THE PEOPLE, Plаintiff and Respondent, v. CRISTINA ROMERO QUALKINBUSH, Defendant and Appellant.
D078778
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 6/13/22
CERTIFIED FOR PUBLICATION; (Super. Ct. No. SCD287354)
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, A. Natasha Cortina, Acting Assistant Attorney General, Alana Cohen Butler and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Cristina Romero Qualkinbush threw a pair of scissors at her 75-year-old mother and then spat on a police officer who detained her following the incident. After the trial court denied Qualkinbush‘s motion for mental health diversion undеr
II.
FACTUAL AND PROCEDURAL BACKGROUND
Qualkinbush was born in Russia. She was exposed to alcohol in utero and was raised for the first four years of her life in a dysfunctionаl family that “exposed her to extreme forms of torture and physical abuse.” Her family abandoned her at age four. After she was abandoned, she lived in an orphanage where staff locked her “in a closet for extended periods of time or ... put [her] in the bathroom for not eating.” At age eight, an American couple adopted her and brought her to the United States. Qualkinbush‘s adoptive father began sexually abusing her shortly after her adoption. She suffered sexual abuse twice a week for approximately four years until her adoptive father‘s death.
As a juvenile, Qualkinbush exhibited behavioral problems in school including threatening staff and engaging in self-injurious behaviors, physical aggression, and altercations with peers. She made friends easily but quickly lost those friendships due to conflict. Her adoptive mother (mother) described Qualkinbush‘s juvenile history as “extensive“; however, Qualkinbush‘s
In September 2020, at age 20, Qualkinbush got drunk for the first time with a friend and returned to the home she shared with her mother. After getting into an argument with her mоther, she held a knife to her own neck, became aggressive, and began knocking over furniture. Qualkinbush threw a pair of scissors at her mother, causing a laceration to her mother‘s thigh that required suturing. Qualkinbush struggled with police during her arrest—yelling, hitting her head against objects, kicking, and spitting at a police officer.
A felony complaint was filed against Qualkinbush alleging four counts arising out of the incident: willful cruelty to an elder (
Qualkinbush filed a pretrial motion for mental health diversion that was supported by a report from a clinical psychologist who diаgnosed her as suffering from posttraumatic stress disorder (PTSD), complex trauma, and partial fetal alcohol syndrome. The psychologist opined that Qualkinbush‘s PTSD played a significant role in the commission of the charged offenses, her
In determining Qualkinbush‘s statutory eligibility for diversion, the trial court found, as conceded by the People, that she suffered from a qualifying mental health disorder, consented to diversion, waived her right to a speedy trial, and agreed to comply with treatment. The court assumed that Qualkinbush‘s mental illness was a significant factor in the commission of the charged offenses and that she did not pose an unreasonable risk of danger to public safety if treated in the community. Nonetheless, the court concluded that the charged offenses, though not statutorily disqualifying, were not suitable for diversion. In reaching this conclusion, the court commented that the general sentencing objectives in California Rules of Court,2 rule 4.410 reflected “the various and sometimes conflicting goals of our criminal justice system” and stated:
“Although mental health diversion might satisfy the objectives of encouraging [Qualkinbush] to lead a law-abiding life and deterring her from future offenses after a lengthy history of mental health issues and past violence, three of the charged crimes involve the use of force that justifies placing the goals of punishment and deterrence of others by demonstrating the consequences of such criminal behavior above the needs of [Qualkinbush].”
III.
DISCUSSION
A. The Trial Court Abused Its Discretion by Relying on General Objectives of Sentencing and Failing to Consider the Primary Purposes of the Mental Health Diversion Statute in Denying Qualkinbush‘s Motion for Diversion
1. General Legal Principles
The Legislature created a pretrial mental health diversion program for defendants with certain diagnosed mental disorders, including PTSD. (
The mental health diversion program allows qualifying defendants to be treated in a community mental health program for up to two years, after which, if they perform “satisfactorily in diversion, ... the court shall dismiss the defendant‘s criminal charges that were the subject of the criminal procеedings at the time of the initial diversion.” (
The trial court‘s determinations as to whether a defendant suffers from a mental disorder under subdivision (b)(1)(A) of section 1001.36 and whether
2. Analysis
Qualkinbush contends that she met her burden to establish the six eligibility requirements for diversion and that the trial court abused its discretion by applying the general sentencing objectives contained in rule 4.410 in determining her suitability for diversion rather than applying the specific mental health diversion objectives set forth in section 1001.35. The People assert that Qualkinbush forfeited her claim because the trial court denied her motion without prejudice and she never renewed it prior to pleading guilty. Assuming that we reject the forfeiture argument, the People assert that the trial court properly exercised its discretion to deny Qualkinbush‘s motion based on her unsuitability for diversion.
