant contends the court was required to instruct on resisting an officer under section 148 as a lesser included offense because "the record contains evidence that could have persuaded a reasonable juror that [she] passively resisted Deputy Johnson (§ 148, subd. (a)(1)) but did not resist him 'by the use of force or violence' (§ 69)." We disagree.
Once Deputy Johnson told defendant she had to leave the area, defendant did not lay there passively. She, instead, lit items on fire, crawled toward Deputy Johnson while snarling and threatening to grab him, struggled with him over a broom, during which the deputy was hit in the head, and pulled the deputy's radio microphone off his uniform. This was not passive resistance. Defendant knowingly resisted Deputy Johnson by the use of force or violence. We conclude the court was not required to instruct on resisting an officer under section 148, subdivision (a)(1), as a lesser included offense because there was not substantial evidence from which a reasonable jury could conclude defendant was guilty of resisting without the use of force or violence.
Arguing that her "resistance did not rise to the level of active force or violence," defendant focuses mainly on the struggle for the broom and the "microphone incident." She asserts the evidence supports the theory that Deputy Johnson was accidently struck with the broom during the struggle and that once Deputy Johnson gained control of the broom, she started to fall and accidently grabbed the deputy's radio microphone. Essentially, defendant's argument is that the jury should have been instructed on the lesser included offense because the force or violence upon Deputy Johnson's person may have been accidental. A fatal flaw in defendant's argument is that the basis for the violation of section 69 under the actually resisting theory was broader than just the broom and microphone incidents. In arguing to the jury that defendant was guilty of resisting by force or violence as charged in count 2, the prosecutor asserted defendant's resistance began when she first set the blanket on fire and continued through her yanking the microphone off the deputy's uniform. Thus, it does not matter whether defendant intentionally or accidently struck Deputy Johnson with the broom or whether she intentionally or accidently ripped his microphone from his uniform during the struggle. Even if we disregard these incidents, evidence that defendant resisted Deputy Johnson by force or violence remains.
We also reject defendant's assertion that the jury's verdict on count 3 indicates a lesser included instruction on count 2 was warranted. As to count 3, the jury was instructed on the charged offense of battery against a peace officer (§§ 242, 243, subd. (b)) and instructed on resisting a peace officer (§ 148, subd. (a)(1)) as a lesser included offense. The jury found defendant not guilty of the charged battery but guilty of the lesser offense of resisting a peace officer. Defendant asserts counts 2 and 3 were based on the same incident and that after hearing the evidence, the jury must have found she "did not 'willfully touch[] Deputy Johnson in a harmful or offensive manner'" and that she had passively resisted the deputy. Defendant posits that "if the jury found [she] passively resisted Deputy Johnson without committing a battery, there almost certainly was 'evidence that a reasonable jury could find persuasive' that [she] resisted Deputy Johnson but without force or violence." While this argument has some initial appeal, it does not withstand scrutiny.
In reality, defendant is comparing apples to oranges. The force or violence required for a violation of section 69 is not the same as that required for a battery. Battery is the "willful and unlawful use of force or violence upon the person of another." (§ 242, italics added.) The offense of battery upon a peace officer requires the defendant willfully touch the officer "in a harmful or offensive manner." (CALCRIM No. 945.) A violation of section 69, however, does not require the use of force or violence be upon the person of the officer—only that the resistance involve "the use of force or violence." (People v. Bernal (2013) 222 Cal.App.4th 512, 518; id. at p. 520 ["forceful resistance of an officer by itself gives rise to a violation of section 69, without proof force was directed toward or used on any officer"].) Thus, the fact the jury found defendant not guilty of battery does not equate to a finding that she did not use force or violence in resisting Deputy Johnson.
One might question how a person resists an officer by using force or violence in violation of section 69 without using force or violence upon that officer. Defendant's conduct in this case provides an example. Defendant resisted Deputy Johnson's instructions to leave the parking lot by lighting items on fire. Defendant set not only her blanket on fire but also threw a handful of flaming napkins at the fire department's gurney and the oxygen bottle on top of it. Her actions of lighting items on fire "involve the use of 'force' against property through the act of burning." (People v. Macauley (1999) 73 Cal.App.4th 704, 708.) Through her use of force, defendant created a danger of injury to Deputy Johnson, even if her actions were not perpetrated directly upon his person. And her actions were done in resistance to his instructions to leave the parking lot. Accordingly, we reject defendant's position that because the jury found she did not commit a battery on Deputy Johnson in count 3 there was substantial evidence that her conduct amounted to only passive resistance and an instruction on the lesser included offense was warranted for count 2.
