People v. Braden ( 2023 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CORY JUAN BRADEN, JR.,
Defendant and Appellant.
S268925
Fourth Appellate District, Division Two
E073204
San Bernardino County Superior Court
FVI18001116
June 5, 2023
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Kruger, Groban, and
Jenkins concurred.
Justice Evans filed a dissenting opinion, in which Justice Liu
concurred.
PEOPLE v. BRADEN
S268925
Opinion of the Court by Corrigan, J.
Penal Code1 section 1001.36 authorizes pretrial diversion
for defendants with qualifying mental disorders. Here we
consider the latest point in the criminal proceedings at which a
defendant may request such diversion. We conclude that, in
keeping with the statutory language and overall scheme, the
request must be made before attachment of jeopardy at trial or
the entry of a guilty or no contest plea, whichever occurs first.
Accordingly, we affirm the judgment of the Court of Appeal,
which upheld the trial court’s denial of defendant’s request for
diversion made for the first time after the jury returned its
verdict.
I. BACKGROUND
On April 25, 2018, defendant Cory Juan Braden, Jr., then
38 years old, had a confrontation with his sister. When their
mother intervened, Braden kicked her in the groin and choked
her, prompting his sister to call 911. A uniformed sheriff’s
deputy responded. He had been told by dispatch that Braden
was schizophrenic with a history of violence. The deputy
identified himself to Braden and asked him to submit to a pat-
down search to ensure everyone’s safety. Braden initially
complied, but then turned and punched the deputy in the face.
1
All further undesignated statutory references are to the
Penal Code.
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PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
The deputy backed up, and Braden advanced with fists
clenched. After the two men exchanged punches, the deputy
tackled Braden, knocking him to the ground and punching him
twice on the left side. Braden continued to resist until two
additional deputies arrived and the three officers were able to
restrain him. Braden’s mother later confirmed that he had
“charged” at the first responding deputy.
Braden was charged with resisting an executive officer
with force or violence (§ 69) and having two prior qualifying
felony convictions under the “Three Strikes” law (§§ 667, subds.
(b)–(i), 1170.12, subds. (a)–(d)).2 Following a trial at which
Braden represented himself, a jury found him guilty and found
the prior conviction allegations true.3 Before sentencing,
Braden requested and received appointed counsel, who moved
to have Braden considered for mental health diversion under
section 1001.36. The People opposed the motion, and the trial
court denied it, finding the motion both untimely and moot. The
court stated that it would “deny [the motion] in any event
2
Those convictions were assault with a firearm (§ 245,
subd. (a)(2)) and discharging a firearm in a grossly negligent
manner (§ 246.3). Both offenses occurred on the same date in
2006.
3
Braden was granted pro se status approximately a week
after arraignment. Before trial, he filed several written motions
with supporting authority, including a motion to dismiss for
outrageous police misconduct, a Pitchess motion (Pitchess v.
Superior Court (1974) 11 Cal.3d 531), a motion for pretrial
discovery and disclosure of Brady materials (Brady v. Maryland
(1963) 373 U.S. 83), a motion to reduce the charge to a
misdemeanor, and a motion for sanctions for failure to preserve
evidence.
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PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
because it would still be discretionary.” The court sentenced
defendant to four years in state prison.
The appellate court affirmed, holding that Braden was
ineligible for pretrial diversion because his request was not
made before trial began. (People v. Braden (2021) 63
Cal.App.5th 330, 332, 342 (Braden).) It considered the statute’s
repeated use of the words “ ‘pretrial’ diversion” (id. at p. 333),
the requirement that a defendant waive speedy trial rights (id.
at pp. 334–335), and the nature of various other pretrial
diversion programs, “which long have had a purpose of reducing
the systemic burdens of criminal trials” (id. at p. 335). In so
concluding, the court expressly disagreed with People v. Curry
(2021) 62 Cal.App.5th 314, review granted July 14, 2021,
S267394 (Curry). (See Braden, at pp. 340–342.) Curry held that
“a defendant may ask the trial court for mental health diversion
until sentencing and entry of judgment.” (Curry, at p. 325.) A
third appellate court subsequently held that a defendant may
request pretrial diversion up until the verdicts are returned or
the defendant enters a plea of guilty or no contest. (People v.
Graham (2021) 64 Cal.App.5th 827, 833–835, review granted
Sept. 1, 2021, S269509 (Graham).)
We granted review to resolve the conflict in the Courts of
Appeal.
II. DISCUSSION
Enacted in 2018, section 1001.36 authorizes pretrial
diversion for defendants with qualifying mental disorders.
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PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
(Stats. 2018, ch. 34, § 24; see § 1001.36, subd. (b)(1).)4 The
question here turns on the statute’s definition of “ ‘Pretrial
diversion,’ ” and specifically the phrase “until adjudication.”
(§ 1001.36, subd. (f)(1), hereafter 1001.36(f)(1).) The statute
provides: “As used in this chapter . . . ‘Pretrial 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, to allow the
defendant to undergo mental health treatment,” subject to
specified conditions. (Ibid.)
We have once before considered the import of this
language, in People v. Frahs (2020) 9 Cal.5th 618 (Frahs), but
our decision in Frahs does not answer the question now before
us. The question in Frahs was whether section 1001.36 applies
retroactively to cases in which the judgment was not yet final on
appeal when the statute went into effect. Our inquiry was
governed by the rule in In re Estrada (1965) 63 Cal.2d 740,
which “rests on an inference that, in the absence of contrary
indications, a legislative body ordinarily intends for
ameliorative changes to the criminal law to extend as broadly as
possible, distinguishing only as necessary between sentences
that are final and sentences that are not.” (People v. Conley
(2016) 63 Cal.4th 646, 657 (Conley).) We held the Legislature
did not clearly indicate a contrary intent as to retroactivity. As
a result, those defendants whose cases were not final on appeal,
4
Effective January 1, 2023, section 1001.36 was amended
in various particulars, including relettering and renumbering of
certain subdivisions and subparagraphs. (Stats. 2022, ch. 735,
§ 1.) We refer to the statute by its current designations.
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PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
and who had no opportunity to request diversion in the trial
court, should be permitted to do so. (Frahs, at pp. 624, 628–637.)
In so concluding, we made some observations about the
normal order of proceedings in the trial court: “[W]e view the
definition of ‘pretrial diversion’ as simply reflecting the
Legislature’s intent regarding how the statute will generally
operate when a case comes before the trial court after section
1001.36’s enactment. In the ordinary course of procedure, a trial
court determines whether a defendant is eligible for pretrial
diversion before judgment is entered, and the defendant cannot
be heard to seek such diversion afterward. Broadly consistent
with this common feature of pretrial diversion, the statute
before us provides that diversion is available ‘until adjudication’
(§ 1001.36, [former subd.] (c)), which the People construe as until
the charge or charges against a defendant are resolved. But that
expectation regarding how the statute normally will apply going
forward is quite different from the specific retroactivity question
presented here, to which the Estrada inference applies.” (Frahs,
supra, 9 Cal.5th at pp. 632–633, fn. omitted.) We also rejected
the People’s argument that allowing for retroactivity would
impermissibly undermine the jury’s verdict, noting that such an
outcome “would not provide a clear indication that the statute
was not intended to apply retroactively. The 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.” (Id. at p. 636.) The question of that
intent, which Frahs did not decide, is squarely at issue here.
In making its observations, Frahs made explicit that it
was only evaluating the Legislature’s intent in the limited
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PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
context of the Estrada retroactivity inquiry. Unless it has
included an express savings clause, the Legislature must
demonstrate its intent to limit the retroactive effect of an
ameliorative change “ ‘with sufficient clarity that a reviewing
court can discern and effectuate it.’ ” (Conley, supra, 63 Cal.4th
at p. 657.) Accordingly, the question before us in Frahs “boil[ed]
down to whether the Legislature ‘clearly signal[ed] its intent’ to
overcome the Estrada inference that section 1001.36 applies
retroactively to all cases not yet final on appeal.” (Frahs, supra,
9 Cal.5th at pp. 631–632.) This inquiry is “quite different” from
how the “statute normally will apply going forward” as to
defendants who had the opportunity to seek pretrial diversion
during the course of their criminal cases. (Id. at p. 633; accord,
People v. Weaver (2019) 36 Cal.App.5th 1103, 1119 [under
Estrada, the court must “employ[] a different lens on legislative
intent”].) Recognizing this distinction, Frahs expressly left open
the precise meaning of the phrase “ ‘until adjudication,’ ” noting
that “we have no occasion here to precisely define” that term,
and “our analysis should not be read as tacitly adopting the
People’s interpretation of this language.” (Frahs, at p. 633 & fn.
3.)
Relying primarily on the Frahs discussion of legislative
intent, our dissenting colleagues argue that today’s decision
marks a “retreat” from Frahs’s recognition that the purpose of
section 1001.36 was to “ ‘ “[i]ncrease[] diversion of individuals
with mental disorders to mitigate the individuals’ entry and
reentry into the criminal justice system.” ’ ” (Dis. opn. of Evans,
J., post, at p. 2, quoting Frahs, supra, 9 Cal.5th at p. 632.) The
dissent also cites the observation that the definition of pretrial
diversion “simply reflect[s] the Legislature’s intent regarding
how the statute will generally operate when a case comes before
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PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
the trial court after section 1001.36’s enactment” (Frahs, at p.
632, italics added), to argue that the statute’s reference to
“pretrial diversion” is simply shorthand and not meant to
establish a timeline for diversion requests. (Dis. opn. of Evans,
J., post, at pp. 6, 9.) But the dissent applies too broadly the
narrow focus of the Estrada retroactivity analysis. As explained
above, Frahs addressed those defendants whose cases were
disposed of before section 1001.36 went into effect. In that
context it considered only whether the Legislature intended
defendants, who had not had the opportunity to request mental
health diversion in the trial court before the enactment, should
be allowed to do so retroactively in cases pending on appeal. We
concluded that the “breadth of the statute’s statement of
purpose . . . is consistent with the retroactive application of the
diversion scheme” and “ ‘support[s] the conclusion that the
Estrada inference of retroactivity is not rebutted’ — that is, that
the Legislature intended to apply the provisions of section
1001.36 [retroactively] to every case to which it constitutionally
could apply.” (Frahs, at p. 632, italics added.) Further, we
rejected the People’s argument that the phrase “ ‘until
adjudication’ expressly limits retroactive application of the
statute to defendants whose cases had not yet been, in the
People’s words, ‘resolved by a trier of fact.’ ” (Ibid., italics
added.) In doing so, we explicitly declined to determine whether
the phrase “until adjudication” meant pretrial, during trial, or
until sentencing for cases that come before the trial court after
section 1001.36’s enactment. (Frahs, at pp. 632–633 & fn. 3.)
Because Frahs did not resolve that separate question, we turn
to it here. We are not now speaking of Estrada retroactivity, but
considering how the new statute, that was in effect before
Braden’s trial, applies to his case.
7
PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
“ ‘ “ ‘When we interpret a statute, “[o]ur fundamental task
. . . is to determine the Legislature’s intent so as to effectuate
the law’s purpose. We first examine the statutory language,
giving it a plain and commonsense meaning. We do not examine
that language in isolation, but in the context of the statutory
framework as a whole in order to determine its scope and
purpose and to harmonize the various parts of the enactment.
If the language is clear, courts must generally follow its plain
meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend. If the statutory
language permits more than one reasonable interpretation,
courts may consider other aids, such as the statute’s purpose,
legislative history, and public policy.” [Citation.] “Furthermore,
we consider portions of a statute in the context of the entire
statute and the statutory scheme of which it is a part, giving
significance to every word, phrase, sentence, and part of an act
in pursuance of the legislative purpose.” ’ ” ’ [Citation.] The
interpretation of a statute presents a question of law that this
court reviews de novo.” (Smith v. LoanMe, Inc. (2021) 11 Cal.5th
183, 190.)
A. Statutory Language and Framework
As noted, the statute defines “ ‘Pretrial diversion’ ” as
“postponement of prosecution . . . at any point in the judicial
process from the point at which the accused is charged until
adjudication . . . .” (§ 1001.36(f)(1).) The statute does not
separately define “adjudication.” The basic legal definition of
that word refers to either (1) “[t]he legal process of resolving a
dispute; the process of judicially deciding a case” or (2) the
“judgment.” (Black’s Law Dict. (11th ed. 2019) p. 52, col. 1; see
Busker v. Wabtec Corp. (2021) 11 Cal.5th 1147, 1158–1159
(Busker) [considering dictionary definitions as an aid to
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PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
statutory interpretation].) Accordingly, “adjudication” can
mean (1) the process of resolving the criminal charges by trial
or entry of plea or (2) the conclusion of all trial proceedings by
an entry of judgment. The holdings of the appellate courts
reflect this variance. The court below held that the defendant
must request pretrial diversion either before trial begins or the
defendant pleads guilty or no contest. (Braden, supra, 63
Cal.App.5th at pp. 332–333, 337, 342; accord, People v. Torres
(2019) 39 Cal.App.5th 849, 855.) Graham, supra, 64
Cal.App.5th 827, held that the defendant may request pretrial
diversion up until the verdicts are returned or the defendant
enters a plea of guilty or no contest. (Id. at pp. 833–835; accord
People v. Rodriguez (2021) 68 Cal.App.5th 584, 590–591, review
granted Nov. 10, 2021, S270895.)5 And Curry, supra, 62
Cal.App.5th 314, held that the defendant may request pretrial
diversion up until sentence is pronounced. (Id. at pp. 321–326.)
