People v. Clark CA3 ( 2021 )

Filed 12/15/21 P. v. Clark CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C091846
Plaintiff and Respondent, (Super. Ct. No. NCR96565)
v.
CHRISTOPHER WILLIAM CLARK,
Defendant and Appellant.
Defendant Christopher William Clark pleaded guilty to one count of robbery and
admitted several enhancement allegations. The trial court sentenced defendant to an
aggregate term of 20 years in state prison. On appeal, defendant argues this case must be
conditionally reversed and remanded for the trial court to conduct a mental health
diversion eligibility hearing under Penal Code section 1001.36 (statutory section citations
that follow are to the Penal Code unless otherwise stated), which he contends applies
retroactively. We will conditionally reverse defendant’s judgment and remand to the trial
court for an eligibility determination under section 1001.36.
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FACTS AND HISTORY OF THE PROCEEDINGS
Following a release from a mental health facility from a psychological hold,
defendant shoplifted at a store and punched a store employee during a confrontation over
the stolen goods. Defendant was charged with one count of robbery (§ 211) and alleging
three prior serious or violent felony convictions within the meaning of the “Three
Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), three prior serious felonies
convictions (§ 667, subd. (a)(1)), and one prior prison term (§ 667.5, subd. (b)).
The court ordered the appointment of two psychiatrists under section 1368 to
determine defendant’s competency to stand trial. Doctors Kent Caruso and Ray Carlson
both noted in their reports that defendant reported being diagnosed with bipolar disorder
while in prison and that he had been prescribed Risperdal, Seroquel, and Trazodone.
Dr. Carlson concluded that defendant had a history strongly suggestive of antisocial
personality disorder but that he showed no severe mental illness. Dr. Caruso reported
that he did not find any evidence to support a judgement or jury finding of not guilty by
reason of insanity. Dr. Caruso did review defendant’s records in which he found
concerns over or diagnoses such as mood disorder “NOS,” anxiety disorder “NOS,” and a
need to rule out bipolar disorder, depression and substance induced mood disorder.
While in prison, defendant was diagnosed with bipolar disorder with depression. In a
report dated December 7, 2016, Dr. Carlson noted that, while there was no evidence that
defendant suffered from psychosis, he was diagnosed with dysthymic disorder in 2011.
Defendant informed Dr. Carlson that he was previously diagnosed with bipolar disorder.
Further, according to the report of the probation officer, hours before the crimes at issue,
appellant was released from a Welfare and Institutions Code section 5150 hold from the
Tehama County Mental Health Crisis Unit.
Defendant subsequently pleaded guilty to the robbery count and admitted one
prior strike (§ 1170.12, subds. (a)-(d)) and two prior serious felonies (§ 667, subd. (a)(1));
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the remaining allegations were dismissed. The trial court sentenced defendant to the
upper term of five years on count one, doubled pursuant to the Three Strikes law, plus
five years for each of the prior serious felony convictions, for a total of 20 years in state
prison.
In conjunction with a motion to withdraw his plea, the defense submitted
numerous mental health records relating to defendant, including records from the
Riverside County Department of Mental Health, Tehama County Health Services Agency
Mental Health Division, and the Department of Corrections. These records revealed that
defendant had been diagnosed with mood disorder and anxiety disorder and that
defendant reported a prior diagnosis of bipolar disorder.
Defendant appealed, and while his appeal was pending, on June 27, 2018, the
Legislature enacted section 1001.36, which created a pretrial diversion program for
certain defendants with qualifying mental disorders. (§ 1001.36, subd. (a); Stats. 2018,
ch. 34, § 24.) The following year, this court filed a decision affirming defendant’s
conviction but remanding the matter to the trial court to permit the court to decide
whether to exercise its discretion under Senate Bill No. 1393 to strike one or both of
defendant’s prior serious felony enhancements imposed under section 667, subdivision
(a). (People v. Clark (Nov. 8, 2019, C085301) [nonpub. opn.].) On remand, the trial
court declined to exercise its discretion to strike one or both of defendant’s prior serious
felony sentence enhancements.
Defendant filed a notice of appeal.
DISCUSSION
Defendant argues, and respondent agrees, that he is entitled to remand so the trial
court can determine whether he is eligible for pretrial diversion, due to a specified mental
disorder under the recently enacted section 1001.36. Citing our Supreme Court’s
decision in People v. Frahs (2020) 9 Cal.5th 618 (Frahs), he contends that section
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1001.36 is retroactive to all cases not yet final. We conclude that under Frahs,
conditional remand is required.
