People v. Rodriguez ( 2021 )

Filed 9/2/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078183
Plaintiff and Respondent,
v. (Super. Ct. No. SCD276622)
DANAE MARIE RODRIGUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Howard H. Shore, Judge. Affirmed.
William D. Farber, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve
Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Two years after she pled guilty to felony animal cruelty (Pen. Code, §
597, subd. (a)),1 Danae Marie Rodriguez requested pretrial mental health
diversion under section 1001.36. The trial court denied her request as
untimely because it was not presented until after her conviction by guilty
plea. Section 1001.36, subdivision (c), defines pretrial diversion as
postponement of prosecution “at any point in the judicial process . . . until
adjudication” (italics added) and the trial court interpreted the term
“adjudication” to mean an adjudication of guilt, whether by jury conviction or
a plea of guilty. We agree with the trial court’s interpretation and
accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 27, 2018, Rodriguez was charged in a felony complaint with
one count of animal cruelty (§ 597, subd. (a)) and with personally using a
dangerous and deadly weapon in the commission of the offense (§ 1192.7,
subd. (c)(23)). On June 27, 2018, pretrial mental health diversion under
section 1001.36 went into effect. (Stats. 2018, ch. 34, § 24.) On July 2, 2018,
defense counsel declared a doubt as to Rodriguez’s mental competency and
criminal proceedings were suspended pursuant to section 1368. After
Rodriguez was deemed competent to stand trial, criminal proceedings were
reinstated on August 31, 2018.
On September 24, 2018, pursuant to a negotiated plea agreement,
Rodriguez pled guilty to felony animal cruelty and admitted the deadly
weapon allegation. As the factual basis for her plea, she admitted that on
1 Undesignated statutory references are to the Penal Code.
2
April 25, 2018, she “maliciously [and] intentionally wounded an animal and
that [she] personally used a dangerous weapon, to wit: a knife.” In exchange
for her plea and admission, Rodriguez was promised a grant of three years of
formal probation.
At sentencing on November 6, 2018, Rodriguez requested that the trial
court, in accordance with the terms of the plea agreement, impose 48 days of
custody with credit for time served and three years of formal probation.
Rodriguez urged the court to impose a noncustodial sentence so she could
continue with ongoing mental health treatment for a diagnosed bipolar
disorder. The court suspended imposition of sentence and placed Rodriguez
on three years of formal probation with credit for time served, and terms and
conditions that she take her prescribed psychotropic medications and
complete psychiatric treatment and cognitive behavior counseling programs
as directed by the probation officer.
Two years later, on September 25, 2020, Rodriguez moved for pretrial
mental health diversion pursuant to section 1001.36, or alternatively, for
reduction of her felony conviction to a misdemeanor pursuant to section 17,
subdivision (b).
In support of her request for mental health diversion, Rodriguez argued
that “[a] court may grant [pretrial mental health] diversion even after a
criminal conviction as long as the conviction is not final on appeal.” She
asserted that she remained eligible for diversionary relief under People v.
Frahs (2020) 9 Cal.5th 618 (Frahs), in which the California Supreme Court
held that mental health diversion was available retroactively under the rule
of In re Estrada (1965) 63 Cal.2d 740 (Estrada) to defendants whose
judgments were not final when section 1001.36 went into effect. Rodriguez
urged that under People v. McKenzie (2020) 9 Cal.5th 40 and People v. Chavez
3
(2018) 4 Cal.5th 771, the trial court retained authority to grant diversion as
late as November 5, 2021, when her three-year period of probation would
expire.
Rodriguez argued that she satisfied all of the criteria in section
1001.36, subdivision (b)(1) that support granting mental health diversion,
and asked the court “to divert this criminal case so that she can receive
mental health treatment and have her record be clean.”2 She requested that
the diversionary period end “on November 4, 2020, two years from the date of
her conviction,” and just 12 days after the scheduled hearing date of October
23, 2020.
The prosecution opposed Rodriguez’s request for mental health
diversion because, among other reasons, she failed to meet the requirement
that the defendant not pose “an unreasonable risk of danger to public safety.”
(§ 1001.36, subd. (b)(1)(F).) It argued the offense conduct was “alarming and
dangerous”⎯Rodriguez admitted that she stabbed her pet dog with a
knife⎯and created cause for concern that Rodriguez would pose an
unreasonable public safety risk.
