People v. Frahs

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC JASON FRAHS,

Defendant and Appellant.

S252220

Fourth Appellate District, Division Three

G054674

Orange County Superior Court

16CF0837

June 18, 2020

Chief Justice Cantil-Sakauye authored the opinion of the Court,

in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger, and

Groban concurred.

PEOPLE v. FRAHS

S252220

Opinion of the Court by Cantil-Sakauye, C. J.

In June 2018, the Legislature enacted Penal Code1

sections 1001.35 and 1001.36, which created a pretrial diversion

program for certain defendants with mental health disorders.

(Stats. 2018, ch. 34, § 24.) We granted review in this matter to

determine whether the mental health diversion statute applies

retroactively to cases in which the judgment is not yet final, and

whether the Court of Appeal erred when it conditionally

reversed defendant Eric Jason Frahs’s convictions and sentence

and remanded this case for a diversion eligibility hearing.

Here, defendant stole two beverages from a convenience

store and threw rocks at passing cars. At trial, he introduced

evidence that he suffers from a form of schizophrenia. After

defendant was convicted, and while his appeal was pending, the

mental health diversion statute came into effect. The Court of

Appeal concluded that section 1001.36, which contains the

diversion measure’s substantive provisions, applies

retroactively to all cases not yet final on appeal before the

statute became effective, including defendant’s case. It

conditionally reversed defendant’s convictions and sentence,

and remanded the matter to the trial court with instructions to

1

All subsequent statutory citations are to the Penal Code

unless otherwise indicated.

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conduct a diversion eligibility hearing. (People v. Frahs (2018)

27 Cal.App.5th 784 (Frahs).)

In In re Estrada (1965) 63 Cal.2d 740 (Estrada), we held

that an amendatory statute lessening punishment for a crime

was presumptively retroactive and applied to all persons whose

judgments were not yet final at the time the statute took effect.

In People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara),

we applied the Estrada rule to legislation that mitigated the

possible punishment for a class of persons. The statute here is

similar to the scheme we considered in Lara, in that section

1001.36 by design and function provides a possible ameliorating

benefit for a class of persons — namely, certain defendants with

mental disorders — by offering an opportunity for diversion and

ultimately the dismissal of charges. Moreover, neither the text

nor the history of section 1001.36 clearly indicates that the

Legislature intended that the Estrada rule would not apply to

this diversion program. Therefore, consistent with our decision

in Lara, we conclude that Estrada’s inference of retroactivity

applies. We also agree with the Court of Appeal’s determination

that defendant is entitled to a limited remand for the trial court

to decide whether he should receive diversion under section

1001.36. We express no view regarding whether defendant will

be able to show eligibility on remand or whether the trial court

should exercise its discretion to grant diversion if it finds him

eligible.

I. FACTUAL AND PROCEDURAL BACKGROUND

In March 2016, defendant entered a small market in

Santa Ana. The store owner, remembering that defendant had

tried to steal a pack of cigarettes one week prior, told defendant

to leave. Defendant exited the store, picked up rocks, and threw

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them at passing cars. He struck the windshield of one car,

shattering the glass. Defendant then reentered the store and

grabbed a can of beer and an energy drink. The store owner and

his son stood at the front door to block defendant from leaving.

Defendant rushed toward the door, punched the owner in the

head, and eventually pushed his way through. The store owner

and his son detained defendant in the parking lot and called the

police.

Defendant was charged with two counts of second degree

robbery (Pen. Code, §§ 211, 212.5, subd. (b)) and one felony count

of throwing a substance at a motor vehicle with intent to cause

injury (Veh. Code, § 23110, subd. (b)). For sentencing purposes,

it was alleged that defendant had suffered a prior serious felony

conviction. (Pen. Code, § 667, subd. (a)(1).)

Defendant testified in his own defense. He stated that he

experienced hallucinations and delusions beginning in his early

twenties and had been hospitalized at least eight times. In

2015, a conservator was appointed to care for him for

approximately seven months. Defendant had stopped taking his

prescribed medications four days before the incident at the

Santa Ana market and was experiencing severe hallucinations

and delusions during that time. He testified that he thought an

angel flew by on a horse and talked to him just before he entered

the market.

A clinical and forensic psychologist also testified on

defendant’s behalf. Based on his review of a hospital report

detailing defendant’s confinement and his conversations with

defendant and his parents, the psychologist stated that

defendant had been diagnosed with schizoaffective disorder,

which is “a combination of schizophrenia and bipolar disorder,”

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and was very ill and unstable. He also concluded that defendant

had been suffering from a psychotic episode and was not in touch

with reality in the days preceding the incident at the Santa Ana

market. He testified that defendant’s behavior at the market

was a byproduct of a psychotic episode.

The jury found defendant guilty of two counts of second

degree robbery and of the lesser included misdemeanor offense

of throwing a substance at a motor vehicle without intent to

cause injury. Following a bench trial on the prior serious felony

conviction allegation, which the trial court found to be true,

defendant was sentenced to nine years in prison.

When defendant’s appeal was pending, the Legislature

enacted sections 1001.35 and 1001.36 as part of Assembly Bill

No. 1810 (2017-2018 Reg. Sess.) (Assembly Bill 1810), an

omnibus budget bill. (Stats. 2018, ch. 34, § 24.) Section 1001.36

gives trial courts the discretion to grant pretrial diversion for

individuals suffering from certain mental health disorders.

(§ 1001.36, subd. (a).) As part of the budget bill, the diversion

statute became effective immediately.

The Court of Appeal concluded that section 1001.36

applies retroactively to all nonfinal judgments. It also

determined that defendant is entitled to a limited remand

because his case is not yet final on appeal and the record

demonstrates that he appears to satisfy at least one of the

statute’s threshold eligibility requirements, a diagnosed and

qualifying mental disorder. (§ 1001.36, subd. (b)(1)(A).) On

these grounds, the court conditionally reversed defendant’s

conviction and sentence and remanded the matter to the trial

court to conduct a mental health diversion eligibility hearing

under section 1001.36. (Frahs, supra, 27 Cal.App.5th at p. 792.)

