2021-09

People v. Rodriguez CA5 ( 2021 )

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Filed 9/24/21 P. v. Rodriguez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080268
Plaintiff and Appellant,
(Tulare Super. Ct. No. PCF358304)
v.
FRANCISCO CORTEZ RODRIGUEZ, OPINION
Defendant and Respondent.
APPEAL from an order of the Superior Court of Tulare County. Michael B.
Sheltzer, Judge.
Tim Ward, District Attorney, Dan Underwood, Chief Deputy District Attorney,
Dave Alavezos, Jessica Weatherly, Adam Clare, and Katherine Smith, Deputy District
Attorneys, for Plaintiff and Appellant.
Susan L. Jordan, under appointment by the Court of Appeal, for Defendant and
Respondent.
-ooOoo-
SEE CONCURRING AND DISSENTING OPINION
INTRODUCTION
Respondent and defendant Francisco Cortez Rodriguez (Rodriguez), who was 70
years old and diagnosed with Alzheimer’s dementia, was arrested after an altercation
with a security guard at a market. He was charged with four felony offenses with one
prior strike conviction. After being held to answer, he moved for pretrial mental
diversion pursuant to Penal Code1 sections 1001.35 and 1001.36, based on the argument
that his Alzheimer’s dementia was a significant factor in the commission of the charged
offenses. The Tulare County District Attorney’s office opposed the diversion motion.
After a lengthy evidentiary hearing, including testimony from an expert about
Rodriguez’s mental disorder, the trial court overruled the district attorney’s objections,
granted Rodriguez’s motion, and placed him on pretrial mental health diversion with a
specific treatment plan pursuant to section 1001.36.
Thereafter, the People of the State of California, as appellant and represented by
the district attorney, filed the instant appeal from the trial court’s order that granted the
diversion motion.
Rodriguez argues the People lack the statutory right to file an appeal from the trial
court’s order. In the alternative, Rodriguez asserts the People have raised a new
objection to the testimony of the expert that was not raised at the diversion hearing and
have forfeited appellate review of this contention.
We affirm. We find the People have a statutory right to file an appeal from the
trial court’s order granting pretrial mental health diversion based on section 1238,
subdivision (a)(1). We further find the People forfeited review of the new argument
about the expert testimony being raised on appeal, based on the People’s concession that
they did not raise this objection at the diversion hearing, and well-recognized authorities
that hold such challenges are forfeited if not raised below.
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2
FACTS
On November 3, 2017, B.S. was working as the security guard for Guadalajara
Meat Market in Porterville.2 He saw Rodriguez in the parking lot, jumping in front of
vehicles and trying to stop customers. B.S. gave Rodriguez $2 and asked him to leave
the property. B.S. went into the store and was contacted by a female customer, who
reported that Rodriguez solicited her to commit a sexual act.
B.S. returned to the parking lot and saw Rodriguez relieving himself in public.
B.S. told Rodriguez to leave, but he refused. B.S. said he was going to place Rodriguez
in handcuffs until the police arrived. Rodriguez told B.S. that if he touched him, he was
going to kill him. B.S. tried to detain Rodriguez, but Rodriguez hit B.S. in the face with a
stick that was four to five feet long. Rodriguez said his friends were going to “get” B.S.
and beat him up.
The police responded to the market and tried to take Rodriguez into custody. The
officers believed he was intoxicated based on his watery and bloodshot eyes, slurred
speech, and the strong odor of an alcoholic beverage coming from him. Rodriguez was
still holding the stick and refused to comply with the officers’ orders to put down the
stick. When the officers attempted to detain him, Rodriguez resisted and tried to pull
away from them. He was eventually restrained, placed in handcuffs, and seated in a
patrol car. While he was in the car, he kept shouting in Spanish and threatened to kill the
officers when he got out of jail or have someone do it for him.
Rodriguez was arrested and booked into custody at the jail.
PROCEDURAL BACKGROUND
On November 7, 2017, a felony complaint was filed in the Superior Court of
Tulare County charging Rodriguez with count 1, assault with a deadly weapon, a stick
(§ 245, subd. (a)(1)); count 2, criminal threats (§ 422), with an enhancement for personal
2 The following facts are from the preliminary hearing.
3
use of a deadly weapon (§ 12022, subd. (b)(1)); and counts 3 and 4, resisting an executive
officer (§ 69); with one prior strike conviction and one prior serious felony enhancement.
On the same day, Rodriguez pleaded not guilty and denied the special allegations.
The court set bail and Rodriguez remained in custody.
Section 4011.6 Report
On November 17, 2017, the court granted the request of Rodriguez’s attorney for a
mental health evaluation pursuant to section 4011.6.3 Rodriguez remained in jail.
On December 7, 2017, a licensed mental health clinician with Corizon Behavorial
Health Services filed a mental health assessment after meeting with Rodriguez in jail. As
the court later stated, the report concluded that Rodriguez met the diagnostic criteria for
bipolar disorder based on symptoms of pressured speech, distractibility, inflated sense of
self, decreased need for sleep, flight of ideas, and some psychomotor agitation.
On December 8, 2017, the court reviewed the section 4011.6 report, and ordered
the probation department to determine whether Rodriguez should receive an honor
release.
Probation Report About Pretrial Release
On December 27, 2017, the probation officer filed the requested report. The
probation officer tried to interview Rodriguez, who remained in custody at the jail, but
Rodriguez’s answers to general questions “were sometimes nonsensical, and he seemed
to have difficulty comprehending” the questions.
Rodriguez said he did not know why he was in custody; he did not remember what
happened on the day of his arrest; and he was not drinking that day. Rodriguez
repeatedly said that he had only been in custody three or four days, even though he had
3 Section 4011.6 provides for the transfer of jail inmates who may be mentally
disordered to a facility for 72-hour treatment and evaluation pursuant to Welfare and
Institutions Code section 5150. (Del Castillo v. Superior Court (2019)

38 Cal.App.5th 1117

, 1121.)
4
been in jail since November 3, 2017. Rodriguez also said he woke up feeling hung over
on the morning of the interview and claimed he had consumed alcohol the night before,
even though he was in jail and had no access to alcohol.
The probation officer determined Rodriguez had 70 arrests for public intoxication
since 1995, plus prior incidents of domestic violence and assault.
The probation officer spoke with Rodriguez’s wife, who stated he was diagnosed
with dementia one year earlier. He had a history of alcoholism but stopped drinking after
he was released from custody in April 2017, following his most recent prior arrest. His
wife explained that while he remained sober, he would “consistently wake up in the
mornings stating he needs to drink because he feels as though he is hung over because he
drank the night before, but Mrs. Rodriguez stated [he] had not consumed any alcohol the
night before.” She reported that on the day of his arrest, he snuck out of the house and
started drinking alcohol again. She wanted him released from jail but did not think she
could care for him by herself and had considered admitting him into an assisting living
facility.
The probation officer recommended against pretrial release because of
Rodriguez’s alcoholism and aggressiveness, and his wife’s belief that she could not care
for him by herself.
On March 6, 2018, the court granted Rodriguez’s motion for pretrial release
subject to electronic monitoring. Thereafter, Rodriguez complied with the terms of his
pretrial release and electronic monitoring for the entirety of the proceedings and did not
commit any new violations of law.
The Information
On May 1, 2018, the court conducted the preliminary hearing and held Rodriguez
to answer.
5
On May 4, 2018, the information was filed that alleged the same felony counts as
in the complaint, including the prior strike conviction. Rodriguez again pleaded not
guilty and denied the allegations.
PRETRIAL MENTAL HEALTH DIVERSION
Effective on June 27, 2018, the Legislature enacted a discretionary pretrial
diversion program for people with qualifying mental disorders. (§§ 1001.35, 1001.36,
added by Stats. 2018, ch. 34, § 24; People v. Frahs (2020)