At the October 23, 2020 hearing on Rodriguez’s request for mental
health diversion, the trial court asked the prosecutor why her opposition brief
had not addressed “the legal issue of whether or not mental health diversion
is available to somebody who has already pled guilty.” The prosecutor
responded that she believed Rodriguez was “legally eligible for pretrial
mental health diversion” because “the judgment is not final.”
2 Section 1001.36, subdivision (e), authorizes dismissal of criminal
charges upon successful completion of mental health diversion.
4
The trial court rejected the prosecutor’s concession. It ruled that
Rodriguez’s eligibility for mental health diversion was governed not by Frahs,
which “discussed retroactivity,” but rather by section 1001.36, subdivision (c),
and in particular the statutory phrase “until adjudication.” (See § 1001.36,
subd. (c) [“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. . . .”].) The trial court observed that appellate courts had thus far
given “absolutely no guidance” on the interpretation of this phrase.
Interpreting the statute for itself, the trial court reasoned that the
Legislature would not “title the statute pretrial diversion if [it] meant it to
apply . . . up to sentence or completion of probation.” It concluded that the
“term adjudication refers to either a conviction or a plea of guilty.” The court
found that while Rodriguez would have been eligible to seek diversion “within
the 60-day period” following “the conviction or the plea,” she was no longer
eligible two years later.
The trial court thus denied Rodriguez’s motion as untimely. It
refrained from considering whether she met the criteria for mental health
diversion, explaining it did not want to “muddy the waters.” However, it
granted her alternative request and reduced her conviction to a misdemeanor
pursuant to section 17, subdivision (b), and modified her remaining period of
formal probation to summary probation.
DISCUSSION
Rodriguez argues the trial court erred in denying her motion for mental
health diversion as untimely. On appeal, she concedes that her eligibility for
diversion is a matter governed by section 1001.36. She argues, however, that
5
contrary to the trial court’s conclusion that the statutory phrase “until
adjudication” means until “a conviction or a plea of guilty,” the phrase should
instead be interpreted to allow a request for diversion “at any stage of the
proceedings.” She seeks a conditional limited remand with instructions to
the trial court to conduct a mental health diversion eligibility hearing, the
remedy approved of in Frahs. (See Frahs, supra, 9 Cal.5th at p. 637.)
We find no error in the trial court’s ruling. The court correctly
discerned at the outset that Rodriguez’s eligibility for mental health diversion
was governed by the diversion statute and not by Frahs. The question in
Frahs was whether a defendant whose case was on appeal when section
1001.36 took effect could seek mental health diversion. (Frahs, supra, 9
Cal.5th at pp. 624–625.) As another court has explained, resolution of this
question “turned on whether the Legislature, in enacting section 1001.36,
had ‘ “clearly signal[ed] its intent” ’ ” to overcome the presumption of Estrada,
supra, 63 Cal.2d 740, “that statutes having an ameliorative effect in criminal
cases apply retroactively to convictions that are not yet final.” (People v.
Graham (2021) 64 Cal.App.5th 827, 834 (Graham).) “Frahs ruled that the
‘ “until adjudication” ’ language in section 1001.36 did not constitute that
‘clear’ signaling (Frahs, at p. 633), such that defendants whose convictions
were in the ‘pipeline’ of direct appellate review when section 1001.36 took
effect could still take advantage of the statute. But Frahs was careful to limit
its analysis to the availability of section 1001.36 to these pipeline defendants,
and to note that its holding involved a ‘quite different’ question from how the
‘statute normally will apply going forward’ as to the defendants who had had
the opportunity [to] seek pretrial diversion from the very beginning.” (Ibid.,
quoting Frahs, at p. 633.)
6
Rodriguez was not one of these “ ‘pipeline defendants.’ ” (Graham,
supra, 64 Cal.App.5th at p. 834.) Section 1001.36 took effect on June 27,
2018, while her case was still pending in the trial court, months before she
pled guilty and was placed on probation. Thus, Rodriguez had the
opportunity to seek mental health diversion prospectively, under the statute
as it operated “[i]n the ordinary course[.]” (Frahs, supra, 9 Cal.5th at p. 632.)
