Case Information
*1 Filed 9/28/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G054674
v. (Super. Ct. No. 16CF0837) ERIC JASON FRAHS, O P I N I O N Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Glenn R.
Salter, Judge. Judgment conditionally reversed and remanded as directed. Respondent’s request for judicial notice denied.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Matthew Mulford, Marilyn George and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Eric Jason Frahs tried to steal a can of beer and an energy drink from a small store. As he was leaving, Frahs got into a physical confrontation with the store owner and his son. At a jury trial on two robbery charges, Frahs put on evidence that he suffers from a form of schizophrenia. The jury found defendant guilty. In a subsequent bench trial, the court found that Frahs had suffered a prior “strike” conviction (an assault with a deadly weapon) and imposed a nine-year prison sentence.
While Frahs’ case was pending on appeal in this court, the Legislature enacted Penal Code section 1001.36, which created a pretrial diversion program for defendants with mental disorders. [1] Frahs argues that the mental health diversion program should apply retroactively. We agree and conditionally reverse Frahs’ convictions and sentence. On remand, the trial court may consider granting Frahs mental health diversion as we will discuss more fully in this opinion. However, we reject Frahs’ remaining claim that his prior assault conviction does not qualify as a strike.
I
FACTS AND PROCEDURAL BACKGROUND On March 31, 2016, at about 8:00 a.m., Frahs entered a small market in Santa Ana. J. Kim, the store’s owner, refused to sell Frahs a beer; a week earlier Frahs had tried to steal a pack of cigarettes. Frahs went outside of the store and began picking up rocks and throwing thеm at cars that were passing by. Frahs then reentered the store and walked towards the cooler. Frahs grabbed a can of beer and a can of Red Bull. Kim and his son stood at the front door in order to block Frahs from leaving. Frahs rushed towards the door and tried to push his way through. During the ensuing confrontation, Kim was hit in the head and fell down. Frahs eventually got out of the store, but Kim and *3 his son were able to detain Frahs in the parking lot and call the police.
Court Proceedings
In June 2016, the prosecution filed an information alleging that Frahs had committed two counts of second degree robbery and one felony count of throwing substances (rocks) at a motor vehicle. (§§ 211, 211.5; Veh. Code, § 23110, subd. (b).) The information further alleged that Frahs had previously been convicted of a “strike,” an assault with a deadly weapon offense in 2015. (§ 245, subd. (a)(1).)
Frahs testified in his own defense. Frahs said that in his early twenties he began hallucinating and experiencing delusions (he was 30 years old аt the time of the trial). Frahs said that he thought his computer hard drive and birds were talking to him. Frahs testified that he has been hospitalized about eight times. Frahs said that he had been homeless for about two years, and every time he has been in trouble with the law it was due to his mental health issues. Frahs testified that just before entering the market, he thought an angel had flown by on a horse and talked to him.
Dr. Richard Lettieri, a clinical and forensic psychologist, testified that he had reviеwed a report from a hospital where Frahs had been confined. Lettieri said that most psychiatric patients are temporarily confined for only three to 14 days to stabilize them on medication; however, Frahs had been confined for about four months, which indicates that Frahs had been very ill and very unstable. Lettieri testified that Frahs had been diagnosed with schizoaffective disorder, which is “a combination of schizophrenia and bipolar disorder.” Lettieri said that Frahs had been prescribed various medications over the years to include “antidepressants, mood stabilizers, and antipsychotics.”
The jury found Frahs guilty of the two second degree felony robbery counts and a lesser-included misdemeanor charge. After the jury trial, the court conducted a *4 bench trial on the prior serious felony assault “strike” allegation, which the court found to be true. The court imposed a prison sentence of nine years, which included a sentence enhancement (low term doubled) for the alleged prior strike conviction.
II
DISCUSSION Frahs contends that the recently enacted section 1001.36, which now allows for the diversion of defendants with mental disorders, applies retroactively. Frahs also contends that his prior conviction for an assault with a deadly weapon was not a strike because a broken beer bottle is not an “inherently” deadly weapon.
We shall address each contention in turn.