We also disagree with defendant's assertion that counts 2 and 3 were based on the same incident. Count 3 was based on defendant's physical contact with the deputy, which included the broom and microphone incidents in the parking lot and defendant's bloody hand hitting the deputy's arm at the hospital. Defendant's resistance of Deputy Johnson, the factual basis for count 2, began with her lighting fires and included her crawling toward him on her hands and feet while snarling and threatening to grab him, struggling with him for the broom, and yanking his radio microphone off his uniform. We are convinced an instruction on the lesser included offense of resisting an officer (§ 148, subd. (a)(1)) was not required under the facts of this case.
The Court was Not Required to Modify CALCRIM No. 2652 Sua Sponte
Defendant's next claim of instructional error concerns CALCRIM No. 2652, the pattern jury instruction for the actually resisting theory of violating section 69. Defendant acknowledges section 69 does not expressly contain a willfulness element, but she argues, nevertheless, that one should be imputed and that it is "an essential element of section 69 . . . that 'the use of force or violence' must be willful." She asserts the court had a duty to modify the instruction sua sponte to include a willfulness requirement and that its failure to do so was prejudicial error. We disagree.
When a defendant challenges a jury instruction on appeal, the reviewing court independently determines whether the court correctly and adequately instructed the jury on the applicable law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We review "'the instructions as a whole and the trial record' to determine '"whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.'" (People v. Reliford (2003) 29 Cal.4th 1007, 1013.) "'In conducting this inquiry, we are mindful that "'a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.'" [Citations.]' [Citation.] 'Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.'" (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
Section 69 renders criminally culpable every person "who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty." (Ibid.) The parties agree this theory of violating section 69 is a general intent crime, as explained in People v. Rasmussen, supra, 189 Cal.App.4th at pages 1419-1421.
The jury was instructed with CALCRIM No. 252 on the union of act and intent requirement. The court did not instruct the jury that the charge of resisting an executive officer in count 2 was a general intent crime, but instead instructed the jury that the charge required a specific intent or mental state and that "to find a person guilty of [this] crime[], that person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state." (Italics. added.) The instruction further informed the jury that "[t]he specific intent and/or mental state required are explained in the instruction for that crime." Instructing the jury on the theory of actually resisting an officer in violation of section 69, the court gave CALCRIM No. 2652, which told the jury the prosecution had to prove "defendant unlawfully used force or violence to resist an executive officer" and that when defendant acted, she "knew the executive officer was performing his duty."
Although defendant did not complain about the instruction below, now on appeal, she contends CALCRIM No. 2652 is deficient because it does not require the jury find that the use of force or violence was willful. Defendant asserts willfulness must be the required mens rea because willfulness is an element of assault and assault is a lesser included offense of this theory of violating section 69. Defendant's argument continues that because willfulness is an essential element of the offense, the court had a sua spone duty to modify CALCRIM No. 2652 to state the use of force or violence must be willful. The Attorney General asserts defendant forfeited her claim by failing to object or request modification of the instruction in the trial court.
"Generally, a party forfeits any challenge to a jury instruction that was correct in law and responsive to the evidence if the party fails to object in the trial court. [Citations.] The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law [citation], or if the instructional error affected the defendant's substantial rights." (People v. Franco (2009) 180 Cal.App.4th 713, 719.)
CALCRIM No. 2652, as given by the court, tracked the statutory language of section 69 and was therefore a correct statement of the law. A "court may couch its instructions defining the elements of the offense in the language of the code where no instructions in elaboration or exposition of the principles of the statutory definitions are requested by the defendant. [Citation.] Even if such an instruction 'cannot be commended as a full or clear exposition of the meaning of the section of the code, still it cannot be said that it was error for the court in giving the law to have conformed to the language of the code, and to have omitted what that code itself omits.' [Citation.] The defendant will not be heard to complain where he has failed to request an amplification of an instruction in that form." (People v. Reed (1952) 38 Cal.2d 423, 430.) Because CALCRIM No. 2652 was a correct statement of the law and defendant neither objected to it nor requested its modification below, she has forfeited this appellate complaint of instructional error.
