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Mental Health Diversion–Latest Point to Request

Case Name: People v. Braden (2023) 14 Cal.5th 791
Case #: S268925
Last Updated: June 5, 2023

What is the latest point at which a defendant may request mental health diversion under Penal Code section 1001.36?

A request for pretrial diversion (Pen. Code, § 1001.36) must be made before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first. In 2018, defendant was charged with resisting an executive officer with force or violence. Following a trial at which he represented himself, a jury found him guilty and two prior strike allegations were found true. Before sentencing, defendant received appointed counsel, who moved to have defendant considered for mental health diversion under section 1001.36. The trial court denied the motion as untimely and moot, and sentenced defendant to prison. The Court of Appeal affirmed, holding that defendant was ineligible for pretrial diversion because his request was not made before trial began. Held: Affirmed. Enacted in 2018, section 1001.36 authorizes pretrial diversion for defendants with qualifying mental disorders. Under subdivision (f)(1), “pretrial diversion” means the postponement of prosecution “at any point in the judicial process from the point at which the accused is charged until adjudication.” The statute does not define “adjudication” and the phrase “until adjudication” is, standing alone, susceptible to more than one meaning. Thus, the court applied principles of statutory interpretation and determined that to be timely, a request for pretrial diversion must be made before the process of adjudicating the charges begins, i.e., before jeopardy attaches at trial or the defendant enters a plea of guilty or no contest, whichever occurs first. This interpretation best comports with the concept of “pretrial diversion” (which has long been understood as referring to the period before trial begins), harmonizes section 1001.36 within the statutory scheme, and is consistent with the Legislature’s goals to accelerate mental health diversion, reduce pretrial incarceration, and preserve finite judicial resources. The majority distinguished Frahs, which only considered the Legislature’s intent in the limited context of the Estrada retroactivity analysis and expressly left open the precise meaning of the phrase “until adjudication.” [Editor’s Notes: (1) The court disapproved People v. Graham (2021) 64 Cal.App.5th 827 [holding that a request for pretrial diversion may be made up until the verdicts are returned or the defendant enters a plea of guilty or no contest], and People v. Curry (2021) 62 Cal.App.5th 314 [holding that a defendant may ask for mental health diversion until sentencing and entry of judgment], to the extent they are inconsistent with the court’s holding. (2) Justice Evans dissented, joined by Justice Liu. The dissent would have held that, based on the legislative history of section 1001.36, the plain language of the statute, and the overall statutory scheme, trial courts have discretion to consider a defendant’s request for mental health diversion up until the entry of judgment. In the dissent’s view, requiring defendants to request mental health diversion early in the judicial process will limit who receives such treatment and necessarily exclude some who would benefit from the program, which is contrary to the Legislature’s clear intent that courts provide appropriate alternatives to incarceration.]

This case was decided on 6/5/2023. Justice Corrigan authored the opinion of the court, in which Chief Justice Guerrero and Justices Kruger, Groban, and Jenkins concurred.

Review on this issue was also granted with briefing deferred in:

  • People v. Curry (2021) 62 Cal.App.5th 314, review granted 7/21/2021 (S267394/C090409)
  • People v. Wade (Apr. 23, 2021, C090655) [nonpub. opn.], review granted 7/14/2021 (S268936)
  • People v. Graham (2021) 64 Cal.App.5th 827, review granted 9/1/2021 (S269509/B300167)
  • People v. Rodriguez (2021) 68 Cal.App.5th 584, review granted 11/10/2021 (S270895/D078183)
  • People v. Weith (Dec. 14, 2021, A155950) [nonpub. opn.], review granted 3/9/2022 (S272860)
  • People v. Sanchez (D080380) [nonpub. opn.], review granted 5/17/2023 (S279423)
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