People v. Weith CA1/4 ( 2021 )


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  • Filed 12/14/21 P. v. Weith CA1/4
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
    ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    THE PEOPLE,
    Plaintiff and Respondent,
    A155950
    v.
    JAN A. WEITH,                                              (San Francisco County
    Super. Ct. No. SCN229297)
    Defendant and Appellant.
    Frustrated in his efforts to enter his parking garage without his
    monthly parking pass, defendant Jan A. Weith drove his car at the parking
    attendant, pinning him against the parking booth wall. The jury convicted
    Weith of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)),
    battery with serious bodily injury (§ 243, subd. (d)) and leaving the scene of
    the accident (Veh. Code, § 20001, subd. (a)), but acquitted him of attempted
    murder. On appeal, Weith argues the trial court erroneously instructed the
    jury on assault with a deadly weapon by including—as applied to a car—in
    the deadly weapon definition, the phrase “that is inherently deadly.” We
    agree that including the phrase was error but, on this record, find it
    harmless. We also reject Weith’s argument that the jury should have been
    1   All further undesignated statutory references are to the Penal Code.
    1
    instructed that assault required a specific intent and an unlawful attempt.
    Similarly frivolous is Weith’s claim that the assault law is unconstitutionally
    vague.
    Weith first requested pretrial mental health diversion (§ 1001.36) at
    sentencing and the trial court denied it. Weith asks us to remand for
    resentencing. Relying on Second and Fourth appellate district cases, the
    Attorney General argues that the diversion request—after the guilty
    verdict—was untimely. We agree and affirm the judgment.
    PROCEDURAL BACKGROUND
    Weith was charged with attempted murder (§§ 664, 187, subd. (a)—
    count 1), assault with a deadly weapon (§ 245, subd. (a)(1)—count 2), felony
    battery causing serious bodily injury (§ 243, subd. (d)—count 3), and leaving
    the scene of an accident (Veh. Code, § 20001, subd. (a)—count 4). With
    respect to counts 1 through 3, the information further alleged great bodily
    injury and deadly weapon enhancements (§§ 12022.7, subd. (a), 12022, subd.
    (b)(1)).
    The jury convicted Weith of the assault with a deadly weapon and
    battery charges and of leaving the scene of an accident, but acquitted him of
    attempted murder. The jury also found true the great bodily injury and
    deadly weapon enhancement allegations.
    In his sentencing memorandum and at the sentencing hearing, Weith
    sought probation or referral to the behavioral health court. In the alternative
    Weith asked the court to “allow the defense to vacate Mr. Weith’s conviction
    and petition for Mental Health Diversion.” Weith argued that under section
    1001.35 “anyone with a diagnosed mental disorder. . . can obtain pre-plea
    diversion” and “[e]ven though the statute does state that diversion is not
    available after trial, the [Court of Appeal in People v. Frahs (2018)
    2
    
    27 Cal.App.5th 784
    , review granted Dec. 27, 2018, S252220; see People v.
    Frahs (2020) 
    9 Cal.5th 618
    , 626 (Frahs)] finds that retroactivity principles
    require that a defendant who was convicted before diversion took effect but
    whose case is not yet final on appeal is entitled to ask that his conviction be
    vacated and that he be considered for diversion.” The trial court found Weith
    to be “a danger to the community” because “he came within a hair of killing
    someone.” “[H]e has been on probation a number of times, in [the] last 20/25
    years and has never, apparently, addressed these mental health issues in a
    way that prevented or would have prevented this incident.” Absent unusual
    circumstances, which the court did not find, Weith was ineligible for
    probation (§ 1203, subds. (e)(2), (e)(3)). The court did not conduct a mental
    health diversion hearing and sentenced Weith to five years in state prison.
    FACTUAL BACKGROUND
    On May 5, 2018, Weith purchased a new “Chevrolet Camaro, Super
    Sport Hot Wheels” edition at a dealership in San Jose. Unlike his previous
    cars, the Camaro had paddle gear shifters on the steering wheel, in addition
    to a traditional gear shift. The Camaro, with its 485 horsepower engine, was
    twice as fast as any vehicle he had driven. Weith testified that he drove from
    San Jose to the San Francisco Hilton parking garage, where he had a
    monthly parking pass. As he entered the garage, Weith realized he left his
    entry card in San Jose. Rather than taking a parking ticket, he skirted the
    entry gate and drove over the center pylons between the entrance and exit
    lanes. Once in the garage he changed his mind, made a U-turn, and drove
    back over the pylons. Having exited, he decided to reenter and, in doing so
    positioned his car across the entry and exit lanes. He accelerated and the
    Camaro reversed “rather quickly,” hitting the garage wall. Weith put the car
    in drive, using the center console, and prepared to drive forward, but when he
    3
    took his foot off the brake, the car did not move. So he stepped on the
    accelerator; the car lurched forward, “smash[ing] into” the arm gate and
    knocking it to the ground. Weith put the car in park, got out, saw “significant
    damage” to the front of the car, and “felt terrible” because he had “wrecked”
    his new car less than two hours after purchasing it.
    The parking garage manager, Victor Delos Santos, who was next to his
    office booth and about 10 to 15 feet from the car, asked Weith if he needed
    anything. Weith did not respond to Delos Santos. Delos Santos testified that
    he made eye contact with Weith for about five seconds, before Weith got back
    into his car.