Nevertheless, reviewing the instructions as a whole, we conclude the jury was properly instructed and defendant's substantial rights were not affected. The jury was instructed that in order to convict they had to find defendant "intentionally committed the prohibited act" (CALCRIM No. 252) and that she "unlawfully used force or violence to resist an executive officer" (CALCRIM No. 2652). Together these instructions informed the jury that defendant had to intentionally use force or violence to resist an executive officer. Thus, contrary to defendant's assertion, the jury could not have found her guilty of violating section "69 for accidentally or involuntarily using 'force or violence' in the course of passively resisting an officer."
In any event, any error in failing to explicitly instruct the jury that the use of force or violence must be willful is harmless under the standards of Chapman v. California (1967) 386 U.S. 18, 24 and People v. Watson (1956) 46 Cal.2d 818, 836. There was uncontested evidence that defendant willfully resisted Deputy Johnson by lighting items on fire, crawling toward him while snarling and threatening to grab him, and struggling with him over the broom.
Having determined there was no instructional error and no prejudice, we reject defendant's contention her counsel rendered ineffective assistance by failing to object or request modification of the instruction. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694-695.)
There was no Cumulative Error
Defendant contends the cumulative impact of the two alleged instructional errors requires the reversal of her conviction for resisting an executive officer in count 2. We recognize "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) We, however, have rejected both of defendant's contentions of instructional error. Thus, we find no cumulative prejudice. (In re Reno (2012) 55 Cal.4th 428, 483 [claims rejected because the "court found no legal error—cannot logically be used to support a cumulative error claim"].)
Defendant is Entitled to an Opportunity to Request Mental Health Diversion Upon Remand
The issue before us is whether section 1001.36, which allows a qualifying defendant to participate in pretrial diversion and receive mental health treatment, applies retroactively to an individual like defendant, who has already been convicted and sentenced but whose judgment was not final at the time the new legislation took effect. We have previously addressed this issue and relying on the Supreme Court's decision in In re Estrada (1965) 63 Cal.2d 740, we concluded the "Legislature 'must have intended' that the potential 'ameliorating benefits'" of the new statute apply to cases not yet final on appeal. (People v. Frahs (2018) 27 Cal.App.5th 784, 791, review granted Dec. 27, 2018, S252220 (Frahs).) In Frahs, we conditionally reversed the judgment and remanded the matter for the trial court to conduct a mental health diversion eligibility hearing under section 1001.36 because the record showed the defendant met at least one of the statute's threshold requirements. (Frahs, at pp. 791-792.)
Relying on our decision in Frahs, defendant argues she is entitled to a hearing in the trial court on her eligibility for mental health diversion because section 1001.36 was enacted while her appeal was pending and the record demonstrates she has a diagnosed mental illness, one of the threshold requirements. She requests we conditionally reverse the judgment and remand her case to the trial court for her to have an opportunity to request mental health diversion. The Attorney General concedes defendant has shown prima facie eligibility for mental health diversion under section 1001.36 and would be entitled to an eligibility hearing if the statute is applied retroactively in this case. But the Attorney General contends the statute does not apply retroactively in cases like this one, where there has already been an adjudication. He asserts the statute's definition of "pretrial diversion" in subdivision (c) of section 1001.36 is evidence the Legislature intended the statute operate prospectively only and not apply retroactively to cases on appeal.
Since briefing was completed in this case, other Courts of Appeal have also addressed whether section 1001.36 applies retroactively to defendants whose appeals were pending when the legislation took effect. In two cases, our colleagues in Division One of the Fourth Appellate District concluded section 1001.36 applies retroactively. (People v. Aguayo (2019) 31 Cal.App.5th 758, 760, review granted May 1, 2019, S254554; People v. Burns (2019) 38 Cal.App.5th 776, 785-789, review pending, S257738; but see id., at p. 790 (conc. & dis. opn. of Huffman, J.) [concluding the statute is not retroactive].) Our colleagues in the Sixth Appellate District and Division Five of the First Appellate District have also concluded that the statute applies retroactively to cases pending on appeal at the time if its enactment. (People v. Weaver (2019) 36 Cal.App.5th 1103, review pending, S257049 (Weaver); People v. Hughes (Sept. 11, 2019, A154196) ___ Cal.App.5th ___ [2019 Cal.App. Lexis 855, *9-*16].) But some of our colleagues in the Fifth and Second Appellate Districts have reached a different conclusion. (People v. Craine (2019) 35 Cal.App.5th 744, 748, review granted Sept. 11, 2019, S256671 (Craine) [concluding "the Legislature did not intend for section 1001.36 to apply retroactively to defendants whose cases have already progressed beyond the stage of trial, adjudication of guilt, and sentencing"]; People v. Torres (Sept. 10, 2019, B290895) ___ Cal.App.5th ___ [2019 Cal.App. Lexis 850, *1] [holding section 1001.36 does not apply after conviction and sentence].) Ultimately, our Supreme Court will have the final word on this issue. In the meantime, we reaffirm our conclusion in Frahs. Accordingly, we conditionally reverse the judgment and remand the matter to the trial court to allow it to conduct a mental health diversion eligibility hearing under section 1001.36.