While the phrase “until adjudication,” standing alone, is
susceptible to more than one meaning, our task here is to
construe it in the context of the legislative scheme as a whole.
Turning to the text of section 1001.36, several aspects of
the statute’s language and its framework support the conclusion
that, to be timely, a request for pretrial diversion must be made
before the process of adjudicating the charges begins, i.e., before
jeopardy attaches at trial or the defendant enters a plea of guilty
or no contest, whichever occurs first.
5
Like the Courts of Appeal (Graham, supra, 64 Cal.App.5th
at p. 833; Braden, supra, 63 Cal.App.5th at p. 337), we see no
distinction in this context between “ ‘adjudication of guilt based
on a plea of guilt and [an adjudication by] trial on the merits.’ ”
(In re Harris (1989) 49 Cal.3d 131, 135, quoting People v.
Greenwell (1962) 203 Cal.App.2d 1, 4.)
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Opinion of the Court by Corrigan, J.
The text of section 1001.36 refers eight times to the
diversion it provides for as “pretrial.” As one Court of Appeal
observed: “ ‘pretrial diversion’ connotes a diversion away from
trial. One cannot divert a river after the point at which it has
reached the sea.” (Graham, supra, 64 Cal.App.5th at p. 833.)
We also find it significant that the Legislature incorporated a
definition of pretrial diversion that has been in existence for
over 40 years. In 1977, the Legislature enacted a statutory
scheme authorizing local jurisdictions to implement diversion
programs pursuant to certain guidelines. (Former §§ 1001–
1001.10; Stats. 1977, ch. 574, § 2, pp. 1819–1821; see Davis v.
Municipal Court (1988) 46 Cal.3d 64, 73–75 [discussing history
of this legislative enactment].) Former section 1001.1 codified
for the first time the definition of pretrial diversion now used,
with minor grammatical variations, in several statutes,
including section 1001.36: “pretrial diversion refers to the
procedure of postponing prosecution either temporarily or
permanently at any point in the judicial process from the point
at which the accused is charged until adjudication.” (Former
§ 1001.1, italics added.)6 Consistent with the usual meaning of
the defined term, appellate courts long have understood section
1001.1’s definition of pretrial diversion as contemplating a
request for diversion before trial begins. (See, e.g., Gresher v.
Anderson (2005) 127 Cal.App.4th 88, 111–112 (Gresher); People
v. Padfield (1982) 136 Cal.App.3d 218, 227–229 & fn. 8.) In
6
The same definition also appears in sections 1001.50,
subdivision (c), 1001.70, subdivision (b), and 1001.80,
subdivision (k)(1). The current version of section 1001.1,
adopted in 1982, contains nearly identical language, except to
specify that it applies to “prosecution of an offense filed as a
misdemeanor.” (§ 1001.1; Stats 1982, ch. 42, § 2, p. 99.)
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PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
Gresher, for example, the court invalidated the Department of
Social Services’ policy that those in diversion are ineligible to
apply for trustline registration (see Health & Saf. Code,
§§ 1596.60, subd. (e), 1596.601) because they are “ ‘awaiting
trial.’ ” (Gresher, at p. 111.) It reasoned: “The purpose of those
programs is precisely to avoid the necessity of a trial.” (Ibid.)
Construing the definition of pretrial diversion set forth in
section 1001.1, the court reasoned, “[g]iven that a trial is not
contemplated without first holding a [hearing to terminate
diversion], which is itself contingent on the person’s
performance, it cannot reasonably be said that persons in
diversion programs are ‘awaiting trial.’ ” (Gresher, at p. 111,
italics added7; accord, Padfield, at p. 228 & fn. 8 [explaining that
the purpose of pretrial diversion is to spare defendants the
stigma of a criminal record and reduce court congestion, and
observing that “[i]f the defendant has a legal right to pretrial
diversion, then the court should not proceed to trial”].) Under
well-established canons of statutory construction, “when the
same word [or phrase] appears in different places within a
statutory scheme, courts generally presume the Legislature
intended the word [or phrase] to have the same meaning each
time it is used.” (People v. Gray (2014) 58 Cal.4th 901, 906;
accord, Frahs, supra, 9 Cal.5th at p. 634 [the Legislature “ ‘is
7
Contrary to the dissent’s assertion (dis. opn. of Evans, J.,
post, at p. 8 & fn. 4), we do not interpret Gresher’s statements as
dictum. The Department had argued that those on diversion
were “ ‘awaiting trial.’ ” (Gresher, supra, 127 Cal.App.4th at p.
111.) In a three-paragraph analysis the court considered and
rejected the Department’s argument, relying on the language of
various diversion statutes. (Id. at pp. 111–112.)
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Opinion of the Court by Corrigan, J.
deemed to be aware of existing laws and judicial constructions
in effect at the time legislation is enacted’ ”].)
Had the Legislature intended mental health diversion to
be available up until the time of sentencing, it could easily have
said so, as it has in other contexts. Section 1368, subdivision
(a), for example, provides the court shall inquire about the
defendant’s mental competence if a doubt arises “during the
pendency of an action and prior to judgment.” (Italics added.)
“[T]he terms ‘judgment’ and ‘ “sentence” ’ are generally
considered ‘synonymous,’ ” and have a well-established meaning
in the Penal Code. (People v. McKenzie (2020) 9 Cal.5th 40, 46
(McKenzie); see People v. Karaman (1992) 4 Cal.4th 335, 344, fn.
9; § 1191 et seq. [Title 8, “Judgment and Execution”].) Instead,
the Legislature adopted a definition of “pretrial diversion” that
has long been understood as referring to the period before trial
begins.
The statute also provides for a grant of “pretrial diversion”
“[o]n an accusatory pleading.” (§ 1001.36, subd. (a).) It makes
no mention of a diversion grant following “conviction,” which
would be the more logical terminology if diversion were also
permitted after conviction by trial or plea. The statute
contemplates several sources of “relevant and credible evidence”
that can be used to determine if the defendant’s mental disorder
“was a significant factor in the commission of the charged
offense.” (§ 1001.36, subd. (b)(2).) Those sources include, but
are not limited to, “police reports, preliminary hearing
transcripts, witness statements, statements by the defendant’s
mental health treatment provider, medical records, records or
reports by qualified medical experts, or evidence that the
defendant displayed symptoms consistent with the relevant
mental disorder at or near the time of the offense.” (Ibid.) The
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Opinion of the Court by Corrigan, J.
enumerated sources are all categories of evidence available
before trial. Although the list is not exclusive, the omission of
any reference to the testimony of trial witnesses is noteworthy.
Likewise, the text provides that, upon a successful
completion of diversion the court “shall dismiss the defendant’s
criminal charges that were the subject of the criminal
proceedings at the time of the initial diversion.” (§ 1001.36,
subd. (h).) This language contemplates that the defendant is
facing “charges” “at the time” diversion is granted. The statute
gives the court no authority to set aside a plea or trial verdict,
which would be required if diversion were granted after
“adjudication” of guilt by trial or plea. Further the Legislature
specifically provides that if charges are dismissed, “the arrest
upon which the diversion was based shall be deemed never to
have occurred.” (Ibid., italics added.) Again the Legislature
made no mention of setting aside a plea or trial result.
The statute also requires that the defendant “consent[] to
diversion and waive[] the . . . right to a speedy trial,” unless the
defendant is mentally incompetent to do so. (§ 1001.36, subd.
(c)(2).) In Morse v. Municipal Court (1974) 13 Cal.3d 149(Morse), we considered similar language in the context of a 1972
statute (former § 1000.1) which diverted first time drug
offenders away from criminal prosecution. The question there,
as here, was “how far into the criminal process a defendant may
go before he can no longer be afforded the right to consent to
consideration for diversion under section 1000.1 and thereby
secure the referral of his case to the probation department for
investigation.” (Morse, at p. 155, italics omitted.) We found
“that the language of the code itself carrie[d] us a considerable
distance” in answering that question. (Id. at p. 156.)
Specifically, we observed that the statute’s language
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Opinion of the Court by Corrigan, J.
“unequivocally ma[de] a defendant’s consent to consideration for
diversion contingent upon a simultaneous waiver of speedy trial
rights.[8] In using such language the Legislature was surely
aware of precedent decisions [citations] which recognize that the
right to speedy trial is one which must be asserted prior to the
actual commencement of trial, usually by means of a motion to
dismiss made at the time the trial date is set or at the time the
case is called for trial. Accordingly, the plain meaning of the
waiver of speedy trial language of section 1000.1 is that the
defendant’s consent to referral of his case to the probation
department should be tendered to the district attorney prior to
the commencement of trial.” (Id. at p. 156.) The statute, we
concluded, established an affirmative restriction on the timing
of a diversion request: the “clear wording of the diversion
provisions thus precludes a defendant from initiating diversion
proceedings by tendering a consent after commencement of trial
. . . .” (Id. at p. 157; see also id. at p. 160.)9 We interpret a
similar timing restriction from section 1001.36’s requirement
that the defendant waive speedy trial rights in order to
participate in diversion.10
8
The wording of the former statute, as quoted in Morse,
provided: “ ‘[I]f the defendant consents and waives his right to a
speedy trial the district attorney shall refer the case to the
probation department.’ ” (Morse, supra, 13 Cal.3d at p. 156.)
9
Morse went on to conclude that the legislative policy to
apply diversion liberally supported an interpretation that the
defendant could request diversion anytime during the pretrial
period. (Morse, supra, 13 Cal.3d at pp. 157–160.)
10
Frahs, supra, 9 Cal.5th 618 is not to the contrary. There,
addressing the retroactive application question, the People
argued that section 1001.36’s reference to “pretrial diversion”
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Opinion of the Court by Corrigan, J.
At the same time, the statute sets forth no procedure for
granting a mistrial or waiving double jeopardy. (See U.S.
Const., 5th Amend.; Cal. Const., art. I, § 15; Pen. Code, § 1023.)
This absence supports a conclusion that the Legislature
intended to require that the defendant request diversion before
jeopardy attaches. Notably, both the Graham and Curry rules
allow for midtrial diversion requests after jeopardy has attached
but before verdicts have been reached. A waiver of the right to
assert a once-in-jeopardy objection would be necessary in this
and its requirement of a speedy trial waiver signaled the
Legislature’s intent to deny retroactive application of the
statute to those defendants whose trials had concluded and were
no longer in a position to waive that right. (Id. at pp. 633, 636–
637.) We rejected this logic, reasoning, “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. This phrasing does not
demonstrate a legislative intent to ‘modify, limit, or entirely
forbid the retroactive application of ameliorative criminal law
amendments’ [citation] ‘with sufficient clarity that a reviewing
court can discern and effectuate it’ [citation].” (Id. at pp. 633–
634.) We further concluded that “the potential logistical
problems identified by the People in providing defendants with
a diversion eligibility hearing after conviction . . . do not provide
a sufficient basis to deny defendants the benefit of a hearing
altogether.” (Id. at p. 636; see also People v. Stamps (2020) 9
Cal.5th 685, 705–709 [articulating special procedures for
defendants seeking the benefit of an ameliorative statute for the
first time on appeal].) But as the quoted language from Frahs
and our discussion, ante, make clear, our inquiry under Estrada
does not necessarily inform how a statute will operate
prospectively to defendants whose guilt is adjudicated after the
statute’s effective date. For such persons, we conclude the
Legislature’s requirement of a speedy trial waiver conveys its
intent to require that the defendant request diversion before the
process of adjudicating guilt begins.
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Opinion of the Court by Corrigan, J.
circumstance in the event that diversion fails and criminal
proceedings are reinstated. (See § 1001.36, subd. (g).) Yet
nothing in the statute anticipates the double jeopardy problem
midtrial diversion would create, nor does it suggest how to
overcome such issues. The lack of any elaboration of the rules
that would be required to implement midtrial diversion suggests
the Legislature did not intend to authorize such a procedure.
Finally, section 1001.36 is positioned in title 6 of part 2 of
the Penal Code which is devoted exclusively to “Pleadings and
Proceedings Before Trial.” (§ 976 et seq., italics added; see City
of Ontario v. Superior Court (1970) 2 Cal.3d 335, 343
[considering statute’s placement in the code].) This section of
the code covers arraignment (§ 976), setting aside the
information or indictment (§ 995), and various other diversion
programs.11 It appears before, and separately from, the statutes
covering the entry of a guilty plea (§ 1018), jury trial (§ 1093 et
seq.), and sentencing (§ 1191 et seq.). All of these features are
consistent with the conventional understanding of pretrial
diversion: diverting a defendant’s case out of the adjudicatory
system before the process of determining guilt by trial or plea
begins. Indeed, Morse found that section 1000.1’s similar
placement in the code “cured” “[a]ny ambiguity that might exist”
about requiring the defendant to request diversion before
11
Sections 1000 [drug diversion]; 1001.1 [pretrial diversion
defined]; 1001.20 [diversion of defendants with cognitive
developmental disabilities]; 1001.40 [diversion of traffic
violators]; 1001.50 [diversion of misdemeanor offenders];
1001.60 [bad check diversion]; 1001.70 [parental diversion];
1001.80 [military diversion]; 1001.83 [primary caregiver
diversion]; 1001.85 [law enforcement assisted diversion]; and
1001.95 [court-initiated misdemeanor diversion].