Accordingly, Rodriguez’s eligibility for diversion was not governed by Frahs.3
The trial court thus correctly recognized that Rodriguez’s eligibility for
mental health diversion program had to be determined under the statute,
and it appropriately focused on section 1001.36, subdivision (c), as containing
the pertinent limitation. At the time of the October 23, 2020 hearing on the
motion, the trial court found itself without appellate guidance on the
meaning of “until adjudication.” Since then, however, this phrase has been
interpreted in three decisions: People v. Curry (2021) 62 Cal.App.5th 314(Curry), review granted July 14, 2021, S267394; People v. Braden (2021) 63
Cal.App.5th 330 (Braden), review granted July 14, 2021, S268925; and
Graham, supra, 64 Cal.App.5th 827.
Of these, we find Graham to be the most persuasive. Graham held that
a request for pretrial diversion under section 1001.36 “is timely only if it is
made prior to the jury’s guilty verdict.” (Graham, supra, 64 Cal.App.5th at p.
833.) It derived its conclusion from the plain meaning of the statutory text.
It reasoned that “ ‘adjudication’ typically refers to an adjudication of guilt—
3 For the same reason, our Supreme Court’s recent decision in People v.
Esquivel (2021) 11 Cal.5th 671, 680, where the court considered whether the
ameliorative benefits of a new statute applied retroactively to a defendant on
appeal from a sentence executed after revocation of probation, is inapplicable.
7
whether by plea or by jury verdict” and that the legislatively-chosen words
“ ‘pretrial diversion’ ” were not inconsequential. (Ibid.) “After all, ‘pretrial’
exists in contradistinction to posttrial, and ‘pretrial diversion’ connotes a
diversion away from trial. One cannot divert a river after the point at which
it has reached the sea.” (Ibid.)
The Graham court found this interpretation consistent with the
“tripartite purposes” of section 1001.36, which were to “ ‘mitigate the . . .
entry and reentry into the criminal justice system’ ” of individuals with
mental disorders; to allow for “ ‘local discretion and flexibility . . . in the
development and implementation of diversion for individuals . . . across a
continuum of care settings’ ”; and to provide diversion “ ‘that meets the
unique mental health treatment and support needs of individuals with
mental disorders.’ ” (Graham, supra, 64 Cal.App.5th at p. 833.) It further
observed that permitting a defendant to seek pretrial diversion through entry
of judgment would invite “the inefficient use of finite judicial resources” and
would potentially turn trial into a “ ‘read through’ ” that could be rendered
“retroactively moot should pretrial diversion be requested following a guilty
verdict.” (Id. at p. 834.)
We agree with this analysis and with the court’s holding that the
phrase “until adjudication” limits eligibility for diversion to the period before
the defendant is convicted. Although the Graham court was concerned with a
conviction by jury, “there is ‘no distinction between an adjudication of guilt
based on a plea of guilt and that predicated on a trial on the merits.’ ” (In re
Harris (1989) 49 Cal.3d 131, 135.) Therefore, consistent with Graham, we
conclude that a request for mental health diversion is untimely under section
1001.36, subdivision (c), if presented after the defendant’s conviction by
guilty plea.
8
In Braden, the Court of Appeal went slightly further and held that
“ ‘adjudication’ ” referred to “the process of trial or plea.” (Braden, supra, 63
Cal.App.5th at p. 337.) It thus concluded that a defendant could not seek
mental health diversion “after his trial begins.” (Id. at p. 333.) The case
before us, however, does not call for us to define the point when diversion
becomes unavailable quite so finely. (See Graham, supra, 64 Cal.App.5th at
p. 829 [appellate court had “no occasion to go so far as [Braden, supra, 63
Cal.App.5th at p. 333] (diversion may not be sought once trial begins)”].)