The California Supreme Court ordered review of Frahs on its own motion to address the following questions: "(1) Does Penal Code section 1001.36 apply retroactively to all cases in which the judgment is not yet final? (2) Did the Court of Appeal err by remanding for a determination of defendant's eligibility under Penal Code section 1001.36?"
Statutory Overview
With the enactment of sections 1001.35 and 1001.36, the Legislature created a discretionary pretrial diversion program for defendants diagnosed with qualifying mental disorders when the mental disorder contributed to the commission of a charged offense. (Stats. 2018, ch. 34 § 24 [eff. June 27, 2018].) Section 1001.35 explains the purpose of the legislation 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" (id., subd. (a)) and to allow "local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings" (id., subd. (b)). Under section 1001.36, a court has discretion to grant pretrial mental health diversion if the defendant meets all six eligibility requirements set out in subdivision (b)(1) of the statute. (Id., subd. (a).) If the court determines the defendant meets the eligibility requirements, the court must then decide whether the defendant's "specialized mental health treatment needs" will be met by the recommended mental health treatment program. (Id., subd. (c)(1)(A).) If the court is satisfied the recommended treatment program is appropriate for the defendant, the court may grant diversion and refer defendant to the program. (Id., subd. (c)(1)(B).)
The six eligibility requirements in section 1001.36, subdivision (b)(1), are: (A) a qualified mental health expert has recently diagnosed the defendant with a qualifying mental disorder as defined by the statute; (B) the court is satisfied "the defendant's mental disorder was a significant factor in the commission of the charged offense"; (C) a qualified mental health expert has opined "the defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment"; (D) the defendant "consents to diversion and waives his or her right to a speedy trial"; (E) the defendant "agrees to comply with treatment as a condition of diversion"; and (F) the court is satisfied "the defendant will not pose an unreasonable risk of danger to public safety, . . . if treated in the community." (Ibid.)
The Legislature amended section 1001.36 effective January 1, 2019 (Stats. 2018, ch 1005, § 1), to exclude defendants charged with certain listed crimes (§ 1001.36, subd. (b)(2)(A)-(H)). Defendant was not charged with any of the disqualifying offenses.
In section 1001.36, "'pretrial diversion'" is defined 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" (id., subd. (c)), and the statute explains criminal proceedings against the defendant may be diverted for a period of "no longer than two years" (id., subd. (c)(3)). Once a defendant successfully completes the diversion program, the court must dismiss the criminal charges and with certain exceptions, "the arrest upon which the diversion was based shall be deemed never to have occurred." (Id., subd. (e).) If the defendant, however, performs unsatisfactorily in the treatment program, commits additional crimes, or engages in "criminal conduct rendering him or her unsuitable for diversion" then the court can reinstate criminal proceedings. (Id., subd. (d)(1)-(4).)
Retroactivity Principles
While there is a presumption that a new law applies prospectively rather than retroactively, "this presumption against retroactivity is a canon of statutory interpretation rather than constitutional mandate." (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara).) Thus, the Legislature can enact laws that either explicitly or implicitly apply retroactively. (Ibid.) In Estrada, supra, 63 Cal.2d 740, the Supreme Court established "an important, contextually specific qualification to the ordinary presumption that statutes operate prospectively." (People v. Brown (2012) 54 Cal.4th 314, 323.) The Supreme Court explained in Estrada that when the Legislature amends a statute so as to lessen the punishment for an offense, there is "an inevitable inference" the Legislature intended the amended statute apply "to every case to which it constitutionally could apply" and the amended statute "can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Estrada, at p. 745.) The principle or rule drawn from Estrada is that when a statutory amendment lessens punishment or provides an ameliorating benefit, a reviewing court assumes, absent "a savings clause providing only prospective relief or other clear intention concerning any retroactive effect," that the Legislature intended the new benefits apply retroactively to all defendants whose judgments were not yet final on the statute's operative date. (People v. Buycks (2018) 5 Cal.5th 857, 881.) The Legislature, however, "may choose to modify, limit, or entirely forbid the retroactive application of ameliorative criminal law amendments." (People v. Conley (2016) 63 Cal.4th 646, 656.) But if the Legislature chooses to limit or modify the retroactive application of an ameliorative change, it must "'demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it.'" (Id. at p. 657.)