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II. DISCUSSION

A. The Mental Health Diversion Statute

Section 1001.36 authorizes a pretrial diversion program

for defendants with qualifying mental disorders. The statute

defines “ ‘pretrial diversion’ ” as “the postponement of

prosecution, either temporarily or permanently, at any point in

the judicial process from the point at which the accused is

charged until adjudication, to allow the defendant to undergo

mental health treatment . . . .” (§ 1001.36, subd. (c).) The stated

purpose of the diversion statute “is to promote all of the

following: [¶] (a) Increased diversion of individuals with mental

disorders to mitigate the individuals’ entry and reentry into the

criminal justice system while protecting public safety. [¶]

(b) Allowing local discretion and flexibility for counties in the

development and implementation of diversion for individuals

with mental disorders across a continuum of care settings. [¶]

(c) Providing diversion that meets the unique mental health

treatment and support needs of individuals with mental

disorders.” (§ 1001.35, subds. (a)-(c).)

As originally enacted, section 1001.36 provided that a trial

court may grant pretrial diversion if it finds all of the following:

(1) the defendant suffers from a qualifying mental disorder;

(2) the disorder played a significant role in the commission of

the charged offense; (3) the defendant’s symptoms will respond

to mental health treatment; (4) the defendant consents to

diversion and waives his or her speedy trial right; (5) the

defendant agrees to comply with treatment; and (6) the

defendant will not pose an unreasonable risk of danger to public

safety if treated in the community. (Former § 1001.36, subd.

(b)(1)-(6).) Section 1001.36 was subsequently amended by

Senate Bill No. 215 (2017-2018 Reg. Sess.) (Senate Bill 215) to

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specify that defendants charged with certain crimes, such as

murder and rape, are ineligible for diversion. (§ 1001.36, subd.

(b)(2), as amended by Stats. 2018, ch. 1005, § 1.)

If the defendant makes a prima facie showing that he or

she meets all of the threshold eligibility requirements and the

defendant and the offense are suitable for diversion, and the

trial court is satisfied that the recommended program of mental

health treatment will meet the specialized mental health

treatment needs of the defendant, then the court may grant

pretrial diversion. (§ 1001.36, subds. (a), (b)(3) & (c)(1).) The

maximum period of diversion is two years. (Id., subd. (c)(3).) If

the defendant is subsequently charged with an additional crime,

or otherwise performs unsatisfactorily in the assigned program,

then the court may reinstate criminal proceedings. (Id., subd.

(d).) “If the defendant has performed satisfactorily in diversion,

at the end of the period of diversion, the court shall dismiss the

defendant’s criminal charges that were the subject of the

criminal proceedings at the time of the initial diversion” and

“the arrest upon which the diversion was based shall be deemed

never to have occurred.” (Id., subd. (e).)

B. Retroactive Application of Ameliorative

Criminal Laws

Generally, statutes are presumed to apply only

prospectively. (Lara, supra, 4 Cal.5th at p. 307.) However, this

presumption is a canon of statutory interpretation rather than

a constitutional mandate. (Ibid.) Accordingly, “the Legislature

can ordinarily enact laws that apply retroactively, either

explicitly or by implication.” (Ibid.) Courts look to the

Legislature’s intent in order to determine if a law is meant to

apply retroactively. (Ibid.)

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In Estrada, supra, 63 Cal.2d 740, we held that amendatory

statutes that lessen the punishment for criminal conduct are

ordinarily intended to apply retroactively. (Id. at pp. 744-745.)

In endeavoring to ascertain the legislative intent in enacting

such a statute, we found “one consideration of paramount

importance.” (Id. at p. 744.) We explained: “When the

Legislature amends a statute so as to lessen the punishment it

has obviously expressly determined that its former penalty was

too severe and that a lighter punishment is proper as

punishment for the commission of the prohibited act. It is an

inevitable inference that the Legislature must have intended

that the new statute imposing the new lighter penalty now

deemed to be sufficient should apply to every case to which it

constitutionally could apply. The amendatory act imposing the

lighter punishment can be applied constitutionally to acts

committed before its passage provided the judgment convicting

the defendant of the act is not final. This intent seems obvious,

because to hold otherwise would be to conclude that the

Legislature was motivated by a desire for vengeance, a

conclusion not permitted in view of modern theories of

penology.” (Id. at p. 745.)

We reasoned that “ ‘[a] legislative mitigation of the

penalty for a particular crime represents a legislative judgment

that the lesser penalty or the different treatment is sufficient to

meet the legitimate ends of the criminal law. Nothing is to be

gained by imposing the more severe penalty after such a

pronouncement; the excess in punishment can, by hypothesis,

serve no purpose other than to satisfy a desire for vengeance.

As to a mitigation of penalties, then, it is safe to assume, as the

modern rule does, that it was the legislative design that the

lighter penalty should be imposed in all cases that subsequently

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reach the courts.’ ” (Estrada, supra, 63 Cal.2d at pp. 745-746,

quoting People v. Oliver (N.Y. 1956) 134 N.E.2d 197, 202.)

“Estrada stands for the proposition that, ‘where the

amendatory statute mitigates punishment and there is no

saving[s] clause, the rule is that the amendment will operate

retroactively so that the lighter punishment is imposed.’ ”

(People v. Nasalga (1996) 12 Cal.4th 784, 792 (Nasalga); see also

People v. Conley (2016) 63 Cal.4th 646, 657 (Conley) [“The

Estrada rule rests on an inference that, in the absence of

contrary indications, a legislative body ordinarily intends for

ameliorative changes to the criminal law to extend as broadly as

possible, distinguishing only as necessary between sentences

that are final and sentences that are not”].) If there is no

express savings clause, the statute must demonstrate contrary

indications of legislative intent “ ‘with sufficient clarity’ ” in

order to rebut the Estrada rule. (Conley, at p. 657; Nasalga, at

p. 793 [Estrada rule not implicated when “the Legislature

clearly signals its intent to make the amendment prospective,

by the inclusion of either an express saving[s] clause or its

equivalent”].)