9 Cal.5th 618

, 626 (Frahs);
People v. Moine (2021)

62 Cal.App.5th 440

, 447 (Moine).) The provisions of section
1001.36 are fully retroactive to cases not yet final on appeal. (Frahs, supra, 9 Cal.5th at
pp. 624, 630.)
Section 1001.36 states that a trial court may grant pretrial diversion if it finds all of
the following. First, the court must be “satisfied that the defendant suffers from a mental
disorder as identified in the most recent edition of the Diagnostic and Statistical Manual
of Mental Disorders .…” (§ 1001.36, subd. (b)(1)(A).)4 “Section 1001.36,
subdivision (b)(1)(A) defines a qualifying mental disorder as one that is ‘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.’ ” (Moine, supra, 62 Cal.App.5th at p. 449.)5
4 Unless otherwise indicated, all further citations to the “DSM-5” are to the fifth
and current edition of the Diagnostic and Statistical Manual of Mental Disorders (2013),
which the trial court and the parties discussed at the diversion hearing, and the court
relied on to grant Rodriguez’s motion for diversion.
The DSM-5 is “a handbook published by the American Psychiatric Association,
used by health care professionals all over the world as an authoritative guide to the
diagnosis of mental disorders.” (Acevedo Granados v. Garland (9th Cir. 2021)

992 F.3d 755

, 760, fn. 1; People v. Johnson (2015)

235 Cal.App.4th 80

, 83 & fn 2.)
5Effective January 1, 2019, section 1001.36 was amended to state that defendants
charged with murder, voluntary manslaughter, and enumerated sexual assault offenses are
6
“Evidence of the defendant’s mental disorder shall be provided by the defense and
shall include a recent diagnosis by a qualified mental health expert. In opining that a
defendant suffers from a qualifying disorder, the qualified mental health expert may rely
on an examination of the defendant, the defendant’s medical records, arrest reports, or
any other relevant evidence.” (§ 1001.36, subd. (b)(1)(A), italics added.)6
Second, the court must be “satisfied that the defendant’s mental disorder was a
significant factor in the commission of the charged offense.” (§ 1001.36,
subd. (b)(1)(B).) “A court may conclude that a defendant’s mental disorder was a
significant factor in the commission of the charged offense if, after reviewing any
relevant and credible evidence, including, but 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, the court concludes that the defendant’s mental
disorder substantially contributed to the defendant’s involvement in the commission of
the offense.” (Ibid.)
Third, “a qualified mental health expert” must opine that “the defendant’s
symptoms of the mental disorder motivating the criminal behavior would respond to
mental health treatment.” (§ 1001.36, subd. (b)(1)(C).) Fourth, subject to certain
exceptions, the defendant must consent to diversion and waive his or her right to a speedy
trial. (Id., subd. (b)(1)(D).) Fifth, the defendant must agree to comply with treatment as
a condition of diversion. (Id., subd. (b)(1)(E).) Finally, the court must be “satisfied that
ineligible for diversion. (Frahs, supra, 9 Cal.5th at pp. 626–627; § 1001.36,
subd. (b)(1)(F); Stats. 2018, ch. 1005, § 1.)
6As the People concede, section 1001.36 does not define the phrase “qualified
mental health expert.”
7
the defendant will not pose an unreasonable risk of danger to public safety … if treated in
the community.” (Id., subd. (b)(1)(F).)
“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….” (§ 1001.36, subd. (b)(3).)7
“If the defendant makes a prima facie showing that he or she meets all of the
threshold eligibility requirements and the defendant and the offense are suitable for
diversion, and the trial court is satisfied that the recommended program of mental health
treatment will meet the specialized mental health treatment needs of the defendant, then
the court may grant pretrial diversion. [Citations.] The maximum period of diversion is
two years. [Citation.] If the defendant is subsequently charged with an additional crime,
or otherwise performs unsatisfactorily in the assigned program, then the court may
reinstate criminal proceedings. [Citation.] ‘If the defendant has performed satisfactorily
in diversion, at the end of the period 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’ and ‘the arrest upon which the diversion was based shall be deemed
never to have occurred.’ [Citation]” (Frahs, supra, 9 Cal.5th at p. 627, italics added.)
The court’s decision on a motion for diversion is reviewed for an abuse of
discretion, and factual findings are reviewed for substantial evidence. (Moine, supra, 62
Cal.App.5th at pp. 447–449; People v. Oneal (2021)