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Opinion of the Court by Corrigan, J.
commencement of trial. (Morse, supra, 13 Cal.3d at p. 157, fn.
4.)
Braden and our dissenting colleagues offer several
counterarguments in support of their view that the text of
section 1001.36 entitled Braden to request diversion up until
sentence was pronounced. The arguments fail to persuade.
Braden argues it is inappropriate to consider the plain
meaning of the words “pretrial diversion” because section
1001.36 includes its own definition of that term. But as
explained above, and as Braden acknowledges, section
1001.36(f)(1)’s reference to “until adjudication” is susceptible to
more than one meaning. This ambiguity justifies considering
the plain meaning of the term “pretrial diversion” in parsing the
statutory language. (See Busker, supra, 11 Cal.5th at p. 1159.)
Our dissenting colleagues contend that interpreting the
term “until adjudication” to mean “until entry of judgment” is
the most natural reading of the statute because it does not
require “elaboration, refinement, or insertion of additional
words.” (Dis. opn. of Evans, J., post, at p. 4.) The dissent further
argues that such an interpretation “comports with the
commonsense understanding that typically there is no
adjudication of a matter until there is some outcome.” (Ibid.)
Braden echoes these arguments, and cites McKenzie, supra, 9
Cal.5th 40, for the proposition that a case is not adjudicated, and
a judgment not issued, unless and until a sentence is rendered.
The arguments overlook the reality that if the Legislature
intended to allow mental health diversion up until the time of
“judgment,” it could have said so. But it did not. And, as noted
ante, the definition of adjudication can mean either (1) “[t]he
legal process of resolving a dispute; the process of judicially
17
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Opinion of the Court by Corrigan, J.
deciding a case” or (2) the “judgment.” (Black’s Law Dict. (11th
ed. 2019) p. 52, col. 1.) Interpreting the word “adjudication” to
refer to a point in the process rather than a result of that process
is not novel. As for Braden’s reliance on McKenzie, that case is
inapposite. There we considered at what point a case is reduced
to a final judgment for purposes of Estrada retroactivity
principles. (McKenzie, at pp. 44–46.) The case contained no
discussion of the meaning of the word “adjudication.”
Braden further argues that construing the word
“adjudication” to mean the “legal process of resolving a dispute”
(Black’s Law Dict. (11th ed. 2019) p. 52, col. 1) upends the
sentence structure of section 1001.36(f)(1). He urges that the
legal process of resolving a dispute is not a single “point” in the
process (§ 1001.36(f)(1)), but that the judgment is. This
semantic argument is unconvincing. Our interpretation of the
statute does indeed identify a discrete “point” in the judicial
process: the point at which adjudication of the charges begins,
either when trial commences or the defendant opts to forgo trial
by entering a plea of guilty or no contest, whichever occurs first.
Read most naturally, this is the “point” in the process that the
statute identifies.
Significantly, interpreting “until adjudication,” to permit
diversion mid- or posttrial, produces considerable dissonance
with the overarching concept of “pretrial” diversion. By
contrast, interpreting “until adjudication” to require a request
for diversion to be made before jeopardy attaches at trial or
before defendant enters a guilty or no contest plea produces no
such dissonance. As the Court of Appeal below reasoned: “If, as
Braden would like, ‘until adjudication’ refers to a posttrial
moment such as the time of sentencing, the definition of ‘pretrial
diversion’ would be at odds with the ordinary meaning of the
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Opinion of the Court by Corrigan, J.
word pretrial. That is, the very term being defined would be
read out of the statute. That is not a tenable way to read a
statute. Further, it is understandable why the Legislature used
the term ‘until adjudication’ rather than a phrase such as ‘until
trial.’ Most adjudications occur by guilty plea, rather than
through trial, so defining ‘pretrial’ using the term ‘until
adjudication’ encompasses both a plea hearing and an
adjudication by trial.” (Braden, supra, 63 Cal.App.5th at p. 337.)
Our dissenting colleagues resist this conclusion by
arguing that the label “pretrial diversion” is simply a shorthand
for how the statute generally will operate, rather than an
affirmative time constraint on diversion requests. (Dis. opn. of
Evans, J., post, at pp. 5–6.) But if that were true, the word
“pretrial” would be unnecessary. The Legislature simply could
have referred to “diversion” for persons suffering from mental
disorders. Moreover, the definition of pretrial diversion in
section 1001.36(f)(1) unquestionably contemplates a timeline:
“[A]t any point in the judicial process from the point at which
the accused is charged until adjudication . . . .” (Italics added.)
The dissent’s interpretation, which allows for pretrial diversion
requests from the time of charging until sentencing effectively
states no timeline because it would authorize diversion requests
at any point when the trial court exercises jurisdiction over the
case. This view renders the words “from the point at which the
accused is charged until adjudication” superfluous.
Both Braden and the dissent question our reliance on
Morse’s holding that the requirement of a speedy trial waiver
amounts to an affirmative restriction on the timing of a
diversion request, requiring that the request be made before
trial begins. (Morse, supra, 13 Cal.3d at p. 156.) They contend
Morse is inapposite due to variations between the statute at
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Opinion of the Court by Corrigan, J.
issue there and section 1001.36, most notably, that former
section 1000.1 did not expressly define pretrial diversion, while
section 1001.36 does. (Dis. opn. of Evans, J., post, at p. 10, fn.
5.) But to the extent the phrase “until adjudication” is
susceptible to more than one interpretation, the statute’s
separate requirement that the defendant waive speedy trial
rights enlightens the meaning of that term. Morse directly
addressed the significance of a speedy trial waiver in the context
of a diversion statute and concluded that the requirement
established an affirmative restriction on the timing of a
diversion request. (Morse, at p. 157.)
Braden further observes that the Legislature amended the
statute at issue in Morse (§ 1000.1) to expressly require, not only
waivers of speedy preliminary and speedy trial rights, but also
the waiver of a jury trial right itself (id., subd. (a)(3); Stats. 2017,
ch. 778, § 2). Yet, it did not similarly amend section 1001.36.
Based on this variance, Braden argues that “[t]he express
omission that a defendant must waive his or her right to a jury
trial to be considered for mental health diversion supports the
construction that diversion is an option after a trial has begun.”
We read the statute differently. The Legislature’s inclusion of a
separate jury trial waiver in section 1000.1 means that
defendants who fail drug diversion are only entitled to a court
trial should criminal proceedings resume. By contrast,
defendants who fail mental health diversion will be able to
exercise their full jury trial right. As Morse explained, the
requirement of a speedy trial waiver, applicable to both statutes,
addresses a different issue: the timing of a defendant’s request
for diversion. (Morse, supra, 13 Cal.3d at pp. 157, 160.) In that
respect, sections 1000.1 and 1001.36 remain the same.
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Opinion of the Court by Corrigan, J.
Braden and the dissent look to section 1001.36,
subdivision (e), which states that the court may require the
defendant to make a prima facie showing of eligibility for
diversion “[a]t any stage of the proceedings.” Braden argues
that this broad language includes sentencing, which is a stage
of the proceedings. And the dissent reasons that it “defies logic”
to read this phrase as excluding the trial, which is “the most
widely known stage of the proceedings.” (Dis. opn. of Evans, J.,
post, at p. 11.) But this language can also be understood to
reflect that pretrial proceedings themselves have multiple
stages. Significantly, subdivision (e) does not define the terms
“pretrial diversion” or “until adjudication.” Instead, it identifies
the defendant’s burden to make a prima facie showing that he
or she “will meet the minimum requirements of eligibility for
diversion and that the defendant and the offense are suitable for
diversion.” (Ibid.) Section 1001.36(f)(1) employs similar
language, referring to postponement of the prosecution “at any
point in the judicial process,” but that language is qualified by
the term “until adjudication.” Likewise, subdivision (e)’s
provisions are only as broad as the definition of “pretrial
diversion” in subdivision (f)(1). In other words, the trial court
may require the defendant to make a prima facie showing of
eligibility “at any stage of the proceedings” in which the
defendant is entitled to request diversion. Subdivision (e) does
not assist us in understanding the definition of “pretrial
diversion” in the first instance.
Finally, the dissent asserts that sections 1001.2 and
1001.51, dealing with misdemeanor diversion, authorize such
diversion after the start of trial notwithstanding the same
definition of pretrial diversion at issue here. (Dis. opn. of Evans,
J., post, at p. 9.) In support, the dissent cites language in these
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PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
sections exempting certain “pretrial diversion or posttrial
programs” from their scope, and expressly stating that their
provisions should not be read to authorize “pretrial diversion or
posttrial programs” for certain Vehicle Code offenses. (§ 1001.2,
subd. (a), italics added; see also § 1001.51, subd. (b).)12 The
dissent cites no authority, and we have found none, construing
this exclusionary language to mean that misdemeanor diversion
may be ordered after the start of trial. On the contrary, the
statutes’ separate references to pretrial diversion “or” posttrial
programs suggests the opposite.13
12
The language, in context, reads as follows: “This chapter
shall not apply to any pretrial diversion or posttrial programs
for the treatment of problem drinking or alcoholism utilized for
persons convicted of one or more offenses under Section 23152
or 23153 or former Section 23102 of the Vehicle Code or to
pretrial diversion programs established pursuant to Chapter 2.5
(commencing with Section 1000) of this title nor shall this
chapter be deemed to authorize any pretrial diversion or
posttrial programs for persons alleged to have committed
violation of Section 23152 or 23153 of the Vehicle Code.”
(§ 1001.2, subd. (a).) “This chapter shall not apply to any
pretrial diversion or posttrial program otherwise established by
this code, nor shall this chapter be deemed to authorize any
pretrial diversion or posttrial program for any person alleged to
have committed a violation of Section 23152 or 23153 of the
Vehicle Code.” (§ 1001.51, subd. (b).)
13
The dissent further contends that the diversion scheme for
individuals with cognitive disabilities (§§ 1001.20–1001.34)
authorizes diversion after trial begins despite sharing several of
the same features present in section 1001.36 that we have relied
upon to support a contrary conclusion. (Dis. opn. by Evans, J.,
post, at p. 10, fn. 6.) Again, the dissent cites no authority for
this proposition, and we have found none. The diversion scheme
for individuals with cognitive disabilities, operative January 1,
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Opinion of the Court by Corrigan, J.
B. Section 1001.36 and Statutes Governing Incompetence
to Stand Trial and Victim Restitution
Both Braden and our dissenting colleagues look to the
interplay between section 1001.36 and the statutes governing
incompetence to stand trial (§ 1368 et seq.) to support the
argument that mental health diversion may be requested up
until sentencing. (Dis. opn. of Evans, J., post, at pp. 13–16.)
They reason that, when the Legislature created mental health
diversion, it also amended section 1370 to authorize trial courts
to grant mental health diversion when a defendant is found
mentally incompetent to stand trial. (§ 1370, subd. (a)(1)(B)(iv),
(v); as amended by Stats. 2018, ch. 34, § 25.) Because an
incompetency finding can occur midtrial, or even up until
sentencing (see § 1368, subd. (a); People v. Rogers (2006) 39
Cal.4th 826, 847), section 1370 authorizes mental health
diversion at these later times. According to Braden, our
construction of section 1001.36 would effectively make the
portions of section 1370 that allow for diversion after trial
commences surplusage.
The argument presumes that there is one uniform
timeline that governs referral to mental health diversion for all
defendants, whether competent or incompetent. Not so. There
are significant differences between competent and incompetent
defendants that would cause the Legislature to adopt a more
flexible timeline for mental health diversion in the latter group.
2021, (Stats. 2020, ch. 11, § 23) has not yet been construed by
any appellate court. We decline to undertake that task here. It
is sufficient for our purposes to note that this scheme does not
include the definition of pretrial diversion that is the focus of our
discussion.
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PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
An incompetent person is incapable of adequately
defending against a charge. Thus, under the federal
Constitution, an incompetent defendant cannot be tried,
convicted, or punished. (Drope v. Missouri (1975) 420 U.S. 162,
171–172; see § 1367, subd. (a); 5 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) §§ 820, 821, pp. 1255–1258.) A
doubt about the defendant’s competency can arise at any time
before judgment is pronounced (§ 1368, subd. (a)), and the
statute imposes on the trial court a sua sponte duty to evaluate
competency at any time such a concern arises (ibid.; Hale v.
Superior Court (1975) 15 Cal.3d 221, 226; People v. Aparicio
(1952) 38 Cal.2d 565, 568; Witkin & Epstein, supra, § 825, at pp.
1262–1263). Failure to comply with section 1368’s mandate goes
to the legality of the proceedings and results in an act in excess
of jurisdiction. (People v. Superior Court (Marks) (1991) 1
Cal.4th 56, 64–71; Witkin & Epstein, supra, §§ 821, 828, at pp.
1255–1256, 1268–1270.) By incorporating the provisions of
section 1001.36 into the competency statutes, the Legislature
signaled its intent to have mental health diversion operate in
tandem with an incompetency finding, whenever it arises before
judgment.