We have applied Estrada’s inference of retroactivity to

statutes governing penalty enhancements, as well as statutes

governing substantive offenses. (E.g., People v. Wright (2006)

40 Cal.4th 81, 94-95 [newly enacted affirmative defense to

transporting marijuana applies retroactively]; Tapia v. Superior

Court (1991) 53 Cal.3d 282, 301 [statute specifying that certain

death-penalty qualifying special circumstances must be

intentional applies retroactively]; In re Kirk (1965) 63 Cal.2d

761, 762-763 [amendment increasing dollar amount concerning

insufficient funds checks applies retroactively].)

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Significantly, we have also applied the Estrada rule to

statutes that merely made a reduced punishment possible.

(Lara, supra, 4 Cal.5th at p. 303; People v. Francis (1969)

71 Cal.2d 66, 76 (Francis) [modified treatment of marijuana

possession from straight felony to either felony or

misdemeanor].) In Francis, we inferred that the Legislature

intended retroactive application of an amendment that allowed

a trial court to exercise its sentencing discretion more favorably

for individual defendants. (Francis, at p. 76.) We concluded that

although the statute did not guarantee a lighter sentence — it

instead granted trial courts discretion to impose a county jail

term in lieu of imprisonment for possession of marijuana — the

reasoning of Estrada applied in light of the Legislature’s

determination “that the former penalty provisions may have

been too severe in some cases and that the sentencing judge

should be given wider latitude in tailoring the sentence to fit the

particular circumstances.” (Ibid.)

More recently, in Lara, we determined that the Estrada

rule applied to an amendatory act that “ameliorated the possible

punishment for a class of persons.” (Lara, supra, 4 Cal.5th at

p. 308, italics added.) Lara concerned the retroactivity of

Proposition 57 (Prop. 57, as approved by voters, Gen. Elec.

(Nov. 8, 2016)) (Proposition 57), the relevant provisions of which

prohibit prosecutors from directly filing charges against a minor

in “adult” criminal court and give juvenile courts the sole

discretion to determine, after conducting a transfer hearing,

whether a minor can be prosecuted and sentenced as an adult.

(Lara, at p. 303.) We explained that although Proposition 57 did

not mitigate punishment for any particular crime, the Estrada

inference of retroactivity nevertheless applied because the law

“reduces the possible punishment for a class of persons, namely

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juveniles.” (Lara, at p. 303.) We noted that, given the

significant distinctions between the juvenile justice system and

the criminal justice system, “[t]he possibility of being treated as

a juvenile in juvenile court — where rehabilitation is the goal —

rather than being tried and sentenced as an adult can result in

dramatically different and more lenient treatment.” (Ibid.; see

id. at pp. 306-307.) For example, “ ‘the impact of the decision to

prosecute a minor in criminal court rather than juvenile court

can spell the difference between a 16-year-old minor . . . being

sentenced to prison for 72 years to life, or a discharge from the

[Division of Juvenile Justice’s] custody at a maximum of

23 years of age.’ ” (Id. at p. 308.) We concluded that the

potential ameliorating benefit of remaining in the juvenile court

system was analogous to the potential reduction in a criminal

defendant’s sentence in Estrada and Francis, and therefore the

same inference of retroactivity should apply. (Lara, supra,

4 Cal.5th at pp. 308-309.)

We also determined that nothing in Proposition 57’s text

or ballot materials rebutted Estrada’s inference of retroactivity.

(Lara, supra, 4 Cal.5th at pp. 303-304.) To the contrary, certain

provisions of Proposition 57, including its stated purpose to

“ ‘[s]top the revolving door of crime by emphasizing

rehabilitation, especially for juveniles’ ” and its instruction that

the “ ‘act shall be liberally construed to effectuate its purposes,’ ”

“support[ed] the conclusion that Estrada’s inference of

retroactivity is not rebutted.” (Lara, at p. 309.)

With this background in mind, we now consider whether

section 1001.36 applies retroactively.

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Opinion of the Court by Cantil-Sakauye, C. J.

C. The Mental Health Diversion Statute Applies

Retroactively Because It Mitigates the Possible

Punishment for a Class of Persons and There Is

No Clear Contraindication of Legislative Intent

As noted, the Court of Appeal held that Estrada’s

inference of retroactivity applies to section 1001.36. (Frahs,

supra, 27 Cal.App.5th at p. 791.) It reasoned that, similar to the

reforms adopted through Proposition 57, the statute

“unquestionably” offers an “ ‘ameliorating benefit’ ” for a

defendant diagnosed with a mental disorder to have the

opportunity for diversion, and ultimately, a possible dismissal

of the criminal charges. (Ibid.) The Court of Appeal also

concluded that the statute’s express purpose of promoting

“ ‘[i]ncreased diversion of individuals with mental disorders to

mitigate the individuals’ entry and reentry into the criminal

justice system while protecting public safety’ ” indicated “the

Legislature intended the . . . program to apply as broadly as

possible.” (Ibid., quoting § 1001.35, subd. (a), italics in Frahs.)

The Court of Appeal rejected the People’s argument that

the statute’s definition of “ ‘pretrial diversion’ ” as “the

postponement of prosecution . . . at any point in the judicial

process . . . until adjudication” (§ 1001.36, subd. (c))

demonstrated that the Legislature did not intend section

1001.36 to apply retroactively. (Frahs, supra, 27 Cal.App.5th at

p. 791.) The appellate court explained: “The fact that mental

health diversion is available only up until the time that a

defendant’s case is ‘adjudicated’ is simply how this particular

diversion program is ordinarily designed to operate. Indeed, the

fact that a juvenile transfer hearing under Proposition 57

ordinarily occurs prior to the attachment of jeopardy did not

prevent the Supreme Court in Lara from finding that such

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hearing must be made available to all defendants whose

convictions are not yet final on appeal.” (Ibid.)

