THE PEOPLE, Plаintiff and Respondent, v. CORY JUAN BRADEN, JR., Defendant and Appellant.
E073204 (Super.Ct.No. FVI18001116)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 4/20/21
CERTIFIED FOR PARTIAL PUBLICATION*
OPINION
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.
After a jury convicted him on a charge of resisting an executive officer with force or violence, a defendant requested mental health diversion pursuant to
I. FACTUAL AND PROCEDURAL HISTORY
One morning in Victorville in 2018, defendant and appellant Cory Juan Braden Jr.’s sister called 911 after a confrontation with Braden. According to Braden’s mother, his sister was “messing with [Braden] so bad that he got up to beat her behind.” At one point, Braden’s sister went to her room, Braden tried to follow her, but Braden’s mother stood in his way, causing Braden to kick his mother in the groin and choke her.
Deputy Alexander Harvey responded to the domestic disturbance call. He had learned from a dispatcher that Braden was schizophrenic with a history of violence. Braden’s sister flagged down Harvey outside of the home. Harvey approached Braden outside the front door and announced himself as a San Bernardino County Sheriff’s Deputy. Bradеn’s sister and mother were present. Braden requested to call 911 and contact a supervisor. Harvey replied that Braden could contact a supervisor, but Harvey first needed to ensure the scene was safe and conduct a cursory pat down on Braden. Harvey viewed Braden as “passively resistant” and “more focused on calling 911 than putting [his] phone down and listening to [Harvey’s] commands.”
Harvey took hold of Braden’s left wrist. Braden then placed a phone in his right hand on the hood of a nearby vehicle. Braden held his hands up, and Harvey told him to put them behind his back instead. Braden then turned
Braden represented himself during his jury trial. The jury viewed much of the encounter between Braden and Harvey, as Braden’s sister captured it on video with her phone. She captured the moments leading up to the fight, but she pointed the camera away from Braden and Harvey during most of the fight, and she apparently stopped recording before the other deputies arrived.
The jury convicted Braden on one felony count of resisting a police officer pursuant to
After his conviction but before his sentencing, Braden requested and was given appointed counsel. Counsel requested that Braden be considered for mental health diversion pursuant to
II. DISCUSSION
A. Mental Health Diversion
”
The first reason why we so conclude is that the Legislature five times in the text of
Second, even apart from the Legislature’s use of the adjective “pretrial” in describing
Morse v. Municipal Court for the San Jose-Milpitas Judicial Dist. (1974) 13 Cal.3d 149 (Morse) held that when a statute makes diversion contingent upon a speedy trial waiver, it requires a pretrial rеquest. Morse addressed California’s first statutorily mandated diversion program, enacted by a 1972 statute intended to benefit first time drug offenders. (Id. at p. 153.) Morse concerned a petitioner who litigated a pretrial motion to suppress evidence, lost, and only then sought diversion. (Id. at p. 154.) The trial court denied diversion on the view that the petitioner “had elected to be prosecuted in the criminal courts” when he filed his suppression motion. (Ibid.)
Our Supreme Court instead held that the request was timely because it was made pretrial, reasoning that law’s speedy trial waiver requirement demonstrated that the request must be made before trial:
“[The diversion law] expressly states that ‘[if] the defendant consents and waives his right to a speedy trial the district attorney shall refer the case to the probation department’ (italics added). These words unequivocally make a defendant’s consent to consideration for diversion contingent upon a simultaneous waiver of speedy trial rights. In using such language the Legislature was surely aware of precedent decisions [citations] which recognize that the right to speedy trial is one which must be asserted prior to the actual commencement of trial, usually by means of a motion to dismiss made at the time the trial date is set or at the time the case is called for trial. Accordingly, the plain meaning of the waiver of speedy trial language of [the diversion law] is that the defendant’s consent to referral of his case to the probation department should be tendered to the district attorney prior to the commencement of trial.” (Morse, supra, 13 Cal.3d at p. 156.)
Thus, the Court stated, “the clear wording of the diversion provisions . . . precludes a defendant from initiating diversion proceedings by tendering a consent after commencement of trial.” (Id. at p. 157; see also People v. Wilson (1963) 60 Cal.3d 139, 146 [“The right to a speedy trial must . . . be asserted, if at all, in the court where the prosecution is pending, and prior to the commencement of trial.“]; People v. Weaver (2019) 36 Cal.App.5th 1103, 1120.)