Mental health diversion for competent defendants works
differently. There is no question that the court has jurisdiction
over defendants who are competent to stand trial and assist in
their own defense. Competent defendants are capable of, and
required to, request diversion, consent to it, demonstrate their
eligibility, waive the right to a speedy trial, and agree to comply
with treatment. (§ 1001.36, subd. (c)(2) & (3).) “Nowhere . . .
does the scheme mandate a sua sponte duty for trial courts to
consider mental health diversion” (People v. Banner (2022) 77
Cal.App.5th 226, 235), and the court’s decision to refer the
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PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
defendant to mental health diversion is discretionary
(§ 1001.36, subd. (a)). The inquiry focuses on whether the
defendant has been diagnosed with a specified mental disorder
that was a significant factor in the commission of the offense.
(§ 1001.36, subd. (b).)
Such a condition is not a moving target, as can be the case
with a person who becomes incompetent to be tried even after
charges have been brought. To support a diversion request, the
condition in question must exist at the time of the offense.
Section 1001.36, subdivision (b)(1) places the burden on the
defendant to provide evidence in support of the diversion
request, including the existence of a mental health disorder.
Accordingly, when such a showing can be made there is reason
to incentivize a competent defendant to make a timely request
for diversion to encourage early intervention and obviate the
need for trial.
Incompetent individuals cannot agree to the diversion
requirements and the court cannot preside over their trial or
impose sentence on them. The question of incentivizing a
defendant’s agreement to treatment simply does not arise.
Rather, as discussed in further detail below (see pt. II.D., post),
the availability of diversion for individuals found incompetent
to be tried was added to reduce the burden of housing such
individuals by the State Department of State Hospitals.
The wording of the statutory scheme bears out these
differences. Section 1370, subdivision (a)(1)(B)(iv)(I) provides
broadly that the court may make a finding that the defendant is
an appropriate candidate for mental health diversion “at any
time after the court finds that the defendant is mentally
incompetent and before the defendant is transported to a facility
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PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
pursuant to this section . . . .” (Italics added.) Even after the
defendant has been transferred to a facility, the court may make
such a finding “at any time upon receiving any information that
the defendant may benefit from diversion . . . .” (Id., subd.
(a)(1)(B)(iv)(II), italics added.) Section 1370, subdivision
(a)(1)(B)(v) makes clear that it establishes independent
authorization for the court to consider mental health diversion
pursuant to the timeline set out in that statute. It provides: “If
a defendant is found by the court to be an appropriate candidate
for diversion pursuant to clause (iv), the defendant’s eligibility
shall be determined pursuant to Section 1001.36.” (Id., subd.
(a)(1)(B)(v), italics added; accord, § 1370.01, subd. (b)(1)(A)
[upon a finding of incompetence, the court may “[c]onduct a
hearing, pursuant to [section 1001.36], and, if the court deems
the defendant eligible, grant diversion” pursuant to that
section], italics added.) Under section 1001.36, the question of
the defendant’s eligibility for diversion (id., subd. (b)(1)) is
separate from the timeliness of the request (id., subd. (f)(1)).
Other aspects of section 1001.36 similarly distinguish
between competent and incompetent defendants. Section
1001.36 specifically excepts incompetent persons from the
statutory requirements that they consent to diversion, waive
speedy trial rights, and agree to comply with treatment.
(§ 1001.36, subd. (c)(2), (3).) These variances defeat the call for
parallel construction between the timelines governing referral
of competent and incompetent defendants to mental health
diversion. Instead, the Legislature expressly authorized mental
health diversion under section 1370 any time a finding of
incompetency is made, thus creating a specific exception to the
timeline in section 1001.36 that governs a diversion request by
a defendant who is competent to stand trial.
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Opinion of the Court by Corrigan, J.
Braden’s reliance on the provisions governing victim
restitution is similarly misplaced. He notes that section
1001.36, subdivision (f)(1)(D) provides that the trial court, upon
request, shall conduct a hearing to determine whether
restitution is owed to any victim as a result of the diverted
offense, and order payment of restitution during the diversion
period. Under the general restitution statutes, restitution is
triggered by a conviction (§ 1202.4, subd. (a)(1)), and is
ascertained at or after sentencing (id., subd. (f)(3)). Braden
argues that “[s]ince a person who is granted mental health
diversion under section 1001.36 can be ordered to pay
restitution, the statute must contemplate [that] the granting of
diversion should be treated as a ‘diversion sentence’ and include
[the period] after the determination of guilt at sentencing.”
We are not persuaded. Section 1001.36 subdivision
(f)(1)(D) simply provides that the trial court can extend to a
defendant all the benefits of mental health diversion, yet also
make a victim whole by ordering the payment of restitution that
would normally be ordered at sentencing. In this situation, a
court is not forced to choose between assisting a defendant with
mental health concerns and ordering restitution for a victim.
This approach makes sense. A main feature of the diversion
system is to allow the court to intervene early to support a
defendant’s rehabilitation and recovery without the stigma of a
conviction. But, as with probation conditions, agreeing to make
victim restitution can also be part of the rehabilitative and
therapeutic process. The inclusion of restitution in this context
honors the victims’ interest in being made whole when they are
injured by competent defendants who are willing to address the
harmful consequences of their actions, and to seek treatment for
the underlying causes of their behavior. It reflects a legislative
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Opinion of the Court by Corrigan, J.
policy choice to consider the interests of defendants and victims
alike.
C. Legislative Purpose
Both Braden and the dissent argue that interpreting
section 1001.36(f)(1)’s definition of “pretrial diversion” to require
a diversion request before trial begins or a plea of guilty or no
contest is entered contravenes the Legislature’s intent to have
mental health diversion apply as broadly as possible. For
support, they look to the Legislature’s codified statement of
purpose, which appears in section 1001.35. (See People v.
Bryant (2021) 11 Cal.5th 976, 987; Carter v. California Dept. of
Veterans Affairs (2006) 38 Cal.4th 914, 925.) That section
states: “The purpose of this chapter is to promote all of the
following: [¶] (a) Increased diversion of individuals with mental
disorders to mitigate the individuals’ entry and reentry into the
criminal justice system while protecting public safety. [¶]
(b) Allowing local discretion and flexibility for counties in the
development and implementation of diversion for individuals
with mental disorders across a continuum of care settings.
[And] [¶] (c) Providing diversion that meets the unique mental
health treatment and support needs of individuals with mental
disorders.” (§ 1001.35.) Braden observes that in Frahs, we
relied on section 1001.35’s policy statements to conclude that
“ ‘the Legislature intended the mental health diversion program
to apply as broadly as possible,’ ” so that defendants like Frahs,
whose cases were not final on appeal, could take advantage of
the new enactment. (Frahs, supra, 9 Cal.5th at p. 632.)
Braden and the dissent also look to newly enacted section
17.2, which provides: “(a) It is the intent of the Legislature that
the disposition of any criminal case use the least restrictive
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Opinion of the Court by Corrigan, J.
means available. [¶] (b) The court presiding over a criminal
matter shall consider alternatives to incarceration, including,
without limitation, collaborative justice court programs,
diversion, restorative justice, and probation. [¶] (c) The court
shall have the discretion to determine the appropriate sentence
according to relevant statutes and the sentencing rules of the
Judicial Council.” (Added by Stats. 2022, ch. 775, § 2, eff. Jan.
1, 2023.) Braden asserts that “[f]ulfilling these purposes calls
for broad application of the statute to as many qualified people
as possible, which would require diversion to be available until
sentence is imposed. If the law could apply to a person, the
underlying policy calls for applying it.” The dissent agrees:
“[W]hile earlier diversion consideration is better, later is still
good.” (Dis. opn. of Evans, J., post, at p. 20.)
Contrary to these assertions, interpreting section 1001.36
to include a timeliness requirement is not inconsistent with the
Legislature’s stated goals regarding diversion. Our holding
today does not change the eligibility criteria or limit who is
eligible for diversion. (See § 1001.36, subd. (b).) Instead, it
establishes when eligible individuals must make a diversion
request.
Nor is it true that only the broadest possible reading of an
ameliorative statute can be deemed consistent with the
Legislature’s purpose in enacting such a statute. When section
1001.36 was enacted, it had long been recognized that the
purpose of pretrial diversion programs “is precisely to avoid the
necessity of a trial.” (Gresher, supra, 127 Cal.App.4th at p. 111.)
As one Court of Appeal observed, “Were we to construe section
1001.36 to permit a defendant to seek pretrial diversion after
the adjudication of guilt or after a plea (ostensibly, by construing
the term ‘adjudication’ to mean ‘entry of judgment’), we would
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Opinion of the Court by Corrigan, J.
be inviting the inefficient use of finite judicial resources.”
(Graham, supra, 64 Cal.App.5th at pp. 833–834.) By contrast,
“[r]equiring diversion requests before trial encourages
defendants to make their request to be exempted from the
criminal process before they invoke the most burdensome aspect
of it.” (Braden, supra, 63 Cal.App.5th at pp. 341–342.)14 The
Legislature did not adopt a definition of pretrial diversion
specific to the mental health context. Rather, as noted above, it
employed a definition that had been in existence since 1977.
Given the statutory scheme of which section 1001.36 is a part,
and the longstanding definition of “pretrial diversion”
incorporated therein, we conclude that among the Legislature’s
goals was conservation of judicial resources. The Legislature’s
codified statement of purpose to have diversion apply broadly
cannot override its express language applying the statute to
“pretrial diversion.” (See In re Gadlin (2020) 10 Cal.5th 915,
940–942 (Gadlin).)
Although limiting diversion to pretrial requests might
foreclose some otherwise potentially meritorious diversion
claims, the Legislature was entitled to conclude that doing so
would create better incentives to expeditiously surface and
14
We note that, in terms of inefficiencies, the Graham rule,
which allows for midtrial diversion requests up until verdicts
are returned, is most likely to result in wasted judicial
resources. In the case of a jury trial, advocates must prepare for
trial, the jury will be empaneled, witnesses assembled, and
evidence presented. If the defendant makes a prima facie
showing for relief, the trial court would be required to dismiss
the jury without completing the trial or receiving verdicts.
Further, section 1001.36 does not require a jury trial waiver
upon request for diversion, so the case could well require a
second jury trial if diversion is unsuccessful.
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Opinion of the Court by Corrigan, J.
address mental health concerns, and that other forms of
posttrial relief are sufficient to address mental health issues in
a posttrial setting. Notably, while section 17.2 states a
preference for the least restrictive criminal disposition, the
Legislature’s use of the words “available” and “according to
relevant statutes and the sentencing rules of the Judicial
Council” indicate that the Legislature did not intend to alter
existing statutory requirements, including section 1001.36’s
timeliness requirement.
In the end the Legislature has chosen an approach which
strikes a balance. Requiring that a request be made before trial
begins makes a diversion request available for all who qualify.
If diversion is deemed appropriate, a grant saves pretrial
expenditures, including those attendant on repeated
appearances and pretrial custody costs, as well as resources
consumed by trials. Encouraging resort to early mental health
treatment can increase the chances for therapeutic success and
protect both the public and the defendant from future burdens
resulting from treatable mental health conditions. (See pt. II.D.,
post.)
Braden’s counsel acknowledged at oral argument that it
would be unusual for defense counsel to become aware only
during trial that the defendant has a mental health disorder
that factored significantly in the commission of the offense. This
is the type of evidence that the defense would be expected to
develop early if relevant to a disputed issue at trial. Once
defense counsel announces ready for trial, he or she will most
often be well aware of evidence that would support a request for
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Opinion of the Court by Corrigan, J.
diversion.15 The defense is likewise empowered to delay the
entry of plea and to waive time for trial in order to investigate
further or consider whether the defendant is “willing to
embrace” mental health treatment. (Dis. opn. of Evans, J., post,
at p. 21.) Given all of these considerations, the dissent’s concern
that today’s ruling will severely compromise early intervention
is unfounded. (Dis. opn. of Evans, J., post, at pp. 15–16, 19–22.)
Moreover, it is important to note that the trial court is not
without means to address a defendant’s mental disorder in the
context of sentencing a defendant who has been convicted by
trial or plea. Even before section 1001.36 was enacted, a court
could place the defendant on probation on the condition that he
or she cooperate with mental health treatment. That option
15
Such was the case here. Braden’s family members advised
police of his schizophrenia diagnosis when they called for
emergency assistance. Police dispatch made the responding
officer aware of that diagnosis. It appears that Braden, who was
deemed competent to represent himself, was unaware of section
1001.36’s pretrial diversion program, which became effective
shortly before his trial. The issue was raised for the first time
after counsel was appointed to assist Braden at sentencing. The
general rule is that defendants who validly choose to represent
themselves are charged with knowing the law. Braden’s pro se
status is therefore not a ground for excusing his failure to seek
mental health diversion in a timely manner. (See People v.
Espinoza (2016) 1 Cal.5th 61, 75.)
Nor does Braden argue that he should be excused from
failing to timely seek mental health diversion before trial
because he could not have anticipated the meaning we have
attributed to the term “until adjudication” in section 1001.36.
(Cf. People v. Black (2007) 41 Cal.4th 799, 810–812; People v.
Turner (1990) 50 Cal.3d 668, 703–704; In re Gladys R. (1970) 1
Cal.3d 855, 861.)
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Opinion of the Court by Corrigan, J.
remains available and successful completion of probation is
grounds to have a conviction vacated. (§ 1203.4, subd. (a)(1).)