64 Cal.App.5th 581

279 Cal.Rptr.3d 142

, 149].)
7The amendments that were effective on January 1, 2019, also added
subdivision (b)(3) to section 1001.36, prior to when Rodriguez filed his motion for
diversion. (Stats.2018, ch. 1005, § 1, eff. Jan. 1, 2019.)
8
RODRIGUEZ’S MOTION FOR DIVERSION
On June 14, 2019, Rodriguez filed a motion for pretrial mental health diversion
pursuant to section 1001.36. The motion stated Rodriguez’s physician diagnosed him
with “Alzheimer’s Dementia” prior to his arrest in this case. Rodriguez had been charged
with alcohol-related offenses “dozens” of times in the past. In the spring of 2017,
Rodriguez was released from custody after his most recent prior arrest, he was closely
watched by his family, and he stopped drinking. Rodriguez’s symptoms from
Alzheimer’s dementia, however, led him to falsely believe he was suffering from a
hangover and he wanted to drink again. On the day of his arrest in this case, he left the
family home and suffered a relapse into alcoholism, which exacerbated his Alzheimer’s
dementia and resulted in his arrest for the charged offenses.
Rodriguez’s motion asserted that symptoms from Alzheimer’s dementia motivated
his criminal behavior and played a significant role in the commission of the charged
offenses:
“No one can know what was going on in Mr. Rodriguez’s head on
November 3, 2017, perhaps Mr. Rodriguez least of all. The most likely
series of events is that he was experiencing uncomfortable symptoms,
including headache, which he interpreted as hangover, despite being sober
for months at that point. Both his [adult] daughter and probation [in the
pretrial release report] relate Mr. Rodriguez complaining of hangover when
it is clear that he had not been drinking prior …. Recalling only the long-
term memory that drinking alcohol when hung-over can alleviate the
negative symptoms, and forgetting due to Alzheimer’s that he had not
consumed alcohol recently or for months, he sought to ‘cure’ his hangover
by drinking alcohol. Thus, though alcohol was a factor in the charged
behavior, the alcohol consumption was itself due to the underlying mental
illness: Alzheimer’s Dementia.”8
The motion acknowledged that Rodriguez would suffer from Alzheimer’s
dementia for the rest of his life and his mental health condition would become worse but
8As will be explained below, the district attorney’s opposition quoted the first
sentence of this paragraph out of context.
9
argued he would benefit from treatment for his condition through pretrial diversion since
he was already responding at home under the care of his two physicians.
The motion was supported by documentary exhibits consisting of a letter from
Dr. Francis Cunanan, M.D., and a review of Rodriguez’s medical records conducted by
Amber Alves-McAuley, a licensed clinical social worker (LCSW) with the public
defender’s office.
Dr. Cunanan’s Letter
Dr. Cunanan’s letter, dated September 11, 2017 (two months before Rodriguez
was arrested in this case), stated Rodriguez (born 1947) had been his patient for the past
five years, and he had “multiple medical problems which include Alzheimer’s
Dementia.” Dr. Cunanan stated that inpatient rehabilitation would not be appropriate
because Rodriguez was suffering from “worsening and incurable Alzheimer’s Dementia,”
and he would be “better treated at home with his current medications; furthermore, he has
stopped drinking altogether.”
Ms. Alves-McAuley’s Records Review
Ms. Alves-McAuley submitted a report in support of the motion. She had over 12
years of experience in social services and previously worked as a therapist at the Visalia
Adult Integrated Clinic, where she conducted mental health assessments and provided
therapy services.
Interview with Rodriguez’s family
Ms. Alves-McAuley’s report summarized her meeting with Rodriguez and his
family. Rodriguez was now 71 years old, out of custody, and lived with his wife and
adult children in Porterville. His wife and daughter said he was unable to directly answer
questions because he suffered from Alzheimer’s dementia, memory loss, and confusion.
Rodriguez had worked in the fields until he retired in 2006.
Rodriguez’s prior record included misdemeanor charges of child endangerment,
public intoxication, battery, resisting arrest, trespassing, false information to the police,
10
criminal threats, possession of a weapon, hit and run, driving on a suspended license,
petty theft, driving under the influence, and malicious mischief, and felony charges of
criminal threats and domestic violence.
Prior to his arrest in this case, Rodriguez’s last conviction for public intoxication
was in March 2017. Rodriguez’s daughter said he had a serious problem with alcohol,
his prior offenses were related to his alcoholism, there were times the family called the
police because of domestic violence when he was drunk, and several times he drank so
much that he was admitted to the hospital. Rodriguez had previously completed a court-
ordered residential treatment program and attended Alcoholics Anonymous meetings.
Rodriguez’s daughter believed he was diagnosed with Alzheimer’s dementia four
years earlier. His daughter noticed symptoms several years before the diagnosis because
he got lost, forgot his parents died, and had problems understanding his daily assignments
when he was still working.
Rodriguez’s daughter stated that since he had been released from jail in the instant
matter, he was taking his medication and doing much better. His daughter and her family
moved from Fresno to Porterville to be closer to her parents and help care for Rodriguez.
His adult children and older grandchildren cared for him, and he had not wandered away
again because of increased supervision. His family intended to continue to care for
Rodriguez at home, and they stated they would reach out for additional support if his
condition became unmanageable.
Dr. Cunanan’s Records
Ms. Alves-McAuley’s report included a review of Rodriguez’s medical records
from Dr. Cunanan, his primary care physician who diagnosed him with Alzheimer’s
dementia. Dr. Cunanan’s records “indicate[d] symptoms of dementia in the months
leading up to the offenses.” On August 28, 2017, Dr. Cunanan’s records stated that
Rodriguez’s wife reported he was “ ‘getting worse’ and was ‘agitated and anxious.’ ”
11
Dr. Cunanan saw Rodriguez on September 11 and October 5, 2017, and described
Rodriguez as “ ‘agitated and anxious.’ ”
Dr. Thiagarajan’s Records
Ms. Alves-McAuley report stated that Dr. Ramu Thiagarajan, M.D., was
Rodriguez’s neurologist. Dr. Thiagarajan’s records for February 11, 2019, stated that
Rodriguez was diagnosed with Alzheimer’s dementia, and his “ ‘[c]ognitive decline has
been apparent for two years. His mental status appears to be gradually deteriorating over
the last 6 months.’ ” Dr. Thiagarajan reported Rodriguez “ ‘cannot recognize familiar
faces, find his way home, or remember the date,’ ” he experienced confusion and
disturbed sleep, but his sleep improved with adjusting his medication.
Dr. Thiagarajan’s records stated that an MRI was performed on Rodriguez’s brain,
and the results “ ‘showed significant atrophy and white matter ischemic changes
consistent with vascular dementia.’ ” Rodriguez was taking psychotropic medications
including Namzaric, Gabapentin, Buspirone, Seroquel, and Cymbalta.
Recommendation
Ms. Alves-McAuley’s report stated that based on her review of Rodriguez’s
medical records and interviews with his family, she believed he suffered from “the
mental disorder Alzheimer’s dementia,” and his mental disorder was a major factor in the
current charges because Rodriguez was reportedly suffering from symptoms including
confusion and memory impairment at the time of his arrest.
“Although Mr. Rodriguez has a history of alcoholism, I believe it is
likely that his actions in the present case are related to his mental illness.
Mr. Rodriguez’s family reports that leading up to his arrest[,] he had been
experiencing memory problems and confusion, and had wandered away
from home on numerous occasions. Mr. Rodriguez’s daughter states that
he would remember that he had once liked alcohol and would leave the
house to get a drink, forgetting that he no longer drank. Since that time,
Mr. Rodriguez was started on an effective psychiatric medications regimen,
and his family rearranged their schedules to ensure that Mr. Rodriguez is
being adequately supervised.
12
“Mr. Rodriguez’s family is abundantly clear that Mr. Rodriguez
must take his medications consistently as prescribed, and that he must be
watched carefully to avoid the possibility of wandering off and getting into
trouble again.
“Although Mr. Rodriguez suffers from an incurable and worsening
disease, in my opinion his family and doctors have found a way to work
together and manage his symptoms. I believe that continued medication
management as well as the support of his family will maintain Mr.
Rodriguez’s current stability and allow him to safely remain in his home
and avoid reoffending.” (Italics added.)
THE DISTRICT ATTORNEY’S OPPOSITION
On July 11, 2019, the district attorney filed opposition and asserted the statutory
requirements for diversion “are far more rigorous than simply granting diversion to every
defendant who comes to court and says, in effect, ‘I have a mental illness, I want to be
diverted.’ ”
The district attorney challenged the following statement in Rodriguez’s motion:
