THE PEOPLE, Plaintiff and Respondent, v. GREGORY TERENCE BROWN, Defendant and Appellant.
D081445
(Super. Ct. No. SCD287766)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 3/26/24
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Sheila O‘Connor, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
I. INTRODUCTION
The People charged Gregory Terence Brown with aggravated mayhem and assault with a deadly weapon. Brown was initially declared incompetent and, after his competency was restored, he moved the court for an order for pretrial mental health diversion pursuant to
We conclude the trial court did not err in denying the motion in 2022, but that the recent amendments are retroactive, and, under the narrow circumstances presented here, Brown did not forfeit his right to assert retroactivity by failing to bring a motion to reconsider in the trial court. Accordingly, we conditionally reverse the judgment and remand the matter to the trial court for further consideration under the amended statute.
II. FACTUAL AND PROCEDURAL BACKGROUND
Brown was arrested in October of 2020, based on an incident in which he assaulted a neighbor with a metal cane, causing serious injuries, after the neighbor knocked on his door and accused him of stealing a doorstop. The People charged Brown with one count of aggravated mayhem (count 1), and one count of assault with a deadly weapon (count 2). They alleged further in count 1 that Brown personally used a deadly weapon within the meaning of
The trial court held a mental competency hearing under
In September 2022, Brown filed a motion seeking mental health diversion under
Brown included a report in support of the motion from Dr. Abraham Loebenstein, who conducted a psychological evaluation of Brown. Dr. Loebenstein opined that Brown met the criteria for mental health diversion. He diagnosed Brown with schizophrenia and alcohol use disorder and noted that although Brown “becomes delusional and paranoid when not complying with his medication,” he was not “typically aggressive” and did not “harbor violent and antisocial attitudes.” He noted further that Brown had been medicated in the past, but was not at the time of the offense, and noted that Brown had improved while in jail, likely because he was medication compliant and did not have access to alcohol. He concluded that Brown‘s mental health issues played a significant role in the offense, and opined that Brown‘s “behavior can improve with both medication compliance and from abstaining from alcohol.”
Dr. Loebenstein further opined that Brown was willing to engage in treatment, but added a caveat: “[Brown‘s] willingness to participate in treatment will therefore likely be dependent upon his ability to maintain medication adherence once he is released from jail.” He stated firmly that Brown‘s symptoms would respond well to treatment (i.e. medication), and that he did not pose an unreasonable risk to public safety, “provided that he remains adherent to his psychiatric medications, and he avoids alcohol.” Dr. Loebenstein conceded that Brown “can become quite deteriorated when not medication compliant.”
The trial court held a hearing on Brown‘s diversion motion on October 12, 2022. The court found that Brown did suffer from a mental health disorder but that the disorder did not contribute in any way to the offense. The court also raised concerns regarding Brown‘s willingness to comply with treatment and concluded he would pose an unreasonable risk to public safety. Accordingly, the court denied Brown‘s request for diversion.
The case proceeded to trial and, on November 17, 2022, a jury found Brown guilty of the lesser-included offense of mayhem in count 1, and guilty of assault with a deadly weapon in count 2. The jury also found that Brown personally used a deadly and dangerous weapon and personally inflicted great bodily injury in the commission of the assault, and found true allegations that the victim was vulnerable and that the offense involved great violence or other acts disclosing a high degree of cruelty, viciousness or callousness. On January 11, 2023, the trial court sentenced Brown to nine years in prison.
On appeal, Brown argues that the trial court abused its discretion in denying his original motion for pretrial diversion based on findings that his diagnosed schizophrenia did not contribute to the commission of the offense and that he posed an unreasonable risk to the community even if in treatment. As to the first factor, he also asserts that “remand is necessary for the court to address the recent changes in the law.” The People contend that the trial court did not abuse its discretion by denying Brown‘s original request for mental health diversion, and that Brown forfeited any request for reconsideration under the amended statute by failing to ask the trial court to reconsider his diversion motion at any point before or during the sentencing proceedings.