In sum, although the phrase “until adjudication”
(§ 1001.36(f)(1)), standing alone, is susceptible of more than one
meaning, we resolve that ambiguity in light of the language of
section 1001.36 as a whole and the entire statutory scheme
governing diversion, including the Legislature’s codified
statement of purpose. Accordingly, we hold 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. This interpretation best comports with
the concept of “pretrial diversion,” harmonizes section 1001.36
within the statutory scheme, and is consistent with the
Legislature’s goals to accelerate mental health diversion, reduce
pretrial incarceration, and preserve finite judicial resources. We
disapprove People v. Graham, supra, 64 Cal.App.5th 827, and
People v. Curry, supra, 62 Cal.App.5th 314, to the extent they
are inconsistent with the holding here.
While the dissent offers several reasons why permitting
mental health diversion until entry of judgment might be a
preferable policy, the statutory language and contextual scheme
point in a different direction. Of course, if the Legislature
wishes to expand the window during which a request may be
made it is free to amend the statute. But that is a policy choice
for the Legislature to make.
D. Legislative History Materials
Having reached this conclusion based on the statutory
language and its context, “we need go no further.” (Microsoft
Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750, 758.)
Nonetheless, even if we were to consider extrinsic aids, a review
33
PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
of the legislative history of section 1001.36 comports with our
reading of the statute. (See, e.g., Gadlin, supra, 10 Cal.5th at p.
936; Curle v. Superior Court (2001) 24 Cal.4th 1057, 1067.)
Section 1001.36 came into existence by a somewhat
complex legislative process, which was aptly summarized in
Tellez v. Superior Court (2020) 56 Cal.App.5th 439 (Tellez). We
draw liberally from that discussion here. “Before the enactment
of Penal Code section 1001.36, two different bills proposed
pretrial mental health diversion. The bill that ultimately
enacted Penal Code section 1001.36 was Assembly Bill No. 1810
(2017–2018 Reg. Sess.).” (Tellez, at p. 445; Stats. 2018, ch. 34,
§ 24, eff. June 27, 2018.) “Assembly Bill 1810 was an ‘omnibus
health’ budget trailer bill authored by the Assembly Committee
on Budget. (Stats. 2018, ch. 34, § 37; Sen. Rules Com., Off. of
Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1810
(2017–2018 Reg. Sess.), as amended June 12, 2018, p. 1.) . . . [As
first introduced,] the bill contained only one section and merely
stated that the Legislature intended ‘to enact statutory changes
relating to the Budget Act of 2018.’ (Assem. Bill 1810 (2017–
2018 Reg. Sess.) as introduced Jan. 10, 2018.) The Senate
amended the bill in June and added 37 sections, including the
one that became Penal Code section 1001.36. (Sen. Amend. to
Assem. Bill 1810 (2017–2018 Reg. Sess.) June 12, 2018.)”
(Tellez, at pp. 445–446.)
“Senate Bill No. 215 (2017–2018 Reg. Sess.) . . . separately
proposed mental health diversion, and it eventually amended
Penal Code section 1001.36” to address restitution for diverted
offenses and to set forth a list of ineligible offenses. (Tellez,
supra, 56 Cal.App.5th at p. 445; see id. at p. 447; Stats. 2018,
ch. 1005, § 1, eff. Jan. 1, 2019.) The mental health diversion
language was added to the bill on January 3, 2018, predating
34
PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
the introduction of such language in Assembly Bill No. 1810
(2017–2018 Reg. Sess.) (Assembly Bill 1810). (Sen. Amend. to
Sen. Bill No. 215 (2017–2018 Reg. Sess.) Jan. 3, 2018.) Senate
Bill No. 215 (2017–2018 Reg. Sess.) (Senate Bill 215) contained
the same definition of “pretrial diversion” and the same
requirement of a speedy trial waiver eventually enacted in
section 1001.36. (Sen. Amend. to Sen. Bill No. 215 (2017–2018
Reg. Sess.) Jan. 3, 2018.) Frahs, supra, 9 Cal.5th at page 635
considered legislative history materials related to Senate Bill
215 in ascertaining the Legislature’s intent. Likewise, both
Braden and the Attorney General rely on various legislative
history materials related to Assembly Bill 1810 and Senate Bill
215, and we have granted their unopposed requests to take
judicial notice of those documents.
Braden and the dissent argue that the legislative history
of section 1001.36 reflects the Legislature’s goal to provide
mentally ill offenders with treatment, rather than incarceration.
One analysis of Senate Bill 215 included the author’s statement
that “ ‘[r]oughly a third of inmates in California’s jails suffer
from serious mental illness’ ” and California’s jails are “ ‘ill-
equipped’ ” to treat such conditions or to deal with the housing
and staffing demands such prisoners present. (Assem. Com. on
Public Safety, Analysis of Sen. Bill No. 215 (2017–2018 Reg.
Sess.) as amended Jan. 25, 2018, p. 5; id. at pp. 5–6
[summarizing statistics on incarcerated mentally ill offenders].)
Another analysis observed that “[t]he goal of the diversion
program created by this bill is to address the population of jail
inmates who suffer from a mental disorder whose incarceration
often leads to worsening of their condition and in some cases
suicide.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No.
215 (2017–2018 Reg. Sess.) as amended Jan. 3, 2018, p. 7.) The
35
PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
legislative history recounted other deleterious effects, such as
the inability of inmates with mental health conditions to
function within the prison system and the tendency of
incarceration to aggravate these preexisting conditions. (Id. at
p. 4; Assem. Com. on Public Safety, Analysis of Sen. Bill No. 215,
supra, p. 8.) Braden reasons that, “[b]y focusing on getting
mentally ill defendants the treatment they need prior to being
incarcerated, the Legislature made clear [its] intention to give
courts the ability to grant mental health diversion at any time
before a defendant is incarcerated, which strongly supports the
interpretation that diversion was meant to be an available
option until sentence is imposed.”
Reducing the incarceration of mentally ill defendants was
one legislative purpose, but it did not stand alone. (See Palos
Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch.
Dist. (1978) 21 Cal.3d 650, 663–664.) Rather, the available
legislative history bears out that the Legislature also considered
the benefits to the defendant and the judicial system of having
diversion occur pretrial. The author’s statement in support of
Senate Bill 215 explained that the statute was designed to
remedy problems associated with the inability of trial courts to
“order mental health treatment, relevant counselling, or
adherence to a medication regime unless the [defendant] was
first convicted, and then placed on probation or sent to jail at
county expense.” (Sen. Rules Com., Off. of Sen. Floor Analyses,
Unfinished Business Analysis of Sen. Bill No. 215 (2017–2018
Reg. Sess.) as amended Aug. 23, 2018, p. 2, italics added.) The
comments continue: “The predictable results of California’s
reliance on this outdated method are higher costs for taxpayers,
who are forced to pay for the continuous warehousing of the
mentally ill, when early, court-assisted interventions are far
36
PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
more likely to lead to longer, cheaper, more stable solutions for
the community, and for the person suffering from mental illness.
[¶] . . . By granting courts the ability to divert those suffering
from mental illness into treatment at an early stage in the
proceedings, [Assembly Bill] 1810 seeks to reduce recidivism
rates for mentally ill defendants, and to avoid unnecessary and
unproductive costs of trial and incarceration.” (Id. at pp. 2–3,
italics added.) A Judicial Council task force concurred that
“interventions and diversion possibilities must be developed and
utilized at the earliest possible opportunity.” (Assem. Com. on
Public Safety, Analysis of Sen. Bill No. 215, supra, p. 6, italics
added.) In assessing the fiscal effect of the legislation, one
analyst observed that the cost of publicly funded programs
“could be offset by savings achieved through reduced workload
in not preparing for and litigating cases to trial.” (Sen. Rules
Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen.
Bill No. 215 (2017–2018 Reg. Sess.) as amended Jan. 25, 2018,
p. 6, italics added; see also Assem. Com. on Public Safety,
Analysis of Sen. Bill No. 215, supra, p. 5 [because diversionary
sentences “ ‘take advantage of existing community resources for
the mentally ill, research suggests that such sentences will save
counties money in the short-term on reduced trial and
incarceration costs, and in the long-term based on reduced
recidivism rates’ ” (italics added)].)
Moreover, the legislative history materials reflect that the
Legislature considered the benefit to defendants of being
diverted before suffering a conviction. The author’s statement
in support of Senate Bill 215 observed that, under current laws,
trial courts were not able to rehabilitate mentally ill offenders
“ ‘without first convicting them of the underlying offense,
thereby damaging their prospects for future employment and
37
PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
housing.’ ” (Assem. Com. on Public Safety, Analysis of Sen. Bill
No. 215, supra, p. 5.) The author explained that “[b]y reserving
court-ordered services for the mentally ill until after a
conviction, the prior system led to higher recidivism rates for
mentally ill Californians, who were not only left untreated, but
with the additional burden of a criminal record. This approach
was unfair, impractical and costly.” (Sen. Rules Com., Off. of
Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill
No. 215, supra, p. 2, italics added.) By contrast, under the
proposed legislation to enact section 1001.36, “ ‘a court may (but
is not required to) impose the same rehabilitative probationary
conditions on a defendant it would have imposed had the
defendant been convicted (including that the defendant comply
with a mental health treatment plan, obey all laws and make
restitution to any victims), with the added incentive that
successful completion of diversion would result in dismissal of
the criminal case, without the permanent detriment of a criminal
record.” (Assem. Com. on Public Safety, Analysis of Sen. Bill No.
215, supra, p. 5, italics added.) As one analyst emphasized,
“[b]ecause diversion does not result in a conviction, once a
defendant completes diversion he or she would not be foreclosed
from housing and employment opportunities.” (Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 215, supra, p. 7, italics
added; see also ibid. [explaining that the proposed legislation
authorizes a court “to order treatment early in the process
rather than waiting for the disposition of the case” (italics
added)].)
The comments in one analysis of Senate Bill 215
emphasized the difference between pretrial diversion and
deferred entry of judgment: “In deferred entry of judgment, a
defendant determined by the prosecutor to be eligible for
38
PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
deferred entry of judgment must plead guilty to the underlying
drug possession charge. The court then defers entry of judgment
and places the defendant in a rehabilitation and education
program. If he or she successfully completes the program, the
guilty plea is withdrawn and the arrest is deemed to have not
occurred. If the defendant fails in the program, the court
imposes judgment and sentences the defendant. [¶] In pretrial
diversion, the criminal charges against an eligible defendant are
set aside and the defendant is placed in a rehabilitation and
education program treatment. If the defendants successfully
complete the program, the arrest is dismissed and deemed to not
have occurred. If the defendant fails in the program, criminal
charges are reinstated. . . . [¶] This bill would give the courts
the authority to grant pretrial diversion to defendant charged
with misdemeanors or felonies that are punishable in county jail
under Realignment, if the defendant has a mental illness, the
mental illness played a significant role in the commission of the
offense, and the defendant would benefit from mental health
treatment.” (Assem. Com. on Public Safety, Analysis of Sen. Bill
No. 215, supra, pp. 6–7.) The comments to Senate Bill 215
likewise emphasized the existing definition of pretrial diversion
as “the procedure of postponing prosecution of an offense filed
as a misdemeanor either temporarily or permanently at any
point in the judicial process from the point at which the accused
is charged until adjudication.” (Sen. Rules Com., Off. of Sen.
Floor Analyses, 3d reading analysis of Sen. Bill No. 215, supra,
p. 1; Sen. Com. on Public Safety, Analysis of Sen. Bill No. 215,
supra, p. 1.) These comments indicate that the Legislature
understood the existing definition of pretrial diversion as well
as the difference between pretrial diversion and deferred entry
of judgment.
39
PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
Finally, the legislative history materials reflect the
Legislature’s goal to reduce the number of persons referred to
the State Department of State Hospitals after having been
found incompetent to stand trial under section 1370. (Assem.
Con. Sen. Amends. to Assem. Bill No. 1810 (2017–2018 Reg.
Sess.) as amended June 12, 2018, p. 7; Cal. Health & Human
Services Agency, Enrolled Bill Rep. on Sen. Bill No. 215 (2017–
2018 Reg. Sess.) prepared for Governor Brown (Sept. 4, 2018)
pp. 1–2.) As explained ante, the provisions of section 1370
achieve this goal by broadly authorizing the trial court to
consider a defendant for diversion “at any time after the court
finds that the defendant is mentally incompetent and before the
defendant is transported to a facility” (id., subd. (a)(1)(B)(iv)(I))
or, after the defendant is transported, “at any time upon
receiving any information that the defendant may benefit from
diversion” (id., subd. (a)(1)(B)(iv)(II)).
The dissent urges that today’s opinion “narrowly fixates
on the need to avoid costs of jury trials” when the Legislature’s
primary purpose was to avoid the costs associated with
incarceration and recidivism. (Dis. opn. of Evans, J., post, at p.
18.) Our dissenting colleagues assert that the vast majority of
cases are resolved by plea agreement and that the “costs of jury
trials pale in comparison to the greater costs the Legislature had
in mind — namely, costs associated with incarceration and
recidivism.” (Ibid.) But as explained above, the dissent
overstates the risk that imposing a timeline will leave
defendants unable to avail themselves of diversion or otherwise
receive mental health assistance as a condition of probation.