The record does not support the People‘s forfeiture argument. The trial court noted that case law appears to allow for mental health diversion until final judgment and that a possibility existed that the trial judge, if “presented with additional evidence at trial, could conclude that such diversion is appropriate.” (Italics added.) On this basis, the trial court denied Qualkinbush‘s motion “without prejudice [for renewal] before the trial judge.”
The trial court‘s denial of Qualkinbush‘s motion for mental health diversion is appealable. (See, e.g., Morse v. Municipal Court (1974) 13 Cal.3d 149, 155 [“[a]n order denying [drug] diversion is a preliminary determination from which no provision is made for interlocutory review but which is subject to review on appeal from a judgment in the criminal proceedings“];
With respect to the six statutory eligibility requirements set forth in section 1001.36, subdivision (b)(1), the trial court found that three of these requirements were not at issue4 and assumed a finding in Qualkinbush‘s favor on two additional requirements.5 The trial court did not address the last eligibility requirement, i.e., whether Qualkinbush had presented an opinion from a qualified mental health expert that her symptoms would respond to mental health treatment. (
Even after a defendant makes a prima facie showing that he or she meets the six threshold eligibility requirements, a trial court may still exercise its discretion to deny mental health diversion if it finds that the defendant or the offense are not suitable for diversion. (
” ‘When construing a statute, we must “ascertain the intent of the Legislature so as to effectuate the purpose of the law.“’ [Citations.] ‘[W]e begin with the words of a statute and give these words their ordinary meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous, then we need go no further.’ [Citation.] If, however, the language supports more than one reasonable construction, we may consider ‘a variety of
extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ ” (People v. Sinohui (2002) 28 Cal.4th 205, 211–212.) “Where reasonably possible, we avoid statutory constructions that render particular provisions superfluous or unnecessary.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 459.)
The language and construction of section 1001.36 do not support Qualkinbush‘s argument that a defendant shall be deemed suitable for diversion under the statute if the court finds that the defendant does not pose an unreasonable risk of danger to public safety. The requirement that a defendant not pose an unreasonable risk of danger to public safety is one of the six eligibility requirements of section 1001.36, subdivision (b)(1). The Legislature added the requirement that “the defendant and the offense” be suitable for diversion in 2019 in new subdivision (b)(3). (Stats. 2018, ch. 1005, § 1, eff. Jan. 1, 2019.) Construing the new requirement that the defendant and offense be suitable for diversion as equivalent to a defendant not posing an unreasonable risk of dаnger to public safety would render the new statutory language superfluous. (Williams v. Superior Court (1993) 5 Cal.4th 337, 357 [“An interpretation that renders statutory language a nullity is obviously to be avoided“].)
The next question that we must address is the intended meaning of the new term. We have reviewed the legislative history of the 2019 amendment
“Accordingly, it seems clear the court can grant diversion if the minimum standards are met, and, correspondingly, сan refuse to grant diversion even though the defendant meets the technical requirements of the program.
“There may be times, because of the defendant‘s circumstances, where the interests of justice do not support diversion of the case. The defendant‘s criminal or mental health history may reflect a substantial risk the defendant will commit dangerous crimes beyond the ‘super strikes’ identified in section 1001.36, subdivision (b)(6). It may be that because of the defendant‘s level of disability there is no reasonably available and suitable treatment program for the defendant. The defendant‘s treatment history may indicate the prospect of successfully completing a program is quite poor. Cоnduct in prior diversion programs may indicate the defendant is now unsuitable. (See § 1001.36, subd. (h) [the court may consider past performance on diversion in determining suitability].) The court may consider whether the defendant and the community will be better served by the regimen of mental health court. (See § 1001.36, subd. (c)(1)(B) [the court may consider interests of the community in selecting a program].) Clearly the court is not limited to excluding persons only because of the risk of committing a ‘super strike‘—the right to exclude because of dangerousness goes well beyond that limited list. In short, the court may consider any factor relevant to whether the defendant is suitable for diversion.” (Couzens et al., Sentencing California Crimes (The Rutter Grоup, Sept. 2021 update) § 7:21, pp. 7-29–7-30.)
