Opinion
D074642
09-23-2019
THE PEOPLE, Plaintiff and Respondent, v. TODD DAVID MARTIN, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Paige Hazard and Steve Oetting, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD271210) APPEAL from an order of the Superior Court of San Diego County, Jay M. Bloom, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Paige Hazard and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Todd David Martin appeals from an order revoking and reinstating probation following his probation violation for failing to wear a Global Positioning System (GPS) device. Martin contends the order should be conditionally reversed and the matter remanded for the trial court to determine his eligibility for pretrial mental health diversion under Penal Code section 1001.36, which is intended to apply to mentally disordered offenders whose charges have not yet been adjudicated. (§ 1001.36, subds. (a), (c).) We conclude section 1001.36, which provides for pretrial diversion, does not apply to Martin. At the time section 1001.36 went into effect, his guilt on the underlying offense—failure to register as a sex offender (§§ 290.012, 290.018, subd. (b))—had already been adjudicated pursuant to a plea agreement, and this court affirmed that conviction in October 2018, months before Martin sought to avail himself of the law's benefit. As there is no indication Martin sought review of our prior decision, his conviction is final. We affirm the order.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2002, Martin was convicted of sexual battery (§ 243.4, subd. (a)), which requires lifetime registration as a sex offender in California. In 2017, Martin pleaded guilty to violating section 290.018, subdivision (b), for failing to register as a sex offender. The court suspended imposition of sentence and granted Martin three years probation with certain terms and conditions, including that he wear a GPS device. In February 2018, Martin appealed from that judgment. (People v. Martin (Oct. 19, 2018, D073533) [nonpub. opn.].) He filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 to have this court determine whether there were any arguable issues for review. (People v. Martin, supra, D073533.)
In July 2018, while his appeal was pending, Martin was arrested for violating several terms of his probation, including his failure to take prescribed medications, attend sex offender treatment, and wear the GPS device. Martin admitted he violated probation by failing to wear the GPS device. The court revoked and reinstated Martin's probation on the same terms and conditions, including that he serve 180 days in custody, and ordered him to undergo a forensic evaluation. Thereafter Martin, representing himself, filed a notice of appeal of the probation revocation order, but the trial court denied his request for a certificate of probable cause.
Martin filed an amended notice of appeal of the probation revocation order in September 2018, limiting his appeal to a challenge to his sentence or other matters occurring after his guilty plea.
In October 2018, we disposed of Martin's first appeal, and affirmed his conviction for failing to register as a sex offender. (People v. Martin, supra, D073533.) At no time during Martin's first appeal did his counsel file a supplemental brief raising the pretrial diversion statute, and Martin did not seek review of this court's decision in the California Supreme Court.
DISCUSSION
Martin contends "this court should conditionally reverse the judgment finding [him] to be in violation of probation, and remand the matter to permit the trial court to determine whether [he] is eligible under the recently enacted mental health diversion statute." (Capitalization and emphasis omitted.) Martin argues he is entitled to diversion because section 1001.36 applies retroactively to his case, which he asserts is not final. The People argue retroactivity of the statute is irrelevant because Martin forfeited his claim to pretrial diversion by failing to request it in the trial court. The California Supreme Court has granted review to determine whether section 1001.36 applies retroactively. (People v. Frahs (2018) 27 Cal.App.5th 784, review granted Dec. 27, 2018, No. S252220.) We need not address the statute's retroactivity. We decide Martin is ineligible for a pretrial diversion hearing.
We decline to apply the forfeiture rule. "[N]either forfeiture nor application of the forfeiture rule is automatic. [Citation.] Competing concerns may cause an appellate court to conclude that an objection has not been forfeited. [Citations.] Similar concerns may also cause an appellate court to refrain from applying the forfeiture bar." (People v. McCollough (2013) 56 Cal.4th 589, 593.) Martin's probation revocation hearing took place about one month after section 1001.36 went into effect. Neither the prosecutor nor Martin's defense counsel mentioned the new law at that hearing though defense counsel asked for and obtained an order that Martin undergo a forensic evaluation. The court did not reference the law. We infer from the absence of any reference to the statutes that neither counsel nor the court was aware of the law at the time. Courts generally decline to apply the forfeiture rule to a right derived from recent, unanticipated changes to the law. (See People v. Edwards (2013) 57 Cal.4th 658, 705; People v. Pearson (2013) 56 Cal.4th 393, 462.)