Moreover, the dissent’s interpretation of the statute would
incentivize jury trials, as well as delay treatment. A defendant
could wait until trial to seek an acquittal. Then, if convicted,
40
PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
the defendant could request diversion. Requiring a defendant
to request diversion before proceeding to trial avoids such
wasted resources and also assists the defendant by accelerating
therapeutic intervention rather than incurring additional delay
by waiting for trial. (Graham, supra, 64 Cal.App.5th at pp. 833–
834; Braden, supra, 63 Cal.App.5th at pp. 341–342.) At the
same time, the statute does not require the defendant to plead
guilty or waive the right to jury trial in order to participate in
diversion. If a diversion referral proves unsuccessful, the
defendant may still exercise the jury trial right.
Ultimately, it is for the Legislature to decide how to
balance, on the one hand, reducing costs of incarceration and
recidivism and, on the other, conserving judicial resources and
encouraging early intervention. Avoiding trial through “pretrial
diversion” benefits the defendant, as well as victims and
witnesses and the system itself. The available legislative
history bears out that the Legislature considered these benefits,
and supports our interpretation of section 1001.36 to require
that a request for mental health diversion be made before
attachment of jeopardy at trial or the entry of a guilty or no
contest plea, whichever occurs first.
E. Rule of Lenity
Finally, Braden invokes the rule of lenity to argue that any
ambiguity in the statute’s scope should be resolved in his favor.
“[W]e have repeatedly stated that when a statute defining a
crime or punishment is susceptible of two reasonable
interpretations, the appellate court should ordinarily adopt that
interpretation more favorable to the defendant.” (People v.
Avery (2002) 27 Cal.4th 49, 57, italics added.) It is not apparent
that the rule of lenity would extend to a procedural rule
41
PEOPLE v. BRADEN
Opinion of the Court by Corrigan, J.
governing the timeliness of a diversion request. But even when
properly invoked, the rule applies “ ‘only if the court can do no
more than guess what the legislative body intended; there must
be an egregious ambiguity and uncertainty to justify invoking
the rule.’ ” (Id. at p. 58; accord, People v. Manzo (2012) 53
Cal.4th 880, 889.) In other words, “the rule of lenity is a tie-
breaking principle, of relevance when ‘ “two reasonable
interpretations of the same provision stand in relative equipoise
. . . .” ’ ” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1102,
fn. 30.) We do not face such uncertainty here. The language
and structure of the statute, its placement in the code, the
settled provisions of pretrial diversion, and the legislative
history all point to an understanding that the Legislature
intended to require that a defendant request pretrial mental
health diversion before jeopardy attaches at trial or before the
entry of a plea of guilty or no contest, whichever occurs first.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CORRIGAN, J.
We Concur:
GUERRERO, C. J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
42
PEOPLE v. BRADEN
S268925
Dissenting Opinion by Justice Evans
Cory Juan Braden, Jr., was involved in a confrontation
with his sister. Their mother intervened and Braden physically
assaulted her. Braden’s sister called 911 for assistance and
informed the dispatcher that Braden was schizophrenic and was
off his medication. Braden fought with a responding deputy and
was charged with resisting arrest and with having two prior
strikes. Braden represented himself at trial and a jury convicted
him. Before sentencing, he requested an attorney. The attorney
promptly requested that Braden be considered for mental health
diversion under Penal Code1 section 1001.36. After denying the
motion as untimely and moot,2 the trial court sentenced Braden
to four years in state prison.
The question in this case is whether a trial court has the
discretion to consider a defendant’s request for mental health
diversion up until the entry of judgment. Based on the
legislative history, the plain language of the statute, and the
1
All further unspecified statutory references are to the
Penal Code.
2
In summarily denying Braden’s mental health diversion
request, the court remarked that it would have denied the
motion as a matter of discretion had it not found it to be
untimely and moot. The court’s alternate ruling was invalid
because it was not based on any apparent consideration of
whether Braden was eligible or suitable for diversion. (See
§ 1001.36, subds. (b)–(c).)
1
PEOPLE v. BRADEN
Evans, J., dissenting
overall scheme of which it is a part, I would hold trial courts
have such discretion. Thus, I respectfully dissent.
Section 1001.36 allows defendants to request mental
health diversion “at any point in the judicial process from” the
time they are charged “until adjudication.” (Id., subd. (f)(1),
italics added.) The majority opinion holds that the statute’s
reference to “until adjudication” requires a defendant to request
diversion “before attachment of jeopardy at trial or the entry of
a guilty or no contest plea, whichever occurs first.” (Maj. opn.,
ante, at p. 1.) In so holding, contrary to legislative intent, the
majority divests trial courts of the discretion to grant mental
health diversion to suitable, mentally ill defendants. The
Legislature can correct today’s decision by expressly clarifying
that the phrase “until adjudication” in section 1001.36 means
until entry of judgment.
Today’s decision marks a retreat from our recognition in
People v. Frahs (2020) 9 Cal.5th 618 (Frahs) of “[t]he breadth of
the statute’s statement of purpose — aimed to ‘[i]ncrease[]
diversion of individuals with mental disorders to mitigate the
individuals’ entry and reentry into the criminal justice system.’ ”
(Id. at p. 632.) Although we did not squarely address the
meaning of “until adjudication,” we understood 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 . . . .” (Id. at p. 636.) While the
majority discounts Frahs on the grounds it concerned the issue
of retroactivity, Frahs’s recognition of mental health diversion’s
legislative purposes, its import, and its features applies with
equal force as we consider the “timeliness” issue before us today.
2
PEOPLE v. BRADEN
Evans, J., dissenting
I.
This case presents an issue of statutory interpretation.
The mental health diversion statute, section 1001.36, authorizes
courts to grant “pretrial diversion” to people with mental health
conditions to divert them out of the carceral system and into
treatment if they do not pose an unreasonable risk to public
safety. Section 1001.36, subdivision (f)(1) defines “pretrial
diversion” as “postponement of prosecution . . . at any point in
the judicial process from the point at which the accused is
charged until adjudication, to allow the defendant to undergo
mental health treatment . . . .”
In interpreting the meaning of a statute, the fundamental
task of courts is to determine the Legislature’s intent in order to
effectuate the statute’s purpose. (First Student Cases (2018) 5
Cal.5th 1026, 1034–1035.) We first consider whether the plain
meaning of the statute is unmistakably clear from the statute’s
text. (Id. at p. 1035.) We construe the statute’s language “ ‘in
the context of the statutory framework, seeking to discern the
statute’s underlying purpose and to harmonize its different
components.’ ” (Ibid.) We must interpret a statute “ ‘ “with
reference to the whole system of law of which it is a part so that
all may be harmonized and have effect.” ’ ” (Kavanaugh v. West
Sonoma County Union High School Dist. (2003) 29 Cal.4th 911,
919 (Kavanaugh).) “In order to ascertain a statute’s most
reasonable meaning, we often examine its legislative history.”
(Id. at p. 920.)
A. The Language of Section 1001.36
In interpreting the phrase “until adjudication,” the
majority defines “adjudication” to mean “attachment of jeopardy
at trial or the entry of a guilty or no contest plea, whichever
3
PEOPLE v. BRADEN
Evans, J., dissenting
occurs first.” (Maj. opn., ante, at p. 1.) But the more natural
reading is that “until adjudication” means “until entry of
judgment.” (See Black’s Law Dict. (11th ed. 2019) p. 52, col. 1)
[defining adjudication as either (1) “[t]he legal process of
resolving a dispute; the process of judicially deciding a case” or
(2) the “judgment”].) Unlike the definition adopted by the
majority opinion, the latter definition does not require any need
for elaboration, refinement, or insertion of additional words. It
also comports with the commonsense understanding that
typically there is no adjudication of a matter until there is some
outcome.3 (Kavanaugh, supra, 29 Cal.4th at p. 919 [we must be
“careful to give the statute’s words their plain, commonsense
meaning”].) And it is in harmony with the Legislature’s intent
that “the disposition of any criminal case use the least
restrictive means available” and effectuates its corresponding
mandate that trial courts consider alternatives to incarceration,
such as diversion. (§ 17.2, subd. (a), added by Stats. 2022, ch.
775, § 2, eff. Jan. 1, 2023, italics added; see Stats. 2022 ch. 775,
§ 1, subds. (a), (b) [“California’s overreliance on incarceration
has failed to improve public safety while disproportionately
harming vulnerable and marginalized communities” and
“California can . . . mak[e] greater use of alternatives to
3
The majority asserts this interpretation “effectively states
no timeline because it would authorize diversion requests at any
point when the trial court exercises jurisdiction over the case”
and therefore “renders the words ‘from the point at which the
accused is charged until adjudication’ superfluous.” (Maj. opn.,
ante, at p. 19.) The majority is mistaken. The deadline is the
one the Legislature set: defendants may request and courts may
order mental health diversion at any point until adjudication
(i.e., before entry of judgment). After sentencing, a trial court
would be precluded from granting a diversion request.
4
PEOPLE v. BRADEN
Evans, J., dissenting
incarceration, which often lead to better outcomes than
incarceration, including reduced rearrest rates, better economic
outcomes, and reduced racial disparities”].)
The majority asserts that “[i]nterpreting the word
‘adjudication’ to refer to a point in the process rather than a
result of that process is not novel.” (Maj. opn., ante, at p. 18.) I
do not disagree. However, adjudication either refers to the legal
process itself (i.e., “[t]he legal process of resolving a dispute”) or
the point at which the legal process is resolved (i.e., “judgment”).
(Black’s Law Dict. (11th ed. 2019) p. 52, col. 1.) What is novel is
selecting more than one point in that process, as the majority
has done, and claiming they both somehow mean “adjudication.”
(See maj. opn., ante, at p. 18 [“Our interpretation of the statute
does indeed identify a discrete ‘point’ in the judicial process: the
point at which adjudication of the charges begins, either when
trial commences or the defendant opts to forgo trial by entering
a plea of guilty or no contest, whichever occurs first”].) The two
points that the majority has selected — the commencement of
trial and the entry of a plea — are not only different from each
other, but also conflict and are inconsistent with the point
provided in the definition of “adjudication” itself — “judgment.”
(See McAlpine v. Superior Court (1989) 209 Cal.App.3d 1, 7
[explaining that, in a criminal case, the judgment is the
conclusion of the legal proceeding].)
In recognizing the ambiguity of the word “adjudication,”
the majority excises the word “pretrial” from its context. In the
majority’s view, “until adjudication” must be narrowed to avoid
“dissonance” between pretrial diversion requests and those that
occur midtrial and posttrial. (Maj. opn., ante, at p. 18.) But the
Legislature’s choice to label, in shorthand, mental health
diversion as “pretrial diversion” has a different purpose. (Cf.
5
PEOPLE v. BRADEN
Evans, J., dissenting
Frahs, supra, 9 Cal.5th at p. 632 [“the definition of ‘pretrial
diversion’ . . . simply reflect[s] the Legislature’s intent regarding
how the statute will generally operate when a case comes before
the trial court after section 1001.36’s enactment” (italics
added)].) Prior to the enactment of section 1001.36, courts were
unable to order mental health services until after a defendant
was convicted, sentenced, and then placed on probation or sent
to jail or prison. (Sen. Rules Com., Off. of Sen. Floor Analyses,
Analysis of Sen. Bill No. 215 (2017–2018 Reg. Sess.) as amended
Aug. 23, 2018, p. 2 [trial courts could not “order mental health
treatment, relevant counselling, or adherence to a medication
regime unless the person was first convicted, and then placed on
probation or sent to jail at county expense”].) The Legislature
enacted mental health diversion to allow rehabilitative
interventions before such occurrences. Diversion requests
before trial were, understandably, the ones most contemplated
and anticipated by the statute since most defendants would
prefer to avoid trial and, if detained pretrial, to be released from
custody as early as possible. Given this backdrop, the
“dissonance” identified by the majority between the literal
meaning of the word “pretrial” standing alone and the statutory
definition of “pretrial diversion” disappears.
In focusing on the word “pretrial” in isolation, the majority
places undue emphasis on diverting defendants away from trial.
Diversion from trial is one purpose of the statute to be sure. (See
Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen.
Bill No. 215 (2017–2018 Reg. Sess.) as amended Aug. 23, 2018,
p. 2.) However, the Legislature made clear that the overriding
purpose of mental health diversion is to divert people with
mental illness into treatment and rehabilitation and away from
the normal criminal process — particularly incarceration. (Sen.
6
PEOPLE v. BRADEN
Evans, J., dissenting
Com. on Public Safety, Analysis of Sen. Bill No. 215 (2017–2018
Reg. Sess.) as amended Jan. 3, 2018, p. 8 [“There is an urgent
need for specific and targeted efforts to reduce the rates of
incarceration of people with mental illness, and to facilitate
successful diversion and reentry”]; Sen. Com. on Public Safety,
Analysis of Sen. Bill No. 1223 (2021–2022 Reg. Sess.) as
amended Mar. 9, 2022, p. 5 [“ ‘To avoid incarceration,
individuals with serious mental illness need to be diverted from
the legal system and offered rehabilitative resources’ ”]; People
v. Trask (2010) 191 Cal.App.4th 387, 394 [the conventional
understanding of pretrial diversion is to divert from “ ‘ “the
normal criminal process” ’ ”]; People v. Superior Court (On Tai
Ho) (1974) 11 Cal.3d 59, 61 [diversion programs serve to divert
defendants into “program[s] of treatment and rehabilitation”].)
The Legislature was focused on diverting individuals
away from incarceration and into mental health treatment
because incarcerating mentally ill individuals compromises
public health and safety, whereas providing mental health
treatment for mentally ill individuals advances it. (See Sen.