    According to Weith, when he took his foot off the brake, the car did not
    move. Weith then stepped on the accelerator and “may have used the paddle
    shifter” on the steering wheel. As the car lurched forward, Weith “gripped the
    steering wheel” and “braced for impact.” Delos Santos tried to move out of the
    way, but it “was too late.” In a “split second,” the car crashed into Delos
    Santos, impaling him against the office booth causing a “very violent,” “loud”
    collision that sounded “like an explosion.” Weith testified that he had not
    seen Delos Santos, and he “absolutely” did not intend to back into the wall,
    drive into the arm gate, or crash into the booth and Delos Santos.
    It sounded to one eyewitness like Weith had “floored” the engine. Video
    surveillance footage and eyewitness testimony established that Weith drove
    straight into Delos Santos and the office booth. The glass windows of the
    booth “exploded” and the concrete buckled.
    Delos Santos, who was pinned between the rubble of the booth and the
    car, screamed in pain. His broken left shin bone protruded through his skin.2
    2   The defense stipulated that Delos Santos suffered great bodily injury.
    4
    Joseph Walters, who was across the street from the parking garage,
    heard a “loud crash” and saw that a car had “slammed” into the garage. The
    car “skirted along the wall” of the garage before it crashed into the arm gate
    and into the parking booth. As he approached the Camaro, Walters heard
    Delos Santos screaming in pain, yelling, “he tried to kill me,” and saw Weith
    in the driver’s seat. With the engine running, Weith exited the car, walked
    past Walters and left the garage.
    Weith testified that he did not hear anyone crying for help and did not
    call the police. “[D]isoriented and on “auto mode,” Weith walked back to his
    apartment, where he drank some vodka. He then went to a nearby bar and
    drank some whiskey. Weith went to a second bar, but could not remember if
    he had a drink there. As Weith was returning to the garage about 15 minutes
    after the collision, he was apprehended by the police.
    Weith appeared calm, and unaffected when told by an officer that his
    car injured someone. Weith told police the Camaro had no mechanical issues,
    he was not on any medications and had no physical or mental impairments.
    After administering various tests, police concluded Weith was not under the
    influence of alcohol.
    DISCUSSION
    Weith contends his convictions for assault with a deadly weapon and
    battery should be reversed due to various instructional errors and on
    constitutional grounds. Alternatively, he argues the matter should be
    remanded for a mental health diversion hearing. We disagree and affirm.
    I. Jury Instructions
    Weith claims the trial court prejudicially erred by incorrectly
    instructing the jury on assault in several respects.
    5
    A.    Instructions Given
    For the assault with a deadly weapon charge, the court used CALCRIM
    No. 875, which instructed that the People had to prove the following: “1. The
    defendant did an act with a deadly weapon other than a firearm that by its
    nature would directly and probably result in the application of force to a
    person; [¶] 2. The defendant did the act willfully; [¶] 3. When the defendant
    acted, he was aware of facts that would lead a reasonable person to realize
    that his act by its very nature would directly and probably result in the
    application of force to someone; [¶] AND [¶] 4. When the defendant acted, he
    had the present ability to apply force with a deadly weapon other than a
    firearm.”
    As given, CALCRIM No. 875 defined a “deadly weapon other than a
    firearm” as “any object, instrument, or weapon that is inherently deadly or
    one that is used in such a way that it is capable of causing and likely to cause
    death or great bodily injury.” (CALCRIM No. 875; italics added.) Regarding
    the weapon enhancement, the court instructed that “a deadly or dangerous
    weapon is any object, instrument, or weapon that is inherently . . . dangerous
    or one that is used in such a way that it is capable of causing or likely to
    cause death or great bodily injury. [¶] In deciding whether an object is a
    deadly weapon, consider all the surrounding circumstances, including when
    and where the object was possessed . . . and any other evidence that indicates
    whether the object would be used for a dangerous, rather than a harmless,
    purpose.” (CALCRIM No. 3145.) The court did not include the CALCRIM
    Nos. 875 or 3145 definition of “inherently deadly.”3
    3“An object is inherently deadly if it is deadly or dangerous in the
    ordinary use for which it was designed.” (CALCRIM Nos. 875 & 3145.)
    6
    For the lesser included offense of simple assault, the court instructed,
    using CALCRIM No. 915, that the People had to prove the following: “1. The
    defendant did an act that by its nature would directly and probably result in
    the application of force to a person; [¶] 2. The defendant did that act willfully;
    [¶] 3. When the defendant did the act, he was aware of facts that would lead
    a reasonable person to realize that his act by its nature would directly and
    probably result in the application of force to someone; [¶] AND [¶] 4. When
    the defendant acted, he had the present ability to apply force to a person.”
    (CALCRIM No. 915).
    B.    Inclusion of “Inherently Deadly” Language
    Weith contends the trial court prejudicially erred by instructing the
    jury that it could find him guilty of using a deadly weapon under the theory
    that a car is “inherently deadly.”
