Opinion
G056523
11-16-2019
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM MICHAEL LOWRY, Defendant and Appellant.
Christopher Love, 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, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17WF2674) OPINION Appeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Judgment conditionally reversed and remanded with directions. Christopher Love, 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, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant was convicted of multiple crimes following a run-in with a restaurant manager. On appeal, he contends he is retroactively entitled to the benefit of two new laws - the mental health diversion program and a sentencing statute - that were enacted after he committed his offenses. We agree. Therefore, we conditionally reverse the judgment and remand for further proceedings.
FACTS
When appellant entered the Taco Brat restaurant in Costa Mesa on December 2, 2017, he was mumbling to himself and staring off into the distance. He asked the restaurant's manager Joshua Rodriguez for a "fucking menu," and Rodriguez gave him one. However, given appellant's persistent mumbling and odd demeanor, Rodriguez eventually asked him to leave.
Appellant became angry and attacked Rodriguez. Following a brief scuffle, Rodriguez, who was wearing a Santa Claus hat, got the upper hand and escorted appellant out of the restaurant. Appellant said he could not understand why Santa Claus was being so mean to him. When he got to the parking lot, he commenced a series of "karate moves" until the police arrived. The officers handcuffed appellant and placed him under arrest, which made him angry. Upon seeing Rodriguez leaving the restaurant, he yelled, "I'm going to kill you[,] you little faggot."
Appellant was convicted of assault and making a criminal threat. In addition, the trial court found he had suffered a prior serious felony conviction under the Three Strikes law and Penal Code section 667, subdivision (a). The court denied appellant's motion to strike the prior for purposes of the Three Strikes law. It then sentenced him to 92 months in prison, representing 32 months (double the low term) for the criminal threat, plus 5 years for the prior under section 667, subdivision (a).
All further statutory references are to the Penal Code.
The court imposed a concurrent term on the assault count.
DISCUSSION
Mental Health Diversion Program
On June 27, 2018 - 26 days after appellant was sentenced - a new law went into effect that authorizes trial courts to grant diversion to defendants who are suffering from certain mental disorders. (Stats. 2018, ch. 34, § 24, adding §§ 1001.35, 1001.36.) Applying the principles governing the retroactivity of criminal statutes, we agree with appellant that he is entitled to the benefit of this new law. In so concluding, we agree with this court's decision in People v. Frahs (2018) 27 Cal.App.5th 784 (Frahs), which is currently under review in the California Supreme Court. (See ibid., review granted Dec. 27, 2018, S252220.)
The new law was enacted to increase the pretrial diversion of defendants with mental disorders while protecting public safety. (§ 1001.35, subd. (a).) It 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[.]" (§ 1001.36, subd. (c).)
To be eligible for this diversion program, the defendant must have a qualifying mental disorder. (§ 1001.36, subd. (b)(1)(A).) In addition, he must show his disorder was a significant factor in the charged offense, he is amenable to mental health treatment, and he would not pose an unreasonable risk to public safety if he were treated in the community. (Id., subds. (b)(1)(B), (C), (F).) If the defendant satisfies all of the criteria for diversion and ultimately completes the program, the trial court must dismiss the charges that were pending against him at the outset of the case. (Id., subd. (e).)
The statutory scheme does not expressly state whether it was intended to apply retroactively to defendants, like appellant, who committed their crimes before the scheme was enacted. However, under the "Estrada rule," statutory amendments which mitigate criminal punishment are presumed to apply retroactively to all cases that are not yet final. (In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada); People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) This presumption applies absent a demonstrable legislative intent to the contrary. (People v. Buycks (2018) 5 Cal.5th 857, 881.) Unless the Legislature clearly signals its intent to make the subject amendments prospective, they must be given retroactive effect. (People v. Lara (2019) 6 Cal.5th 1128, 1134.)
This is a "demanding standard." (People v. Weaver (2019) 36 Cal.App.5th 1103, 1120, review granted Oct. 9, 2019, S257049.) When the state seeks to avoid the retroactive application of an ameliorative change in the criminal law, it bears a "heavy burden" in terms of overcoming the presumption that such changes are generally intended to apply to as broadly as possible to all persons to whom they may constitutionally be applied. (Id. at p. 1119.)
In attempting to meet this burden, the Attorney General argues the wording of the mental health diversion scheme demonstrates it was intended to apply prospectively only. His argument is based primarily on the fact, as noted above, that the scheme defines pretrial diversion as the postponement of prosecution "from the point at which the accused is charged until adjudication[.]" (§ 1001.36, subd. (c).) According to the Attorney General, this definition, and the scheme's repeated use of the term pretrial diversion, proves it was never intended to apply to people like appellant, who have already been adjudicated guilty in the trial court.