Last year, the Supreme Court applied Estrada's inference of retroactivity to provisions of Proposition 57, the Public Safety and Rehabilitation Act of 2016, that while not mitigating punishment for any particular crimes, ameliorated "the possible punishment for a class of persons, namely juveniles." (Lara, supra, 4 Cal.5th at p. 308.) The issue in Lara was whether provisions of Proposition 57, which eliminated a prosecutor's ability to file charges against a juvenile directly in a criminal court and required a transfer hearing before a juvenile could be tried as an adult, applied retroactively to a defendant who had already been charged in adult court prior to the passage of the proposition. (Lara, at pp. 305-307.) After determining these provisions of Proposition 57 provided "an 'ameliorative change[] to the criminal law'" to which Estrada's inference of retroactivity applied, the Supreme Court looked at whether anything in the text of Proposition 57 or its ballot materials rebutted this inference. (Lara, at p. 309.) Although both parties pointed to different materials to support arguments that the electorate did or did not intend retroactive application, the Supreme Court concluded the materials were inconclusive and that Proposition 57 and its ballot materials were silent on the issue. (Lara, at p. 309.) The court found some hints of electoral intent could be gleaned from the stated purpose of the act and that while not decisive, it "support[ed] the conclusion that Estrada's inference of retroactivity is not rebutted." (Ibid.) Because nothing in the text or ballot materials for Proposition 57 rebutted the inference of retroactivity, the court concluded "this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, at pp. 303-304.)
Retroactivity of Section 1001.36
We applied the Supreme Court's reasoning in Lara, supra, 4 Cal.5th 299, when we were first presented with the question of whether newly enacted section 1001.36 applied retroactively to a defendant who had already been convicted and sentenced but whose judgment was not final when the legislation took effect. (Frahs, supra, 27 Cal.App.5th 784, rev. granted.) We found section 1001.36 comparable to the Proposition 57 provisions under consideration in Lara, because section 1001.36 provides "an 'ameliorating benefit'" to a particular class of persons—defendants with a diagnosed mental disorder. (Frahs, at p. 791.) Finding the new legislation provided an ameliorative benefit, we applied the Estrada rule to infer the Legislature intended "the potential 'ameliorating benefits' of mental health diversion to 'apply to every case to which it constitutionally could apply.'" (Frahs, at p. 791.) We concluded retroactive application of section 1001.36 to cases pending on appeal was consistent with the legislation's stated purpose of "'[i]ncreased diversion [for] individuals with mental disorders'" (Frahs, at p. 791) and conditionally reversed the judgment and remanded the matter for the trial court to determine whether Frahs was eligible for diversion under the statute (id. at pp. 791-792).
The Attorney General disagrees with our decision in Frahs. Making basically the same argument he did in Frahs, supra, 27 Cal.App.5th at page 791, review granted, the Attorney General argues the definition of "'pretrial diversion'" in subdivision (c) of section 1001.36 "indicates the Legislature did not intend to extend the potential benefits of section 1001.36 beyond resolution in the trial court." Section 1001.36, subdivision (c), defines "'pretrial diversion'" as "the postponement of prosecution . . . at any point . . . until adjudication . . . ." The Attorney General suggests the Legislature's use of the term "adjudication" in this definition of pretrial diversion is significant and evidences the Legislature's intent that pretrial diversion be unavailable in cases like this one where there has already been an adjudication. He asserts that once a criminal proceeding has been adjudicated, postponement for diversion is no longer available under the plain language of the statute.
We rejected this argument in Frahs, supra, 27 Cal.App.5th at page 791 and do so again here. In Frahs, we found the definition of pretrial diversion in section 1001.36, subdivision (c), does not rebut the inference of retroactivity under Estrada. We explained, "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." (Frahs, at p. 791.) We did not find the Legislature's use of this language to be evidence of an intent to prohibit retroactive application to nonfinal judgments.
