63 Cal.App.5th 330
Cal. Ct. App.2021Background
- In 2018 Braden, who has schizophrenia, punched Deputy Harvey during a domestic disturbance; deputies eventually subdued and arrested him. A phone video captured much of the encounter.
- Braden represented himself at trial; a jury convicted him of felony resisting an executive officer (Pen. Code § 69) and found two strike priors.
- After conviction but before sentencing Braden obtained counsel, who requested mental-health diversion under Penal Code § 1001.36.
- The trial court denied diversion as untimely/moot and sentenced Braden to a four-year term (midterm doubled under Three Strikes).
- On appeal the published issue was whether § 1001.36 diversion can be requested after trial begins; the unpublished issues (affirmed) addressed section 17(b) wobbler relief, a Romero motion to strike priors, and lesser-included-offense instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether a § 1001.36 mental‑health diversion request may be made after trial begins | People: § 1001.36 authorizes pretrial diversion only; request after trial is untimely | Braden: “until adjudication” and other provisions permit requesting diversion up to sentencing/entry of judgment | Court: Request must be made before trial begins; Braden ineligible because he sought diversion after conviction. |
| 2. Whether trial court abused discretion under § 17(b) by refusing to reduce felony to misdemeanor | People: Court properly considered offense and criminal history and permissibly denied reduction | Braden: Court failed to consider his specific circumstances favoring misdemeanor treatment | Court: No abuse of discretion; court weighed factors including violent priors and conduct. |
| 3. Whether trial court abused discretion by denying Romero motion to dismiss strike priors | People: Priors and present violent conduct support denial | Braden: Priors should be dismissed in furtherance of justice | Court: No abuse; defendant’s record and conduct do not show extraordinary circumstances to fall outside Three Strikes. |
| 4. Whether trial court erred by not instructing on assault, battery, and § 148(a)(1) as lesser included offenses | People: No substantial evidence supporting conviction of only lesser offenses | Braden: Evidence could support excessive‑force theory so jury might have convicted only lesser offense(s) | Court: Assault and § 148(a)(1) are lesser included offenses but no substantial evidence here that only lesser offenses were committed; battery is not a necessarily included offense. |
Key Cases Cited
- Morse v. Municipal Court, 13 Cal.3d 149 (Cal. 1974) (diversion contingent on speedy‑trial waiver must be requested pretrial)
- People v. Frahs, 9 Cal.5th 618 (Cal. 2020) (discussing § 1001.36 and reserving precise meaning of "until adjudication")
- People v. Smith, 57 Cal.4th 232 (Cal. 2013) (instructional duty on lesser included offenses when conjunctive pleading alleges multiple theories)
- People v. On Tai Ho, 11 Cal.3d 59 (Cal. 1974) (describing diversion's rehabilitative and judicial‑efficiency purposes)
- People v. Park, 56 Cal.4th 782 (Cal. 2013) (wobbler conviction reduction framework under § 17(b))
- People v. Carmony, 33 Cal.4th 367 (Cal. 2004) (standards for Romero review and presumption favoring sentences under Three Strikes)
- People v. Breverman, 19 Cal.4th 142 (Cal. 1998) (substantial‑evidence standard for lesser‑included instructions)
- People v. Curry, 62 Cal.App.5th 314 (Cal. Ct. App. 2021) (contrary appellate decision holding diversion may be requested until sentencing)