Most of Rodriguez’s arguments in her opening brief on appeal seem to
have been copied from Curry, supra, 62 Cal.App.5th 314, although without
attribution to Curry. Rodriguez presumably wishes for us to follow Curry, in
which the Third District Court of Appeal held that “a defendant may ask the
trial court for mental health diversion until sentencing and entry of
judgment.” (Id. at p. 325.) In reaching this conclusion, the Curry court relied
heavily on Frahs. And yet in Frahs, our high court took pains to avoid
defining “until adjudication,” and differentiated the retroactive availability of
mental health diversion under Estrada from “how the statute will generally
operate when a case comes before the trial court after section 1001.36’s
enactment.” (Frahs, supra, 9 Cal.5th at pp. 632, 633, fn. 3.) The Curry court
downplayed these aspects of Frahs as differences in “procedural posture” and
proceeded to attempt to divine meaning from dicta in the Frahs opinion. (See
Curry, at pp. 322, 323.) After finding the dicta equivocal, the Curry court
nevertheless concluded the “balance of dicta” favored its conclusion. (Id. at
pp. 323–324.) The court also reasoned that the “overall statutory scheme” of
section 1001.36, which it viewed as investing trial courts with “broad
discretion” in deciding when and whether to grant diversion, supported an
expansive interpretation of section 1001.36. (Curry, at pp. 324–325.)
9
Both Graham and Braden found Curry’s reliance on dicta from Frahs
problematic, and so do we. (See Graham, supra, 64 Cal.App.5th at p. 834;
Braden, supra, 63 Cal.App.5th at p. 341.) We also agree with Graham that
the broad statutory scheme observed in Curry was not, of itself, sufficient to
“countermand . . . the otherwise clear intent of the Legislature to require
pretrial diversion to be sought before a verdict.” (Graham, at p. 835.)
Accordingly, like the Graham and Braden courts, we decline to follow Curry.
We further observe that Curry’s interpretation of section 1001.36 as
allowing a defendant to seek mental health diversion up through “sentencing
and entry of judgment” (Curry, supra, 62 Cal.App.5th at p. 325), applied to a
case like this in which probation was granted with imposition of sentence
suspended, may lead to unintended results. The defense in this case argued
that since Rodriguez was never sentenced, she never suffered a final
judgment, and would remain eligible for diversion until her last day of
probation. Rather than seeking permission for Rodriguez to participate in a
full program of mental health diversion, however, the defense asked for her to
be placed on diversion only to have her case immediately dismissed. We do
not believe the Legislature intended the statute to operate in this way.
The statutory scheme contemplates participation in a mental health
program approved by the court for a period of up to two years, with regular
progress reports to “the court, the defense, and the prosecutor[.]” (§ 1001.36,
subds. (c)(1), (c)(2), (c)(3).) Only “at the end of the period of diversion,” after
performing satisfactorily, does the defendant become eligible for dismissal of
the “criminal charges that were the subject of the criminal proceedings at the
time of the initial diversion.” (§ 1001.36, subd. (e).) The court may then
“conclude that the defendant has performed satisfactorily if,” among other
things, “the defendant has substantially complied with the requirements of
10
diversion[.]” (Ibid.) Section 1001.36 is not just a dismissal statute; rather, it
presents dismissal as an incentive and reward for successful completion of
these legislatively-prescribed processes. And since this reward becomes
available only “at the end of the period of diversion,” there must necessarily
be a “period” of time during which the defendant actually participates in
diversion before the defendant can become eligible for dismissal. (Ibid.) The
defendant who does not seek diversion until her term of probation is drawing
to a close will almost certainly be unable to comply with this requirement.
And a defendant—like Rodriguez—who asks for diversion and dismissal all
at once ignores this statutory mandate.
For all these reasons, we follow Graham and conclude, as it did, that
“until adjudication” means until adjudication of guilt, whether by a jury (as
in Graham) or by guilty plea (as here). Accordingly, the trial court properly
denied Rodriguez’s motion, filed some two years after she pled guilty, as
untimely.4
4 Although we agree with most of the trial court’s analysis, we disagree
with its suggestion that Rodriguez’s request for mental health diversion
might have been timely if brought within 60 days after she pled guilty. At
this point, the court veered from its initial reliance on the text of section
1001.36 and started borrowing from the retroactivity analysis of Frahs.
However, as we have explained, Rodriguez’s eligibility for diversion was not
governed by Frahs. Thus, the trial court did not need to consider the “final
judgment” rule in deciding whether her motion was timely.
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DISPOSITION
The trial court order denying Rodriguez’s motion for mental health
diversion is affirmed.
DO, J.
WE CONCUR:
HALLER, Acting P. J.
GUERRERO, J.
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