A. Relevant Statutory History
Since 2018,
In September 2022, when Brown first brought his motion for mental health diversion,
“In successive versions of
Thus, as this court recently explained: “Effective January 1, 2023, mental health diversion requires trial court findings that the defendant is both eligible for diversion and suitable for the program. The criteria for each are specified in the statute. (
If the defendant meets the two enumerated eligibility requirements, “the court must consider whether the defendant is suitable for pretrial diversion.” (
“Assuming the defendant is both eligible and suitable, the trial court must also be satisfied ‘that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.’ (
B. The Court Did Not Abuse Its Discretion by Denying Brown‘s Pretrial Diversion Motion in October 2022
We turn first to the trial court‘s ruling on Brown‘s motion for diversion, which occurred on October 12, 2022, under the 2022 amendment.
We review the trial court‘s factual findings as to the enumerated statutory criteria for substantial evidence. (Gerson, supra, 80 Cal.App.5th at p. 1079.) Under this deferential standard of review, ” ‘we must view the evidence in the light most favorable to the People and must presume in support of the judgment of every fact the trier could reasonably deduce from the evidence.’ ” (Ibid.) ” ‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.’ ” (Ibid.) We review the trial court‘s ultimate decision whether to grant the request, after considering its findings as to each of the relevant criteria, for abuse of discretion. (Id. at p. 1080.)
In ruling on Brown‘s motion, the trial court acknowledged that
the 2022 amendment, and found that Brown did suffer from both alcohol dependence disorder and schizophrenia, the latter of which was recognized as a qualifying disorder. As to the second criterion, the trial court noted that Brown was not on any medication at the time of the offense, and had not been for years, but was using alcohol on a daily basis. The court then discussed the circumstances of the offense, including that when a witness told Brown they were going to call the police, Brown responded by stating “I don‘t care. She was knocking on my fucking door.” In the trial court‘s view, this response was wrong, but also “rational” and “not delusional.” Thus, the court concluded that there was no evidence that Brown‘s mental health “had anything to do with the incident, let alone [a] significant [factor].”
As to the third criterion, whether Brown‘s symptoms would respond to treatment, the trial court noted that Brown had gotten better while in custody and concluded, “being on meds has been helpful to him. But what‘s really been helpful, I think, in terms of his judgment is being off alcohol because, presumably since he‘s been in custody, he‘s been sober.” The court found the fourth criterion had been met, since Brown did consent to diversion
and waive his right to a speedy trial. However, it went on to raise concerns regarding the fifth criterion, whether Brown would comply with treatment. The court noted that Brown had refused to cooperate with mental health professionals both in the past and at the outset of this case, and that he had refused to take medication.
The trial court‘s greatest concern, though, was the final criterion, whether Brown would pose an unreasonable risk to the public while in diversion. The court noted that, when asked what he would do in the future, Brown‘s statement that he would call 911 or hide indicated that he still believed that he was the victim. The court found that Brown lacked insight, that he previously decided to viciously beat the victim over a minor altercation, and
Brown asserts the trial court erred by concluding that his mental health did not substantially contribute to the commission of the offense and by finding that he would pose an unreasonable risk of danger to public safety if treated in the community. He argues that the court improperly discounted Dr. Loebenstein‘s expert analysis regarding the impact of his schizophrenia and concluded, without adequate evidence, that his decision-making was impacted only by his dependency on alcohol.
We do not read the trial court‘s ruling so narrowly. The trial court acknowledged that Brown did have a diagnosed mental illness and that he was not on medication at the time of the offense. However, the trial court also noted that he had not been on medication at various times over the years and had not previously been involved in any other violent crimes. The court also relied on Brown‘s own statements at the time of the offense which, in its view, suggested that Brown attacked the victim because he was upset that she was knocking on his door, and not because of some paranoid delusion.