We agree with the Court of Appeal.2 The parties concur

that section 1001.36, like Proposition 57, offers a potentially

ameliorative benefit for a class of individuals — namely,

criminal defendants who suffer from a qualifying mental

disorder. On its face, the diversion statute states the legislative

purpose “to promote . . . [¶] [i]ncreased diversion of individuals

with mental disorders to mitigate the individuals’ entry and

reentry into the criminal justice system while protecting public

safety” (§ 1001.35, subd. (a)), and the procedures instituted by

the enactment carry the potential of substantial reductions in

punishment for the aforementioned parties.

The pertinent circumstances here are like those involved

in Lara, in that the possibility of being granted mental health

diversion rather than being tried and sentenced “can result in

dramatically different and more lenient treatment.” (Lara,

supra, 4 Cal.5th at p. 303.) A defendant who shows that he or

2

Several published appellate decisions are in accord.

(People v. Burns (2019) 38 Cal.App.5th 776, review granted

Oct. 30, 2019, S257738 [§ 1001.36 applies retroactively]; People

v. Hughes (2019) 39 Cal.App.5th 886, review granted Nov. 26,

2019, S258541 [same]; People v. Weaver (2019) 36 Cal.App.5th

1103, review granted Oct. 9, 2019, S257049 [same]; People v.

Weir (2019) 33 Cal.App.5th 868, review granted June 26, 2019,

S255212 [same].) Other Courts of Appeal have reached a

different conclusion. (People v. Lipsett (2020) 45 Cal.App.5th

569, review granted May 13, 2020, S261323 [§ 1001.36 does not

apply retroactively]; People v. Khan (2019) 41 Cal.App.5th 460,

review granted June 26, 2019, S255212 [same]; People v. Craine

(2019) 35 Cal.App.5th 744, review granted Sept. 11, 2019,

S256671 [same].) As explained below (see pt. III, post), we will

disapprove these contrary decisions.

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she is eligible and suitable for diversion may be referred to a

mental health treatment program designed to meet the

defendant’s specialized needs for up to two years. (§ 1001.36,

subd. (c)(1).) If a defendant successfully completes diversion,

the trial court “shall” dismiss the criminal charges and the

“arrest upon which the diversion was based shall be deemed

never to have occurred.” (Id., subd. (e).) Accordingly, the impact

of a trial court’s decision to grant diversion can spell the

difference between, on the one hand, a defendant receiving

specialized mental health treatment, possibly avoiding criminal

prosecution altogether, and even maintaining a clean record,

and on the other, a defendant serving a lengthy prison sentence.

(See Lara, supra, 4 Cal.5th at p. 308.) Indeed, the People

concede in their briefing that “mental health diversion has a

potentially ameliorative effect: defendants who successfully

complete the program would be able to have criminal charges

wiped clean.” Thus, the ameliorative nature of the diversion

program places it squarely within the spirit of the Estrada rule.

Because it is undisputed that the diversion statute

provides a possible benefit to a class of criminal defendants and

the statute does not contain an express savings clause that

limits the program to prospective-only application, the specific

question before us boils down to whether the Legislature

“clearly signal[ed] its intent” to overcome the Estrada inference

that section 1001.36 applies retroactively to all cases not yet

final on appeal. (Nasalga, supra, 12 Cal.4th at p. 793.)

We conclude that the text of the statute does not clearly

signal such an intent. At the outset, we note that the statute

contains language that could be read as supporting the

expansive application of its provisions. The Court of Appeal

reasonably regarded the statement of legislative purpose found

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in section 1001.35, subdivision (a) as bolstering the conclusion

“that the Legislature intended the mental health diversion

program to apply as broadly as possible.” (Frahs, supra,

27 Cal.App.5th at p. 791.) The breadth of the statute’s

statement of purpose — aimed to “[i]ncrease[] diversion of

individuals with mental disorders to mitigate the individuals’

entry and reentry into the criminal justice system” (§ 1001.35,

subd. (a), italics added) — is consistent with the retroactive

application of the diversion scheme. This statement of purpose

further “support[s] the conclusion that the Estrada inference of

retroactivity is not rebutted” — that is, that the Legislature

intended to apply the provisions of section 1001.36 to every case

to which it constitutionally could apply. (Lara, supra, 4 Cal.5th

at p. 309.) But even if this statement of purpose is disregarded,

the statute does not plainly communicate an intent that its

provisions would apply only prospectively.

On this subject, the People renew their argument that the

statute’s definition of “ ‘pretrial diversion’ ” as “the

postponement of prosecution . . . at any point in the judicial

process . . . until adjudication” (§ 1001.36, subd. (c))

demonstrates that the Legislature intended to limit its

application to cases that had not yet been adjudicated at the

time of enactment, dispelling Estrada’s inference of

retroactivity. The People acknowledge that “the language of

section 1001.36 does not necessarily demonstrate an intent to

foreclose diversion to all those who committed a crime prior to

the effective date of the Act,” but maintain that the phrase “until

adjudication” expressly limits retroactive application of the

statute to defendants whose cases had not yet been, in the

People’s words, “resolved by a trier of fact.”

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We are not persuaded. Like the Court of Appeal, we view

the definition of “pretrial diversion” as simply reflecting the

Legislature’s intent regarding how the statute will generally

operate when a case comes before the trial court after section

1001.36’s enactment. In the ordinary course of procedure, a trial

court determines whether a defendant is eligible for pretrial

diversion before judgment is entered, and the defendant cannot

be heard to seek such diversion afterward. Broadly consistent

with this common feature of pretrial diversion, the statute

before us provides that diversion is available “until

adjudication” (§ 1001.36, subd. (c)), which the People construe

as until the charge or charges against a defendant are resolved.3

But that expectation regarding how the statute normally will

apply going forward is quite different from the specific

retroactivity question presented here, to which the Estrada

inference applies.