“ ‘No one can know what was going on in Mr. Rodriguez’s head on November 3,
2017.’ ” (Bold print omitted.) The district attorney asserted that such a statement was
“utterly incompatible” with the statutory requirements for diversion because “[h]ow can
[Rodriguez] argue that he knows that his mental disorder played any role when ‘no one
can know what was going on in Mr. Rodriguez’s head…?’ ”9
The district attorney posited that Rodriguez’s doctor “might know what was going
on in [his] head, or at least have an opinion whether [his] mental disorder played a
9 The district attorney quoted this statement from Rodriguez’s motion out of
context. As noted above, the rest of the paragraph connected Rodriguez’s lack of short
term memory as a result of Alzheimer’s dementia, to his erroneous belief that he had a
hangover and needed to start drinking again: “Recalling only the long-term memory that
drinking alcohol when hung-over can alleviate the negative symptoms, and forgetting due
to Alzheimer’s that he had not consumed alcohol recently or for months, he sought to
‘cure’ his hangover by drinking alcohol. Thus, though alcohol was a factor in the
charged behavior, the alcohol consumption was itself due to underlying mental illness:
Alzheimer’s Dementia.”
13
significant role in the commission of the charged offense. Unfortunately, Dr. Cunanan
renders no such opinion. All Dr. Cunanan’s statement indicates is that [Rodriguez] is
[his] patient and has Alzheimer’s Dementia,” and the physician’s letter did not address
Rodriguez’s arrest.10
Next, the district attorney argued Rodriguez improperly relied on Ms. Alves-
McAuley’s report to support “the notion” that his mental disorder of Alzheimer’s
dementia played a significant role in the commission of the charged offenses.
“First, LCSW Amber Alves-McAuley is not a medical doctor and her
opinion, though perhaps helpful in many ways, cannot be the sole basis to
establish that [Rodriguez’s] mental disorder played a significant role in the
commission of the charged offense, especially when Dr. Cunanan is
noticeabl[y] silent on the issue.”
The district attorney argued the social worker failed to ask Rodriguez about what
happened on the day of his arrest, and thus had no basis for her opinion that a mental
disorder played a significant role in the commission of the charged offenses. Rodriguez
also had prior violent felonies that could not be excused by Alzheimer’s dementia, and
the district attorney asserted he was panhandling on the day of his arrest and got caught.
“After all, no one can know what was going on in [Rodriguez’s] head, perhaps the Court
least of all ….”
EVIDENTIARY HEARING ON DIVERSION MOTION
On September 20, 2019, the court conducted an evidentiary hearing on
Rodriguez’s motion for pretrial diversion.
Ms. Alves-McAuley’s Testimony on Voir Dire
Ms. Alves-McAuley was called by Rodriguez and was the only witness; both
parties conducted voir dire as to whether she was an expert. She had a bachelor’s degree
in psychology and a master’s degree in social work, worked in social services for about
10Dr. Cunanan’s letter, stating that Rodriguez was diagnosed with Alzheimer’s
dementia, was dated two months before his arrest in this case.
14
12 years, and had been an LCSW for two years. She had been trained about disorders
listed within the DSM-5. While she was not a medical doctor, her training involved
reviewing information from physicians to conduct patient assessments.
Ms. Alves-McAuley testified that while an Alzheimer’s diagnosis required MRIs
and medical testing, Alzheimer’s disease was listed in the DSM-5 as a mental disorder
and defined as a “major neurocognitive disorder due to Alzheimer’s disease.”
The District Attorney’s Objections
After voir dire, the district attorney objected to Ms. Alves-McAuley testifying as
an expert because Rodriguez’s diversion motion was based on the claim that he had
Alzheimer’s disease; Alzheimer’s disease was a medical diagnosis and not a mental
health condition; Ms. Alves-McAuley’s expertise “[was] not in that medical field;” and
she was not qualified to testify as an expert in this case since she was not a medical
doctor.
The district attorney “definitely agree[d]” Ms. Alves-McAuley had “a lot of
training,” but argued she could not qualify as an expert in this case because “Alzheimer’s
disease is a medical disorder, and the substance of the moving paper[s] in this matter is
that [Rodriguez] has been diagnosed with Alzheimer’s disease.Ms. Alves-McAuley’s
expertise is not in that medical field.”
The district attorney asserted the social worker did not have “specific training”
about Alzheimer’s disease but only had “some related experience in a related disorder in
the DSM-5 … which is a neurocognitive disorder that could be caused by Alzheimer’s or
other dementia-related disorders, but that is a separate diagnosis from Alzheimer’s. So
accordingly, I don’t think that this is a properly qualified expert in the given case.”
The Court Overrules the District Attorney’s Objections
The court stated Ms. Alves-McAuley was called as an expert to testify whether
Rodriguez suffered from Alzheimer’s disease, she could testify as an expert, and any lack
of specific expertise on the topic would go to the weight and not the admissibility of her
15
testimony. The court noted she was not being called as an expert to give her own
diagnosis of Alzheimer’s dementia, and the district attorney could object to her testimony
if she lacked expertise on the topic.
As Ms. Alves-McAuley started to testify about her review of Rodriguez’s medical
records, the district attorney immediately objected and claimed such testimony
constituted inadmissible hearsay. The court overruled the objection and held the formal
rules of evidence did not apply at a diversion hearing, the court could consider hearsay
evidence, and Ms. Alves-McAuley could rely on reports from other experts.
The district attorney lodged a continuing hearsay objection to all aspects of
Ms. Alves-McAuley’s testimony and argued section 1001.36 did not eliminate the
hearsay rules of evidence.
The court overruled the district attorney’s evidentiary objections because the
entirety of the diversion statute “contemplates reliable hearsay being admissible in these
hearings.” It found section 1001.36, subdivision (b) permitted introduction of a broad
range of “relevant and credible evidence,” including medical records, records or reports
by qualified medical experts, or evidence the Rodriguez displayed symptoms consistent
with the relevant medical disorder at or near the time of the offense, and
subdivision (c)(3) further stated the diversion hearing “shall be informal” and that
“reliable hearsay” may be introduced.11
11 The court correctly overruled the district attorney’s evidentiary objections. “A
court may conclude that a defendant’s mental disorder was a significant factor in the
commission of the charged offense if, after reviewing any relevant and credible evidence,
including, but 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, the court concludes that the defendant’s mental disorder substantially contributed
to the defendant’s involvement in the commission of the offense.” (§ 1001.36,
subd. (b)(1)(B), italics added.) “The hearing on the prima facie showing shall be
16
The district attorney again objected to Ms. Alves-McAuley’s testimony because
Rodriguez’s motion for diversion was based on the allegation that he suffered from
Alzheimer’s disease, that was a medical diagnosis, and she was not qualified to testify as
an expert about the medical diagnosis that Rodriguez’s motion was relying on:
“And, Your Honor, given that [Ms. Alves-McAuley] does not have
the expertise in Alzheimer’s – it would be a doctor – and given that
Alzheimer’s in and of itself is not specifically in the DSM-5, but a related
product of impairment disorder, is my understanding, her reviewing of
reports showing the defendant’s diagnosis can, in fact, inform her opinion
as to his potential diagnosis in the DSM-5 which is within her field of
expertise, but the evidence elicited through the People in the hearsay
statement, that she is relying on a diagnosis from a doctor who is not
present in this court, who is reporting that the defendant has Alzheimer’s, is
a lack of foundation because she does not have expertise in Alzheimer’s,
but also is hearsay because that is an out-of-court declarant.” (Italics
added.)
The court asked Ms. Alves-McAuley if she was licensed to make diagnoses as an
LCSW. She said yes and explained Alzheimer’s disease is listed as a mental disorder in
the DSM-5, and the latest edition gave Alzheimer’s a different name because the manual
was “constantly changing names of things, but it is the same diagnosis.”
The court overruled the district attorney’s objections, and stated it had “looked at
DSM-5 and Alzheimer’s is definitely among the diagnoses ….”12
informal and may proceed on offers of proof, reliable hearsay, and argument of
counsel….” (§ 1001.36, subd. (b)(3), italics added.)
The district attorney’s repeated assertions that Alzheimer’s disease was not in
12
DSM-5 were incorrect.
The fourth volume of the DSM (DSM-IV) listed “dementia as among mental
disorders that include cognitive deficits resulting from (among other causes) ‘the
combined effects of cerebrovascular disease and Alzheimer’s disease.’ ” (County of Los
Angeles v. Superior Court (2013)