    In considering the assault with a deadly weapon charge in count 2 and
    the deadly weapon enhancement in counts 1 and 3, the jury had to determine
    whether Weith’s car was a deadly weapon. Employing CALCRIM No. 875, the
    court instructed that: “A deadly weapon other than a firearm is any object,
    instrument, or weapon that is inherently deadly or one that is used in such a
    way that it is capable of causing and likely to cause death or great bodily
    injury.” For the weapon enhancement, the court read CALCRIM No. 3145
    and again included the phrase “that is inherently deadly.” The court did not
    include the CALCRIM definition of “inherently dangerous” in either
    CALCRIM Nos. 875 or 915. Weith did not object to these instructions.
    Where the instrumentality is a car, it is error to include the phrase
    “that is inherently deadly” in the definition of “a deadly weapon other than a
    firearm.” (People v. Stutelberg (2018) 
    29 Cal.App.5th 314
    , 317–318; Bench
    Notes to CALCRIM No. 875.) A car may be used in a manner that makes it a
    7
    deadly weapon, but it is not an inherently deadly weapon as a matter of law.
    (People v. Montes (1994) 
    74 Cal.App.4th 1050
    , 1054 [noting that a car is not
    inherently dangerous but can be found to be a deadly weapon].) For the jury
    to properly find that Weith used a deadly weapon under the facts of this case,
    it had to find that Weith “used [the car] in such a way that it is capable of
    causing and likely to cause death or great bodily injury.” (CALCRIM No.
    875.)
    When both a correct and an incorrect instruction have been given, to
    decide whether the error requires reversal, we apply People v. Aledamat
    (2019) 
    8 Cal.5th 1
    , 7–8 (Aledamat). There, the defendant was on trial for
    assault with a deadly weapon (§ 245), and jurors were given both correct and
    incorrect alternative instructions; they were told that a weapon “could be
    either inherently deadly or deadly in the way defendant used it.” (Aledamat,
    at p. 6.) Because the weapon—a box cutter—was “not an inherently deadly
    weapon as a matter of law” (ibid.), the first part of the instruction was
    erroneous, but the second part was correct. (Id. at p. 7.) Aledamat held: “The
    reviewing court must reverse the conviction unless, after examining the
    entire cause, including the evidence, and considering all relevant
    circumstances, it determines the error was harmless beyond a reasonable
    doubt.” (Id. at p. 13.) In so holding it rejected a more demanding standard of
    review, advocated by the defendant, that would have required the court to
    examine the verdict and the record and to find evidence in the record to
    support a determination, beyond a reasonable doubt, that the jury actually
    relied on the valid, not the invalid, theory. (Id. at p. 9.) The Supreme
    Court held such a course is not required. It is enough if we can say, beyond a
    reasonable doubt, the legally inadequate theory did not contribute to the
    verdict. (Id. at pp. 12–13.)
    8
    In People v. Thompkins (2020) 
    50 Cal.App.5th 365
    , 399, we recently
    applied the Aledamat standard of review, explaining “the question is not
    whether we think it clear beyond a reasonable doubt that the defendants
    were actually guilty . . . based on the valid theory, but whether we can say,
    beyond a reasonable doubt, the jury’s actual verdicts were not tainted by the
    inaccurate jury instruction. We focus on the likelihood that the jury relied on
    the [incorrect] instruction in reaching its verdicts, not simply the likelihood of
    defendants’ guilt under a legally correct theory.”
    Under that standard of review, the error was harmless in this case.
    Having reviewed the evidence, we are confident the inclusion of the phrase
    “inherently deadly” did not contribute to Weith’s conviction of assault with a
    deadly weapon other than a firearm. Most compelling is the surveillance
    video that graphically depicts the entire incident. At 17:47:35 of the video,
    the orange Camaro speeds into the parking lot, avoiding the entry gate by
    running roughshod over the four upright pylons intended to prevent entry.
    One minute later, driving at the same rate, the Camaro again drives over the
    pylons and exits between the entry and exit gates. Thirty seconds later,
    presumably in response to the Camaro’s extraordinary roundtrip, Delos
    Santos appears from the attendant’s booth, walks in front of the booth,
    looking in the direction of the recently departed car and then walks to the
    middle of the entry lane. Four seconds later, the Camaro speeds into the
    garage, but this time, instead of traveling down the middle as it did moments
    before, the car veers to the right aiming directly at Delos Santos. The Camaro
    crashes into Delos Santos pushing him through the wall and window of the
    attendant’s booth which crumbles under the impact. As soon as the car comes
    to rest—with Delos Santos crushed between it and the remains of the booth—
    9
    Weith exits, turns toward Delos Santos and then reenters the car. He reaches
    forward and then exits, closes the car door and departs the garage.
    Delos Santos described what the video did not depict. After exiting the
    garage, the Camaro was parked “parallel to the street” “literally blocking
    both [the entrance and exit] lanes.” As Delos Santos approached the car, he
    saw Weith “standing outside his car” at the “[d]river’s side.” Delos Santos,
    who knew Weith as a monthly parker, approached him and asked if he
    needed help. Weith, who was about 10 feet away, looked at Delos Santos,
    made eye contact, but did not respond. Instead, within five seconds, Weith
    reentered his car as Delos Santos approached “to see if he needed help.” The
    Camaro backed up and destroyed the arm gate. The car backed into a
    billboard and then went forward smashing into the arm gate.
