People v. CurryPeople v. Curry
We agree with defendant‘s first contention and conditionally reverse the judgment with instructions for the trial court in considering defendant‘s eligibility for mental health diversion. Our holding moots defendant‘s second contention. Last, we disagree with defendant‘s due process challenge to costs imposed.
I. BACKGROUND
On June 24, 2016, defendant entered a bank in Chico during business hours, tossed a note demanding money at a bank employee, and then pointed a firearm at her. Defendant left the bank with money the employee gave to him.
Law enforcement officers were unable to identify defendant as the culprit of the Chico bank robbery until he committed another bank robbery in Tacoma, Washington in January 2017.
In July 2017, a Butte County deputy district attorney filed a criminal complaint, charging defendant with second degree robbery and further alleging that defendant suffered two or more prior serious or violent felonies for purposes of
On June 5, 2018, the trial court declared a doubt as to defendant‘s competence and suspended criminal proceedings.
On June 27, 2018, the statute at issue here (
A July 2018 psychological evaluation report concluded that defendant had the mental capacity to assist in his own defense. The “interview” section of the report noted that defendant “presented no symptoms of mental illness in the interview.” The “diagnosis” section of the report concluded that defendant suffered “mild symptoms of situation related anxiety and depression,” which “anxiety did not seem abnormal . . .
After reviewing the report, the trial court found defendant competent and reinstated criminal proceedings.
Later, in July 2018, defendant obtained new counsel.
In September 2018, the information was filed, containing the robbery charge and prior felony allegations.
In March 2019, a jury found defendant guilty of the robbery, and the trial court later found true that defendant suffered three prior serious felony convictions alleged.
Several months after the jury‘s verdict, defendant indicated to his counsel that he wished to represent himself, and in June 2019, the trial court granted defendant‘s motion to do so.2
At a July 2019 hearing, the trial court denied several post-trial motions that defendant filed as a pro per (including a motion for a new trial) that are not germane to the issue before us. Also at the hearing, defendant told the trial court that he wanted to “file . . . other . . . motions,” including a motion for mental health diversion pursuant to
Defendant replied that he raised the issue with his trial counsel “well in advance,” but “she never even investigated it, you know. My mental health at the time was brought up.”
The trial court wondered aloud whether the pretrial diversion law was in effect “at the beginning of [defendant‘s] case,” and defendant replied that the law was effective in
A probation officer‘s August 2019 presentencing report noted that defendant: (a) indicated that he was diagnosed with severe depressive disorder in ” ‘early 2000,’ ” and (b) “disclosed that his daughter was abducted by her mother . . . the day prior to” the Chico robbery. The report continued: “[Defendant] spoke of his heartbreak over his daughter being transported [out of the country], without his knowledge or permission, and not being in contact with her.”
Attached to the report was a written statement and supporting documents that defendant submitted to the probation officer. Included in defendant‘s submission was a copy of a letter from the Office of Children‘s Issues at United States Department of State, referencing the “case that was opened on July 7, 2016, on behalf of [defendant‘s] child.”
At the August 2019 sentencing hearing, the trial court said: “I am very familiar with [defendant‘s] . . . situation and what [he was] going through in relation to [his] daughter . . . . I can only imagine what a horrific situation that is.”
Later at the hearing, defendant told the trial court that, when his daughter “was taken from [him],” he “had nervous breakdowns every single day and, at the time of th[e] crime, [he] lost touch with reality.”
Ultimately, the trial court sentenced defendant to an indeterminate term of 25 years to life for the robbery (pursuant to the three strikes law,
Regarding costs, in addition to victim restitution, the trial court imposed a $300 restitution fine (
II. DISCUSSION
Defendant contends the trial court erred by denying as untimely his request for mental health diversion. Specifically, defendant argues diversion under
The People do not take a position on the timeliness of defendant‘s request. They argue we need not decide the issue, because a “summary denial of [defendant‘s] request was entirely appropriate on this record.” The People insist we must reject defendant‘s claim because he “failed to meet his burden to show an error that resulted in a miscarriage of justice on this record.”
Because we conclude
A. “Until Adjudication” Means Until the Judgment of Conviction
In construing a statute, our goal is to ascertain the Legislature‘s intent in order to effectuate the purpose of the law. First, we examine the language of the statute, giving the words their usual, ordinary meaning. If the language is clear and unambiguous, we follow the plain meaning of the measure. (People v. Canty (2004) 32 Cal.4th 1266, 1276.)
But if an examination of the plain meaning of the statutory language “fail[s] to resolve the dispute, we next consider the context in which the[] words appear, attempting
”
“As originally enacted,
“If the defendant makes a prima facie showing that he or she meets all of the threshold eligibility requirements and the defendant and the offense are suitable for
In Frahs, our Supreme Court ruled that the “inference of retroactivity” articulated in In re Estrada (1965) 63 Cal.2d 740 (Estrada) applies to the mental health diversion program, such that a defendant whose case is not yet final on appeal is “entitled to a limited remand for the trial court to decide whether he should receive diversion under
While the procedural posture of this case is different, our high court‘s discussion of the mental health diversion statute is pertinent. (See People v. Rios (2013) 222 Cal.App.4th 542, 563 [“Supreme Court dicta generally should be followed, particularly where the comments reflect the court‘s considered reasoning“].)