Arguing section 1001.36 should not be applied retroactively to nonfinal judgments, the Attorney General contends the Legislature could have stated "that pretrial diversion is available beyond resolution in the trial court until the judgment is final on appeal" if that was its intent. But this is not required of the Legislature. The Legislature is not required to explicitly state its intent that legislation with an ameliorative benefit is to be applied retroactively to decisions not yet final on appeal. Retroactive application is implied under the Estrada rule unless the Legislature clearly indicates otherwise. The Legislature is deemed to be aware of Estrada and to have anticipated its application to section 1001.36, especially since Lara, supra, 4 Cal.5th 299 was decided months before its enactment. (People v. Overstreet (1986) 42 Cal.3d 891, 897.) Thus, at the time the Legislature enacted section 1001.36, it was aware that if it did not want section 1001.36 to apply retroactively to nonfinal judgments, it needed to clearly and directly indicate such and that indirect inferences drawn from the statutory language or legislative history would not be sufficient to rebut Estrada's inference of retroactivity. (See People v. Conley, supra, 63 Cal.4th at pp. 656-657 [if the Legislature intends "to limit or modify the retroactive effect of an ameliorative change" it must "'demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it'"].)
While we remain unconvinced by the Attorney General's argument, the Fifth Appellate District concluded otherwise in People v. Craine, supra, 35 Cal.App.5th 744, review granted, and disagreed with our analysis in Frahs. (Craine, at pp. 754-757.) The issue in Craine was the same as that in Frahs, whether section 1001.36 applies retroactively to a defendant who has already been convicted and sentenced but whose judgment was not final on appeal when the legislation took effect. (Craine, at p. 748; Frahs, supra, 27 Cal.App.5th at p. 787, rev. granted.) The Craine court agreed with our conclusion that section 1001.36 "confers a potentially ameliorative benefit to a specified class of persons" (Craine, at p. 754), but concluded the class does not include defendants who have already been found guilty of their charged crimes and held the statute does not apply retroactively (id. at pp. 754-760).
Craine believed the Legislature's definition of "'pretrial diversion'" in subdivision (c) of section 1001.36 was dispositive to the issue of whether the statute applies retroactively (Craine, supra, 35 Cal.App.5th at p. 754, rev. granted) and focused on the phrases "'postponement of prosecution'" and "'until adjudication'" in the definition (id. at pp. 755-756). Based on these phrases, the court concluded "pretrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced." (Id. at p. 756.) Craine saw "this as a clear indication the Legislature did not intend for section 1001.36 to be applied retroactively in cases" where the defendant had already been adjudicated and his case was pending on appeal. (Ibid.)
We respectfully disagree. The language upon which Craine relies does not clearly indicate the Legislature intended to limit or modify the retroactive effect of the new statute—it simply does not speak to this issue. (Weaver, supra, 36 Cal.App.5th at p. 1120.) In defining "'pretrial diversion,'" the Legislature is addressing how this program will work in general. By using this language, the Legislature has not clearly demonstrated its intention to prohibit the retroactive application of this ameliorative change in the law to nonfinal judgments, which it must to rebut the inference of retroactivity under Estrada. (People v. Conley, supra, 63 Cal.4th at p. 657.)
Craine also tries to find meaning in the fact the Legislature uses preadjudicative language in section 1001.36 when describing the benefits to be bestowed upon a defendant after the successful completion of diversion. (Craine, supra, 35 Cal.App.5th at p. 757, rev. granted.) Craine posits the fact that "section 1001.36 provides for the dismissal of charges and expungement of a defendant's record of arrest" but does not mention similar relief for a record of conviction "weighs against any inference of retroactive intent." (Id. at p. 750.) Again, we disagree.
The absence of postadjudicative language in section 1001.36 does not rebut Estrada's inference of retroactivity. The fact that this mental health diversion program is designed to generally operate pretrial does not mean that it was meant to exclude defendants whose judgments were not yet final when the statute was enacted. Postadjudicative language in the statute would only be necessary if the Legislature intended section 1001.36 to apply to all defendants whose judgments are final. The relevant issue is whether the statutory language clearly indicates the Legislature did not intend the statute to apply retroactively to a small, finite group of defendants whose judgments were not yet final on appeal when the statute took effect. As to this issue, the absence of postadjudicative language in the statute does not counterbalance the inference of retroactive intent.