Section 1001.36, which went into effect before defendant’s judgment became final
(Stats. 2018, ch. 34, § 24, eff. June 27, 2018), provides pretrial diversion may be granted
if the trial court finds all of the following criteria are met: (1) the defendant suffers from
a recently diagnosed mental disorder enumerated in the statute; (2) the disorder was a
significant factor in the commission of the charged offense, and that offense is not one of
the offenses enumerated in subdivision (b); (3) “[i]n the opinion of a qualified mental
health expert, the defendant’s symptoms of the mental disorder motivating the criminal
behavior would respond to mental health treatment”; (4) the defendant consents to
diversion and waives his right to a speedy trial; (5) the defendant agrees to comply with
treatment as a condition of diversion; and (6) the defendant will not pose an unreasonable
risk of danger to public safety, as defined in section 1170.18, if treated in the community.
(§ 1001.36, subd. (b)(1)-(2).) If the treatment under pretrial diversion is deemed
successful, the charges shall be dismissed, and the defendant’s criminal record expunged.
(§ 1001.36, subds. (b)(1)(A)-(C), (c)(3), (e).)
The statute further provides: “At any stage of the proceedings, the court may
require the defendant to make a prima facie showing that the defendant will meet the
minimum requirements of eligibility for diversion and that the defendant and the offense
are suitable for diversion. The hearing on the prima facie showing shall be informal and
may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima
facie showing is not made, the court may summarily deny the request for diversion or
grant any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).)
In Frahs, our Supreme Court concluded Estrada’s inference of retroactivity
applies to section 1001.36 such that defendants with qualifying mental disorders whose
cases are not yet final are entitled to limited remand for the trial court to determine
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whether they are eligible for mental health diversion. (Frahs, supra, 9 Cal.5th at pp. 624-
625; see In re Estrada (1965) 63 Cal.2d 740.) The “possibility of being granted mental
health diversion rather than being tried and sentenced ‘can result in dramatically different
and more lenient treatment.’ ” (Frahs, at p. 629, quoting People v. Superior Court (Lara)
(2018) 4 Cal.5th 299, 303.) As the court explained, “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.” (Frahs, at p. 631.) Thus, “the ameliorative nature of the
diversion program places it squarely within the spirit of the Estrada rule,” and the
program retroactively applies to defendants whose cases are not yet final. (Ibid.)
Frahs further held that a defendant is entitled to a conditional limited remand for
the trial court to conduct a mental health diversion eligibility hearing when “the record
affirmatively discloses that the defendant appears to meet at least the first threshold
eligibility requirement for mental health diversion - the defendant suffers from a
qualifying mental disorder (§ 1001.36, subd. (b)(1)(A)).” (Frahs, supra, 9 Cal.5th at
p. 640.) In Frahs, the court found a clinical and forensic psychologist’s testimony that
the defendant suffered from a qualifying mental disorder sufficient to meet the first
eligibility requirement. (Ibid.)
Defendant has introduced sufficient evidence demonstrating at least one qualifying
mental disorder. Section 1001.36 defines a qualifying mental disorder as one “identified
in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders,
including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or
post-traumatic stress disorder, but excluding antisocial personality disorder, borderline
personality disorder, and pedophilia.” (§ 1001.36, subd. (b)(1)(A).) As evidence of a
qualifying mental disorder, a defendant must provide a recent diagnosis by a qualified
mental health expert. (Ibid.) Here, at a minimum, defendant provided evidence of a
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recent diagnosis of Anxiety Disorder and Dysthymia, which are mental disorders
“identified in the most recent edition of the Diagnostic and Statistical Manual of Mental
Disorders.” (§ 1001.36, subd. (b)(1)(A).)
Given the above evidence, defendant meets at least the first threshold requirement
for eligibility for mental health diversion. (§ 1001.36, subd. (b)(1)(A); Frahs, supra,
9 Cal.5th at p. 640.) A conditional remand for the trial court to conduct a mental health
diversion eligibility hearing is appropriate under the circumstances.
DISPOSITION
We conditionally reverse defendant’s judgment and remand to the trial court for an
eligibility determination under section 1001.36. If the trial court finds that defendant
suffers from a mental disorder, does not pose an unreasonable risk of danger to public
safety, and otherwise meets the six statutory criteria, then the court may grant diversion.
If defendant successfully completes diversion, then the trial court shall dismiss the
charges. However, if the trial court determines that defendant does not meet the criteria
under section 1001.36, or if defendant does not successfully complete diversion, then his
convictions and sentence shall be reinstated.
HULL, J.
We concur:
BLEASE, Acting P. J.
RENNER, J.
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