Com. on Public Safety, Analysis of Sen. Bill No. 215 (2017–2018
Reg. Sess.) as amended Jan. 3, 2018, p. 5 [“For many people
suffering from mental disorders, incarceration only serves to
aggravate preexisting conditions and does little to deter future
lawlessness [¶] . . . [and] diversion into treatment is . . . more
likely to protect public safety by reducing the likelihood that a
person suffering from a mental health disorder reoffends in the
future”]; see also Sen. Com. on Public Safety, Analysis of Sen.
Bill No. 1223 (2021–2022 Reg. Sess.) as amended Mar. 9, 2022,
p. 9 [“ ‘California enacted AB 1810, which authorized courts to
divert people with mental health conditions . . . out of the
carceral system and into treatment. By ensuring that these
7
PEOPLE v. BRADEN
Evans, J., dissenting
people are connected to meaningful, long-term mental health
treatment instead of simply jailed and released, the diversion
statute protects public safety by lowering recidivism rates . . .
and leads to better outcomes for these individuals and their
families”].) Incarceration — not trial — is “ ‘the sea’ ” from
which the river is intended to be diverted. (Maj. opn., ante, at p.
10.)
The majority argues the Legislature, in enacting section
1001.36, has used the same definition of “pretrial diversion” that
existed when section 1001.1 was enacted. Relying largely upon
dicta, the majority represents that “[a]ppellate courts long have
understood section 1001.1’s definition of pretrial diversion as
contemplating a request for diversion before trial begins.” (Maj.
opn., ante, at p. 10, citing Gresher v. Anderson (2005) 127
Cal.App.4th 88, 111–112 (Gresher) and People v. Padfield (1982)
136 Cal.App.3d 218, 227–229 & fn. 8.)4 “Of course, we are not
bound by . . . dicta.” (Gomez v. Superior Court (2005) 35 Cal.4th
4
Contrary to the majority’s assertion, Gresher did not
construe section 1001.1’s definition of pretrial diversion to
preclude requests made after trial begins. In Gresher, the court
issued a writ of mandate directing the Department of Social
Services to allow individuals in diversion and deferred entry of
judgment programs to apply for Trustline registration. Gresher
rejected the Department’s argument that, because individuals
in diversion and deferred entry of judgment programs are
awaiting trial, it could close the application process for those
individuals. It reasoned that a hearing to terminate
diversion — contingent upon one’s performance — was required
before any trial would occur in the future, and thus, concluded
“it cannot reasonably be said that persons in diversion programs
are ‘awaiting trial.’ ” (Gresher, supra, 127 Cal.App.4th at p.
111.) The issue in Gresher does not involve the construction of
the definition of “pretrial diversion” and has no bearing on the
issue before us today.
8
PEOPLE v. BRADEN
Evans, J., dissenting
1125, 1155.) More significantly, the majority simply ignores
that diversion consideration after the start of trial is
contemplated by other “pretrial” diversion programs
notwithstanding their label or the definition of pretrial
diversion in section 1001.1 and at issue here. (See §§ 1001.1
[same definition of “pretrial diversion”], 1001.50, subd. (c) [same
definition of “pretrial diversion”].) These statutes sanction
diversion after trial begins. (See §§ 1001.2, subd. (a) [listing
certain Veh. Code offenses not eligible for “pretrial diversion or
posttrial programs” (italics added)], 1001.51, subd. (b) [listing
certain Veh. Code offenses not eligible for “pretrial diversion or
posttrial program” (italics added)].)
The majority highlights section 1001.36’s placement in a
section of the Penal Code labeled “Pleadings and Proceedings
Before Trial” to support its interpretation. As we have observed,
these headings “are not binding upon the courts.” (In re
Halcomb (1942) 21 Cal.2d 126, 130; see In re Young (2004) 32
Cal.4th 900, 907, fn. 4 [“article headings are unofficial and do
not affect the scope, meaning, or intent of a statute”].) Section
1001.36’s placement in this section of the Penal Code is practical
given that diversion is typically sought prior to trial. This is no
different from other diversion statutes that operate pretrial and
posttrial yet also are located in the “Pleadings and Proceedings
Before Trial” section of the Penal Code. (See § 1001.1 et seq.;
§ 1001.50 et seq.)
The other features of section 1001.36 relied upon by the
majority reflect the expectation that mental health diversion
“generally” will be sought prior to trial. (Frahs, supra, 9 Cal.5th
at p. 632.) These features do not stand for the proposition that
diversion consideration is foreclosed at all other points in the
proceedings. For instance, section 1001.36, subdivision (c)(2)’s
9
PEOPLE v. BRADEN
Evans, J., dissenting
requirement of a speedy trial waiver is only applicable when
relevant.5 And since jeopardy can be waived, the Legislature
reasonably deemed it unnecessary to include a waiver procedure
in section 1001.36. (See People v. Batts (2003) 30 Cal.4th 660,
679–680 [defendant may consent to a mistrial and waive
jeopardy]; People v. Overby (2004) 124 Cal.App.4th 1237, 1243.)
Each of these statutory elements should — and easily can — be
harmonized with the statutory scheme and the Legislature’s
purpose of diverting people with mental illness into treatment
and out of the criminal justice system.6
5
Contrary to the majority’s assertion, Morse v. Municipal
Court (1974) 13 Cal.3d 149 (Morse) did not hold the speedy trial
waiver requirement was dispositive of whether a diversion
request must be made before trial begins. Instead, Morse
discussed the significance of that requirement in another
diversion statute, which did not include the definition of
“pretrial diversion” at issue here, the unique provisions of
section 1001.36, nor its legislative history.
6
The diversion scheme for individuals with cognitive
disabilities (§ 1001.20 et seq.) is also located in Title 6
(“Pleadings and Proceedings Before Trial”). The Attorney
General acknowledges that trial courts may consider section
1001.20 diversion after trial begins notwithstanding that this
diversion program has many of the very same features relied
upon by the majority to support its conclusion that mental
health diversion may only be considered before the start of trial
or entry of a guilty or no contest plea. Like section 1001.36,
section 1001.20 et seq. is referred to as a “pretrial” diversion
program (§ 1001.29; see generally § 1001.36); states that
diversion may occur “upon an accusatory pleading at any stage
of the criminal proceedings” (§ 1001.21, subd. (a); see § 1001.36,
subd. (a)); requires a speedy trial waiver (§ 1001.23 subd. (a); see
§ 1001.36, subd. (c)(2)); provides for the dismissal of charges
without reference to setting aside a plea (§ 1001.31; see
§ 1001.36, subd. (h)): and does not list a procedure for waiving
double jeopardy (§ 1001.20 et seq.; see generally § 1001.36).
10
PEOPLE v. BRADEN
Evans, J., dissenting
Stated plainly, the majority focuses on the wrong features
of section 1001.36 while ignoring the significance of others. For
example, several features of section 1001.36 — including its
prima facie showing and “relevant and credible evidence”
provisions — confirm the Legislature meant “until adjudication”
to mean until entry of judgment.
Shortly after the enactment of the mental health diversion
statute, the Legislature added a unique feature to section
1001.36, enabling trial courts “at any stage of the proceedings”
to require a defendant to make a prima facie showing of
eligibility and suitability for diversion. (§ 1001.36, subd. (e).)
The prima facie showing provision serves as a gatekeeping
mechanism for trial courts to quickly determine whether there
is a need to conduct a hearing on the defendant’s diversion
request or to proceed with regular criminal proceedings. It
defies logic that the Legislature would authorize courts to
require a prima facie showing “at any stage of the proceedings”
yet preclude courts from using the provision during the most
widely known stage of the proceedings — i.e., “the process of
resolving the criminal charges by trial.” (Maj. opn., ante, at p.
9.)
In addition to the prima facie showing mechanism, the
Legislature conditioned eligibility for mental health diversion
on there being a nexus between the defendant’s mental disorder
and the offense. (§ 1001.36, subd. (b)(2) [providing that one of
the two eligibility requirements for mental health diversion is
that “[t]he defendant’s mental disorder was a significant factor
in the commission of the charged offense”].) In making this
finding, “[a] court may consider any relevant and credible
evidence, including, but not limited to, police reports,
preliminary hearing transcripts, witness statements,
11
PEOPLE v. BRADEN
Evans, J., dissenting
statements by the defendant’s mental health treatment
provider, medical records, records or reports by qualified
medical experts, or evidence that the defendant displayed
symptoms consistent with the relevant mental disorder at or
near the time of the offense.” (Ibid.)
The “relevant and credible evidence” provision confirms
the Legislature intended trial courts to retain discretion to
consider midtrial requests for diversion. While evidence
developed before trial may suffice in most cases, a trial court
may determine it is only capable of making an informed
determination regarding this eligibility factor or the defendant’s
suitability for diversion for the first time during trial. Indeed,
trial courts may wish to defer ruling on a diversion request to
allow for consideration of evidence adduced at trial. (See, e.g.,
People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887 [in
denying the defendant’s request for mental health diversion
“ ‘without prejudice [for renewal],’ ” the trial court noted the
possibility that, if “ ‘presented with additional evidence at trial,
[it] could conclude that such diversion is appropriate’ ”].) In
some circumstances, the examination of lay and expert
witnesses at trial may present the earliest possible opportunity
to resolve this eligibility factor. The absence of “witness
testimony” in the enumerated sources is not significant, as the
subdivision explicitly states the list of enumerated sources of
evidence is not exhaustive. Its absence from the list of
enumerated sources makes sense because trial testimony is the
relevant and credible evidence that courts routinely may rely
upon, whereas the enumerated sources of evidence are ones that
courts might not otherwise be able to consider.
12
PEOPLE v. BRADEN
Evans, J., dissenting
B. Framework of Assembly Bill 1810
The Legislature enacted mental health diversion as part
of Assembly Bill No. 1810 (2017–2018 Reg. Sess.) (Assembly Bill
1810) (Stats. 2018, ch. 34, § 24, eff. June 27, 2018) — an
omnibus trailer bill. In the very same bill, the Legislature
amended the mental competency scheme to incorporate a trial
court’s authority to consider mental health diversion for
defendants found incompetent to stand trial (IST). (See State
Dept. of State Hospitals, Enrolled Bill Rep. on Assem. Bill No.
1810 (2017–2018 Reg. Sess.) June 21, 2018, p. 2 [section 1001.36
“allow[s] individuals who may be found IST on felony charges
and referred to a DSH [(Department of State Hospitals)] facility
to also be diverted to community-based mental health treatment
thus potentially reducing the number of individuals referred to
DSH for treatment”].)
The Legislature was aware that an individual may be
found incompetent to stand trial after a trial has started. (See
§ 1368, subd. (a); People v. Rogers (2006) 39 Cal.4th 826, 847.)
Yet, for both felony and misdemeanor cases, the Legislature
authorized the court to consider whether an IST defendant is an
appropriate candidate for mental health diversion “pursuant to”
section 1001.36 — the mental health diversion scheme.
(§§ 1370, subd. (a)(1)(B)(iv) [a court may determine an IST
defendant is an appropriate candidate for mental health
diversion “pursuant to Chapter 2.8A (commencing with Section
1001.35) of Title 6” (italics added)], 1370, subd. (a)(1)(B)(v)
[authorizing court to determine whether the IST defendant is
eligible for mental health diversion “pursuant to Section
1001.36” (italics added)], 1370.01, subd. (b)(1)(A) [upon a finding
of incompetency, a court must either dismiss the case or
“conduct a hearing, pursuant to Chapter 2.8A (commencing with
13
PEOPLE v. BRADEN
Evans, J., dissenting
Section 1001.35) of Title 6” (italics added)], 1370.01, subd.
(b)(2).)
In doing so, the Legislature did not state that diversion
consideration for IST defendants was “notwithstanding” any
otherwise applicable deadlines for requesting diversion. This
reflects the Legislature’s understanding that consideration for
mental health diversion is always available until entry of
judgment. In Assembly Bill 1810, the Legislature
contemporaneously enacted interconnected statutes (mental
health diversion and amendments to the competency scheme)
intended to work together. (Riverside County Sheriff’s Dept. v.
Stiglitz (2014) 60 Cal.4th 624, 632 [“we consider the language of
the entire scheme and related statutes, harmonizing the terms
when possible”].) The inextricable relationship between these
two statutes is further evinced by the Legislature
contemporaneously enacting subsequent amendments to each.
(Stats. 2022, ch. 735, § 1, eff. Jan. 1, 2023; Sen. Bill No. 1223
(2021–2022 Reg. Sess.).)
The provisions of sections 1370 and 1370.01 authorize a
court to grant mental health diversion to IST defendants
without restoration of competency and reinstatement of
criminal proceedings. Without this express authorization,
mental health diversion would be unavailable to IST defendants
due to the suspended nature of criminal cases while competency
proceedings occur. Together, the mental health diversion and
mental competency schemes provide, where relevant, express
exceptions applicable to IST defendants. (See, e.g., § 1001.36,
subd. (c)(2)–(3) [a speedy trial waiver and consent to diversion
are not required for IST defendants because they are unable to
provide such a waiver or consent due to their incompetency
status].)
14
PEOPLE v. BRADEN
Evans, J., dissenting
The majority concludes that the Legislature intended a
more “flexible” timeline for mental health diversion
consideration for IST defendants than for other defendants.