So understood, we conclude that the “until adjudication”

language included in section 1001.36, subdivision (c) is not a

clear expression of the Legislature’s intent to make the statute

3

As suggested by the text, we have no occasion here to

precisely define “until adjudication,” as used in section 1001.36,

subdivision (c), and our analysis should not be read as tacitly

adopting the People’s interpretation of this language.

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solely prospective. (Conley, supra, 63 Cal.4th at pp. 656-657.)4

Here, it is helpful to contrast this language in the diversion

statute with the language in Proposition 47 (§ 1170.18, subd. (a),

approved by voters, Gen. Elec. (Nov. 4, 2014) and amended by

Stats. 2016, ch. 767, § 1, p. 5313) and the Three Strikes Reform

Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6,

2012)). Both of these measures included specific resentencing

provisions applicable to persons who had already been

sentenced (§§ 1170.18, subd. (a), 1170.126, subd. (b)), and

therefore overcame the inference of ameliorative retroactivity.

(People v. DeHoyos (2018) 4 Cal.5th 594, 603; Conley, at p. 657.)

Unlike these other measures, the “until adjudication” language

within section 1001.36 does not “ ‘clearly signal[]’ ” the

Legislature’s intent to rebut the Estrada inference. (Nasalga,

supra, 12 Cal.4th at p. 793.)

The People point to additional language in section 1001.36

that also supposedly indicates a legislative intent to apply the

diversion statute prospectively only. They assert that the

statutory provision permitting a trial court to “grant pretrial

diversion to a defendant” (§ 1001.36, subd. (a), italics added)

means that diversion is not available after trial. They similarly

maintain that the threshold eligibility factor requiring a

4

The People also emphasize that the assertedly limiting

language in section 1001.36 comports with provisions found in

other, similar diversion statutes. But this observation adds

little to the People’s argument regarding the intent behind

section 1001.36. These other statutes simply define what

pretrial diversion is and how it is generally supposed to operate:

For example, “pretrial diversion refers to the procedure of

postponing prosecution of an offense . . . at any point in the

judicial process from the point at which the accused is charged

until adjudication.” (§ 1001.1; see also, e.g., § 1001.70, subd. (b).)

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defendant to waive his or her right to a speedy trial (id., subd.

(b)(1)(D)) makes clear that the Legislature did not intend for

diversion to be available to defendants whose trials had

concluded. Again, we disagree. As with the “until adjudication”

phrasing, this language simply explains how the mental health

diversion program will ordinarily function: In the normal course

of operations, a trial court would determine before trial whether

a defendant is eligible for pretrial diversion. This phrasing does

not demonstrate a legislative intent to “modify, limit, or entirely

forbid the retroactive application of ameliorative criminal-law

amendments” (Conley, supra, 63 Cal.4th at p. 656) “with

sufficient clarity that a reviewing court can discern and

effectuate it” (In re Pedro T. (1993) 8 Cal.4th 1041, 1049).

Overall, on the question of retroactivity we regard the

provisions of section 1001.36 as comparable to the statutory

language involved in Lara, in which we concluded that the

electorate intended Proposition 57 to apply retroactively to all

cases not yet final on appeal. (Lara, supra, 4 Cal.5th at p. 304.)

Like section 1001.36, Proposition 57 contains language

regarding matters of timing and procedure, including a

requirement that the prosecutor file a transfer motion “prior to

the attachment of jeopardy.” (Welf. & Ins. Code, former § 707,

subd. (a), added by Prop. 57.) Notwithstanding these provisions,

we determined that “nothing in Proposition 57’s text or ballot

materials rebuts th[e] inference” of retroactivity. (Lara, at

pp. 303-304; see id. at pp. 308-309.) Here too, we do not divine

from section 1001.36’s “until adjudication” language, or the

other provisions cited by the People, a clear indication of

legislative intent to apply the statute prospectively only. Like

Proposition 57, in providing instructions regarding how its

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Opinion of the Court by Cantil-Sakauye, C. J.

provisions are meant to operate generally, section 1001.36 does

not rebut the Estrada inference of ameliorative retroactivity.

Our conclusion finds additional support in Francis. There,

the People maintained that “ ‘the very nature’ of the amendment

[giving trial courts discretion to impose only local jail time for

possession of marijuana] leads to the conclusion that it was only

intended to apply to cases where sentencing occurred after the

effective date of the amendment.” (Francis, supra, 71 Cal.2d at

p. 77.) In rejecting this argument, we emphasized that we had

previously declined to interpret statutory amendments vesting

discretion in the trial court as an indication that they were

intended to be limited to prospective application. (Id. at p. 78,

citing In re Corcoran (1966) 64 Cal.2d 447 and In re Ring (1966)

64 Cal.2d 450.)

Moreover, we are mindful that the Legislature “is deemed

to be aware of existing laws and judicial constructions in effect

at the time legislation is enacted.” (People v. Weidert (1985)

39 Cal.3d 836, 844.) Four months before the Legislature

enacted section 1001.36, we decided in Lara that a statute that

reduced the possible punishment for a class of persons applied

retroactively. Our prior decisions have also made clear that in

order to rebut Estrada’s inference of retroactivity concerning

ameliorative statutes, the Legislature must “demonstrate its

intention with sufficient clarity that a reviewing court can

discern and effectuate it.” (In re Pedro T., supra, 8 Cal.4th at

p. 1049; see also Conley, supra, 63 Cal.4th at pp. 656-657;

Nasalga, supra, 12 Cal.4th at p. 793.) Thus, when the

Legislature enacted section 1001.36, it was aware that if it did

not want the statute to apply retroactively to nonfinal

judgments, it needed to clearly and directly indicate such intent

in order to rebut Estrada’s inference of retroactivity. The text

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Opinion of the Court by Cantil-Sakauye, C. J.

relied upon by the People does not establish a contrary

legislative intent.