We respectfully disagree with Craine's conclusion that the goal of the mental health diversion program in unattainable when applied to defendants who have already been convicted and sentenced but whose judgments are not yet final. (Craine, supra, 35 Cal.App.5th at pp. 749-750, rev. granted.) First, the goal of providing mental health treatment to a defendant who committed a crime as a result of his or her mental illness remains available. Second, while a defendant whose judgment was pending on appeal when section 1001.36 became operative may not have been able to avoid a trial, he or she can avoid the stain of a conviction and its ramifications by successfully completing a mental health diversion program. This is consistent with the Legislature's stated goal of mitigating entry into the criminal justice system for individuals with mental disorders. (§ 1001.35, subd. (a).) Nor do we agree with Craine that indirect statements in the legislative materials related to Senate Bill No. 215 (2017-2018 Reg. Sess.), concerning the statute's design to reduce costs of trial and incarceration (Craine, at pp. 758-759), are clear indications that the Legislature intended to prohibit retroactive application of the statute to defendants whose judgments were not final on appeal when section 1001.36 was enacted.
We are not the only ones to disagree with Craine. Recently, in Weaver, supra, 36 Cal.App.5th 1103, the Sixth District Court of Appeal disagreed with Craine's analysis and held section 1001.36 applies retroactively to defendants whose cases were not yet final on appeal when the statute took effect. (Weaver, at pp. 1120-1122.) Discussing Craine, the Weaver court acknowledged that section 1001.36's definition of "'pretrial diversion'" appears to conflict with retroactive application of the statute because remanding a case "to the trial court for potential diversion after the defendant has been sentenced" renders surplusage the definitional phrase "'"until adjudication."'" (Weaver, at p. 1120.) Weaver also noted Craine's observation that the statute uses "'preadjudicative language to describe'" the benefits to a defendant who successfully completes diversion. (Weaver, at p. 1120.) But the Weaver court disagreed with Craine as to the impact of these statutory provisions on the issue of retroactivity. The court in Weaver explained these portions of the statute demonstrate "the Legislature's intent that individuals who commit their crimes after the effective date of section 1001.36 and whose guilt has been adjudicated in the form of a plea of guilty or no contest or a conviction after trial are no longer eligible for pretrial diversion under the statute. But for [defendants], whose convictions are not yet final on appeal but were never given an opportunity for diversion because they were convicted prior to the statute's effective date, we see nothing in the text of section 1001.36 sufficient to overcome the Estrada presumption." (Weaver, at p. 1120.)
In its analysis, the Weaver court reviewed a number of recent California Supreme Court decisions analyzing the Estrada rule (Weaver, supra, 36 Cal.App.5th at pp. 1117-1118) and concluded the Supreme Court's "recent decisions make clear that the standard of 'sufficient clarity' to overcome the Estrada presumption imposes a heavy burden." (Id. at p. 1119.) Then applying these principles to section 1001.36, Weaver explained: "section 1001.36 is not clear regarding its application to cases not yet final on appeal at the time of its enactment. The statute does not 'contain any language indicating that it otherwise limits or subsumes the ordinary presumption long established under the Estrada rule.' [Citation.] Given the legislative clarity demanded by recent cases examining Estrada and retroactivity, statutory ambiguity does not suffice to overcome the Estrada presumption. Accordingly, we cannot conclude that the Legislature has '"'clearly signal[ed] its intent'"' [citation] that section 1001.36 apply only prospectively, and the Estrada inference of retroactivity therefore is not rebutted." (Id. at p. 1121, fn. omitted.)
We agree with Weaver, supra, 36 Cal.App.5th 1103 and reaffirm our conclusion in Frahs that the ameliorative benefits of section 1001.36 apply retroactively to defendants whose judgments were not final when the statute became operative. As the parties agree defendant meets at least one of the threshold requirements for the diversion program because she has a diagnosed mental disorder, we conditionally reverse the judgment and remand for "the trial court—as nearly as possible—to retroactively apply the provisions of section 1001.36, as though the statute existed at the time [she] was initially charged." (Frahs, supra, 27 Cal.App.5th at p. 791, rev. granted.) "When conducting the eligibility hearing, the court shall, to the extent possible, treat the matter as though [defendant] had moved for pretrial diversion after the charges had been filed, but prior to their adjudication." (Id. at p. 792.)
DISPOSITION
The judgment is conditionally reversed, and the cause remanded to the trial court with directions to conduct a mental health diversion eligibility hearing under section 1001.36, as discussed in this opinion, within 90 days from the filing of the remittitur.
If the court grants defendant mental health diversion under section 1001.36, and defendant successfully completes diversion, the court shall dismiss the charges in accordance with section 1001.36, subdivision (e). If, however, the court determines defendant does not qualify for diversion or defendant does not successfully complete diversion, then the court shall reinstate the judgment.
