Mental health diversion statute cannot be applied on appeal after conviction and sentence. After his wife was treated for brain and lung cancer, defendant engaged in a “reign of cruelty” against her, repeatedly pinning her down while covering her face with a pillow, tearing her skin, and asking if she was dead yet. He was eventually convicted of domestic violence, negligently discharging a firearm, and other offenses. On June 12, 2018, defendant was sentenced to nine years in prison. He appealed, arguing his conviction should be conditionally reversed to determine whether he qualifies for relief under a new mental health pretrial diversion statute (Pen. Code, § 1001.36), which was enacted on June 27, 2018. Held: Affirmed. Section 1001.36 authorizes trial courts to grant “pretrial diversion” to defendants diagnosed with certain mental disorders, who meet specified eligibility criteria. Pretrial diversion may be granted at any point in the judicial process “until adjudication.” (Pen. Code, § 1001.36, subd. (c).) In People v. Craine (2019) 35 Cal.App.5th 744, review granted 9/11/2019 (S256671/F074622), the Fifth District Court of Appeal held that section 1001.36 was not intended to apply to defendants tried and convicted before the enactment of the statute. Agreeing with Craine, and disagreeing with People v. Weaver (2019) 36 Cal.App.5th 1103, review granted 10/9/2019 (S257049/H045301), the court concluded “[p]retrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced. Upon reaching this point of ‘adjudication,’ the ‘prosecution’ is over and there is nothing left to postpone.” Furthermore, double jeopardy principles compel a conclusion of non-retroactivity. Here, appellant was fairly tried and convicted. If defendant was granted diversion and he later violated diversion, double jeopardy principles would bar a new trial or conviction, thereby eviscerating the statute’s enforcement mechanism. [Editor’s Note: This issue of whether section 1001.36 applies retroactively to all cases in which the judgment is not yet final 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).) The California Supreme Court denied a petition for review in this case.]

Even assuming the diversion statute is retroactive, appellant is not eligible for mental health diversion because he does not suffer from a qualifying mental disorder that played a significant role in the commission of the charged offenses. One of the eligibility requirements for pretrial mental health diversion is that the trial court is satisfied the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (but certain mental disorders are excluded). Here, as reflected in the probation report, defendant denied any history of mental illness and insisted he was of sound mind and fully aware of his actions during the commission of the crimes. In addition, three doctors examined defendant to determine his competency to stand trial (Pen. Code, § 1368). Although one doctor reported defendant suffers from a thought disorder, none found he was suffering from a mental disorder identified in the Diagnostic and Statistical Manual of Mental Disorders.

Defendant’s conviction for setting fire to his landlord’s property must be reversed. Prior to his arrest in this case, police found defendant outside the apartment he rented burning a pile of property, some of which belonged to his wife and some to his landlord. Defendant was convicted in count 3 of setting fire to the property of another in violation of Penal Code section 452, subdivision (d) for burning the property of his wife, and in count 4 for burning the property of his landlord. On appeal, defendant argued that the act of setting fire to the pile of property did not support two convictions under section 452, subdivision (d). The Court of Appeal agreed. Although Penal Code section 954 authorizes multiple convictions for different or distinct offenses, it does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct. “If only a single act is charged as the basis for multiple convictions, only one conviction can be affirmed, notwithstanding that the offenses are not necessarily included offenses.” The Court of Appeal concluded defendant could only be convicted of a single violation of section 452, subdivision (d) and reversed the conviction on count 4. [Editor’s Note: The court also found substantial evidence supporting the convictions for discharging a firearm with gross negligence (Pen. Code, § 246.3), dissuading a witness (Pen. Code, § 136.1, subd. (b)(1)), and false imprisonment (Pen. Code, § 236).

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B290895.PDF