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Name: People v. Graham
Case #: B300167
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 05/27/2021

Penal Code section 1001.36 requires a request for pretrial mental health diversion to be made prior to the return of a verdict. After defendant’s “on-again, off-again boyfriend broke off their relationship for good, she stabbed him in the back and the heart. Literally.” The jury found defendant guilty of attempted premeditated murder. Defendant appealed. Held: Affirmed. Defendant argued that her case should be remanded to permit the trial court to consider pretrial diversion under section 1001.36. Section 1001.36 had been in effect for almost an entire year before trial began, and no request was made in the trial court. Section 1001.36 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.” The statute’s use of the phrase “pretrial diversion” by itself strongly suggests a timing requirement. The purposes of section 1001.36 (to increase diversion while protecting public safety, to allow local discretion for counties to develop diversion, and to provide mental health treatment) are fully served by allowing defendants to seek diversion prior to adjudication of their guilt. Providing otherwise would invite the inefficient use of finite judicial resources. People v. Frahs (2020) 9 Cal.5th 618, limited its analysis to “pipeline defendants,” and stated that its analysis under In re Estrada (1965) 63 Cal.2d 740, involved a “quite different” question from how the “statute normally will apply going forward.” Here, the court concluded that the statutory language did not permit the court to agree with People v. Curry (2021) 62 Cal.App.5th 314, which held that a request for pretrial diversion is timely if made “before sentencing.” Additionally, as the request here was made solely on appeal, the court did not need to consider whether such a request is untimely “after trial begins,” as in People v. Braden (2021) 63 Cal.App.5th 330, 335. Alternatively, the issue was forfeited. Defendant could not claim ineffective assistance of counsel, as she invoked her right to self-representation until midway through her trial and had been warned that her standby counsel would inherit the trial as she had prepared it.