A. Retroactivity of section 1001.36
Genеrally, pretrial diversion is the suspension of criminal proceedings for a prescribed time period, subject to certain conditions. (See, e.g., §§ 1000.1 [diversion for specified drug offenses], 1001.60 [bad check diversion], 1001.70 [parental diversion], 1001.80 [military diversion].) Ordinarily, when a defendant successfully completes a diversion program, the criminal charges are dismissed and the defendant may legally answer that he or she has never been arrested for—or charged with—the divеrted offense, subject to certain exceptions. (See also, e.g., §§ 1001.9, 1001.33, 1001.55.)
1. Mental Health Diversion
*5 Effective June 27, 2018, the Legislature created a diversion program for defendants with diagnosed and qualifying mental disorders such as schizophrenia, bipolar disorder, and posttraumatic stress disorder. (§ 1001.36, subd. (a).) One of the stated purposes of the legislation was to promote “[i]ncreased diversion of individuals with mental disorders . . . while protecting public safety.” (§ 1001.35, subd. (a).) [2] “As used in this chapter, ‘pretriаl diversion’ means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication . . . .” (§ 1001.36, subd. (c).)
“On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion . . . if the defendant meets all of the requirements . . . .” (§ 1001.36, subd. (b).) There are six requirements. First, the court must be “satisfied that the defendant suffers from a mental disorder” listed in the statute. (§ 1001.36, subd. (b)(1).) Second, the court must also be “satisfied that the defendant’s mental disorder played a significant role in the commission of the charged offense.” (§ 1001.36, subd. (b)(2).) Third, “a qualified mental health expert” must opine that “the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.” (§ 1001.36, subd. (b)(3).) Fourth, subject to certain excеptions, the defendant must consent to diversion and waive his or her right to a speedy trial. (§ 1001.36, subd. (b)(4).) Fifth, the defendant must agree “to comply with the treatment as a condition of diversion.” (§ 1001.36, subd. (b)(5).) And finally, the court must be “satisfied that the defendant will not pose an unreasonable risk of danger to public safety . . . if treated in the community.” (§ 1001.36, subd. (b)(6).)
If a trial court determines that a defendant meets the six requirements, then the court also must also determine whether “the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.” (§ 1001.36, subd. (c)(1)(A).) The court may then grant diversion and refer the defendant to an approved treatment program. (§ 1001.36, subd. *6 (c)(1)(B).) Thereafter, the provider “shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.” (§ 1001.36, subd. (c)(2).) “The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.” (§ 1001.36, subd. (c)(3).)
If the defendant commits additional crimes, or otherwise performs unsatisfactorily in diversion, then the court may reinstate criminal proceedings. (§ 1001.36, subd. (d).) However, if the defendant performs “satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings.” (§ 1001.36, subd. (e).)
2. The Rules Regarding Retroactivity
In general, statutes are рresumed to apply prospectively unless they state
otherwise. (See § 3.) However, the presumption against retroactivity does not apply
when the Legislature reduces the punishment for criminal conduct. (
In re Estrada
(1965)
The scope of the
Estrada
rule was recently considered in
People v.
Superior Court
(
Lara
) (2018)
3. Retroactivity Analysis
Here, similar to Proposition 57, the mental health diversion progrаm under section 1001.36 does not lessen the punishment for a particular crime. However, for a defendant with a diagnosed mental disorder, it is unquestionably an “ameliorating benefit” to have the opportunity for diversion—and ultimately a possible dismissal— under section 1001.36. Further, it appears that the Legislature intended the mental health diversion program to apply as broadly as possible: “The purpose of this chapter is to promote . . . . [¶] (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.” (§ 1001.35, subd. (a), italics added.)
Applying the reasoning of the Supreme Court, we infer that the Legislature “must have intended” that the potential “ameliorating benefits” of mental health diversion to “apply to every case to which it constitutionally could apply.” (See Estrada , supra , 63 Cal.2d at pp. 744-746.) Further, Frahs’ case is not yet final on appeal and the record affirmatively discloses that he appears to meet at least one of the threshold requirements *8 (a diagnosed mental disorder). Therefore, we will direct the trial court on remand to make an eligibility determination regarding diversion under section 1001.36.
