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Name: People v. Rodriguez
Case #: D078183
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/02/2021

Pretrial mental health diversion under Penal Code section 1001.36 must be sought prior to adjudication of guilt, whether by plea or trial. Defendant pleaded guilty to a felony and admitted a deadly weapon allegation. She was granted probation. The court granted her request for a noncustodial sentence so she could continue with her ongoing mental health treatment. Two years later, in September 2020, defendant requested diversion under section 1001.36, which took effect on June 27, 2018. The court denied her request, but granted her alternative request for reduction of her conviction to a misdemeanor under section 17, subdivision (b). The court concluded her request for diversion was untimely, in that section 1001.36, subdivision (c), requires that the request be made before a person has been found guilty. She appealed, arguing that a request could be made at any time before judgment is final. Held: Affirmed. People v. Frahs (2020) 9 Cal.5th 618 held that mental health diversion is available retroactively under the rule of In re Estrada (1965) 63 Cal.2d 740 to defendants whose judgments were not final when section 1001.36 went into effect. Frahs limited its holding to defendants whose cases were on appeal when section 1001.36 took effect. It did not address the “quite different” question of how the diversion statute would apply going forward to defendants who had the opportunity to seek pretrial diversion from the very beginning. Here, section 1001.36 took effect months before defendant entered her guilty plea, so she had the opportunity to seek mental health diversion prospectively. Thus, her case is not governed by Frahs but by section 1001.36, subdivision (c), which provides for diversion at any point in the judicial process “until adjudication.” Agreeing with People v. Graham (2021) 64 Cal.App.5th 827, review granted 9/1/2021 (S269509), the court concluded that this language limits eligibility for diversion to the period before defendant is convicted, meaning prior to the jury’s guilty verdict or the defendant’s guilty plea. [Editor’s Note: Review has been granted on this issue in two other cases (in addition to Graham): People v. Curry (2021) 62 Cal.App.5th 314, review granted 7/14/2021 (S267394), and People v. Braden (2021) 63 Cal.App.5th 330, review granted 7/14/2021 (S268925).]