Nor do we perceive in the legislative history a clear

indication that the Legislature did not intend for the statute to

apply retroactively. Citing an Assembly report, the People

suggest that the Legislature was motivated by potential cost

savings in enacting section 1001.36, a motivation assertedly

inconsistent with retroactive application. (Assem. Conc. Sen.

Amends. to Assem. Bill No. 1810 (2017-2018 Reg. Sess.) as

amended June 12, 2018, pp. 7-8.) Yet even if one accepts for

sake of argument the premise that retroactive application of the

statute would not be cost effective (but see the discussion post),

the People offer no reason to think the Legislature sought to cut

costs at the expense of accomplishing the statute’s other aims.

The report’s reference to cost savings tells us little, if anything,

about whether the Legislature intended the statute to apply

retroactively. Therefore, we do not regard the mention of cost

savings in a legislative report as a clear indication of contrary

legislative intent.

And in any event, it is not clear that a cost savings

motivation would be inconsistent with retroactive application of

the mental health diversion statute. According to an analysis of

Senate Bill 215, which amended section 1001.36 just a few

months after it was enacted, community-based treatment for a

mentally ill individual costs much less than jailing the same

individual, and greatly reduces recidivism. (Sen. Rules Com.,

Off. Of Sen. Floor Analysis, Unfinished Business Analysis of

Sen. Bill 215 (2017-2018 Reg. Sess.) as amended Aug. 23, 2018,

p. 2 [community-based treatment for a mentally ill defendant

costs roughly $20,000 per year; jailing the same defendant costs

more than $75,000].) Thus, for an individual like defendant,

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PEOPLE v. FRAHS

Opinion of the Court by Cantil-Sakauye, C. J.

who is currently serving a nine-year prison sentence,

participation in a mental health diversion program rather than

serving the remainder of his sentence could potentially result in

substantial cost savings to the state.

The People also contend that the timing of Senate Bill

215’s amendments to section 1001.36 supports their position.

“Had the Legislature believed that the original enactment was

retroactive for all cases not yet final on appeal,” the People

argue, “presumably it would have taken urgent action in order

to avoid allowing convicted murders and rapists with non-final

judgments to avoid conviction in the interim.” Instead, the

People observe, the amendments to section 1001.36 that were

implemented through Senate Bill 215 were approved by the

Legislature in September 2018 and became effective only in

January 2019.

This is not a persuasive argument. The Legislature’s

decision not to enact subsequent amendments with urgency

does not clearly indicate an intent to rebut the Estrada inference

of retroactivity, particularly in light of the statute’s express

purpose to increase diversion. (§ 1001.35, subd. (a).) Moreover,

under the statutory scheme as originally enacted through

Assembly Bill 1810, the diversion authorized by section 1001.36

hinged on the satisfaction of criteria, including a finding by the

court “that the defendant will not pose an unreasonable risk of

danger to public safety.” (Former § 1001.36, subd. (b)(6).) In

adopting Senate Bill 215, the Legislature could have regarded

the preexisting criteria as adequate to protect public safety, at

least until the new law took effect.

The People further argue that applying Estrada’s

inference of retroactivity to cases after adjudication would risk

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Opinion of the Court by Cantil-Sakauye, C. J.

potentially “undermining the legitimacy” of a jury’s verdict. The

People maintain that defendants suffering from mental illness

will frequently pursue a mental health defense, which a jury

must necessarily reject by reaching a guilty verdict. Meanwhile,

to find a defendant eligible for diversion under the statute, the

court must be satisfied that the defendant suffers from a mental

disorder (§ 1001.36, subd. (b)(1)(A)), and that the “disorder was

a significant factor in the commission of the charged offense”

(id., subd. (b)(1)(B)). The People identify an overlap in this

scenario between the issues that were before a jury and, later,

to be decided by the court considering eligibility for diversion.

They reason therefrom that it “would risk potentially

undermining the integrity of [a] jury’s findings” if a trial court

subsequently held a diversion eligibility hearing. But even if we

were to assume some such overlap in a subset of the cases to

which the diversion statute may apply (the statute does not

define the term “significant factor,” and we have no occasion

here to do so), the more fundamental fact is that it would not

provide a clear indication that the statute was not intended to

apply retroactively. The Legislature could well have intended

to allow judges to decide under the statute whether a

defendant’s mental disorder was a “significant factor in the

commission of the charged offense” (ibid.) even after a verdict in

which a mental health defense had been presented but rejected

by the trier of fact.

Finally, the People assert that section 1001.36 should not

be given retroactive effect because it would be awkward to apply

the scheme after adjudication. They emphasize that some of the

statute’s eligibility requirements, such as waiver of a

defendant’s right to a speedy trial (§ 1001.36, subd. (b)(1)(D)),

would no longer be pertinent, and language in the statute

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Opinion of the Court by Cantil-Sakauye, C. J.

providing that diversion be made “pretrial” would have to be

ignored. The potential logistical problems identified by the

People in providing defendants with a diversion eligibility

hearing after conviction, however, do not provide a sufficient

basis to deny defendants the benefit of a hearing altogether.

(See Lara, supra, 4 Cal.5th at pp. 312-313.) Although applying

section 1001.36 retroactively may be somewhat challenging, we

remain optimistic that “the courts involved can implement [it]

without undue difficulty.” (Lara, at p. 313.)