    Delos Santos approached to assess the damage and the car backed up
    again hitting the billboard. Delos Santos testified: “He drove forward, toward
    me. [¶] . . . [¶] All I heard was the tires screech—screeching.” Delos Santos
    tried to get out of the way but, because of the small space, “there’s no way for
    me to kind of like run away or get out of the way.” Pinned between the car’s
    front tire and his office, Delos Santos was “screaming in pain.” He cried for
    help, “yelling at the top of [his] lungs” for “someone [to] back up the car.”
    Delos Santos heard “the sound of screeching tires,” but the car did not move.
    Weith did not assist Delos Santos.
    In closing, the prosecutor recapitulated the evidence in support of his
    argument that Weith used the car in a way that is capable of causing and
    likely to cause death or great bodily injury. He did not refer to the Camaro as
    “inherently deadly.” Rather, the prosecutor’s argument focused on how Weith
    used the Camaro as a deadly weapon. As to the section 245, subdivision (a)(1)
    charge, the prosecutor argued “the defendant did an act with a deadly
    10
    weapon. The defendant willfully acted. . . . Defendant was aware of facts that
    would lead a reasonable person to conclude that his act, by its very nature,
    would directly and probably result in the application of force, and that the
    defendant had the present ability to actually apply force.”
    Instead of focusing on the car, the prosecutor directed the jury to the
    manner in which Weith drove it: “[T]he act we’re talking about is driving the
    car, and by [his] very nature of driving the car, he hits the booth, injures
    Victor Delos Santos. And the defendant testified, I asked him directly, you
    wanted to put the car in drive, . . . you wanted the car to go forward, you put
    your foot on the accelerator, the car went forward, you intended to do all of
    those actions.”
    The prosecutor later added: “[A] reasonable person would know that
    when you park in this place for four years, you drive in and out every single
    day, there are people all over the place, it’s downtown San Francisco . . . and
    you’ve actually had contact with the person that works in that office. A
    reasonable person, in those circumstances, would absolutely know that . . . by
    putting your foot on the accelerator when your car’s in drive, you are very
    likely to injure someone.” The prosecutor argued that Weith “knew Mr. Delos
    Santos was there and actually intended to hit Mr. Delos Santos.” The court
    did not define “inherently deadly” and the prosecutor—relying on the video
    and Delos Santos’s testimony—argued that Weith purposely drove the car in
    a manner capable of causing death or great bodily injury.
    With this evidence, and without further definition of inherently deadly,
    the jury could understand that the Camaro was “inherently deadly,” “in the
    colloquial sense of the term—i.e., readily capable of inflicting deadly harm—
    and that defendant used it as a weapon.” (Aledamat, supra, 8 Cal.5th at
    p. 15.) On this record “we can say, beyond a reasonable doubt, the jury’s
    11
    actual verdicts were not tainted by the inaccurate jury instruction.” (People v.
    Thompkins, supra, 50 Cal.App.5th at p. 399.)
    Accordingly, any error in the court’s instructions defining “deadly
    weapon” was harmless beyond a reasonable doubt. (Chapman v. California
    (1967) 
    386 U.S. 18
    , 24.)
    B.    Omission of “Unlawful Attempt” and “Violent Injury” Language
    Weith claims the trial court erred in instructing the jury using
    CALCRIM No. 875 (assault with a deadly weapon) and CALCRIM No. 915
    (simple assault) because the instructions “inexplicably” omit section 240’s
    definition: “An assault is an unlawful attempt, coupled with a present ability,
    to commit a violent injury on the person of another.” Both instructions have
    been expressly affirmed by our appellate courts. (See People v. Golde (2008)
    
    163 Cal.App.4th 101
    , 122 [CALCRIM No. 875 “was not defective in failing to
    tell the jurors they could consider the absence of injury as reflecting an
    absence of intent to harm”]; People v. Ibarra (2007) 
    156 Cal.App.4th 1174
    ,
    1193–1195 [upholding CALCRIM No. 915 as correct statement of law].)
    In California, the law is settled that assault is a general intent crime.
    (People v. Chance (2008) 
    44 Cal.4th 1164
    , 1169 (Chance).) Unlike attempt
    crimes, which require specific intent, the “ ‘unlawful attempt’ ” term of
    section 240 is different. “Assault requires an act that is closer to the
    accomplishment of injury than is required for other attempts. Other criminal
    attempts, because they require proof of specific intent, may be more remotely
    connected to the attempted crime.” (Id. at p. 1167.) Assault has been
    characterized as “ ‘unlawful conduct immediately antecedent to battery.’ ”
    (Ibid.)
    Additionally, the “terms ‘violence’ and ‘force’ are synonymous when
    used in relation to assault, and include any application of force even though it
    12
    entails no pain or bodily harm and leaves no mark.” (People v. Flummerfelt
    (1957) 
    153 Cal.App.2d 104
    , 106; see People v. Rocha (1971) 
    3 Cal.3d 893
    , 899,
    fn. 12 (Rocha); People v. Colantuono (1994) 
    7 Cal.4th 206
    , 214, fn. 4
    (Colantuono).) It is settled that “the criminal intent which is required for
    assault with a deadly weapon . . . is the general intent to willfully [sic]
    commit an act the direct, natural and probable consequences of which if
    successfully completed would be the injury to another.” (Rocha, at p. 899.)