At the time of the trial court‘s ruling, in October 2022,
Under the statutory framework, as it stood in October 2022, we conclude that it was reasonable for the trial court to infer from the totality of evidence—including Brown‘s contemporaneous statements—that Brown was not suffering from paranoia or delusions at the time of the offense, and that his diagnosed schizophrenia did not substantially contribute to his commission of the offense. While, in our view, there is at least some evidence to support the opposite conclusion—that Brown‘s unmedicated schizophrenia was a significant factor in a more subtle sense, insofar as it informed his reaction to the perceived confrontation, and thus, the commission of the crime—under the applicable standard of review, we may not substitute our own judgment for that of the trial court, and instead must defer to the trial
In addition, the trial court did not rely solely on the impact of Brown‘s schizophrenia on the crime in denying the request for diversion. Rather, the trial court expressed even greater concern that Brown would pose an unreasonable risk of danger to public safety. To deny diversion based on this final factor, the trial court had to conclude that there was an unreasonable risk that Brown would commit a serious, violent felony of the type enumerated in
Brown relies on People v. Moine (2021) 62 Cal.App.5th 440 and People v. Williams (2021) 63 Cal.App.5th 990. In each, the appellate courts found that the defendant‘s prior convictions for making criminal threats and stalking, respectively, were not sufficient to support an inference of unreasonable risk going forward. But those cases are not instructive here. (See Moine, at p. 443; Williams at p. 993.) Brown did not just threaten or intimidate the victim in this case—he invoked extreme physical violence against a vulnerable victim in response to a relatively minor altercation. And, as the trial court pointed out, Brown continued to believe he was the victim, raising a reasonable inference that he may react similarly, or even more severely, to perceived conflict in the future.
Brown reiterates that the trial court improperly discounted the role that his schizophrenia played in the altercation, as well as Dr. Loebenstein‘s opinion that he would not pose a significant risk so long as he stayed compliant with his medication. Although Dr. Loebenstein‘s opinion is evidence that would support the opposite finding—that Brown would not continue to pose an unreasonable risk if medicated—it is not the only evidence that the trial court considered. For the same reasons we have explained with respect to the court‘s finding regarding the significance of Brown‘s schizophrenia to the circumstances of the offense, the existence of some evidence in support of either conclusion is not a sufficient basis for this court to supplant the findings of the trial court. (See, Gerson, supra, 80 Cal.App.5th at p. 1086.)
C. Brown Is Entitled to Remand Due to the Intervening Statutory Amendments
Setting aside the trial court‘s denial of his request for mental health diversion in October 2022, Brown asserts that the 2023 amendments to
In Frahs, our high court concluded the original enactment of
The Court addressed the inherent conflict between the stated focus on pretrial diversion in
This same reasoning applies to the amendments to
The People concede that the January 2023 amendments to
A defendant may forfeit a right in a criminal case by failing to timely assert the right before the tribunal with jurisdiction to determine it. (People v. Trujillo (2015) 60 Cal.4th 850, 856.) “However, neither 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. McCullough (2013) 56 Cal.4th 589, 593.)
Brown‘s sentencing hearing occurred just 10 days after the amendments became effective. At the sentencing hearing, defense counsel asked the court to grant Brown probation, and put significant emphasis on his mental health as the basis for that request. He argued Brown‘s schizophrenia impacted his entire life; that Brown had been living “on the edge of society” for nearly 40 years as a result, and that he did not really have any typical relationships with other people. He also pointed out that Brown was not medicated at the time
At sentencing, despite this emphasis on Brown‘s schizophrenia, and Dr. Loebenstein‘s expert opinion regarding the impact of that diagnosis on Brown‘s mindset at the time of the underlying offense, neither defense counsel, the prosecutor, nor the court acknowledged the court‘s previous ruling on Brown‘s request for mental health diversion, or the recent amendments to the mental health diversion statute. This lack of acknowledgment, despite defense counsel‘s emphasis on Brown‘s mental health, raises a reasonable inference that neither counsel nor the court was fully cognizant of the amendments, or their potential retroactivity, at the time of the sentencing hearing. 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, 704-705; People v. Black (2007) 41 Cal.4th 799, 810; People v. Turner (1990) 50 Cal.3d 668, 703.) We likewise decline to do so here.