The Attorney General argues that: “Subdivision (c) of the statute defines
‘pretrial diversion’ as the ‘postponement or prosecution, either temporarily or
permanently, at any point in the judicial process frоm the point at which the accused is
charged until adjudication.’ This language indicates the Legislature did not intend to
extend the potential benefits of . . . section 1001.36” as broadly as possible. We disagree.
The fact that mental health diversion is available only up until the time that a defendant’s
case is “adjudicated” is simply how this particular diversion program is ordinarily
designed to operate. Indeed, the fact that a juvenile transfer hearing under Proposition 57
ordinarily occurs prior to the attachment of jeopardy, did not prevent the Supreme Court
in
Lara
,
supra
,
Here, although Frahs’ case has technically been “adjudicated” in the trial court, his case is not yet final on appeal. Thus, we will instruct the trial court—as nearly as possible—to retroactively apply the provisiоns of section 1001.36, as though the statute existed at the time Frahs was initially charged.
4. Instructions on Remand
In
Lara
, after determining that Proposition 57 applied retroactively, the
Supreme Court then went on to endorse a remand procedure described by this court in
People v. Vela
(2018)
The remand procedure we outlined in
Vela
was as follows: “Vela’s
conviction and sentence are conditionally reversed and we order the juvenile court to
conduсt a juvenile transfer hearing. [Citation.] When conducting the transfer hearing,
*9
the juvenile court shall, to the extent possible, treat the matter as though the prosecutor
had originally filed a juvenile petition in juvenile court and had then moved to transfer
Vela’s cause to a court of criminal jurisdiction. [Citation.] If, after conducting the
juvenile transfer hearing, the court determines that it would have transferred Vela to a
court of criminal jurisdiction because hе is ‘not a fit and proper subject to be dealt with
under the juvenile court law,’ then Vela’s convictions are to be reinstated. [Citation.]
The court is to resentence Vela consistent within the bounds of its discretion as discussed
within the following section of this opinion. On the other hand, if the juvenile court finds
that it would
not
have transferred Vela to a court of criminal jurisdiction, then it shall
treat Vela’s convictions as juvenile adjudications and impose an approрriate ‘disposition’
within its discretion.” (
Vela
,
supra
,
In this case, similar to our disposition in Vela , we conditionally reverse Frahs’ convictions and sentence. On remand, the trial court is to conduct a mental health diversion eligibility hearing under the applicable provisions of section 1001.36. When conducting the eligibility hearing, the court shall, to the extent possible, treat the matter as though Frahs had moved for pretrial diversion after the charges had been filed, but prior to their adjudication. (§ 1001.36, subd. (c).)
If the trial court finds that Frahs suffers from a mental disorder, does not pose an unreasonable risk of danger to public safety, and otherwise meets the six statutory criteria (as nearly as possible given the postconviction procedural posture of this case), then the court may grant diversion. If Frahs successfully completes diversion, then the court shall dismiss the charges. However, if the court determines that Frahs does not meet the criteria under section 1001.36, or if Frahs does not successfully complete diversion, then his convictions and sentence shall be reinstated. The judgment shall include the prior “strike” conviction, as stated in the next section of this opinion. *10 B. Prior Strike Conviction
The prosecution is required to prove a prior strike conviction beyond a
reasonable doubt, and when a defendant challenges the decision, we ordinarily review the
record for substantial evidence. (
People v. Delgado
(2008)
Under the “Three Strikes” sentencing scheme, a defendant’s punishment for a felony conviction is ordinarily doubled when the prosecution has alleged and proven a prior conviction for a crime designated as either a “violent felony” or a “serious felony.” (§§ 667.5, subd. (c), 1192.7, subd. (c).) One of the crimes designated as a serious felony is an “assault with a deadly weapon.” (§ 1192.7, subd. (c)(31).)