I. The Law
Effective June 27, 2018, as part of a larger health care bill, the Legislature added sections 1001.35 and 1001.36 (Stats. 2018, ch. 34, § 24) authorizing trial courts to grant eligible defendants "pretrial diversion," 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." (§ 1001.36, subd. (c).) Section 1001.36 sets forth eligibility criteria: (1) a qualified mental health expert has recently diagnosed the defendant with a qualifying mental disorder; (2) the "mental disorder was a significant factor in the commission of the charged offense"; (3) the defendant's symptoms will respond to treatment; (4) the defendant consents to diversion and waives his or her speedy trial rights; (5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. (§ 1001.36, subd. (b)(1)(A)-(F).)
In 2018, the Legislature amended section 1001.36 to eliminate diversion eligibility for defendants charged with specified offenses. (§ 1001.36, subd. (b)(2)(A)-(H), added by Stats. 2018, ch. 1005, § 1.) Martin's offense of failing to register as a sex offender is not included in the list of exempt offenses.
If the court grants pretrial diversion, "[t]he defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources" for "no longer than two years." (§ 1001.36, subds. (c)(1)(B), (c)(3).) If the defendant performs "satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings at the time of the initial diversion." (§ 1001.36, subd. (e).) A "defendant who successfully completes diversion may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense," except in connection with applying for employment as a peace officer. (§ 1001.36, subds. (e), (g)(1).)
The purpose of the new law "is to promote all of the following: [¶] (a) Increased diversion of individuals with mental disorders to mitigate the individuals' entry and reentry into the criminal justice system while protecting public safety. [¶] (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. [¶] (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders." (§ 1001.35.)
II. Diversion Is Not Available to Martin
We resolve Martin's request for pretrial mental health diversion on section 1001.36's plain language and purpose. (Accord, People v. Craine (2019) 35 Cal.App.5th 744, 754, review granted Sept. 11, 2019, S256671 [whether defendant fell within the class of persons benefitted by section 1001.36 "lies in how the Legislature chose to define the benefit itself, i.e., pretrial diversion"].) We address the Court of Appeal's reasoning in Craine because we agree with part of it. (See Cal. Rules of Court, rule 8.1115(e)(1) ["Pending review and filing of the Supreme Court's opinion, unless otherwise ordered by the Supreme court . . . , a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only"].) "When we interpret statutes, our primary task is to determine and give effect to the Legislature's purpose in enacting the law. [Citations.] We first look to the words of the statute, as they are generally the most reliable indicators of the legislation's purpose. [Citations.] To further our understanding of the intended legislative purpose, we consider the ordinary meaning of the relevant terms, related provisions, terms used in other parts of the statute, and the structure of the statutory scheme." (In re H.W. (2019) 6 Cal.5th 1068, 1073.)
Section 1001.36 defines "pretrial diversion" specifically. (See People v. Craine, supra, 35 Cal.App.5th at p. 755.) As stated above, it 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, to allow the defendant to undergo mental health treatment, subject to [specified restrictions]." (§ 1001.36, subd. (c), italics added.) The term adjudication, while not defined in the statute, is understood by its plain and commonsense meaning, which is the adjudication of a defendant's guilt, whether based on a plea of guilt or trial on the merits. (See Craine, at p. 755 [" 'adjudication' . . . is shorthand for the adjudication of guilt or acquittal"]; People v. Harris (1989) 49 Cal.3d 131, 135 ["[T]here is 'no distinction between an adjudication of guilt based on a plea of guilt and that predicated on a trial on the merits' "].) This is consistent with the structure and purpose of section 1001.36. " '[T]he purpose of [diversion] programs is precisely to avoid the necessity of a trial.' " (Craine, at p. 755, quoting Gresher v. Anderson (2005) 127 Cal.App.4th 88, 111.) As part of the eligibility criteria, the defendant must "waive[] his or her right to a speedy trial." (§ 1001.36, subd. (b)(1)(D).) And, a successful diversion results in the dismissal of "criminal charges that were the subject of the criminal proceeding at the time of the initial diversion" (§ 1001.36, subd. (e), italics added) or expungement of the record of arrest. (Ibid.; see Craine, at p. 757.) The statute does not refer to dismissing or vacating a defendant's conviction. Here, Martin was convicted upon his guilty plea. (See People v. Maultsby (2012) 53 Cal.4th 296, 302 [" 'A guilty plea admits every element of the crime and constitutes a conviction' "]; People v. Mendez (1999) 19 Cal.4th 1084, 1094 ["a 'plea of guilty [itself] constitutes a conviction' "].)