222 Cal.App.4th 434

, 448, fn. omitted.) “ ‘The
disorders in the ‘Dementia’ section [of DSM-IV] are characterized by the development of
multiple cognitive deficits (including memory impairment) that are due to the direct
physiological effects of a general medical condition, to the persisting effects of a
17
Ms. Alves-McAuley’s Testimony
Ms. Alves-McAuley testified that in approximately 2015, Dr. Cunanan,
Rodriguez’s primary care physician, diagnosed him with Alzheimer’s disease, a mental
illness identified in the DSM-5. Rodriguez’s adult daughter saw symptoms about four
years before he was arrested in this case.
In Ms. Alves-McAuley’s opinion, Rodriguez also met the criteria in the DSM-5
for alcohol use disorder and sustained remission based on his multiple prior arrests for
public intoxication, and his family’s disclosure that he had an alcohol problem. His
family knew Rodriguez stopped drinking in April 2017, because they were watching him.
However, Rodriguez would get confused and forget that he was not drinking anymore,
and he would repeatedly tell his family that he had a hangover and wanted to drink again.
After Rodriguez had been in custody for three weeks in this case, the probation
officer interviewed him and Rodriguez again insisted that he had a hangover, even though
he had not been drinking. The probation officer also reported Rodriguez had difficulty
comprehending questions and his answers were nonsensical.
Ms. Alves-McAuley testified that Rodriguez wandered away from his home on the
day of his arrest in this case, because his family did not realize how closely they had to
watch him. Ms. Alves-McAuley testified the DSM-5 listed wandering, combative
substance, or to multiple etiologies (e.g., the combined effects of cerebrovascular disease
and Alzheimer’s disease).’ [Citation.]” (Id. at p. 448, fn. 11.)
At the diversion hearing in this case, the trial court expressly relied on the fifth
edition of the DSM, published in 2013. DSM-5 stated the disorders previously described
in the fourth edition as “ ‘Dementia, Delirium, Amnestic, and Other Cognitive
Disorders’ ” had been reclassified as “neurocognitive disorders (NCDs),” and “[t]he
major or mild NCD subtypes” included “NCD due to Alzheimer’s disease.” (DSM-5 at
p. 521, italics added.) “Dementia is subsumed under the newly named entity major
neurocognitive disorder ….” (DSM-5 at p. 521.) “Major NCD corresponds to the
condition referred to in DSM-IV as dementia, retained as an alternative in this volume.”
(DSM-5 at p. 536.)
18
behavior, and physically aggressive behavior as characteristics of Alzheimer’s dementia
and neurocognitive disorder.13
When his family realized Rodriguez walked away from the house, they looked for
him, called hospitals and police, and were very worried because they could not find him.
Rodriguez was now at home, and his daughter reported his behavior appeared to
be well controlled with his current medications, and he no longer wandered away. His
physical health was declining, and he needed more assistance from his family to perform
the activities of daily living.
Cross-examination
Ms. Alves-McAuley testified she interviewed Rodriguez on April 8, 2019. He
responded to questions about his early life but could not remember recent events. She
explained that Rodriguez’s ability to remember the distant past, but not the present, was
consistent with someone suffering from a neurocognitive disorder.
The district attorney asked whether Alzheimer’s and related cognitive disorders
are also medical conditions. Ms. Alves-McAuley testified that in contrast to many
mental disorders in the DSM-5, there was a medical basis for Alzheimer’s if an MRI is
performed. Rodriguez’s physician ordered an MRI and reported that it was consistent
with dementia.14
13 “[A]pproximately 80% of individuals with major NCD due to Alzheimer’s
disease have behavioral and psychological manifestations; these features are also frequent
at the mild NCD stage of impairment…. With moderately severe major NCD, psychotic
features, irritability, agitation, combativeness, and wandering are common. Late in the
illness, gait disturbance, dysphagia, incontinence, myoclonus, and seizures are observed.”
(DSM-5 at pp. 540–541, italics added.) “Agitation is common in a wide variety of
NCDs, particularly in major NCD of moderate to severe severity, and often occurs in the
setting of confusion or frustration. It may arise as combative behaviors, particularly in
the context of resisting caregiving duties such as bathing and dressing….” (DSM-5 at
p. 535, italics added.)
14 “The NCDs are unique among DSM-5 categories in that these are syndromes
for which the underlying pathology, and frequently the etiology as well, can potentially
be determined. The various underlying disease entities have all been the subject of
19
The district attorney asked whether Alzheimer’s and dementia were different
disorders. Ms. Alves-McAuley testified Alzheimer’s was a specific form of dementia,
and the DSM-5 broadly defined categories of neurocognitive disorders to include
Alzheimer’s disease and other brain injuries.
Ms. Alves-McAuley acknowledged she was not a doctor and could not make a
medical diagnosis, but she could make a diagnosis of neurocognitive disorder under the
DSM-5 based on Rodriguez’s medical records and history of his behavior.
The district attorney asked whether the DSM-5 stated that Alzheimer’s dementia
was a progressively worsening disorder. Ms. Alves-McAuley said it was incurable and
progressively became worse.
The Court’s Questions
The court noted that Corizon’s mental health assessment of Rodriguez was
performed in jail on November 17, 2017, shortly after his arrest, and that it “points out a
lot of the disorientation and lack of ability to understand what’s going on,” and gave a
diagnosis of bipolar disorder.
The court asked Ms. Alves-McAuley how to determine whether Rodriguez’s
mental disorder played a significant role in the commission of the instant offenses, or if
he was just drunk, obnoxious, and violent, given his numerous prior arrests for public
intoxication. Ms. Alves-McAuley testified that “you can’t see into anybody’s mind,” but
noted that when Rodriguez was in custody, the probation officer had reported that he had
difficulty comprehending questions. Rodriguez’s physician had already diagnosed him
with dementia prior to his arrest in this case, and his daughter said his symptoms existed
when he was still working in the fields and could not comprehend his assignments. Ms.
extensive research, clinical experience, and expert consensus on diagnostic criteria.”
(DSM-5 at p. 521.)
20
Alves-McAuley believed his confusion, memory issues, and wandering away from home
could be due to his mental disorder.15
The Parties’ Arguments
After hearing Ms. Alves-McAuley’s testimony, the court invited the parties to
argue the merits of the diversion motion.
Rodriguez’s Arguments
Rodriguez’s attorney argued the evidence established the criteria set forth in
section 1001.36 for pretrial diversion because Alzheimer’s disease was a diagnosis in the
DSM-5, even though the nomenclature had changed in the current edition, and Rodriguez
had other qualifying diagnoses of alcoholism in remission and bipolar disorder. The
mental disorder played a significant role in the commission of the charged offenses and
his conduct was consistent with that disorder – he wandered away from home and got
into a physical altercation, which were “literally” textbook symptoms of Alzheimer’s
disease. Rodriguez’s behavior was inconsistent with his prior arrests for public
intoxication, and his previous violent behavior was separated by quite a bit of time from
the instant case.
Counsel stated since Rodriguez had been released from custody, his symptoms
responded to medication and treatment from his physicians, and he had not consumed
alcohol or been involved in any disruptive behavior.
The District Attorney’s Arguments
The district attorney argued Rodriguez failed to prove his alleged mental disorder
was a significant factor in committing the charged offenses, because even the defense
motion stated that “no one can know what was going on inside the defendant’s head
15 “Agitation is common in a wide variety of NCDs, particularly in major NCD of
moderate to severe severity, and often occurs in the setting of confusion or frustration. It
may arise as combative behaviors, particularly in the context of resisting caregiving
duties such as bathing and dressing.…” (DSM-5 at p. 535, italics added.)
21
when he committed the crime in question.” The district attorney asserted, “[W]hat we do
know is that the history of [his] drug intoxication goes back literally for decades,” and
was the more likely reason for his conduct.
The district attorney again claimed Alzheimer’s disease was not listed in the
DSM-5:
“[THE DISTRICT ATTORNEY]: “[T]he medical symptoms of
Alzheimer’s and/or dementia, which are two different things medically, I
might add, require different diagnoses altogether, and some are diagnosed
different ways than others. The medical diagnoses of dementia or
Alzheimer’s are different from the DSM-5 diagnosis.
“THE COURT: Where does that come from?
“[THE DISTRICT ATTORNEY]:Alzheimer’s is a medical disease.
“THE COURT:It’s also a mental health disease as outlined in the
DSM-5.
“[THE DISTRICT ATTORNEY]:I understand that, but we have no
evidence showing that what makes it a mental health disease outlined in the
DSM-5 are the same exact requirements that –
“THE COURT:It’s the same disease.I’m not understanding your
argument.
“[THE DISTRICT ATTORNEY]: What is in the DSM-5, according
to the expert, is a neurocognitive impairment.
“THE COURT: And that is Alzheimer’s as well.”16 (Italics
added.)
Next, the district attorney argued that Rodriguez’s alleged mental disorder was not
subject to pretrial diversion because “Alzheimer’s does not have a great prognosis, it is a
significantly worsening disease that only declines. So while it may respond to
16Again, the district attorney’s renewed arguments on this point were meritless
because the fifth edition of the DSM clearly identified Alzheimer’s disease as a
neurocognitive disorder and clarified that only the chapter heading and classification had
changed. (DSM-5 at p. 541.)
22
management, I don’t know that management of Alzheimer’s and related dementia
disorders and diseases is within the legislature’s contemplation of treatment within
1001.36” since it was incurable.
The court replied that diversion would be appropriate for a mental illness, even if
incurable, if the subject could respond to treatment.17 The district attorney insisted that
Alzheimer’s was not “receptive to treatment,” the proposed treatment plan was
insufficient to ensure public safety and pointed out that Rodriguez had prior convictions
for battery and domestic violence that could not be blamed on Alzheimer’s disease or
alcohol.
THE COURT’S RULING
The court stated it had taken judicial notice of Rodriguez’s records, including the
preliminary hearing, the medical reports that Rodriguez was diagnosed with Alzheimer’s
disease, the pretrial reports from the probation department and Corizon, and considered
the parties’ motions and arguments.
The court stated it was going to grant the motion for diversion, and made the
following findings:
“[Rodriguez] suffers from a mental disorder that has been identified in the
most recent edition of the DSM-5, and that would include the
neurocognitive brain disorder. That is that he’s been diagnosed with
Alzheimer’s. The Court has little doubt that he was suffering from that at
the time.
“In addition, there is even a more recent diagnosis from Corizon, at
the order of the Court, by a licensed therapist, indicating that they opine
that his symptomology right after this offense was consistent with bipolar
disorder. Either one of those diagnoses is sufficient under the statute to
indicate that the defendant was suffering from a mental disease or disorder
17 “Major or mild NCD due to Alzheimer’s disease progresses gradually,
sometimes with brief plateaus, through severe dementia to death. The mean duration
after diagnosis is approximately 10 years …. Late-stage individuals are eventually mute
and bedbound.” (DSM-5 at p. 541, italics added.)
23
under the – a mental disorder, I should say, as defined under the statute.”
(Italics added.)
The court acknowledged Rodriguez had a long history of prior arrests for public
intoxication and “a serious, serious, chronic problem with alcohol abuse.” While
Rodriguez also had prior convictions for battery and domestic violence, the court found
those convictions occurred in 1984, 1998, and 2002, and his more recent offenses were
alcohol-related and not violent.
“So the question is not whether the mental disorder caused the
defendant to act in a particular way. The statute talks about whether or not
the disorder played a significant role in the commission of the offense….
[¶] The issue is confused some because of the significant history of alcohol
abuse, and the fact that essentially [Rodriguez] had fallen off the wagon and
was drinking at the time of the offense. It is difficult for the Court to say,
given the defendant’s history with being publicly intoxicated dozens of
times and never having exhibited any violent behavior in the last 20 years
or more. The Court has a difficult time saying that the mental disease that
he is suffering from did not contribute significantly to the incident that he
was involved in. I know that’s a little backwards and a little convoluted.
And the People are quite correct, and the expert testimony that we had is
completely correct, and the defense is completely correct. No one can get
inside the defendant’s head. That can be said of any defendant, of any
human being. It could be said of me, of you, of anybody. It’s impossible to
know that, and so the best the Court can do is, looking at all of the
evidence, determine whether or not it appears that –- and if you were to – if
the Court were to opine a but-for test, which is, I think, more stringent than
the substantial factor analysis, the Court would come to the conclusion that
but for the mental illness, this offense would have been very unlikely to
have occurred, and that’s based on the evidence, on the police reports, and
on his conduct immediately after the offense, including the way that he
behaved with probation at the time of the pre-trial release report, as well as
his participation in the Corizon report….” (Italics added.)
The court cited the Corizon report because the evaluation was conducted shortly
after Rodriguez’s arrest, when he was in jail and did not have access to alcohol. The
Corizon report showed that Rodriguez “was suffering from a significant mental illness
even then, and that’s sort of been unabated in the current recent time period.”
24
The court concluded that while it was not “clear-cut,” it found “on balance … that
the mental disorder substantially contributed to [Rodriguez’s] … commission of the
offense. It again does not need to be exclusive, just substantially contributed. And the
incident was bizarre enough and out of character enough that the Court is satisfied with
that.”
The court next found that the symptoms motivating the criminal behavior would
respond to mental health treatment because “the proof is in the pudding,” since Rodriguez
was already receiving treatment and medication, and he would not pose an unreasonable
risk of danger to public safety since he had not reoffended while on community release
for the past two years.
The court stated that it was inclined to grant the motion but continued the matter
for further consideration of whether Rodriguez could waive his rights to be placed on
diversion given his mental condition, he could knowingly and voluntarily consent to the
treatment plan, and for preparation of a more specific treatment plan.
Rodriguez’s attorney asked whether the court would be satisfied if Rodriguez’s
physician monitored and reported his condition. The court said that would be acceptable.
The Court’s Diversion Order and Approval of Treatment Plan
On October 4, 2019, the court conducted the continued hearing about the proposed
treatment plan. Rodriguez’s attorney stated that he submitted a plan where Dr. Cunanan,
his primary care physician, would be the reporting party and submit status reports that
outlined Rodriguez’s compliance after every visit.
The district attorney again objected to placing Rodriguez on mental health
diversion because he was diagnosed with dementia, and that “is not something that can be
controlled or recovered by medication. He will continue to degenerate down into the
point of eventually whatever should happen at the end of life stages of dementia. [He] is
not a candidate for mental health diversion due to the diagnosis. I understand it’s in the
DSM-5, but the goal of mental health diversion is to get them on medication that will get
25
them back into society, how to be safe, and return them to what they are supposed to be
doing. Dementia doesn’t meet that criteria.”18 (Italics added.)
The court replied that it already found dementia was a qualifying diagnosis in the
DSM-5 and was satisfied there was sufficient specificity in the treatment plan to have
Rodriguez’s physician monitor and report on his status and compliance. In response to
the court’s questions, Rodriguez stated he was willing to follow the treatment plan and
waived his right to a speedy trial.
The court granted Rodriguez’s motion for pretrial diversion pursuant to section
1001.36, adopted the plan that Dr. Cunanan would supervise Rodriguez’s treatment and
provide regular status reports, and set a review hearing.
The People’s Appeal
On November 6, 2019, the People, represented by the district attorney’s office,
filed the instant notice of appeal of the trial court’s order of October 4, 2019, that granted
Rodriguez’s motion for diversion (case No. F080268).
As explained above, the district attorney opposed Rodriguez’s diversion motion
and asserted that Alzheimer’s dementia was a “medical” diagnosis and not a mental
disorder, it was not listed in the DSM-5 as a mental disorder, Ms. Alves-McCauly was an
LCSW and not qualified to testify as an expert about a “medical” diagnosis, she could not
rely on the reports from Rodriguez’s physicians, and Alzheimer’s dementia could not be
18 While the deputy district attorney ultimately conceded that Alzheimer’s
dementia was identified as a mental disorder in DSM-5, she continued to argue that it was
not the type of mental disorder that could be the basis for a diversion order. This
argument was meritless and inconsistent with section 1001.36, subdivision (b)(1)(A), that
“defines a qualifying mental disorder as one that is ‘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.’ ” (Moine, supra, 62 Cal.App.5th at p. 449, italics added.) The statute
does not exclude Alzheimer’s disease and/or dementia from being a qualifying mental
disorder for purposes of diversion.
26
the subject of a diversion motion because it was incurable. The trial court overruled these
objections
On appeal, the People of the State of California, as appellant and represented by
the district attorney, have not renewed the same objections that were raised at the
diversion hearing. Instead, the People raise an argument for the first time that was not
raised at the diversion hearing – that only a psychiatrist or a licensed psychologist may
testify as a “qualified mental health expert” under section 1001.36, and that a social
worker or LCSW can never testify in support of any motion for diversion, regardless of
the mental disorder that is the basis for the motion. The People conceded in its reply
brief and at oral argument that it did not raise this same issue at the diversion hearing, but
assert this court must still address the new issue raised for the first time on appeal
because it presents a question of law.
DISCUSSION
I. The People Have the Statutory Right to Appeal the Trial Court’s Order
In response to this court’s request for supplemental briefing, the parties disagree as
to whether the People had a statutory right to file the instant appeal from the trial court’s
order that granted Rodriguez’s motion for pretrial diversion on October 4, 2019.
The People argue they have the right to an appeal based on section 1238,
subdivision (a)(1), People v. Wright (1975)