The term “assault” is definеd by statute: “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) The crime is punished in a variety of ways depending on the severity of the offense. A misdemeanor (or simple) assault is punishable by up to six months in jail. (§ 241.) An assault with a deadly weapon can be punished as either a misdemeanor or a felony (a wobbler): “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.” (§ 245, subd. (a)(1), italics added.)
*11
What constitutes “a deadly weapon or instrument other than a firearm” is
not defined within the statute. (See § 245, subd. (a)(1).) However, the definition is well
settled under case law. “As used in section 245, subdivision (a)(1), a ‘
deadly weapon
’ is
‘any object,
instrument
, or weapon which is used in such a manner as
to be capable of
producing and likely to produce, death or great bodily injury.’”
[3]
(
People v. Aguilar
(1997)
Therefore, the question of what constitutes “a deadly weapon or instrument
other than a firearm” is ordinarily a question of fact. (§ 245, subd. (a)(1); see CALCRIM
No. 860 [“A
deadly weapon
is any object, instrument, or weapon that is inherently deadly
or one that is used in such a way that it is capable of causing and likely to cause death or
great bodily injury”]; see also, e.g.,
People v. McCoy
(1944)
The prosecution filed a felony complaint in 2015, which alleged that Frahs had committed “an assault upon the person of John Doe with a deadly weapon аnd instrument, [a] broken beer bottle.” Frahs pleaded guilty and agreed to be placed on formal probation. Frahs signed a plea form and initialed a paragraph that read: “I understand that my conviction in this case is for a serious or violent felony (‘strike’) which may result in . . . substantially increased penalties, and a term in state prison for any future felony conviction.” Frahs also initialed a paragraph that read: “I willfully and unlawfully committed an assault upon the person of John Doe with a broken beer bottle.” (§ 245, subd. (a)(1).)
Here, the trial court was presumably unaware of the underlying facts of the
2015 assault conviction during the bench trial. But Frahs had admitted on the plea form a
factual basis for his plea. Further, Frahs had pleaded guilty to violating section 245,
*12
subdivision (a)(1): “an assault upon the person of another with a deadly weapon or
instrument other than a firearm.” (See
People v. Ward
(1967)
Frahs argues that the meaning of “deadly weapon” only applies to “inherently” deadly weapons. He then goes on to argue that a broken beer bottle does not qualify as аn inherently deadly weapon. But no statute states that a deadly weapon must be “inherently” deadly. And Frahs cites no case law in support of this proposition.
We must therefore adhere to the long-standing definition of “deadly
weapon” as stated by our Supreme Court. (See
People v. Aguilar
,
supra
, 16 Cal.4th at
pp. 1028-1029 [“a ‘deadly weapon’ is ‘any object, instrument, or weapon which is used
in such a manner as to be capable of producing and likely to produce, death or great
bodily injury’”]; see also
Auto Equity Sales, Inc. v. Superior Court
(1962)
In
Delgado
,
supra
,
In 2011 though, “the Legislature amended section 245, removing assaults
‘by any means of force likely to produce great bodily injury’ from subdivision (a)(1), and
placing the language in newly added subdivision (a)(4) of section 245.” (
People v.
Puerto
(2016)
We agree with the rationale and holding of the Second District Court of
Appeal in
Puerto
,
supra
,
III
DISPOSITION The judgment is conditionally reversed. The cause is remanded to the superior court with directions to conduct a diversion eligibility hearing, as discussed within this opinion, no later than 90 days from the filing of the remittitur.
If the trial court determines that Frahs qualifies for diversion under section 1001.36, then the court may grant diversion. If Frahs successfully completes diversion, then the trial court shall dismiss the charges. However, if the court determines that Frahs is ineligible for diversion, or Frahs does not successfully complete diversion, then his convictions and sentence shall be reinstated.
MOORE, ACTING P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
Notes
[1] Any further undesignated statutory references are to the Penal Code.
[2] Respondent’s request for judicial notice of the legislative history of Assembly Bill No. 1810 is denied. The material is not necessary in order to resolve the legal issues on appeal.
[3] Frahs attempts to draw a distinction between “deadly weapon” and “instrument,” but the terms are used interchangeably within the statute and throughout the relevant cases.