    “[B]ut only an ‘injury’ as that term is used with respect to a battery need be
    intended. ‘It has long been established, both in tort and criminal law, that
    “the least touching” may constitute battery.’ ” (Rocha, at p. 899, fn.12.)
    Consistent with the forgoing case law, the trial court’s instructions on
    assault with a deadly weapon (CALCRIM No. 875) and simple assault
    (CALCRIM No. 915) correctly informed the jury that the crimes involve an
    act that is naturally and likely to result in the “application of force” to a
    person and that the term “application of force” means “to touch in a harmful
    or offensive manner” and can include the “slightest touching.” (CALCRIM
    Nos. 875, 915.) Accordingly, we reject Weith’s assertions that CALCRIM No.
    875 and CALCRIM No. 915, which have been expressly approved by
    appellate authority, omitted essential elements and lightened the
    prosecution’s burden of proof on the assault charge.
    C.    Omission of “Specific Intent” Language
    Again, in the face of established California Supreme Court precedent to
    the contrary, Weith claims that assault is a specific intent crime and the trial
    court erred in instructing the jury that it is a general intent crime. We will
    quickly dispense with this argument; our Supreme Court has held repeatedly
    that assault is a general intent crime. (People v. Williams (2001) 
    26 Cal.4th 779
    , 782 (Williams) [assault requires only a general criminal intent];
    13
    accord, In re B.M. (2018) 
    6 Cal.5th 528
    , 533 [“Assault is a general intent
    crime; it does not require a specific intent to cause injury.”]; People v.
    Perez (2018) 
    4 Cal.5th 1055
    , 1066 [“assault with a deadly weapon is a general
    intent crime”]; Chance, 
    supra,
     44 Cal.4th at p. 1170 [“ ‘specific intent to injure
    is not an element of assault because the assaultive act, by its nature,
    subsumes such an intent’ ”].)
    II. Constitutional Claim
    Weith contends his convictions for assault with a deadly weapon and
    battery causing serious bodily injury should be reversed because the assault
    statute (§ 240) is unconstitutionally vague because it fails to define assault
    with sufficient notice of the prohibited conduct. The Attorney General
    responds that Weith lacks standing to raise a vagueness challenge because
    his conduct is clearly encompassed by the assault statutes (§§ 240, 245). We
    do not address the standing issue because Weith’s vagueness claim fails on
    the merits.
    A.    Applicable Law
    “Statutes are presumed valid and must be upheld unless their
    unconstitutionality is positively and unmistakably demonstrated. With
    regard to vagueness, the question is whether the statute provides a person of
    ordinary intelligence a reasonable opportunity to know what is prohibited
    and provides police and prosecutors with sufficiently definite guidelines to
    prevent arbitrary and discriminatory enforcement.” (People v. Basuta (2001)
    
    94 Cal.App.4th 370
    , 397.)
    “It is impossible, given the complexities of our language and the
    variability of human conduct, to achieve perfect clarity in criminal statutes.
    Reasonable specificity exists if the statutory language ‘conveys sufficiently
    definite warning as to the proscribed conduct when measured by common
    14
    understandings and practices.’ (United States v. Petrillo (1947) 
    332 U.S. 1
    , 8;
    see also People v. Deskin (1992) 
    10 Cal.App.4th 1397
    , 1400.) Given these
    practical difficulties, one commentary has stated: ‘In practice,
    unconstitutional vagueness is a concept that only works on the extreme end
    of the vagueness continuum . . . . Arguments that a statute appears vague in
    the ordinary sense will not suffice to bring relief from the courts.’ (2 Antieau
    & Rich, Modern Constitutional Law (2d ed. 1997) § 38.00, p. 429.)” (People v.
    Basuta, supra, 94 Cal.App.4th at p. 397.)
    B.    Analysis
    Section 240 defines assault as “an unlawful attempt, coupled with a
    present ability, to commit a violent injury on the person of another.” The
    language of the assault statute is “derive[d] from identical language of
    section 49 of the Crimes and Punishment Act of 1850. (Stats. 1850, ch. 99,
    § 49, p. 234.)” (People v. Wright (2002) 
    100 Cal.App.4th 703
    , 714.) Although
    Weith engages in an extended analysis tracing the evolution of the assault
    law, discussing cases ranging as far back as 1856, the assault statute has
    remained unchanged since its inception. (See Williams, 
    supra,
     26 Cal.4th at
    p. 782.) Its long history “virtually precludes us from finding it impermissibly
    vague at this late date.” (People v. Kelly (1992) 
    1 Cal.4th 495
    , 534; People v.
    Bamba (1997) 
    58 Cal.App.4th 1113
    , 1122.)
