62 Cal.App.5th 314
Cal. Ct. App.2021Background
- Defendant David Henry Curry robbed a Chico bank in June 2016; he was later charged with second degree robbery and alleged to have multiple prior serious felonies.
- Court declared a competency doubt in June 2018; a July 2018 evaluation found mild anxiety/depression and competency to proceed. Section 1001.36 (mental health diversion) became effective June 2018.
- Jury convicted Curry of robbery in March 2019; he waived counsel and represented himself post-trial. In July 2019 he sought mental health diversion; the trial court denied the request as untimely because it was made after trial.
- In August 2019 the court sentenced Curry to an aggregate term (25 years-to-life plus 15 years consecutive under enhancements) and imposed various fines and assessments; Curry appealed.
- The Court of Appeal held the trial court erred by refusing to consider a post-trial, pre‑sentencing diversion request under §1001.36, conditionally reversed and remanded for a diversion eligibility hearing; the court affirmed imposition of costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of §1001.36 diversion request | People took no position on timeliness; argued summary denial was appropriate on the record | Diversion is available "at any time prior to sentencing" (i.e., until judgment); post‑trial, pre‑sentencing request was timely | Court: "until adjudication" includes until judgment/sentencing; trial court erred by refusing to consider the request; conditional remand for eligibility hearing |
| Ineffective assistance for failing to seek diversion | People: not necessary to decide given remand | Curry: trial counsel ineffective if diversion request was untimely | Mooted by remand; not decided on merits |
| Due process challenge to fines/fees (ability to pay) | People: defendant forfeited claim and merits do not require an ability‑to‑pay hearing | Curry: Dueñas requires an ability‑to‑pay hearing before imposing costs; claim is fundamental and not forfeited | Court: claim forfeited and lacks merit under current precedent; costs and fees affirmed |
Key Cases Cited
- People v. Frahs, 9 Cal.5th 618 (discusses retroactivity and procedure for §1001.36 remands)
- In re Estrada, 63 Cal.2d 740 (retroactivity inference for ameliorative statutes)
- People v. McKenzie, 9 Cal.5th 40 (explains that judgment of conviction generally includes sentencing)
- People v. Watson, 46 Cal.2d 818 (harmless‑error standard for reversal)
- People v. Dueñas, 30 Cal.App.5th 1157 (appellate decision requiring ability‑to‑pay consideration; discussed and declined to be applied here)