IKOLA, J. I CONCUR: MOORE, J. O'LEARY, P.J., Concurring and Dissenting.
I respectfully dissent to the part of the majority opinion conditionally reversing the judgment to allow the trial court to determine if Laura Kubicksimmons is eligible for mental health diversion pursuant to Penal Code section 1001.36 (all further statutory references are to the Penal Code). In all other respects, I concur in the majority opinion.
As the majority points out, in enacting sections 1001.35 and 1001.36, the Legislature created a discretionary pretrial diversion program for defendants diagnosed with qualifying mental disorders when the mental disorders contributed to the commission of a charged offense and are susceptible to treatment. (Maj. opn. ante, at p. 17.) "'[P]retrial diversion' means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication . . . ." (§ 1001.36, subd. (c), italics added.)
In determining the meaning of section 1001.36, we apply the principles of statutory interpretation. "'"'As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning.'"' [Citation.]" (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) Based on a plain reading of section 1001.36, I conclude as a matter of law section 1001.36 does not apply to Kubicksimmons.
In People v. Frahs (2018) 27 Cal.App.5th 784, 791 (Frahs), review granted December 27, 2018, S252220, another panel of this court inferred the Legislature intended the ameliorating effects of section 1001.36 to apply to every case that it could constitutionally apply to. In addressing the definition of pretrial diversion, the court recognized defendant had "technically been 'adjudicated' in the trial court." (Id. at p. 791.) But the Frahs court concluded the language was not probative of the Legislature's intent because "[t]he 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." (Id. at p. 791.)
In People v. Craine (2019) 35 Cal.App.5th 744 (Craine), review granted September 11, 2019, S256671, the Fifth District Court of Appeal disagreed with Frahs. Based on a plain reading of section 1001.36's language, the Craine court interpreted the term "adjudication" as being shorthand for the adjudication of guilt or acquittal and "[a]t most" sentencing. (Craine, supra, 35 Cal.App.5th at p. 755.) The court interpreted "'postponement of prosecution'" a term synonymous with "'criminal action'" as beginning with the filing of charges and ending with rendition of judgment and sentencing. (Id. at pp. 755-756.) The court concluded "pretrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced." (Id. at p. 756.)
I conclude the reasoning in Craine is more persuasive than Frahs. (Cal. Rules of Court, rule 8.1115(e)(1) [while review pending courts may rely on published opinion for persuasive value only].) Section 1001.36's language is significant.
The statute repeatedly refers to the diversion as pretrial diversion. (§ 1001.36, subds. (a), (b), (c) & (d).) It clearly contemplates diversion prior to adjudication. (§ 1001.36, subd. (c).) It requires the defendant to waive the right to a speedy trial. (§ 1001.36, subd. (b)(1)(D).) It limits the time criminal proceedings against the defendant may be diverted. (§ 1001.36, subd. (c)(3).) None of this language comports with the notion the Legislature intended to provide a postconviction diversion program. Additionally, the benefits of pretrial diversion are not easily applied in the postconviction stage.
Section 1001.36, subdivision (e), provides that if a defendant has performed satisfactorily in diversion, at the end of diversion, the court must dismiss the defendant's criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. It further provides that the arrest will be deemed never to have occurred and access to the arrest record restricted with specified limitations. (§ 1001.36, subds. (e), (g) & (h).) Conspicuously absent from section 1001.36 is any provision for the court to vacate a conviction. This leaves a defendant who has performed satisfactorily in diversion without any statutory authority to move to vacate the conviction.
The awkwardness of attempting to transfigure a pretrial program into a postconviction program is demonstrated by the Frahs's court's instruction to the trial court on remand—to "as nearly as possible" apply section 1001.36's provisions. (Frahs, supra, 27 Cal.App.5th at p. 791.) In its disposition, the Frahs court instructs the trial court, "if [defendant] successfully completes diversion, then the trial court shall dismiss the charges." But there were no pending charges to dismiss. There was only a conviction. Although there are mechanisms within the law to set aside a conviction, dismissal is not one.
Kubicksimmons's case was not at a preadjudication stage when the Legislature enacted section 1001.36. She had already been found guilty, been sentenced, and completed her term of incarceration, and she was not on probation. Section 1001.36 provides her no relief. Thus, I respectfully dissent from the majority opinion's conclusion Kubicksimmons is entitled to a section 1001.36 eligibility hearing. I express no opinion on questions of retroactivity under other circumstances. In all other respects, I concur in the majority opinion.
O'LEARY, P. J.