    That the assault law has required continued clarification does not
    make it unconstitutionally vague. “Many, probably most, statutes are
    ambiguous in some respects and instances invariably arise under which the
    application of statutory language may be unclear.” (Evangelatos v. Superior
    Court (1988) 
    44 Cal.3d 1188
    , 1201.) It is the traditional role of the judiciary to
    interpret ambiguous language and fill in the gaps. (Id. at p. 1202.) Assault
    has been consistently construed as a general intent crime requiring a willful
    15
    act which by its nature would probably and directly result in the application
    of physical force to another (see, e.g., Rocha, supra, 3 Cal.3d at pp. 898–899;
    Colantuono, 
    supra,
     7 Cal.4th at pp. 214–216) committed with the actual
    knowledge of those facts sufficient to establish that the act by its nature will
    probably and directly result in the application of force to another—i.e. a
    battery (see, e.g., Williams, 
    supra,
     26 Cal.4th at pp. 782, 790). Additionally,
    “when a defendant equips and positions himself to carry out a battery, he has
    the ‘present ability’ required . . . if he is capable of inflicting injury on the
    given occasion, even if some steps remain to be taken, and even if the victim
    or the surrounding circumstances thwart the infliction of injury.” (Chance,
    supra, 44 Cal.4th at p. 1172.)
    This consistent interpretation of the assault law provides sufficient
    notice of the prohibited conduct. Accordingly, Weith’s vagueness challenge
    fails.
    III.   Diversion of Individuals with Mental Disorders
    A.       The parties’ positions
    Weith argues the court abused its discretion in denying his request for
    a pretrial mental health diversion hearing pursuant to section 1001.36. The
    Attorney General replies that Weith forfeited this claim by only briefly
    raising the issue at the time of sentencing, and that on the merits we should
    affirm, and not remand for sentencing, because the trial court found Weith
    unsuitable for mental health diversion.
    Preliminarily, we reject the Attorney General’s argument that Weith
    “forfeited” his request for diversion under section 1001.36. The record clearly
    reflects that Weith raised the issue, albeit succinctly, in the trial court.
    Nevertheless, as we explain, Weith’s request was untimely.
    16
    B.    Section 1001.36
    Diversion of Individuals with Mental Disorders (§ 1001.35 et seq.),
    effective a little over two months before Weith’s trial, “authorizes a pretrial
    diversion program for defendants with qualifying mental disorders.” (Frahs,
    supra, 9 Cal.5th at p. 626.) The stated purpose of the diversion statute “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. [¶] (c) Providing diversion that meets the unique mental health
    treatment and support needs of individuals with mental disorders.”
    (§ 1001.35, subds. (a)-(c).)
    Section 1001.36 defines “pretrial diversion” to “mean[] 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
    . . . .” (§ 1001.36, subd. (c), italics added.)
    The statute does not define the phrase “until adjudication.” At the time
    of the November 2, 2018 sentencing hearing, there was no appellate guidance
    regarding the meaning of “until adjudication.” Since then case law has
    offered three different dates by which pretrial diversion must be requested:
    before trial commences; before conviction, be it by guilty plea or verdict; or
    before sentencing. The first and most lenient court to address the issue held
    “adjudication” does not occur until sentencing and entry of judgment. (People
    v. Curry (2021) 
    62 Cal.App.5th 314
    , 321, review granted July 14, 2021,
    S267394 (Curry) [“section 1001.36 contemplates mental health diversion
    17
    until entry of the judgment of conviction”].) At the other end of the spectrum,
    the Fourth Appellate District found the right to seek mental health diversion
    is lost when the jury is sworn. (People v. Braden (2021) 
    63 Cal.App.5th 330
    ,
    333, review granted July 14, 2021, S268925 (Braden) [“a defendant is
    ineligible for diversion under section 1001.36 after his trial begins”].)
    Between these extremes—and the outcome we adopt—“adjudication” occurs
    when guilt is established either by plea or jury verdict. (People v. Rodriguez
    (2021) 
    68 Cal.App.5th 584
    , 591, review granted Nov. 10, 2021, S270895
    (Rodriguez) [request for pretrial diversion under section 1001.36 “untimely
    . . . if presented after the defendant’s conviction by guilty plea”]; People v.
    Graham (2021) 
    64 Cal.App.5th 827
    , 832–833, review granted Sept. 1, 2021,
    S269509 (Graham) [“a request for ‘pretrial diversion’ under section 1001.36 is
    timely only if it is made prior to the jury’s guilty verdict”].)
    C.    Standard of Review and Rules of Statutory Interpretation
    Weith’s claim presents an issue of statutory interpretation, which we
    review de novo. (People v. Simmons (2012) 
    210 Cal.App.4th 778
    , 790.)
    “ ‘ “Our role in construing a statute is to ascertain the Legislature’s
    intent so as to effectuate the purpose of the law. [Citation.]” ’ [Citations.] [¶]
    Our first task is to examine the language of the statute . . ., giving the words
    their usual, ordinary meaning. [Citations.] If the language is clear and
    unambiguous, we follow the plain meaning of the measure. [Citations.] . . . [¶]
    The language is construed in the context of the statute as a whole and the
    overall statutory scheme, and we give ‘significance to every word, phrase,
    sentence, and part of an act in pursuance of the legislative purpose.’ ” (People
    v. Canty (2004) 
    32 Cal.4th 1266
    , 1276 (Canty).)
