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Mental Health Diversion Unavailable If Trial Starts?
On March 2, 2021, the Court of Appeals for the Third Appellate District ruled in People v. Curry (2021) 62 Cal. App. 4th 314 that defendant was eligible for mental health diversion at any time prior to sentencing, including after a verdict at trial (for robbery no less, in Curry). Id., at 325.
The opinion broadly interpreted Penal Code 1001.36’s provisions regarding mental health diversion as being available, literally, as the statute stated, “until adjudication.” The Third Appellate District, in adopting such a broad interpretation, seemed to rely upon dicta from the California Supreme Court’s ruling in People v. Frahs (2020) 9 Cal.5th 618.
In a Nutshell: Mental Health Diversion is strictly a pretrial program, or so ruled a San Bernardino County Superior Court judge, which was affirmed by the Fourth Appellate District. By starting trial, one waives the right to such a program.
Anyone who reads Curry immediately recognizes the gamesmanship that this holding might encourage. Defendant would purposely reserve a diversion motion to take a chance at acquittal at trial, which Curry even acknowledged. Curry, supra, at 325, fn. 4.
We at Greg Hill & Associates knew that this type of gamesmanship opportunity would not last for long. Indeed, the Fourth Appellate District, on April 20, 2021, in People v. Cory Juan Braden, Jr. (2021 DJDAR 3679), put an end to this and sets up the California Supreme Court for a ruling to resolve this conflict between the appellate court districts.
To understand the significance of this split between the circuits and to predict how the California Supreme Court may rule, it is good to know the facts of the Braden case. One morning in 2018, Cory Juan Braden, Jr.’s sister called 911 after she and Mr. Braden got into an argument and he started hitting her. Their mom tried to intervene to stop the violence and Mr. Braden kicked her in the groin and choked her.
4th Appellate District Div 2 RiversideA San Bernardino County Sheriff’s officer arrived at the scene in response to the 911 call. Mr. Braden’s sister met the deputy outside the house and told him that her brother was schizophrenia and had a history of violence. Mr. Braden then exited the house and walked up to the police officer, who he punched in the face four times before the deputy tackled Mr. Braden and handcuffed him.
Braden represented himself at trial. The jury was able to watch the entire fight on a video Mr. Braden’s sister took using her cell phone.
The jury convicted Braden of one felony count of resisting a police officer under Penal Code § 69 and found true two prior strike priors under the Three Strikes Law (Penal Code §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
After his conviction, but before sentencing, Braden requested and was given counsel. Counsel requested that the judge assign Braden to mental health diversion under Curry, supra. The trial court judge ruled that Braden was “ineligible for relief under [section 1001.36]. I’m ruling its untimely. I’m ruling that it’s moot. And if it weren’t, I would deny it in any event because it would still be discretionary.” The judge then sentenced Braden to four years in state prison, which consisted of the midterm of two years, doubled under the Three Strikes Law.
Braden then appealed this denial of the request for judicial diversion to the Fourth Appellate District in Riverside, which affirmed the trial court judge (John M. Tomberlin). The Fourth Appellate District acknowledged Curry, but disagreed with its holding.
The Fourth District pointed out that in the text of 1001.36, it refers to mental health diversion as a “pretrial” program. In other words, the legislature did not intend the program to be available after trial.
Second, it pointed out that in Morse v. Municipal Court for the San Jose-Milpitas Judicial District (1974) 13 Cal.3d 149, the California Supreme Court held that when a statute makes diversion contingent upon a speedy trial waiver, it requires a pretrial request. Morse addressed California’s first statutorily mandated diversion program, enacted by a 1972 statute intended to benefit first time drug offenders. In Morse, defendant filed a motion to suppress, which was denied and then defendant sought the drug diversion program, which the trial court denied. The California Supreme Court reversed because the request was made before trial.
Third, the very purpose of such diversion programs is to reduce the systemic burdens of criminal trials.
Lastly, and perhaps most importantly, the Fourth Appellate District interpreted “until adjudication” as meaning until guilty or innocence is determined through a trial, not the imposition of a sentence.
We bring this summary to the reader’s attention because we think the ruling is persuasive and may be the way the California Supreme Court ultimately rules on this issue.
The citation for the Fourth Appellate District Court ruling discussed above is People v. Corey Juan Braden (4th App. Dist., 2021) 63 Cal. App. 5th 330, 277 Cal. Rptr. 3d 563.
For more information about mental health diversion, please click on the following articles:
