mental health diversion eligibility hearing in California

2021Defendant relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held that “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes court facilities and court operations assessments under . . . section 1465.8 and Government Code section 70373.” (Dueñas, at p. 1164.) The Dueñas court also held “that although . . . section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any

2020On appeal, Dixon raises three arguments: (1) his case should be remanded for a mental health diversion eligibility hearing; (2) the trial court abused its discretion by refusing to consider his mental illness as a mitigating factor at sentencing; and (3) the court erred under People v. Dueñas (2019) 30 Cal.App.5th 1157 by imposing assessments and a restitution fine without determining his ability to pay.

2020B Defendant Is Entitled To Conditional Reversal Under Section 1001.36 Defendant contends we should conditionally reverse his convictions and sentence and remand the matter for the trial court to conduct a mental health diversion eligibility hearing under section 1001.36 because he suffers from “a qualifying diagnosed mental disorder.” He contends the statute applies retroactively to him as the Legislature enacted 5 section 1001.36 after his sentencing but before his case was final, relying on People v. Frahs (2018) 27 Cal.App.5th 784 , review granted December 27, 2018, S252220.

2019However, for a defendant with a diagnosed mental disorder, it is unquestionably an ‘ameliorating benefit’ to have the opportunity for diversion—and ultimately a possible dismissal—under section 1001.36.” ( Frahs, supra, at p. 791 .) The Frahs court conditionally reversed the defendant’s conviction and sentence, instructing the trial court to conduct a mental health diversion eligibility hearing on remand.

2021Thus, defendant “appears to meet at least the first threshold eligibility requirement for mental health diversion.” (Ibid.) Relying on People v. Jefferson (2019) 38 Cal.App.5th 399 , the People argue that remand would be futile because defendant was found ineligible to participate in veteran’s court.

2020(See Frahs, supra, 9 Cal.5th at p. 639 [rejecting Attorney 12 Frahs further explains: “When, as here, a defendant was tried and convicted before section 1001.36 became effective, the record on appeal is unlikely to include information pertaining to several eligibility factors, such as whether the defendant consents to diversion (§ 1001.36, subd. (b)(1)(D)), agrees to comply with treatment as a condition of diversion (id., subd. (b)(1)(E)), or has provided the opinion of a qualified mental health expert that the defendant’s symptoms would respond to mental health treatment (id., subd. (b)(1)(C)

2019(See, e.g., People v. Cawkwell (2019) 34 Cal.App.5th 1048 , 1053-1054, 246 Cal.Rptr.3d 744 [remand not appropriate because record established defendant was not eligible for diversion under § 1001.36 based on nature of convictions requiring him to register under § 290].) Accordingly, we decline defendant's request to conditionally reverse the judgment and remand for a mental health diversion eligibility hearing.

2019(See, e.g., People v. Cawkwell (2019) 34 Cal.App.5th 1048 , 1053-1054, 246 Cal.Rptr.3d 744 [remand not appropriate because record established defendant was not eligible for diversion under § 1001.36 based on nature of convictions requiring him to register under § 290].) Accordingly, we decline defendant's request to conditionally reverse the judgment and remand for a mental health diversion eligibility hearing.

2021Forfeiture In general, “a party may forfeit [the] right to present a claim of error to the appellate court if he did not do enough to ‘prevent[]’ or ‘correct[]’ the claimed error in the trial court [citation] ....” (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 .) “[C]ounsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing.” (People v. Scott (1994) 9 Cal.4th 331, 353 .) The defendant is the one who must raise the issue of diversion. (§ 1001.36, subd. (b)(1)(A) [“Evidence of the defendant’s mental disorder shall be provided by the de

2021Particularized analysis is critical.” (In re J.P. (2017) 15 Cal.App.5th 789, 799 .) In Frahs, the court ruled “a conditional limited remand for the trial court to conduct a mental health diversion eligibility hearing is warranted when, as here, the record affirmatively discloses that the defendant appears to meet at least the first threshold eligibility requirement for mental health diversion—the defendant suffers from a qualifying mental disorder (§ 1001.36, subd. (b)(1)(A)).” (Frahs, supra, 9 Cal.5th at p. 640 .) In reaching that conclusion, our Supreme Court rejected the People’s argument “

2021(People v. Mai, supra, 57 Cal.4th at p. 1009 .) Given the nature of the record, there are 14. legitimate reasons why defense counsel may have chosen not to pursue a mental health diversion eligibility hearing on defendant’s behalf, and we cannot conclude defense counsel’s performance was objectively unreasonable.

2020(See id. at p. 626 [“Section 1001.36 gives trial courts the discretion to grant pretrial diversion for individuals suffering from certain mental health disorders. (§ 1001.36, subd. (a).)”].) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377 .) Short argues a limited remand is appropriate to allow the trial court to conduct a mental health diversion eligibility hearing in light of Short’s medical records, which show Short had been diagnosed as a paranoid s

2020The conditions imposed under the MDO statutes apply to individuals who have “a severe mental health disorder that is not in remission or that cannot be kept in remission without treatment.” (§ 2962, subd. (a)(1).) “Before a prisoner may be classified as an MDO under section 2962, both the person in charge of treating the prisoner and a practicing psychiatrist or psychologist from the State Department of Mental Health must evaluate the prisoner, and a chief psychiatrist of the Department of Corrections must then certify to the Board of Prison Terms that the prisoner meets the statutory criteria

2020(See Frahs, supra, 9 Cal.5th at p. 640 [“we conclude that a conditional limited remand for the trial court to conduct a mental health diversion eligibility hearing is warranted when, as here, the record affirmatively discloses that the defendant appears to . . . suffer[] from a qualifying mental disorder”]; People v. Burns (2019) 38 Cal.App.5th 776, 788 .) If the trial court exercises its discretion to grant diversion and Burkhart completes diversion, the trial court shall dismiss the charges.