Because we decline to find forfeiture, we need not address Brown‘s assertion that his counsel was ineffective for failing to seek reconsideration of his request for diversion. However, we briefly address the parties’ arguments regarding the timeliness of such a request under the rule recently announced in Braden. In Braden the California Supreme Court held that “to be timely, a request for diversion must be made before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first.” (Braden, supra, 14 Cal.5th 791 at p. 819.) Notably, though, there was no intervening statutory amendment at issue in Braden. Braden simply failed to raise any request for pretrial diversion until after a jury had convicted him. (Id. at pp. 800-801.)
“Relying primarily on the Frahs discussion of legislative intent,” and the associated conclusion that pretrial diversion did not preclude retroactive application of the statute, Braden argued that the statute similarly did not preclude him from bringing a request for pretrial diversion for the first time after trial. (Braden, supra, 14 Cal.5th at p. 803.) In response, the Court explained that ”Frahs addressed those defendants whose cases were disposed of before
Here, as we have explained, Brown did bring a motion for mental health diversion prior to trial, as required under Braden. However, when the court decided that motion, it did so under a statutory framework that the Legislature subsequently amended to be more favorable to defendants. Accordingly, this case falls somewhere between Frahs and Braden. Under these very narrow circumstances, where ameliorative amendments became effective just days before Brown‘s sentencing, we cannot say with any certainty that a motion for reconsideration would have been untimely under Braden, or that Brown‘s counsel should have been aware of the need to bring one. Rather, for the reasons we have explained, we decline to find forfeiture and find it more appropriate to remand the matter for further consideration under the amended statute. While it may have been preferable for Brown‘s counsel to have moved for reconsideration of Brown‘s request at the time of sentencing, we cannot fault Brown‘s trial counsel for failing to seek reconsideration based on a recent amendment that had become effective only 10 days earlier, and that no court had yet found to be retroactive, particularly in light of Braden‘s focus on the general requirement that such motions be brought prior to trial.
As a final matter, the People contend that remand is not necessary in any event because the trial court properly denied Brown‘s request for mental health diversion on the still valid, independent basis that he would pose an unreasonable risk to public safety. We do not believe that this criterion can be so readily separated from the newly enacted presumption that a defendant‘s diagnosed mental health disorder was a significant factor in the commission of the crime. This is particularly so in this case, where the trial court relied on Brown‘s lack of insight and decision-making ability to conclude that he posed an unreasonable risk, while simultaneously discounting Dr. Loebenstein‘s presumption that Brown was paranoid at the time of the offense. If the trial court accepts the presumption that Brown‘s diagnosed disorder was a significant factor in the commission of the crime—as it is now required to do absent clear and convincing evidence to the contrary—then it must also consider whether Brown‘s response to a future “trigger” might be different while under treatment.
Thus, as in Doron, “[w]e decline to conclude that on this record, the court would clearly reach the same conclusions about eligibility or suitability under the new law.” (Doron, supra, 95 Cal.App.5th at p. 10.)
The judgment is conditionally reversed, and the matter is remanded to the trial court with directions to reconsider whether Brown is eligible for mental health diversion under the current
KELETY, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
Notes
“(A) The court is satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder.
“(B) The court is satisfied that the defendant‘s mental disorder was a significant factor in the commission of the charged offense.
“(C) In the opinion of a qualified mental health expert, the defendant‘s symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment.
“(D) The defendant consents to diversion and waives [their] right to a speedy trial.
“(E) The defendant agrees to comply with treatment as a condition of diversion.
“(F) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.”