Even if Penal Code section 1001.36 (pretrial mental health diversion) is retroactive, the record in this case clearly indicated the trial court would not have found defendant eligible for diversion. Following his pleas of not guilty and not guilty by reason of insanity, Jefferson was convicted of felonies arising out of a thwarted attempt to rob a store at gunpoint. During the sanity phase of the trial, Jefferson testified regarding his mental health history and his mental state at the time of the offense. The prosecution presented a psychiatrist who testified that he found no evidence that Jefferson was mentally ill or had any mental disorder at the time of the offense, and that Jefferson was legally sane. The jury rejected the insanity defense. Following sentencing, Jefferson appealed. In supplemental briefing, he argued recently enacted section 1001.36, which allows for the pretrial diversion of certain defendants with mental disorders, applied retroactively in his case. Held: Affirmed. Section 1001.36 provides for mental health diversion from criminal prosecution if a defendant meets six requirements. One of the requirements is that the court must be satisfied that the defendant’s mental disorder was a significant factor in the commission of the charged offense. Here, the Court of Appeal concluded it was unnecessary to determine whether section 1001.36 is retroactive. The record clearly established that the trial court would have found Jefferson to be ineligible for diversion because Jefferson’s alleged mental health disorder was not a significant factor in his commission of the charged offenses. During the sentencing hearing, after considering all the evidence, the trial court stated, “[W]hatever mental or physical condition the defendant may have been suffering from had no bearing whatsoever on his conduct, and therefore, had no ability to reduce his culpability for the crimes he was convicted of in this case.” The trial court also stated, based on the evidence at trial, that Jefferson clearly knew what he was doing and that it was wrong. Thus, remanding the matter to the trial court would be an idle act. [Editor’s Note: The issue of whether section 1001.36 applies retroactively is currently pending in the California Supreme Court. (See People v. Frahs (2018) 27 Cal.App.5th 784, review granted 12/27/2018 (S252220/G054674).) A petition for review was denied in this case.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/F074519.PDF