47 Cal.App.3d 490

 (Wright), and a series of
cases.19
Rodriguez asserts the instant appeal must be dismissed because the People do not
have a statutory right to appeal under section 1238 and disputes the People’s reliance on
the cases cited in its briefing.
19 Given that there are two cases with the same name that address this issue, all
further citations to “Wright” are to People v. Wright, supra,

47 Cal.App.3d 490

.
27
A.     Section 1238
“The prosecution’s right to appeal in a criminal case is strictly limited by statute.
[Citation.] Long-standing authority requires adherence to these limits even though ‘the
People may thereby suffer a wrong without a remedy.’ [Citation.] The circumstances
allowing a People’s appeal are enumerated in section 1238.” (People v. Chacon (2007)

40 Cal.4th 558

, 564.)
As relevant to this case, “[u]nder section 1238, subdivision (a)(1), the People are
entitled to appeal ‘[a]n order setting aside all or any portion of the indictment,
information, or complaint.’ In determining whether a specific order is appealable under
this section, courts consider the form, substance and effect of the order. [Citations.]
While an order may not be specifically listed as an appealable order under section 1238,
if the substance of the order has the purpose and ultimate effect of setting aside all or any
portion of the indictment, information, or complaint, then the order is appealable under
section 1238, subdivision (a)(1). [Citations.]” (People v. McClaurin (2006)

137 Cal.App.4th 241

, 247 (McClaurin), italics added.)
As noted above, the People assert they has the right to file the appeal in the instant
case based on section 1238, subdivision (a)(1), People v. Wright, supra,

47 Cal.App.3d 490

), and a series of cases that have cited to it. Rodriguez asserts that the People’s appeal
must be dismissed because Wright did not cite to section 1238, and the People have relied
on cases that do not support its right to an appeal in this case.
While the People have cited to additional cases that have relied on Wright, supra,

47 Cal.App.3d 490

, these cases have done so either without further analysis, reference to
section 1238, or for issues not related to the People’s right to an appeal. (See, e.g.,
People v. Mazurette (2001)

24 Cal.4th 789

, 791, 797 [defendant’s motion for diversion
granted after her suppression motion was denied, and then she filed an appeal under
section 1237 from the trial court’s denial of suppression motion; court acknowledged
Wright but held it was of “no assistance to defendant” since the defendant’s right to
28
appeal was based on section 1237 and not section 1238; People v. Alonzo (1989)

210 Cal.App.3d 466

, 468–470 [follows Wright without analysis or citation to section 1238,
that the People could file an appeal from an order granting drug diversion, and reversing
order because the defendant was not eligible since he was charged with a disqualifying
drug offense]; People v. Wright (2002)

99 Cal.App.4th 201

, 204 [following Wright
without analysis or citation to section 1238, finding the People could file an appeal from
a drug diversion order].)
The concurring and dissenting opinion states that in both the notice of appeal and
briefing, the People failed to state a statutory basis for the instant appeal and only cited to
Wright and these other cases and argue that “[i]t was not until their supplemental brief
that the People finally contended their appeal was authorized under section 1238,
subdivision (a)(1) and (a)(8).” (Conc. & dis. opn., post, at p. 2.)
A notice of appeal must be “liberally construed.” (Cal. Rules of Court, Rule 8.100
(a)(4).) An appellant’s opening brief must state, among other things, “that the judgment
appealed from is final, or explain why the order appealed from is appealable.” (Cal.
Rules of Court, rule 8.204(a)(2)(B).) The People complied with this rule and included a
short statement of appealability in their opening brief that cited to Wright and these other
cases, and further stated that “[a]n order granting pretrial diversion is thus appealable by
the People. [Citations.]” The People’s citations to Wright in both the notice of appeal
and opening brief’s statement of appealability were not unreasonable since the opinion
has not been questioned or undermined for over 45 years.
As demonstrated by the concurring and dissenting opinion, however, there was
some concern as to whether the People had a statutory right to an appeal from the trial
court’s order in this case. Given the absence of a defense motion to dismiss the appeal on
this ground, or defendant challenging appealability in any way, this court afforded the
parties the opportunity to address this issue. (See, e.g., People v. Alice (2007)

41 Cal.4th 668

, 674–680; Gov. Code, § 68081.)
29
As a result, this court requested supplemental briefing from the parties on the
question of whether the People had the right to appeal the trial court’s order in this case.
In response, the parties extensively addressed the issue, and the People expressly relied
on section 1238, subdivision (a)(1), Wright, and other authorities to argue the instant
appeal was statutorily authorized and, as we will address below, we agree with this
argument.
We thus turn to section 1238, Wright, and other authorities to determine whether
the People could file the appeal in this case.
B.     Wright
Wright involved a People’s appeal from a drug diversion order issued pursuant to
section 1000 et seq., statutory provisions that authorize a trial court to grant a motion for
drug diversion “whenever a case is before any court upon an accusatory pleading” if the
defendant was charged with committing certain enumerated offenses, and other
circumstances. (§ 1000, subd. (a); Wright, supra, 47 Cal.App.3d at p. 493; Morse v.
Municipal Court (1974)

13 Cal.3d 149

, 156–160.)
In Wright, supra,

47 Cal.App.3d 490

, the defendant was charged with offenses
that did not qualify him for drug diversion under section 1000 et seq., the same statutes
addressed in Morse. After a bench trial, he was acquitted of the nonqualifying offenses,
and convicted of a lesser included offense that was in the enumerated list of qualifying
offenses. After he was convicted, he requested diversion under section 1000 et seq., and
argued he was now eligible since he suffered a qualifying conviction. The trial court
granted his diversion motion over the People’s objections. The People filed both a notice
of appeal and a petition for writ of mandate and argued the trial court lacked statutory
jurisdiction under section 1000 et seq. to grant the defendant’s motion for drug diversion
after he was convicted. (Wright, supra, 47 Cal.App.3d at p. 492.)
Wright first held the People could file an appeal from the trial court’s drug
diversion order that was issued pursuant to section 1000 et seq.:
30
“We must first decide whether there is in existence an appealable
order. We hold that the order granting diversion is analogous to a final
judgment in a ‘special proceeding’ (People v. Murphy,