Explaining why it found unpersuasive the People‘s argument that the definition of “pretrial diversion” in
In a footnote that appears in the midst of the text quoted above, the court said: “[W]e have no occasion here to precisely define ‘until adjudication,’ as used in
Later in the opinion, when rejecting the People‘s arguments that (a) the word “pretrial” in the phrase “pretrial diversion” and (b) the “eligibility factor requiring a defendant to waive his or her right to a speedy trial” together “ma[de] clear that the Legislature did not intend for diversion to be available to defendants whose trials had concluded,” our high court said, “this language simply explains how the mental health diversion program will ordinarily function: 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.)
And later still, when rejecting the People‘s argument that retroactive application of the mental health diversion statute “would risk potentially ‘undermining the legitimacy’ of a jury‘s verdict,” because “defendants suffering from mental illness will frequently pursue a mental health defense, which a jury must necessarily reject by reaching a guilty verdict,” the Frahs court observed that “[t]he 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 verdict in which a mental health defense had been presented but rejected by the trier of fact.” (Frahs, supra, 9 Cal.5th at p. 636, italics added.)
But even though the balance of dicta in Frahs might favor such a conclusion, we cannot say that the plain meaning of “until adjudication” is clear and unambiguous. (See People v. Weaver (2019) 36 Cal.App.5th 1103, 1120 [” ‘adjudication’ is a ‘shorthand for the adjudication of guilt or acquittal’ [citation] and ‘[a]t most . . . could be synonymous with the rendition or pronouncement of judgment, which occurs at the time of sentencing’ “].)
Accordingly, we consider the context in which the words appear, to harmonize the words of the statute within the overall statutory scheme.
Frahs is helpful on this question too, as our Supreme Court said the appellate court (whose decision was on review) “reasonably regarded the statement of legislative purpose found in
Such a conclusion would be consistent with the notion—woven throughout
One eligibility requirement a defendant must meet—that his mental disorder was a “significant factor in the commission of the charged offense“—contemplates a trial court‘s “review[] [of] any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements . . . or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.” (
Another eligibility requirement—that the trial court be “satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in [s]ection 1170.18, if treated in the community“—permits a trial court to “consider the opinions of the district attorney, the defense, or a qualified mental health expert, and . . . the defendant‘s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.” (
Another part of the statute says a trial court “may require the defendant to make a prima facie showing” of eligibility for diversion and suitability for diversion “[a]t any stage of the proceedings.” (
Our conclusion—simply that a defendant may ask the trial court for mental health diversion until sentencing and entry of judgment—harmonizes with that overall statutory scheme.4 (See Valladoli, supra, 13 Cal.4th at p. 599.)
B. The Remedy
“The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a ‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.) We have interpreted that language as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)” (In re Celine R. (2003) 31 Cal.4th 45, 59-60.)
The People v. Watson harmless error analysis “is by definition a case-by-case analysis. Particularized analysis is critical.” (In re J.P. (2017) 15 Cal.App.5th 789, 799.)
In Frahs, the court ruled “a conditional limited remand for the trial court to conduct a mental health diversion eligibility hearing is warranted when, as here, the record affirmatively discloses that the defendant appears to meet at least the first threshold eligibility requirement for mental health diversion—the defendant suffers from a qualifying mental disorder (
Though Frahs had a different procedural posture, we think apt the opinion‘s considered analysis of the difficulty of analyzing an appellate record where no diversion eligibility hearing was held. Accordingly, we will not adjudicate in the first instance the parties’ competing claims regarding defendant‘s eligibility for mental health diversion.
We will conditionally reverse the judgment with directions for the trial court to consider defendant‘s eligibility for mental health diversion under
C. Costs Imposed
Defendant contends the trial court‘s imposition of costs without first determining his ability to pay violated due process principles, as articulated in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Anticipating the People‘s argument that he forfeited this claim by failing to raise it before the trial court, defendant insists the issue is not forfeited, because: his claim implicates “fundamental rights“; the imposition of costs via a due process violation “amounted to an unauthorized sentence“; and “the fundamental constitutional rights at issue here are not subject to traditional forfeiture doctrines.”
In addition to their argument defendant forfeited this claim by failing to raise it in the trial court, the People argue we should affirm the imposition of costs.
Because the forfeiture question and the merits of the issue rise or fall together, we conclude defendant‘s claim is both forfeited on appeal and lacks merit. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 465-466 [concluding an appellate claim was forfeited, and “[e]ven if not forfeited, the claim fails“].)
Defendant‘s due process claim—and by implication, his argument that the claim is not forfeited7—hinges on the analysis in Dueñas, finding an ability to pay hearing is required before imposing fines and fees, and we are not persuaded that this analysis is correct. Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the court‘s conclusion in Dueñas that due process requires
In the meantime, we join several other courts in concluding that the principles of due process do not require determination of a defendant‘s present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, rev. granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.)
Thus, defendant‘s due process claim pursuant to Dueñas lacks merit. And, because the due process claim lacks merit, defendant‘s arguments why the claim is not forfeited also lack merit.
The imposition of costs is affirmed, but the judgment is conditionally reversed. The matter is remanded to the trial court with directions (outlined above) to hold a diversion eligibility hearing under
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RENNER, J.
We concur:
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HULL, Acting P. J.
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DUARTE, J.
The opinion in the above-entitled matter filed March 2, 2021, was not certified for publication in the Official Reports. For good cause it appears now that the opinion should be published in the Official Reports and it is so ordered.
FOR THE COURT:
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HULL, Acting P. J.
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DUARTE, J.
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RENNER, J.