As
As Morse observed, for a defendant to waive his or her speedy trial right, the defendant must not yet have proceeded to trial. Morse’s reasoning applies here, requiring us to construe
Third, construing
Since that time, the Legislature has developed an array of diversion programs, now found in
We are not aware of any cases indicating that, in the normal course, a defendant can be (or has been) admitted to any such programs after conviction at trial. Rather, the purpose of diversion and deferred entry of judgment programs “is precisely to avoid the necessity of a trial.” (Gresher v. Anderson (2005) 127 Cal.App.4th 88, 111; see People v. Hudson (1983) 149 Cal.App.3d 661, 664 [“diversion is a pretrial
Given that
It is this. Braden’s claim that a
Uprooted from its context, the phrase “until adjudication” could refer to a point later than the start of trial: (1) until the jury verdict or (2) until the sentence is pronounced and the final judgment is issued. (The first of these would not help Braden, and he argues that the term means the latter.) In Frahs, our Supreme Court did not address this issue, stating that it had “no occasion” to “precisely define ‘until adjudication,’ as used in
We conclude that in context of
There is a simple reason why “adjudication” here refers to the process of trial or plea. The Legislature used the term as part of a definition of “pretrial” diversion. “In settling on a fair reading of a statute, it is not unusual to consider the ordinary meaning of a defined term, particularly when there is dissonance between that ordinary meaning and the reach of the definition.” (Bond v. United States (2014) 572 U.S. 844, 861.) If, as Braden would like, “until adjudication” refers to a posttrial moment such as the time of sentencing, the definition of “pretrial diversion” would be at odds with the ordinary meaning of the word pretrial. That is, the very term being defined would be read out of the statute. That is not a tenable way to read a statute. Further, it is understandable why the Legislature used the term “until adjudication” rather than a phrase such as “until trial.” Most adjudications occur by guilty plea, rather than through trial, so defining “pretrial” using the term “until adjudication” encompasses both a plea hearing and an adjudication by trial.
It is important to recognize that the definition of “pretrial diversion” that the Legislature used in
This lack of an imperative or command by the Legislature is telling, in historical context. Morse had at that time recently held that diversion must be requested before trial, though at any time before trial. As the Legislature imposed specific procedural requirements elsewhere in the 1977 law, we would expect precatory language if the Legislature had intended that “until adjudication” impose a timing requirement differing from Morse. That is, if “pretrial” had meant something different than “before trial” in former
Nothing in
In contending that mental health diversion is available at any point prior to sentencing, Braden also relies on
Once again, on its face and apart from the context, the phrase “[a]t any stage of the proceedings” does leave open the possibility that diversion can be sought after conviction and before sentencing. But so might the phrase “until adjudication,” and for the reasons provided in our discussion of that phrase and of Morse, we believe that the better reading of the whole statute remains defining “pretrial” as meaning before trial.
Braden’s argument proves too much. His essential claim is that only a “sentencing court” may impose restitution, so the restitution contemplated by
Braden also contends that the purpose of mental health diversion is to divert individuals with mental disordеrs away from the criminal justice system and into treatment, and that it therefore “makes sense to leave the option of diversion open until sentencing.” (See
Braden relies on a Court of Appeal case for the proposition that “[a]t most, ‘adjudication’ [in
Our colleagues in the Third District reached a contrary conсlusion to ours in People v. Curry, supra, 62 Cal.App.5th 314 (Curry). Curry held that “a defendant may ask the trial court for mental health diversion until sentencing and entry of judgment.” (Id. at p. 325.) It based its holding on an interpretation of the meaning of “until adjudication” in
Additionally, as we have noted, Frahs expressly reserved the issue before us, and we think dicta in that case does not weigh on either side of the matter. At one point, indeed, Frahs essentially states our conclusion: “In the normal course of operations, a trial court would determine before trial whether a defendant is eligible for pretrial diversion.” (Frahs, supra, 9 Cal.5th at p. 633.) At another place, Frahs’s dicta is more in line with Curry: “The Legislature could well have intended to allow judges to decide under the statute whether a defendant’s mental disorder was a ‘significant factor in the commission of the charged offense’ [citation] even after a verdiсt in which a mental health defense had been presented but rejected by the trier of fact.” (Id. at p. 636.) We conclude that we should take seriously our Supreme Court’s statement that it was not reaching our issue; in this instance, drawing conclusions from its dicta would be tasseography. (Id. at p. 633 fn. 3.)
To its credit, Curry acknowledges that its ruling might encourage “gamesmanship” by defendants, which presumably means purposely reserving a diversion motion to take a chance at acquittal at trial. (Curry, supra, 62 Cal.App.5th at p. 325, fn. 4.) Curry hopes that trial courts will use their discretion to “deter such questionable defense tactics.” (Ibid.) The problem we see with this perspective is that, if it is in fact clear that the Legislature allows diversion motions after trial, it is not “gamesmanship” to save them until that time. If the statute in fact allows postconviction motions, it also contains no “good cause” requirement for allowing them after trial. If not required to request diversion before trial, many defendants would lack the incentive to “agree[] to comply with treatment as a condition of diversion” (
Accordingly, because Braden did not request mental health diversion before his trial commenced, he was ineligible.
B. Section 17(b) Discretion
Braden’s counsel unsuccessfully moved to have the felony conviction reduced to a misdemeanor pursuant to
Certain crimes, commonly referred to as “wobbler[s],” are punishable in the court’s discretion as either a felony or a misdemeanor. (People v. Park (2013) 56 Cal.4th 782, 789;
Braden contends that the trial court did not consider his specific circumstances. The record, however, reflects otherwise. During sentencing, the trial court expressly discussed both the current offense (“I do аgree that it’s not the most egregious of PC 69s that I’ve heard over the years.“) and Braden’s previous criminal history. Braden’s criminal history included two strike priors (assault with a firearm and discharge of a firearm in a grossly negligent manner), for which he served a six year prison sentence, as well as four misdemeanors, including an arrest for driving under the influence.