    Where the language of the statute permits more than one reasonable
    interpretation, we “apply the principles that pertain where statutory
    18
    ambiguity exists, adopting the interpretation that leads to a more reasonable
    result. [Citation.] It is appropriate to consider evidence of the intent of the
    enacting body in addition to the words of the measure, and to examine the
    history and background of the provision, in an attempt to ascertain the most
    reasonable interpretation.” (Canty, 
    supra,
     32 Cal.4th at p. 1277.)
    “We also consider that, under the traditional ‘rule of lenity,’ language
    in a penal statute that truly is susceptible of more than one reasonable
    construction in meaning or application ordinarily is construed in the manner
    that is more favorable to the defendant. [Citation.] Nonetheless, ‘ “the rule of
    lenity 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.” ’ ” (Canty, 
    supra,
     32 Cal.4th at p. 1277.) “ ‘ “The
    rule of statutory interpretation that ambiguous penal statutes are construed
    in favor of defendants is inapplicable unless two reasonable interpretations of
    the same provision stand in relative equipoise, i.e., that resolution of the
    statute’s ambiguities in a convincing manner is impracticable.” [¶] Thus,
    although true ambiguities are resolved in a defendant’s favor, an appellate
    court should not strain to interpret a penal statute in defendant’s favor if it
    can fairly discern a contrary legislative intent.’ ” (Canty, at pp. 1276–1277.)
    D.    Analysis
    We agree with Graham, that the statute’s “plain language” and the
    “purpose” of mental health diversion compel the conclusion 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.) “Section
    1001.36 explicitly defines ‘pretrial diversion’ as the ‘the postponement of
    prosecution . . .at any point in the judicial process from the point at which the
    19
    accused is charged until adjudication.’ (§ 1001.36, subd. (c), italics added.)”
    (Graham, at p. 833.)
    “The definition says that diversion must occur before ‘adjudication,’ and
    ‘adjudication’ typically refers to an adjudication of guilt—whether by plea or
    by jury verdict.’ [Citations.] The plain text of section 1001.36 is controlling.
    “The tripartite purposes of section 1001.36 are to (1) ‘[i]ncrease[]
    diversion of individuals with mental disorders to mitigate the individuals’
    entry and reentry into the criminal justice system while protecting public
    safety,’ (2) ‘[a]llow[] 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 (3) ‘[p]rovid[e] diversion
    that meets the unique mental health treatment and support needs of
    individuals with mental disorders.’ (§ 1001.35.) These purposes are fully
    served by allowing a defendant to seek mental health pretrial diversion prior
    to adjudication of their guilt.” (Graham, supra, 64 Cal.App.5th at p. 833.)4
    Graham 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
    4 Courts considering the legislative intent for other pretrial diversion
    programs (e.g., § 1000 et seq.) have consistently reached the same conclusion:
    To achieve the legislative purposes, pretrial diversion must necessarily be
    requested before conviction. (See People v. Reed (1975) 
    46 Cal.App.3d 625
    ,
    629-630 [court’s order for section 1000 drug diversion after trial reversed];
    People v. Wright (1975) 
    47 Cal.App.3d 490
    , 494 [defendant ineligible for
    section 1000 diversion after trial]; People v. Alonzo (1989) 
    210 Cal.App.3d 466
    , 468, 470 [trial court acted in excess of its jurisdiction by granting section
    1000 drug diversion after trial].)
    20
    requested following a guilty verdict.” (Graham, supra, 64 Cal.App.5th at
    p. 834.)5
    Rodriguez agreed with Graham to conclude that adjudication by guilty
    plea, like guilty verdict, precludes mental health diversion. (Rodriguez,
    supra, 68 Cal.App.5th at p. 591.) Finding “ ‘ “no distinction between an
    adjudication of guilt based on a plea of guilt and that predicated on a trial on
    the merits,” ’ ” Rodriguez concluded 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. (Ibid.)
    Weith urges us to rely on Curry, supra, 
    62 Cal.App.5th 314
    , which held
    that “a defendant may ask the trial court for mental health diversion until
    sentencing and entry of judgment.” (Id. at p. 325.) 6 Absent clear direction
    from the Supreme Court, the Curry court relied primarily on language in
    Frahs, supra, 
    9 Cal.5th 618
    . (Curry, at pp. 322–325.) However, Frahs
    expressly refrained from defining “until adjudication,” and differentiated the
    retroactive availability of mental health diversion under In re Estrada (1965)
    5  Braden reviewed the history of California’s diversion programs “found
    in sections 1000 through 1001.97” and observed: “We are not aware of any
    cases indicating that, in the normal course, a defendant can be (or has been)
    admitted to any such [diversion] programs after conviction at trial. Rather,
    the purpose of diversion and deferred entry of judgment programs “is
    precisely to avoid the necessity of a trial. [Citations.] (People v. Alonzo[,
    supra,] 
    210 Cal.App.3d 468
    , 470 [trial court acted in excess of its jurisdiction
    by granting diversion after trial.] Our view of section 1001.36 fits comfortably
    into the norm for our Legislature’s diversion programs.” (Braden, supra,
    63 Cal.App.5th at p. 335; see Gresher v. Anderson (2005) 
    127 Cal.App.4th 88
    ,
    111 [“The purpose of those programs is precisely to avoid the necessity of a
    trial”].)
    6In Curry, unlike in our case, “[t]he People [did] not take a position on
    the timeliness of defendant’s [mental health diversion] request. (Curry,
    supra, 62 Cal.App.5th at p. 320.)