Another appellate court addressed an analogous argument in the context of the military diversion statute (
In Wade, supra, 33 Cal.App.5th 694, the appellate court concluded that the trial court did not err in considering an information sheet of factors derived from the felony sentencing guidelines set forth in various California Rules of Court in deciding the defendant‘s suitability for military diversion. (Id. at pp. 714–715.) Nonetheless, the reviewing court found that the trial court had abused its discretion in denying military diversion because “its explanation for denying pretrial diversion gave no indication that it was informed by the rehabilitative principles that define the military diversion statute” and “nothing in the record ... demonstrаte[d], ‘either explicitly or by inference, that the trial court based its discretion with the proper primary objective in mind.‘” (Id. at p. 716.)
The trial court in this case committed a similar error. Relying on the general sentencing objectives articulated in rule 4.410, the trial court found Qualkinbush unsuitable for mental health diversion, and further found that punishment was appropriate, based on her lengthy history of mental health issues, her use of force in the commission of the charged crimes, and her history of violence. There is no indication in the trial court‘s comments that
The appropriate remedy is to remand the matter to the trial court to reconsider Qualkinbush‘s motion for mental health diversion, bearing in mind the statutory principles and purpose of the mental health diversion statute. (Wade, supra, 33 Cal.App.5th at p. 718.) We express no opinion as to how the court should exercise its discretion on remand.11
At sentencing, the trial court imposed certain costs and a fee, including a criminal justice administration fee of $154 (
The Legislature enacted AB 1869, effective July 1, 2021, which repealed the provision under which the trial court ordered Qualkinbush to pay the $154 criminal justice administration fee. (Assem. Bill No. 1869 (2019-2020 Reg. Sess.) § 11.) This bill also added section 1465.9, subdivision (a) (id. at § 62) which provides that “[t]he balance of any court-imposed costs pursuant to...
C. The Probation Order Search Term Requires Correction
Qualkinbush contends, and the People agree, that the probation order erroneously imposed an electronics search term that conflicts with the trial
The probation department recommended that Qualkinbush‘s probation include a search condition as part of her probation requiring that she “[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices to search at any time ....” During sentencing, defense counsel asked the court not to impose that term to the extent that it would allow searches of “electronic devices, recordable media, and computers,” and the court said, “Go ahead and delete that.”
The probation order originally authorized searches of Qualkinbush‘s “personal effects, computers, and recordable media including electronic devices” as suggested by the probation department. The court clerk crossed out the phrase “including electronic devices” and wrote the word “deleted” above it. The probation order conflicts with the trial court‘s oral pronouncement which also deleted searches of Qualkinbush‘s recordable media and computers. Where, as here, a discrepancy exists between the court‘s “oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
D. AB 1950 Does Not Impact Qualkinbush‘s Probation Term
Effective January 1, 2021, AB 1950 amended
The People contend that Qualkinbush waived any challenge to a stipulated sentence and thus may not contest the length of her probation under AB 1950 because she accepted that term of probation as part of her plea bargain. The written plea agreement states: “NOLT; Releasable to program pending PHS. No contact order remains with the continued exception that Ms. Qualkinbush can have telephonic contact with protected party. 17(b) upon SCOP with no violations.”14 Qualkinbush initialed the box next to the advisement that the maximum punishment resulting from the change of plea would be five years in prison, and if “not sentenced to imprisonment, I may be granted probation for a period up to 5 years or the maximum term of imprisonment, whichever is greater.” She also initialed the box giving up her right to appeal “any sentence stipulated herein.”
In any event, the parties agree that Qualkinbush is not entitled to relief under AB 1950 based on the nature of her conviction.
We interpret the phrase, “an offense that includes specific probation lengths in its provisions” in subdivision (l)(1) of section 1203.1 to refer not only to the statute defining the elements of the crime, but also to any statutory provisions to which the court must look to determine the proper term of probation. Qualkinbush‘s offense of conviction (
IV.
DISPOSITION
Qualkinbush‘s guilty plea is conditionally vacated and the order granting formal probation is conditionally reversed. The matter is remanded to the superior court to conduct another mental health diversion eligibility hearing under
If the trial court again denies pretrial mental health diversion, or if the court places Qualkinbush on diversion but she fails to successfully complete diversion, Qualkinbush‘s guilty plea and the order granting formal probation shall be reinstated as modified to (1) vacate the portion of the criminal justice administration fee (
AARON, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.