We note that the Fifth District Court of Appeal in Craine observed that "[a]t most, 'adjudication' could be synonymous with the rendition or pronouncement of judgment, which occurs at the time of sentencing." (People v. Craine, supra, 35 Cal.App.5th at p. 755.) It held based on the phrase "postponement of prosecution" in section 1001.36 that "the prosecution phase ends with the rendition of judgment and sentencing." (People v. Craine, at p. 756, italics added.) Based on its understanding of that terminology, Craine concluded that "pretrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced." (Ibid.) Craine was deciding whether the Legislature intended that section 1001.36 be retroactive, a question we do not reach. Its comments do not preclude our conclusion that a defendant like Martin, whose adjudication of guilt occurred before the statute took effect, is ineligible for diversion regardless of retroactivity or the finality of his conviction.
Under the plain language of section 1001.36, Martin is ineligible for diversion. He is seeking posttrial diversion, which the statute does not authorize. At the time the statute took effect in June 2018, Martin was past the point of adjudication within the purpose and meaning of section 1001.36. Though Martin had a pending appeal at that time, he did not stay the appeal of his conviction for the purpose of vacating his guilty plea or seek other relief to avail himself of diversion. Our October 2018 decision affirming his conviction on failing to register as a sex offender (People v. Martin, supra, D073533) became final on November 19, 2018. (See Cal. Rules of Court, rule 8.366(b)(1).) Martin elected not to seek California Supreme Court review of that decision, and thus his conviction became final 10 days later, on November 29, 2018. (See Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1023 [party seeking California Supreme Court review must file petition for review within 10 days after Court of Appeal decision becomes final; Cal. Rules of Court, rule 8.500(e)(1)].)
Martin asserts without explanation that his conviction is not yet final on appeal; however his present appeal is from the postconviction order revoking and reinstating probation, an entirely different procedural posture from that in People v. Frahs, supra, 27 Cal.App.5th 784, on which Martin relies. We thus decline Martin's request to conditionally reverse the court's probation revocation/reinstatement order so as to remand this matter for a diversion hearing.
DISPOSITON
The order is affirmed.
O'ROURKE, J. I CONCUR: HUFFMAN, Acting P. J. Dato, J., concurring.
The majority opinion holds that Todd David Martin is not entitled to request pretrial mental health diversion pursuant to recently enacted Penal Code section 1001.36. It does so as a matter of interpreting section 1001.36, concluding that the statute was not intended to apply to Martin, who was initially sentenced in January 2018 when imposition of sentence was suspended and probation was imposed.
Further statutory references are to the Penal Code.
The questions whether section 1001.36 is retroactive and, if so, when a case is "final" for purposes of retroactive application under Estrada and Lara have generated disagreement and are not easy ones to resolve. (Compare People v. Frahs (2018) 27 Cal.App.5th 784, 791, review granted Dec. 27, 2018, S252220, People v. Weaver (2019) 36 Cal.App.5th 1103, 1120, and People v. Burns (2019) 38 Cal.App.5th 776, 787 with People v. Craine (2019) 35 Cal.App.5th 744, 749; see also People v. McKenzie (2019) 25 Cal.App.5th 1207, 1214-1215 [judgment is not final and Estrada principles apply where imposition of sentence is suspended and probation is imposed], review granted Nov. 20, 2018, S251333.) Hopefully we will have guidance from the Supreme Court at some point in the future. In the meantime, I agree that Martin cannot now invoke section 1001.36 for the simpler and more fundamental reason that he forfeited the argument by failing to make it as part of his first appeal.
In re Estrada (1965) 63 Cal.2d 740 (Estrada).
People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara). --------
This is Martin's second appeal following his initial conviction. To whatever extent section 1001.36 applies retroactively under an Estrada/Lara theory, it doesn't extend to a case like this where (1) probation was imposed, (2) an appeal was filed, (3) the new statute went into effect while the appeal was pending (in June 2018) but the defendant did not seek to avail himself of its benefits, (4) the judgment was then affirmed on appeal (in October 2018), and (5) did not become final until two months after that (December 2018). Martin was obligated to seek relief by invoking section 1001.36 while his first appeal was pending. Having failed to do so, he cannot now as part of a second appeal following the revocation of probation make the Estrada/Lara argument that could and should have been made in conjunction with his first appeal. DATO, J.