People v. Sanchez CA4/1

Filed 3/10/23 P. v. Sanchez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080380
Plaintiff and Respondent,
v. (Super. Ct. No. RIF2002495)
HECTOR DANIEL SANCHEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Randall S. Stamen, Judge. Affirmed.
Robert F. Somers, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Paige B.
Hazard, Anthony DaSilva and Steve Oetting, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury convicted Hector Daniel Sanchez of making a criminal threat
(Pen. Code, § 4221) and misdemeanor vandalism (§ 594). After the jury
convicted him, and before sentencing, Sanchez filed a motion for mental
health diversion under section 1001.36. The trial court denied the motion as
untimely and sentenced Sanchez to one year and four months in prison. On
appeal, Sanchez challenges the denial of his motion, asserting that the
motion was timely because it was filed before sentencing.
After his appeal was briefed, we permitted Sanchez to submit
supplemental briefing on the issue of whether he is eligible for resentencing
based on a new statute, section 17.2, which requires trial courts to consider
the least restrictive means of punishment available and to consider
alternatives to incarceration.2 As we explain, we reject Sanchez’s arguments
and affirm the trial court’s order denying his diversion motion and the
judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
On July 11, 2020, Sanchez went to his mother’s home in Moreno Valley.
Sanchez, who was homeless, was not allowed inside of the house because of
the Covid-19 pandemic. During trial, Sanchez’s mother testified that he was
permitted to be in the backyard and that she provided him with food.
Sanchez’s mother told the jury that Sanchez asked her if he could use the
bathroom inside the house. She let him in, but she thought he seemed unwell
and believed he was under the influence of drugs. Sanchez and his mother
began to argue. Sanchez picked up a bottle, threw it on the ground, and
stormed out of the house.
1 Subsequent undesignated statutory references are to the Penal Code.
2 Sanchez’s motion to file a supplemental reply brief, which was
previously deferred to this panel, is granted.
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Sanchez’s mother testified that she then went to lock the door to
prevent Sanchez from coming back inside. As she closed the door, she saw
Sanchez pick up a shoe, which he threw and shattered a window of the house.
Fearful of her son, she left the house through the front door and ran into her
neighbor’s home. She went upstairs and knocked on a bedroom door.
Her neighbor’s daughter, Cristal P., opened the bedroom door.
Sanchez’s mother held her cellphone, and she was crying and shaking. She
told Cristal she was afraid and asked her to call the police. Cristal testified
that earlier that morning she heard Sanchez in the backyard screaming that
he was going to kill his mother. Cristal called 911. During the call, Cristal
saw Sanchez walking by her house and she feared he might come inside and
attack his mother.
Riverside County Sheriff’s Deputy Rudy Alvarado responded to the call.
Alvarado found Sanchez nearby and placed him under arrest. Alvarado took
Sanchez to his mother’s house. Alvarado interviewed Sanchez’s mother, who
was upset, scared, and shaking. She said Sanchez was not allowed inside,
and he came in through the unlocked back door. She also told Alvarado that
Sanchez threatened to kill her and her husband, and she did not want him to
come back into the house. Deputy Alvarado saw a broken window in the
kitchen and Sanchez’s mother said Sanchez threw his shoe through the
window. Sanchez’s mother told Alvarado repeatedly that Sanchez had
threatened her and her husband’s lives, and that she believed Sanchez was
capable of murder. She told Alvarado she wanted to press charges against
her son.
Sanchez was charged with making a criminal threat (§ 422; count 1)
and misdemeanor vandalism (§ 594; count 2). The case went to trial and, on
December 9, 2021, the jury found Sanchez guilty of both counts. Before the
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sentencing hearing, defense counsel submitted a sentencing memorandum
asking the court to reduce the criminal threat conviction to a misdemeanor
or, alternatively, to continue the sentencing hearing for Sanchez “to complete
a one-year inpatient treatment program, and upon successful completion
thereof, sentence him to a misdemeanor.” (Italics omitted.)
Defense counsel also submitted a motion seeking to continue
sentencing and for the court to order an evaluation under section 1017, at no
cost to Sanchez, so that he could seek relief under section 1001.36. Two days
before the scheduled sentencing hearing, defense counsel submitted a request
for mental health diversion under section 1001.36. In support, counsel
submitted the report of a clinical therapist who evaluated Sanchez the day
after his arrest while he was in jail. Sanchez had been placed into a safety
cell after making homicidal statements. The therapist reported that Sanchez
was experiencing delusions and symptoms consistent with schizophrenia.
On January 6, 2022, the trial court continued the sentencing hearing
because it had not yet received a report from the probation department. On
January 12, 2022, the District Attorney filed an opposition to the motion for
mental health diversion, asserting the motion should be denied as untimely.