It is apparent that the court considered Braden’s criminal record, weighed that record against its view of the severity of Braden’s crime here, and concluded that felony sentencing was appropriate. We find nothing unreasonable in this conclusion. Braden has not demonstrated any abuse of discretion.
C. Romero Motion
Braden’s counsel unsuccessfully moved to dismiss his strike priors pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Braden contends that the trial court abused its discretion by denying that motion. Again, we find no abuse of discretion.
A trial court may dismiss a prior strike conviction under
We review the denial of a Romero motion for abuse of discretion. (Williams, supra, 17 Cal.4th at p. 162.) “Under that standard an appellant who seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary. It is not enough to show that reasonable people might disagreе about whether to strike one or more of [the] prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.” (People v Romero (2002) 99 Cal.App.4th 1418, 1434.) “Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony (2004) 33 Cal.4th 367, 378.)
No such extraordinary circumstances exist here, and the record demonstrates that the trial court properly exercised its discretion. As noted in the discussion on his
Braden’s “background, character, and prospects” (Williams, supra, 17 Cal.4th at p. 161) also do not suggest that the trial court abused its discretion. For example, Harvey was called to Braden’s house in response to a domestic disturbance between Braden and his sister, and during that disturbance, Braden at one point kicked and choked his mother. Moreover, at one point during the trial, Braden’s mother stated that both Braden and his sister have “anger management” issues, to which Braden responded, “I would like the record to reflect my mother has developmental issues.”6 And finally, we see no indication from the record that Braden ever accepted responsibility or demonstrated remorse for his actions.
Accordingly, even if the record could have supported a different conclusion, the trial court’s decision to deny Braden’s Romero motion was neither irrational or arbitrary, and therefore was not an abuse of discretion.
D. Lesser Included Offense
Finally, Braden contends that the trial court prejudicially erred by not instructing the jury on assault, battery, and resisting a peacе officer under
1. Necessarily Included
“California law has long provided that even absent a request, and over any party’s objection, a trial court must instruct a criminal jury on any lesser offense ‘necessarily included’ in the charged offense, if there is substantial evidence that only the lesser crime was committed.” (People v. Smith (2013) 57 Cal.4th 232, 239 (Smith).)
“This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence. [Citation.] [T]he rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither ‘harsher [n]or more lenient than the evidence merits.’ [Citations.] [Citation.] Thus, ‘a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (Smith, supra, 57 Cal.4th at pp. 239-240.)
“For purposes of determining a trial court’s instructional duties, . . . ‘a lesser offense is necessarily included in a greater offense if either the statutоry elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (Smith, supra, 57 Cal.4th at p. 240.) Here, we rely on the accusatory pleading test as that test has been construed under Smith when conjunctive pleading is involved.
In Smith, our Supreme Court held that, assuming substantial evidence exists, sua sponte instruction is required “on a lesser offense that is necessarily included in one way
of violating a charged statute when the prosecution elects to charge the defendant with multiple ways of violating the statute.” (Smith, supra, 57 Cal.4th at p. 244.) Put another way, where conjunctive pleading is used, if a lesser offense is necessarily committed under one theory of
In Smith, our Supreme Court noted that the crime of resisting a peace officer under
So, to reiterate, if any of the three lesser offenses Braden raises on appeal—assault, battery, and resisting a peace officer—are necessarily committed under either way of violating
Smith expressly held that resisting a police officer under
Battery, however, is not necessarily committed under either way of violating
Accordingly, the trial court here had a sua sponte duty to instruct the jury on assault and resisting a police officer if there was substantial evidence to support the conclusion that Braden was guilty of only one or both of those offenses (the issuе we turn to next). It had no sua sponte duty to instruct the jury on battery.9
2. Substantial Evidence
“A trial court must instruct on a lesser included offense ‘only if there is substantial evidence to support a jury’s determination that the defendant was in fact only guilty of the lesser offense.” (People v. Williams (1997) 16 Cal.4th 153, 227; see also People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman).) “This standard requires instructions on a lesser included offense whenever ‘“a jury composed of reasonable [persons] could . . . conclude[]“’ that the lesser, but not the greater, offense was committed. [Citation.] In deciding whether evidence is ‘substantial’ in this context, a court determines only its bare legal sufficiency, not its weight.” (Breverman, supra, at p. 177.) In doing so, we consider the evidence in the light most favorable to the defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
There is no substantial evidence here to support a jury determination that Braden committed only the lesser crimes of assault or resisting a peace officer under section
Accordingly, on this record, we conclude that the trial court had no duty to instruct on assault, battery, or resisting a police officer under
III. DISPOSITION
The judgment of conviction is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
RAPHAEL
J.
We concur:
MCKINSTER
Acting P. J.
FIELDS
J.