But as this court explained in Frahs, "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 intended to operate[;]" it is not sufficient to overcome the presumption of retroactivity. (Frahs, supra, 27 Cal.App.5th at p. 791, relying on People v. Superior Court (Lara), supra, 4 Cal.5th 299, which held Proposition 57's juvenile transfer hearing provisions apply retroactively even though such hearings ordinarily occur prior to trial.) Other courts have ruled similarly. (See, e.g., People v. Hughes (2019) 39 Cal.App.5th 886; People v. Burns (2019) 38 Cal.App.5th 776, review granted Oct. 30, 2019, S257738; Weaver, supra, 36 Cal.App.5th at pp. 1113-1121; People v. Aguayo (2019) 31 Cal.App.5th 758, 760, review granted May 1, 2019, S254554.)
In People v. Craine (2019) 35 Cal.App.5th 744, review granted Sept. 11, 2019, S256671, the court concluded otherwise, reasoning the diversion program's goal of saving money by avoiding the cost of trial and incarceration could not be achieved if the defendant has already been adjudicated guilty of his or her charged offenses. (Accord, People v. Khan (Oct. 28, 2019, H045524) ___ Cal.App.5th ___.) However, in a case such as appellant's, where the defendant is sentenced to a relatively long period of costly incarceration, diversion, even at this late stage, might yet save the higher cost of formal imprisonment for the period of time after diversion is granted.
Another justification for not applying the mental health diversion statute retroactively is that it would implicate double jeopardy principles. (See People v. Torres (2019) 39 Cal.App.5th 849.) The fear is, that if a person like appellant were granted diversion and then later violated the terms of his diversion agreement, double jeopardy principles would bar a new trial or conviction, since he has already been convicted of the underlying charges. (Id. at p. 855.) But that would not be the case under the remedy that was utilized in Frahs and that we adopt here, which is conditional reversal, not outright reversal. (See Frahs, supra, 27 Cal.App.5th at p. 796.) In that situation, if the defendant is found to be ineligible for diversion on remand, or he is found eligible and later violates diversion, the judgment would simply be reinstated without the need for a new trial, obviating any double jeopardy concerns.
For all of these reasons, we hold the mental health diversion program applies retroactively to cases like this one, which are still in the process of direct appellate review.
Alternatively, the Attorney General contends a remand is not required in this case because there is nothing in the record suggesting appellant is eligible for mental health diversion. But the probation report indicates appellant has been diagnosed with schizoaffective and bipolar disorder, which are qualifying disorders for diversion. (§ 1001.36, subd. (b)(1)(A).) The report also shows appellant has been involuntarily committed to the state mental hospital on multiple occasions. This is sufficient to justify a remand to permit the trial court to determine appellant's eligibility for inclusion in the diversion program. (Frahs, supra, 27 Cal.App.5th at p. 791; Weaver, supra, 36 Cal.App.5th at pp. 1121-1122.)
The Attorney General also opposes a remand on the basis the trial court denied appellant's motion to strike his prior serious felony conviction for purposes of the Three Strikes law. The state claims a remand would be futile under these circumstances, but the trial court's evaluation of the motion to strike was based on appellant's criminal history and other factors that are largely unrelated to his amenability to treatment under the mental health diversion program. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) As such, the court's decision to deny the motion is not a bar to taking up the amenability issue. (People v. Burns, supra, 38 Cal.App.5th at p. 789; compare People v. Jefferson (2019) 38 Cal.App.5th 399 [remand for eligibility determination not required where the record clearly indicated the trial court would not have found the defendant eligible for mental health diversion].)
Prior Serious Felony Conviction
As noted above, appellant's sentence included a five-year enhancement under section 667, subdivision (a), based on the fact he has suffered a prior serious felony conviction. After appellant was sentenced, the Legislature amended sections 667, subdivision (a) and 1385, subdivision (b) to give trial courts the discretion to strike prior serious felony convictions in the interest of justice. (Stats. 2018, ch. 1013, §§ 1-2.) Appellant contends this amendment applies retroactively to him, since his case is not yet final. Respondent agrees, and so do we. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-974.) Accordingly, we will order the trial court to take up this issue on remand if need be.
DISPOSITION
The judgment is conditionally reversed and the matter is remanded to the trial court. On remand, the trial court shall determine appellant's eligibility for mental health diversion under section 1001.36. If appellant qualifies for diversion and successfully completes the program, the trial court shall dismiss the charges against him. However, if appellant is ineligible for diversion, or he does not successfully complete the program, then his convictions and sentence shall be reinstated, subject to the trial court's decision to strike his prior serious felony conviction in the interest of justice.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.