At the continued sentencing hearing on January 19, 2022, the trial
court denied the motion for mental health diversion as untimely and denied
Sanchez’s request to reduce the felony conviction to a misdemeanor. The
court sentenced Sanchez to prison for the low term of one year and four
months on the criminal threat conviction and to a concurrent term of 364
days on the misdemeanor vandalism conviction. The court also credited
Sanchez with 676 custody credits, which exceeded the sentence, and ordered
Sanchez to be released and to report to probation. Sanchez timely appealed.
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DISCUSSION
I
Sanchez argues that the trial court erred by denying his motion for
mental health diversion under section 1001.36. He asserts this court should
follow the decision of the Third District Court of Appeal in People v. Curry
(2021) 62 Cal.App.5th 314, review granted July 14, 2021, S267394 (Curry),
and conclude that such motions are timely so long as they are filed before
sentencing. Noting the issue is currently pending before the California
Supreme Court, the Attorney General responds that the trial court properly
denied the motion and urges us to reject Curry and agree with the decisions
of three other appellate districts, including this court’s decision in People v.
Rodriguez (2021) 68 Cal.App.5th 584, review granted November 10, 2021,
S270985 (Rodriguez), which have concluded that a diversion request under
section 1001.36 must be made either before trial or before guilt is
adjudicated. (See Rodriguez, at p. 589 [request made after guilty plea
untimely]; People v. Braden (2021) 63 Cal.App.5th 330, review granted
July 14, 2021, S268925 [ineligible if request is made after trial begins], and
People v. Graham (2021) 64 Cal.App.5th 827, review granted September 1,
2021, S269509 [request after guilt determined untimely] (Graham).)
Effective June 27, 2018, the Legislature enacted sections 1001.35 and
1001.36, which created a pretrial diversion program for certain defendants
with mental health disorders. (Stats. 2018, ch. 34, § 24.) Section 1001.36
provides that a trial court may grant pretrial mental health diversion if it
finds that the defendant suffers from a qualifying mental disorder, the
disorder played a significant role in the commission of the charged offense,
and the defendant’s symptoms will respond to mental health treatment.
(§ 1001.36, subd. (f)(1)(A)–(D); People v. Frahs (2020) 9 Cal.5th 618, 626–627
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(Frahs).) The statute specifically defines “pretrial 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.”
(§ 1001.36, subd. (f), italics added.) The maximum period of diversion is two
years, and if the defendant performs satisfactorily in diversion, the trial court
must dismiss the criminal charges that were the subject of the criminal
proceedings at the time of the initial diversion. (§ 1001.36, subds. (c)(3), (e).)
Frahs involved the question of whether section 1001.36 relief was
available to a defendant whose convictions were still under direct appellate
review when the statute became effective. Resolution of this question
“turned on whether the Legislature, in enacting section 1001.36 had ‘ “clearly
signal[ed] its intent” ’ to overcome the presumption erected by In re Estrada
(1965) 63 Cal.2d 740 that statutes having an ameliorative effect in criminal
cases apply retroactively to convictions that are not yet final.” (Graham,
supra, 64 Cal.App.5th at p. 834.) “Frahs ruled that the ‘ “until adjudication” ’
language in section 1001.36 did not constitute ‘clear’ signaling [citation], such
that defendants whose convictions were in the ‘pipeline’ of direct appellate
review when section 1001.36 took effect could still take advantage of the
statute. But Frahs was careful to limit its analysis to the availability of
section 1001.36 to these pipeline defendants, and to note that its holding
involved a ‘quite different’ question from how the ‘statute normally will apply
going forward’ as to the defendants who had had the opportunity [to] seek
pretrial diversion from the very beginning.” (Ibid.)
Since Frahs, the appellate courts have come to different conclusions
about how late in the process relief can be sought by a defendant who is
prosecuted after the effective date of section 1001.36. Under Graham, a
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request for diversion under the statute must be made before guilt is
determined. (Graham, supra, 64 Cal.App.5th at p. 833 [“a request for
‘pretrial diversion’ under section 1001.36 is timely only if it is made prior to
the jury’s guilty verdict”], review granted.) Under Braden, “a defendant is
ineligible for diversion under section 1001.36 after his trial begins.” (Braden,
supra, 63 Cal.App.5th at p. 333, review granted.) In Rodriguez, this court
concluded that a request made after the entry of a guilty plea is untimely. In
contrast, under Curry, a defendant may request diversion up to and until the
time of sentencing. (Curry, supra, 62 Cal.App.5th at p. 321 [“section 1001.36
contemplates mental health diversion until entry of the judgment of
conviction”], review granted.)
We agree with the Attorney General that the majority of the published
decisions to consider this issue correctly interpret section 1001.36 to preclude
relief if the request for diversion comes after a conviction. As we stated in
Rodriguez, “[b]oth Graham and Braden found Curry’s reliance on dicta from
Frahs problematic, and so do we. (Graham, supra, 64 Cal.App.5th at p. 834,
review granted; Braden, supra, 63 Cal.App.5th at p. 341, review granted.)