70 Cal.2d 109

, 115
[

74 Cal.Rptr. 65

448 P.2d 945

]), and hence is final for the purposes of
appellate review. ‘... It is not the form of the decree but the substance and
effect of the adjudication which is determinative. As a general test, which
must be adapted to the particular circumstances of the individual case, it
may be said that where no issue is left for future consideration except the
fact of compliance or noncompliance with the terms of the first decree, that
decree is final, but where anything further in the nature of judicial action on
the part of the court is essential to a final determination of the rights of the
parties, the decree is interlocutory.’ [Citation.] Hence the order granting
diversion is an appealable order.” (Wright, supra, 47 Cal.App.3d at
pp. 492–493, italics added.)
Wright turned to the merits and agreed with the People that the trial court’s order
for drug diversion after the defendant was convicted was not authorized under
section 1000 et seq.
“The second question presented is whether the superior court acted
beyond its jurisdiction in diverting the defendant after his trial and
conviction. Defendant was diverted pursuant to … section 1000 after his
trial and conviction. As stated in People v. Reed,

46 Cal.App.3d 625

, 629
[

120 Cal.Rptr. 250

]: ‘Since acceptance of this case by the Supreme Court,
that court has rendered its opinion in Morse v. Municipal Court,

13 Cal.3d 149

118 Cal.Rptr. 14

529 P.2d 46

]. The issue raised relative to the court’s
authority to divert defendant after the completion of a criminal trial has
been determined adversely to defendant’s position.” (Wright, supra, 47
Cal.App.3d at p. 493, fn. omitted.)
Wright acknowledged Morse’s analysis of the drug diversion statutes, and rejected
the defendant’s arguments that he became eligible after he was convicted of a qualifying
offense:
“[S]ection 1000 states in pertinent part that ‘whenever a case is before any
court upon an accusatory pleading’ (italics added) and certain prerequisites
are made, the defendant can be diverted. In the case at bench defendant
was not eligible for diversion prior to trial, and the Penal Code does not
make provision for diversions after trial. Furthermore, in light of Reed,
supra, and Morse, supra, defendant cannot be diverted after trial in any
event.” (Wright, supra, 47 Cal.App.3d at p. 494, second italics added.)
31
Wright reversed the trial court’s order that granted diversion and dismissed the
People’s writ petition as moot since it found the People’s appeal was appropriate.
(Wright, supra, 47 Cal.App.3d at p. 494.)
C. Analysis
In the supplemental briefing in this case, the People argued Wright effectively held
the trial court’s grant of postconviction diversion in that case “was a final and appealable
order” within the meaning of section 1238, subdivision (a)(1), since that subdivision
permits a People’s appeal from “[a]n order setting aside all or any portion of the
indictment, information, or complaint.”
We agree the People have a statutory right under section 1238 to appeal the trial
court’s pretrial diversion order in this case. We also agree that Wright supports such a
conclusion. As noted above, section 1238, subdivision (a)(1) states the People may take
an appeal from “[a]n order setting aside all or any portion of the indictment, information,
or complaint.” Wright’s holding focused on the impact of an order issued pursuant to the
express provisions of section 1000 et seq. – that the trial court’s order would eventually
result in the dismissal of all charges against the defendant if he successfully completed
drug diversion. There was “ ‘no issue … left for future consideration except the fact of
compliance or noncompliance,’ ” which meant that order was final for purposes of the
People filing an appeal. (Wright, supra, 47 Cal.App.3d at pp. 492–493.)
While Wright did not expressly cite to section 1238, its holding on appealability
impliedly pointed to subdivision (a)(1) as the statutory basis for its conclusion that the
People had the right to file an appeal of a diversion order issued under section 1000 et
seq. “While an order may not be specifically listed as an appealable order under section
1238, if the substance of the order has the purpose and ultimate effect of setting aside all
or any portion of the indictment, information, or complaint, then the order is appealable
under section 1238, subdivision (a)(1). [Citations.]” (McClaurin, supra, 137
Cal.App.4th at p. 247, italics added.)
32
Section 1238, subdivision (a)(1), and the analysis in Wright, clearly apply to the
People’s appeal in this case. As with drug diversion, section 1001.36, subdivision (c)
similarly defines pretrial mental health diversion as “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 ….” Section 1001.36, subdivision (c)(3) further states: “The period
during which criminal proceedings against the defendant may be diverted shall be no
longer than two years.” If the defendant performs satisfactorily in mental health
diversion and does not reoffend, “at the end of the period 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. (e), italics added.)
As in Wright, once the trial court places a defendant on pretrial mental health
diversion, there is no issue left for future consideration “ ‘except the fact of compliance
or noncompliance with the terms of the first decree,’ ” and, as a result, “ ‘that decree is
final’ ” for purposes of the People’s ability to file an appeal. (Wright, supra, 47
Cal.App.3d at pp. 492–493.) A trial court’s order that places a defendant on mental
health diversion under section 1001.36 starts a process that addressed in section 1238,
subdivision (a)(1), because it “has the purpose and ultimate effect of setting aside all or
any portion of the indictment, information, or complaint …. [Citations.]” (McClaurin,
supra, 137 Cal.App.4th at p. 247, italics added.)
Thus, while Wright did not expressly rely on section 1238, subdivision (a)(1), the
holding is consistent with that statutory provision as the basis for the People’s appeal. In
this case, as in Wright, the People had the statutory right under subdivision (a)(1) to file
an appeal from the trial court’s order that granted Rodriguez motion for pretrial mental
health diversion since the diversion order would have the purpose and ultimate effect of
setting aside the felony charges in the information.
33
While the concurring and dissenting opinion takes exception to the People’s
arguments on several points, it is important to note that under either the majority or
concurring and dissenting opinion, the trial court’s order will be affirmed by this court.
In any event, the concurring and dissenting opinion first asserts the People failed to state
a statutory basis for this appeal and only relied on case authority. (Conc. & dis. opn.,
post, at pp. 1–2.) As previously noted, however, the People’s supplemental brief, filed at
this court’s request, expressly cited to section 1238, subdivision (a)(1) as providing the
statutory basis for this appeal.
Next, the concurring and dissenting opinion cites “the fundamental axiom” that the
People’s right to an appeal in a criminal case is strictly limited by statute (conc. & dis.
opn., post, at p. 11), and asserts “[i]t is within the Legislature’s province to define the
People’s appellate rights. If the Legislature wanted to allow the People to appeal an order
granting pretrial mental health diversion, it could easily have added that order to the list
of appealable orders in section 1238, subdivision (a). The Legislature did not do that, and
it is an unwarranted invasion of the Legislature’s province for this court to allow the
People to appeal from this order.” (Conc. & dis. opn., post, at pp. 5–6.)
It is well-settled that “the courts are precluded from so interpreting section 1238 as
to expand the People’s right of appeal into areas other than those clearly specified by the
Legislature.” (People v. Gaines (1980)

112 Cal.App.3d 508

, 512; People v. McGuire
(1993)

14 Cal.App.4th 687

, 700–701.) While the application of section 1238 is subject to
this limitation, many courts have interpreted section 1238 to find a People’s appeal falls
within the intent of the statute, based on the circumstances in those particular cases. (See,
e.g., People v. Superior Court (Vidal) (2007)

40 Cal.4th 999

, 1003, 1009–1011 [section
1238, subdivision (a)(8), that permits appeal of an order “terminating … any portion of
an action … before the defendant has been placed in jeopardy,” interpreted to
“reasonably include” the People’s appeal of pretrial ruling as to the penalty phase of a
capital trial]; People v. Chacon,

People v. Rodriguez CA5 ( 2021 )

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