(Maj. opn., ante, at p. 23.) The majority’s interpretation lacks
support. Nowhere in the statutory scheme nor in the legislative
history is there any indication that the Legislature intended to
apply a different timing requirement based on one’s competency
status. The Legislature intended to treat all defendants the
same regardless of competency status by enacting section
1001.36 to divert all defendants who could potentially be found
incompetent to stand trial. (State Dept. of State Hospitals,
Enrolled Bill Rep. on Assem. Bill No. 1810 (2017–2018 Reg.
Sess.) June 21, 2018, p. 1 [noting the need for “the development
of diversion programs for individuals with serious mental
disorders with the potential to be found or who have been found
Incompetent to Stand Trial (IST)” (italics added)].) Had the
Legislature meant to create an exception to any otherwise
applicable timing requirement in section 1001.36, it would have
said so just as it did with respect to the speedy trial waiver and
consent requirements. (See § 1001.36, subd. (c)(2)–(3).) While
there may be differences between competent and incompetent
defendants that could justify adopting a more flexible timeline
for mental health diversion in the latter group (maj. opn., ante,
at pp. 23–24), that is not what the Legislature did here. “We
cannot . . . rewrite the statute to create an exception the
Legislature has not enacted.” (Wilson v. Cable News Network,
Inc. (2019) 7 Cal.5th 871, 892.)
Notably, the majority’s creation of two different timelines
not only contravenes the Legislature’s efforts to divert
individuals who could be found incompetent to stand trial, but
wastes judicial resources and severely compromises early
15
PEOPLE v. BRADEN
Evans, J., dissenting
intervention. Under the majority’s interpretation, a trial court
that wishes to grant a defendant’s midtrial mental health
diversion request would be precluded from doing so. Yet, if a
doubt is later declared as to that same defendant’s competency,
the trial court would be required to suspend criminal
proceedings and then wait until the conclusion of competency
proceedings — which can be lengthy and costly — before it could
consider mental health diversion for the defendant if found
incompetent. The impact of delay on IST defendants is
significant and can be damaging. (See, e.g., In re Chunn (2022)
86 Cal.App.5th 639, 650–651 [explaining how IST defendants
“ ‘are usually held in solitary cells or restricted conditions for at
least 6 weeks after the initial declaration of doubt regarding
their competency as the court awaits alienist evaluations and
placement recommendations. These defendants have often
clinically deteriorated even before the DSH commitment order
is made and quite often . . . their troubling symptoms have
increased during the period of time after the commitment order
and before DSH offers them a bed. The situation is dire for these
patients as they routinely face another 60–90 days without
treatment after the DSH commitment is made until treatment
commences.’ . . . ‘IST defendants have suffered and are suffering
devastating injury as they are warehoused without meaningful
treatment as they await DSH intervention’ ”].) Allowing trial
courts to consider diversion in the first instance — as the
Legislature intended — would potentially save untold judicial
resources, as well as time during which suitable defendants
could have been receiving effective treatment.
C. The Purpose and History of Mental Health Diversion
The Legislature enacted section 1001.36 to create a
mental health diversion program to divert as many qualifying
16
PEOPLE v. BRADEN
Evans, J., dissenting
mentally ill defendants out of the criminal justice system and
into meaningful, effective mental health treatment. With
incentives unique and distinct from probation and
incarceration, the Legislature equipped trial courts with an
effective tool that offers one of the best opportunities for
advancing public safety and reducing recidivism. (Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 215 (2017–2018 Reg.
Sess.) as amended Jan. 3, 2018, p. 4 [“Courts, as one of the first
points of contact between the mentally ill and the state, can
serve as a useful function in identifying defendants with mental
disorders and connecting them to existing services, thereby
reducing recidivism”]; Sen. Com. on Appropriations, Analysis of
Sen. Bill No. 215 (2017–2018 Reg. Sess.) as amended Jan. 9,
2018, pp. 3–4 [referencing a study that concluded “ ‘a mental
health court can reduce recidivism and violence by people with
mental disorders who are involved in the criminal justice
system’ ”]; Sen. Com. on Public Safety, Analysis of Sen. Bill No.
1223 (2021–2022 Reg. Sess.) as amended Mar. 9, 2022, p. 5
[“Promoting treatment over incarceration has shown positive
results in reducing recidivism”].)
Since the passage of Assembly Bill 1810, the Legislature
has taken steps to increase the use of mental health diversion
in response to concerns that it has been “ ‘substantially
underutilized.’ ” (Sen. Com. on Public Safety, Analysis of Sen.
Bill No. 1223 (2021–2022 Reg. Sess.) as amended Mar. 9, 2022,
p. 5 [“ ‘the mental health diversion law has been substantially
underutilized due, in part, to its narrow eligibility
requirements’ ”]; ibid. [“ ‘ “LA County has only diverted a few
hundred people using the law[,] [y]et an estimated 61% of people
in the LA County jail system’s mental health population were
17
PEOPLE v. BRADEN
Evans, J., dissenting
found to be appropriate for release into a community-based
diversion program” ’ ”].)7
The majority ignores the Legislature’s demonstrated
commitment to the broad application of mental health diversion.
Notwithstanding the fact that approximately 94% to 97% of
criminal filings are resolved by plea agreement (Missouri v. Frye
(2012) 566 U.S. 134, 143), the majority narrowly fixates on the
need to avoid costs of jury trials. However, the costs of jury
trials pale in comparison to the greater costs the Legislature had
in mind — namely, costs associated with incarceration and
recidivism. (Frahs, supra, 9 Cal.5th at p. 635 [noting
“community-based treatment for a mentally ill individual costs
much less than jailing the same individual, and greatly reduces
recidivism”].) Community-based treatment costs roughly
$20,000 per year, whereas incarceration costs approximately
$106,000. (See Sen. Rules Com., Off. of Sen. Floor Analyses,
Analysis of Sen. Bill No. 215 (2017–2018 Reg. Sess.) as amended
Aug. 23, 2018, p. 2; see also Sen. Com. on Public Safety, Analysis
7
Senate Bill No. 1223 (2021–2022 Reg. Sess.) amended
section 1001.36 by, among other things, reducing barriers to
eligibility and requiring courts to consider whether eligible
defendants are suitable for mental health diversion. The first
eligibility factor no longer requires a court to find the defendant
suffers from a mental disorder. That factor is now satisfied by
a diagnosis of a mental disorder within the last five years.
(§ 1001.36, subd. (b)(1).) For the second eligibility factor, the
court is now required to find that the defendant’s mental
disorder was a significant factor in the commission of the
charged offense unless there is clear and convincing evidence
otherwise. (§ 1001.36, subd. (b)(2).) If these two eligibility
factors are met, “the court must consider whether the defendant
is suitable for pretrial diversion.” (§ 1001.36, subd. (c), italics
added.)
18
PEOPLE v. BRADEN
Evans, J., dissenting
of Assem. Bill No. 2167 (2021–2022 Reg. Sess.) as amended May
19, 2022, p. 2 [“ ‘it costs about $106,000 per year to incarcerate
an individual in California prisons’ ”].) Considering the
potential prison exposure for many defendants, the savings
captured by diverting defendants into treatment can be
substantial. For example, mental health diversion for the
defendant in Frahs could have saved the state a total of
$914,000: $86,000 annually for each year in the two-year
diversion program, plus $106,000 annually for each of the
remaining seven years. (See Frahs, supra, 9 Cal.5th at p. 635
[“for an individual like defendant, who is currently serving a
nine-year prison sentence, participation in a mental health
diversion program rather than serving the remainder of his
sentence could potentially result in substantial cost savings to
the state”].) In addition to the short-term cost savings of
diverting defendants away from incarceration, the Legislature
highlighted the long-term savings captured by reducing
recidivism, as mental health diversion mitigates the
compounding costs of future criminal proceedings and periods of
incarceration. (Assem. Com. on Public Safety, Analysis of Sen.
Bill No. 215 (2017–2018 Reg. Sess.) as amended Jan. 25, 2018,
p. 5 [mental health diversion “ ‘will save counties money in the
short-term on reduced . . . incarceration costs, and in the long-
term based on reduced recidivism rates’ ”].) By ignoring these
short-term and long-term savings, the majority adopts a penny
wise but pound foolish approach in contravention to the
Legislature’s aims.
The majority also misconstrues the legislative history of
mental health diversion by juxtaposing pretrial diversion
programs with deferred entry of judgment (DEJ). The majority
states the Legislature knew the difference between the two and
19
PEOPLE v. BRADEN
Evans, J., dissenting
chose pretrial diversion. (Maj. opn., ante, at p. 39.) It is true the
Legislature did not choose to enact a narrow DEJ scheme for
mental health diversion, wherein a defendant is required to
plead guilty. The fact that DEJ programs exist is not contrary
to or in tension with the Legislature’s intent to allow trial courts
to grant mental health diversion up until sentencing and entry
of judgment given the Legislature’s desire to divert mentally ill
defendants away from the carceral system.
Lastly, the majority implies its interpretation incentivizes
early intervention and posits that allowing trial courts to grant
diversion requests until entry of judgment “would incentivize
jury trials.” (Maj. opn., ante, at p. 40.) Certainly, I agree with
the majority opinion that the earlier one can be diverted into
mental health treatment, the better. However, significant
incentives for early treatment are baked into mental health
diversion. For one, mental health diversion “ ‘unquestionably’
offers an ‘ “ ‘ameliorating benefit’ ” ’ for a defendant diagnosed
with a mental disorder to have the opportunity for diversion,
and ultimately, a possible dismissal of the criminal charges.”
(Frahs, supra, 9 Cal.5th at p. 630; id. at p. 631 [“the procedures
instituted by the enactment carry the potential of substantial
reductions in punishment for the aforementioned parties”].)
Additionally, for some, it may mean release from detention and
otherwise avoiding a lengthy period of incarceration. (See ibid.
[“the impact of a trial court’s decision to grant diversion can spell
the difference between, on the one hand, a defendant receiving
specialized mental health treatment, possibly avoiding criminal
prosecution altogether, and even maintaining a clean record,
and on the other, a defendant serving a lengthy prison
sentence”].)
20
PEOPLE v. BRADEN
Evans, J., dissenting
In any event, I agree with Braden that, while earlier
diversion consideration is better, later is still good. The majority
asserts that its holding today does not limit who is eligible for
diversion, only when eligible individuals must make a diversion
request. (Maj. opn., ante, at p. 29.) But the majority’s view is
divorced from the reality of mental illness and intervention. A
defendant seeking mental health diversion must be willing to
embrace treatment. (See § 1001.36, subd. (c)(2).) This is not a
decision that persons with serious mental illness may arrive at
on a neat and tidy timeline. The facts of this case are illustrative
of the reality that, although mental health diversion will
ordinarily be requested before trial, there may be circumstances
in which it is only requested later. Braden, who is diagnosed
with schizophrenia, represented himself at trial. Although
those who choose to represent themselves are charged with
“knowing the law” (maj. opn., ante, at p. 32, fn. 15), those
suffering from mental illness may not always appreciate or be
immediately able to accept that they are in need of treatment.
Once counsel was appointed, Braden promptly requested mental
health diversion — yet his request was denied as untimely.
Thus, as this case makes clear, requiring defendants to request
mental health diversion early in the judicial process will limit
who receives such treatment and necessarily exclude some who
would benefit from the program. This is contrary to the
Legislature’s clear intent that courts provide appropriate
alternatives to incarceration. (§ 17.2.)
II.
Mental health diversion is a mechanism for trial courts to
grant suitable defendants access to community-based mental
health treatment in lieu of trial, conviction, and placement on
probation or commitment to county jail or state prison. By
21
PEOPLE v. BRADEN
Evans, J., dissenting
injecting an unnecessary timing requirement for requesting
diversion consideration for defendants presumed to be mentally
competent, the majority “foreclose[s] some otherwise potentially
meritorious diversion claims.” (Maj. opn., ante, at p. 30.) This
is inconsistent with the Legislature’s purpose in enacting
mental health diversion and its recent efforts to expand its use.
Divesting trial courts of the discretion to consider midtrial and
posttrial diversion requests contravenes the plain language of
the statute, misapprehends the statutory scheme, undermines
the statute’s codified purposes, and frustrates the general
purpose of mental health diversion to avoid costs of
incarceration and recidivism.
Today’s decision will stymie the Legislature’s efforts to
divert suitable defendants away from incarceration and the
cycles of recidivism and will contribute to the continued
underutilization of mental health diversion. Allowing
defendants to request and trial courts to grant mental health
diversion — at any stage of the proceedings — is true to the
plain language of the statute and effectuates the Legislature’s
purpose. The Legislature can correct today’s decision by
expressly clarifying that the phrase “until adjudication” in
section 1001.36 means until entry of judgment.
I respectfully dissent.
EVANS, J.
I Concur:
Liu, J.
22
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Braden
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 63 Cal.App.5th 330Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S268925
Date Filed: June 5, 2023
__________________________________________________________
Court: Superior
County: San Bernardino
Judge: John M. Tomberlin
__________________________________________________________
Counsel:
Cindy G. Brines and Arthur Martin, under appointments by the
Supreme Court, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland and Steve Oetting,
Assistant Attorneys General, A. Natasha Cortina, Christine
Levingston Bergman and Amanda Lloyd, Deputy Attorneys General,
for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Arthur Martin
Appellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101
(619) 696-0282
Amanda Lloyd
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9015