We also agree with Graham that the broad statutory scheme observed in
Curry was not, of itself, sufficient to ‘countermand ... the otherwise clear
intent of the Legislature to require pretrial diversion to be sought before a
verdict.’ (Graham, at p. 835.) Accordingly, like the Graham[, Braden and
Rodriguez] courts, we decline to follow Curry.” (Rodriguez, supra, 68
Cal.App.5th at pp. 591–592, review granted.)
“[E]ligibility for mental health diversion [is] governed by the diversion
statute and not by Frahs” for defendants like Sanchez who had the
opportunity to seek section 1001.36 diversion from the beginning.
(Rodriguez, supra, 68 Cal.App.5th at p. 589, review granted.) “Section
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1001.36 is not just a dismissal statute; rather, it presents dismissal as an
incentive and reward for successful completion of [the] legislatively
prescribed processes. And since this reward becomes available only ‘at the
end of the period of diversion,’ there must necessarily be a ‘period’ of time
during which the defendant actually participates in diversion before the
defendant can become eligible for dismissal.” (Rodriguez, at p. 592.) The
phrase “until adjudication” in section 1001.36 “means until adjudication of
guilt, whether by a jury (as in Graham) or by a guilty plea (as [in
Rodriguez]).” (Rodriguez, at pp. 592–593.)
Here, the trial court properly rejected Curry and relied on Braden,
which held that in the context of section 1001.36, “ ‘adjudication’ refers to the
process of adjudicating an issue, such as a court’s adjudication of guilt or
innocence through a trial.” (Braden, supra, 63 Cal.App.5th at p. 336.)
Accordingly, the trial court did not err when it ruled that Sanchez’s motion
for mental health diversion, which was filed after he had been found guilty by
a jury but before sentencing, was untimely.
II
In supplemental briefing, Sanchez also argues that his case should be
remanded for resentencing in light of newly enacted section 17.2. The
Attorney General responds that even assuming the new law applies
retroactively in this case, remand is not appropriate since the trial court’s
statements make clear it would not have made a different sentencing decision
under the new law and, further, Sanchez told the probation department he
was not interested in probation.
New section 17.2 provides: “(a) It is the intent of the Legislature that
the disposition of any criminal case use the least restrictive means available.
[¶] (b) The court presiding over a criminal matter shall consider alternatives
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to incarceration, including, without limitation, collaborative justice court
programs, diversion, restorative justice, and probation. [¶] (c) The court shall
have the discretion to determine the appropriate sentence according to
relevant statutes and the sentencing rules of the Judicial Council.” (Assem.
Bill No. 2167 (2022–2023 Reg. Sess.) § 2, added September 29, 2022.) The
law took effect on January 1, 2023. (Cal. Const., art. IV, § 8, subd. (c).)
For purposes of this case, we assume without deciding that section 17.2
is retroactive to nonfinal criminal cases under In re Estrada, supra¸ 63 Cal.2d
740. In such situations, where the trial court is unaware that it had
sentencing discretion—as often occurs when new legislation has been
enacted—the Supreme Court has held that “the appropriate remedy is to
remand for resentencing unless the record ‘clearly indicate[s]’ that the trial
court would have reached the same conclusion ‘even if it had been aware that
it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391;
see also People v. Mataele (2022) 13 Cal.5th 372, 437 [applying “clear
indication” standard to new discretion to dismiss serious felony prior].)
Here, as the Attorney General argues, the record is clear that the trial
court would not have sentenced Sanchez any differently had section 17.2 been
in effect at the time of sentencing. As an initial matter, the court sentenced
Sanchez to the low term, not the presumptive middle term. Further, the
court considered, but rejected, probation based on Sanchez’s statements to
the probation department that he would not abide by the terms of probation,
and that he did not want to attend treatment for mental health or substance
abuse issues. The court also considered and credited Sanchez’s statement to
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the probation department that he thought the appropriate sentence for his
crimes was to “finish his time” in custody.3
The trial court also carefully considered Sanchez’s request to reduce
the felony conviction to a misdemeanor, and found, as the jury did, that
Sanchez’s criminal conduct did not warrant such treatment. The court
pointed to the 911 call and Sanchez’s mother’s decision to run into her
neighbor’s home, which showed her evident and intense fear of Sanchez
during the incident. Sanchez does not challenge these findings and provides
no reason for us to conclude the court would reassess them in light of the
general language of section 17.2.
The new law did not provide the trial court with any specific directive
that would change the outcome of this case. Instead, section 17.2 requires
the trial court to consider less restrictive alternatives to prison. The record
shows the court did just this in its evaluation of the defense’s sentencing
memorandum requesting reduction of the felony charge to a misdemeanor
and requesting the court order Sanchez into a treatment program. In this
circumstance, the record is clear that the court would have made no different
sentencing choice even had section 17.2 already been in effect.
3 Although Sanchez’s defense attorney stated her client did desire
probation at the hearing, she did not offer her client’s statements to confirm
this change in position.
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DISPOSITION
The order denying Sanchez’s motion for mental health diversion and
judgment of conviction are affirmed.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
DATO, J.
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