D. Defendant Is Entitled to a Pretrial Diversion

Hearing

Having found that section 1001.36 applies retroactively,

we must now consider the remedy. In Lara, we endorsed a

limited remand procedure described by the Court of Appeal in

People v. Vela (2018) 11 Cal.App.5th 68 (judg. vacated and cause

remanded (2018) 411 P.3d 526, reaffd. (2018) 21 Cal.App.5th

1099) to allow the juvenile court to conduct a transfer hearing

under Proposition 57. (Lara, supra, 4 Cal.5th at pp. 309-310,

citing Vela, at p. 81 [now 21 Cal.App.5th at p. 1113].) Noting its

authority to “ ‘remand the cause to the trial court for such

further proceedings as may be just under the circumstances’ ”

pursuant to section 1260, the Vela court conditionally reversed

the defendant’s conviction and sentence and ordered a limited

remand to the juvenile court with instructions to conduct a

juvenile transfer hearing, treating the matter as though the

prosecutor had originally filed a juvenile petition in juvenile

court and had then moved to transfer the defendant’s case to a

court of criminal jurisdiction. (Vela, at p. 81 [now

21 Cal.App.5th at p. 1113], citing § 1260; see Lara, at p. 310.)

Here, the Court of Appeal concluded that remand is

warranted because defendant’s case is not yet final on appeal

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Opinion of the Court by Cantil-Sakauye, C. J.

and the record affirmatively discloses that he appears to meet

at least one of the threshold requirements: a diagnosed mental

disorder. (Frahs, supra, 27 Cal.App.5th at p. 791.) The court

conditionally reversed defendant’s convictions and sentence and

directed the trial court on remand to make an eligibility

determination regarding diversion under section 1001.36.

(Frahs, at p. 791.) It “instruct[ed] the trial court — as nearly as

possible — to retroactively apply the provisions of section

1001.36, as though the statute existed at the time [defendant]

was initially charged.” (Ibid.) It further provided: “If the trial

court finds that [defendant] suffers from a mental disorder, does

not pose an unreasonable risk of danger to public safety, and

otherwise meets the six statutory criteria (as nearly as possible

given the postconviction procedural posture of this case), then

the court may grant diversion. If [defendant] successfully

completes diversion, then the court shall dismiss the charges.

However, if the court determines that [defendant] does not meet

the criteria under section 1001.36, or if [defendant] does not

successfully complete diversion, then his convictions and

sentence shall be reinstated.” (Id. at p. 792.)

The People argue that remand is inappropriate because

defendant has not made an adequate showing of eligibility.

They assert that a defendant must demonstrate that he or she

satisfies all six threshold eligibility requirements before an

appellate court may remand the case to the trial court for a

diversion eligibility hearing.

We conclude that imposing such a high bar in the posture

of proceedings such as these would be unduly onerous and

impractical. 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

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Opinion of the Court by Cantil-Sakauye, C. J.

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)). Moreover, the People elsewhere acknowledge that

“some of the eligibility requirements no longer apply” to

defendants whose cases were adjudicated before the diversion

statute was enacted. Accordingly, it makes little sense to

require defendants to demonstrate on appeal that they would

have waived their rights to a speedy trial. Furthermore,

requiring defendants to show they would meet all threshold

eligibility requirements before the appellate court may remand

the case to the trial court — which decides in the first instance

whether a defendant is eligible for diversion — would be

inconsistent with any sensible retroactive application of the

statute. That, in turn, would run counter to our usual inference

that the Legislature intends ameliorative statutes like this one

to apply as broadly as possible within the constraints of finality

— an inference that has not been rebutted here.5 (See Lara,

supra, 4 Cal.5th at p. 308, quoting Conley, supra, 63 Cal.4th a

p. 657.)

5

Our conclusion that the Estrada rule applies here also

leads us to reject the People’s suggestion that an individual in

defendant’s position must first file a petition for a writ of habeas

corpus demonstrating his or her eligibility. The statute has

direct retroactive application, with a remand allowing the trial

court to ascertain defendant’s eligibility for diversion, so habeas

corpus procedures are not implicated here. (Cf. In re Kirchner

(2017) 2 Cal.5th 1040, 1052.)

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Opinion of the Court by Cantil-Sakauye, C. J.

The People next claim that a remand would be pointless

because the trial court has already made findings that cast

defendant as unsuitable for diversion. The People emphasize

the trial court’s determination in the proceedings below that

there were no “significant mitigating factors” that weighed in

favor of striking defendant’s prior enhancement. (See §§ 25,

subd. (c), 1385, subd. (a); Cal. Rules of Court, rules 4.409,

4.423(a)(7), (b)(2), 4.428(b)(1); People v. Williams (1998)

17 Cal.4th 148, 161.) Thus, the argument goes, the trial court

has already concluded that defendant knew his actions were

illegal (Cal. Rules of Court, rule 4.423(a)(7)) and was not

“suffering from a mental condition that significantly reduced

culpability for” his crimes (id., rule 4.423(b)(2)) — and therefore

would find defendant ineligible for diversion on remand. But we

agree with defendant that these findings do not conclusively

establish that a remand would be futile. Section 1001.36,

subdivision (b)(1) provides that pretrial diversion may be

granted if, among other requirements, the court is satisfied that

“the defendant suffers from a mental disorder” (id., subd.

(b)(1)(A)) and “the defendant’s mental disorder was a significant

factor in the commission of the charged offense” (id., subd.

(b)(1)(B)). As defendant argues, the trial court could find that

these criteria for diversion are satisfied even if that court

believed defendant’s mental disorder did not significantly

reduce his culpability for the crimes.

The People further contend that defendant’s ineligibility

for probation disqualifies him from mental health diversion

because “diversion is similar in many respects to probation.”