    21
    
    63 Cal.2d 740
     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.) Although acknowledging the dicta in Frahs
    was equivocal, the Curry court nevertheless concluded the “balance of dicta”
    favored its conclusion. (Curry, 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.)
    We disagree and join Rodriguez and Graham in concluding 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.’ ” (Rodriguez, supra,
    68 Cal.App.5th at p. 592; Graham, supra, 64 Cal.App.5th at p. 835.) While
    acknowledging the Supreme Court’s explicit statement—“ ‘[W]e have no
    occasion here to precisely define “until adjudication,” as used in section
    1001.36, subdivision (c) (Frahs, supra, 9 Cal.5th at p. 633, fn. 3)”— the Curry
    court sought to divine meaning from that which the Supreme Court expressly
    declined to decide. (Curry, supra, 62 Cal.App.5th at pp. 323–324.) Unlike
    Rodriguez and Graham, which interpreted “adjudication” in its context in the
    statute, Curry recognizes “there is some language in Frahs that reasonably
    might be cited in support of the argument that the phrase ‘until adjudication’
    in section 1001.36 should be interpreted to mean ‘until adjudication of guilt,’ ”
    but nevertheless concludes, based on “the weight of considered reasoning in
    the case” that “the phrase ‘until adjudication’ should be interpreted to mean
    ‘until the judgment of conviction’—which does not occur until sentencing.”
    (Curry, at p. 323.) We considered the “usual, ordinary meaning” of
    22
    “adjudication” in “the context in which the word[] appear[s]” in the statute
    and find no support for Curry’s conclusion. (See Curry, at pp. 321–323.)
    Rodriguez, Graham, and Braden reject Curry’s conjecture about phrases in
    Frahs, and so do we. (See Rodriguez, supra, 68 Cal.App.5th at p. 591;
    Graham, supra, 64 Cal.App.5th at p. 834; Braden, supra, 63 Cal.App.5th at
    p. 341.)
    We find further support for the Rodriguez and Graham holdings by
    considering pretrial mental health diversion (§ 1001.35, et seq.) in the context
    of the panoply of pretrial diversion schemes. The Legislature enacted five
    diversion programs that employ the same time frame for pretrial eligibility:
    from “any point in the judicial process from the point at which the accused is
    charged until adjudication.” (§ 1001.36, subd. (c), italics added [“diversion of
    individuals with mental disorders”]; § 1001.1 [“misdemeanor diversion”]; §
    1001.50, subd. (c) [“diversion of misdemeanor offenders”]; § 1001.70, subd. (b)
    [“parental diversion”]; § 1001.80, subd. (k)(1) [“military diversion program”].
    Unlike these regimes, a sixth pretrial program, diversion of defendants with
    cognitive developmental disabilities (§ 1001.20 et seq.), does not limit its
    availability “until adjudication.” Section 1001.21, subdivision (a) applies
    “whenever a case is before any court upon an accusatory pleading at any
    stage of the criminal proceedings” (italics added.) Had the Legislature
    intended for pretrial mental health diversion to similarly apply regardless of
    the procedural posture of the case, it would presumably have said so as it did
    in section 1001.21. (See, e.g., California Ins. Guarantee Assn. v. Argonaut Ins.
    Co. (1991) 
    227 Cal.App.3d 624
    , 633–634 [“Insurance Code section 1063.1
    shows that the Legislature knew how to make an exception for workers’
    compensation benefits when it so intended”].) It did not.
    23
    Even were we to conclude that “until adjudication” is “susceptible of
    more than one reasonable . . . meaning,” we do not have to “ ‘ “guess what the
    legislative body intended” ’ ” and therefore do not apply the rule of lenity.
    (Canty, supra, 32 Cal.4th at p. 1277.) To “construe[] [the words] in the
    manner that is more favorable to [Weith]” would require us to “strain to
    interpret a penal statute in defendant’s favor” where we “ ‘can fairly discern a
    contrary legislative intent.’ ” (Canty, at pp. 1276–1277.) For the reasons
    stated in Graham and Rodriguez and above, we conclude that “until
    adjudication” means until conviction: ascertainment of guilt, whether by a
    jury (as in Graham) or by a guilty plea (as in Rodriguez).7
    Because Weith’s postconviction diversion request was untimely, we do
    not reach the merits of his claim.
    DISPOSITION
    The judgment is affirmed.
    7 At oral argument, Weith contended for the first time that, because the
    attempted murder charge precluded pretrial mental health diversion, he
    should have been allowed to request it after acquittal on that charge. The
    contention is forfeited by Weith’s failure to raise it in his opening brief. (Doe
    v. California Dept. of Justice (2009) 
    173 Cal.App.4th 1095
    , 1115.)
    24
    _________________________
    Ross, J.*
    WE CONCUR:
    _________________________
    Pollak, P.J.
    _________________________
    Brown, J.
    A155950 People v. Weith
    *Judge of the San Francisco Superior Court, assigned by the Chief
    Justice pursuant to article VI, section 6 of the California Constitution.
    25
    

Document Info

Docket Number: A155950

Filed Date: 12/14/2021

Precedential Status: Non-Precedential

Modified Date: 12/15/2021