They maintain that by being ineligible for probation, defendant

would also be ineligible for diversion because he would pose an

unreasonable risk of danger to public safety if treated in the

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Opinion of the Court by Cantil-Sakauye, C. J.

community. (§ 1001.36, subd. (b)(1)(F).) Yet again, we are not

convinced. As a preliminary matter, the Legislature left it to

trial courts to make fact-specific evaluations of risk under

section 1001.36, subdivision (b)(1)(F). If the Legislature had

intended to make all defendants who are ineligible for probation

also ineligible for diversion, it could have easily said so, just as

the amendments enacted by Senate Bill 215 specified that

defendants charged with certain crimes were categorically

disqualified. Moreover, a defendant may be ineligible for

probation for numerous reasons other than being found to be an

unreasonable risk of danger of public safety. (E.g., § 1210.1,

subd. (b).) Here, defendant admitted he was ineligible for

probation under section 1203, subdivision (k) [probation shall

not be granted to any person who is convicted of a violent or

serious felony and who was on probation for a felony offense at

the time of the commission of the new felony offense]. The trial

court made no finding regarding whether defendant would pose

an unreasonable risk of danger to public safety if treated in the

community, and we decline to interpret its ruling in such a

manner.

The People also assert that defendant, having already

been sentenced, is disqualified from diversion because the Penal

Code prohibits a defendant who is ineligible for probation or who

has a prior strike from receiving a suspended sentence. (§§ 667,

subd. (c)(2), 1203, subd. (k).) The People reason that if diversion

is granted, “the trial court would necessarily be required to

suspend imposition of sentence while [defendant] pursued

diversion,” contravening this rule. But by conditionally

reversing defendant’s convictions and sentence for an eligibility

hearing under section 1001.36, the case would be restored to its

procedural posture before the jury verdict for purposes of

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Opinion of the Court by Cantil-Sakauye, C. J.

evaluating defendant’s eligibility for pretrial mental health

diversion. (Burns, supra, 38 Cal.App.5th at p. 789.) At that

point, defendant faced a mere allegation of a prior serious felony

conviction, which is not enough to prohibit a suspended sentence

or diversion.

Last, the People maintain that defendant is procedurally

barred from obtaining relief because his case has already been

adjudicated. This argument is unconvincing. As previously

explained, the statute’s definition of “ ‘pretrial diversion’ ” as the

postponement of prosecution at any point of the judicial process

“until adjudication” (§ 1001.36, subd. (c)) does not prevent the

statute from applying retroactively. By definition, a statute

applies “retroactively” to cases already past the procedural point

at which the new law ordinarily applies — here, cases that have

already been adjudicated but are not yet final on appeal. At the

time section 1001.36 became effective, defendant’s case was

adjudicated but the judgment was not yet final. Accordingly, he

is entitled to the benefits of the statute’s retroactive application.

To summarize and apply the foregoing, 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 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)). Because this case does not present such an issue, we

do not address the question of whether an appellate court may

also decline a defendant’s remand request when the record

clearly indicates the trial court would have found the defendant

“pose[s] an unreasonable risk of danger to public safety” (id.,

subd. (b)(1)(F)) and is therefore ineligible for diversion. Nor are

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Opinion of the Court by Cantil-Sakauye, C. J.

we here addressing the separate question of whether the 2019

amendments, which rendered defendants charged with certain

crimes categorically ineligible for diversion, apply retroactively.

(Id., subd. (b)(2), added by Stats. 2018, ch. 1005, § 1.)

There is evidence in the record that appears to support the

first of the statute’s threshold eligibility requirements, and one

other besides. A clinical and forensic psychologist testified that

defendant suffers from a qualifying mental disorder (§ 1001.36,

subd. (b)(1)(A)), and opined that his behavior at the Santa Ana

market was a consequence of this disorder (id., subd. (b)(1)(B)).

This evidence suffices to make a conditional limited remand

appropriate here.

III. DISPOSITION

We affirm the judgment of the Court of Appeal, which

conditionally reversed defendant’s convictions and sentence

with the following instructions for the trial court in considering

defendant’s eligibility for diversion under section 1001.36: “If

the trial court finds that [defendant] suffers from a mental

disorder, does not pose an unreasonable risk of danger to public

safety, and otherwise meets the six statutory criteria (as nearly

as possible given the postconviction procedural posture of this

case), then the court may grant diversion. If [defendant]

successfully completes diversion, then the court shall dismiss

the charges. However, if the court determines that [defendant]

does not meet the criteria under section 1001.36, or if

[defendant] does not successfully complete diversion, then his

convictions and sentence shall be reinstated.” (Frahs, supra,

27 Cal.App.5th at p. 792.) We agree that the trial court should

adopt these procedures, and therefore we remand the matter to

the Court of Appeal with directions for it to remand the cause to

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Opinion of the Court by Cantil-Sakauye, C. J.

the trial court for further proceedings in accordance with these

instructions. We express no view concerning whether defendant

will be able to show eligibility on remand or whether the trial

court should exercise its discretion to grant diversion if it finds

him eligible.

We also disapprove the opinions in People v. Lipsett,

supra, 45 Cal.App.5th 569, review granted May 13, 2020,

S261323; People v. Khan, supra, 41 Cal.App.5th 460, review

granted Jan. 29, 2020, S259498; and People v. Craine, supra,

35 Cal.App.5th 744, review granted Sept. 11, 2019, S256671, to

the extent they are inconsistent with this opinion.

CANTIL-SAKAUYE, C. J.

We Concur:

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

29

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Frahs

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XX 27 Cal.App.5th 784

Rehearing Granted

__________________________________________________________________________________

Opinion No. S252220

Date Filed: June 18, 2020

__________________________________________________________________________________

Court: Superior

County: Orange

Judge: Glenn R. Salter

__________________________________________________________________________________

Counsel:

Arthur Martin and Susan L. Ferguson, under appointments by the Supreme Court, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland,

Assistant Attorney General, Matthew Mulford, Marilyn George, Meredith White, Daniel Hilton and Steve

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Steve Oetting

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92186-5266

(619) 738-9207

Arthur Martin

Appellate Defenders, Inc.

555 West Beech Street, Suite 300

San Diego, CA 92101

(619) 696-0282