The opinion
Filed 10/1/20 P. v. Colbert CA2/3
Opinion on transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B291207
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA456180)
v.
DEBORAH COLBERT,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County, Karla D. Kerlin, Judge. Conditionally reversed
and remanded with instructions.
Stephanie L. Gunther, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Zee Rodriguez and Noah P. Hill, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Following a jury conviction for vandalism, defendant and
appellant Deborah Colbert was placed on probation and ordered
to pay a $400 restitution fine and other court assessments. On
appeal, defendant argued that her case should be remanded so
the trial court could retroactively determine her eligibility for a
pretrial mental health diversion program under Penal Code
section 1001.36.1
In a December 2019 unpublished opinion, we affirmed the
trial court’s orders, concluding that section 1001.36 did not
retroactively apply to defendant’s case, which had been
“adjudicated” before the statute's enactment.
Our Supreme Court granted review, pending its decision in
People v. Frahs (2020) 9 Cal.5th 618 (Frahs). There, the Supreme
Court held that section 1001.36 applies retroactively to
defendants whose cases were not yet final when the Legislature
enacted section 1001.36. Following Frahs, the court transferred
the matter back to us with directions to vacate our decision and
reconsider it in light of Frahs.
Consistent with our Supreme Court’s decision in Frahs,
and as both parties agree in their supplemental briefs, we vacate
our prior decision, conditionally reverse the judgment, and
remand for the trial court to determine defendant’s eligibility for
mental health diversion under section 1001.36. Defendant also
challenged the imposition of the restitution fine and assessments.
We conclude defendant has forfeited the issue.
1 Further unspecified statutory citations are to the Penal
Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Charge and Mental Competence
In the early morning of April 5, 2017, Juan Salazar
witnessed defendant repeatedly slamming a brick against his
parked car. The windshield and window were broken, and there
were dents and scratches to the body. The total damage to the
car was $4,455.
On May 4, 2017, the Los Angeles County District
Attorney’s Office charged defendant with vandalism resulting in
more than $400 in damage (§ 594).
On June 26, 2017, defense counsel declared a doubt
regarding defendant’s mental competence. A forensic
psychiatrist diagnosed defendant with “Unspecified
Schizophrenia Spectrum and Other Psychotic Disorder.”2 The
trial court found defendant incompetent and suspended criminal
proceedings. On December 18, 2017, the trial court reinstated
proceedings after finding that defendant had been restored to
competence.
B. Trial and Sentencing
A jury convicted defendant of the charged offense on April
5, 2018.
On May 30, 2018, the trial court suspended the imposition
of sentence and placed defendant on three years of probation
through the Office of Diversion and Reentry. The court ordered
defendant to serve 736 days in jail as a condition of probation,
2 The psychiatrist’s July 2017 report also contained limited
information about defendant’s financial condition. Defendant
stated “she receives SSI benefits.” Although defendant’s
daughter stated her mother was homeless, defendant denied this.
3
and awarded her a total of 736 days of presentence credit. The
court also ordered that she pay $4,500 in victim restitution, a
$400 restitution fine (§ 1202.4), a $30 court facilities assessment
(Gov. Code, § 70373), a $40 court operations assessment
(§ 1465.8), the cost of probation services, a $10 crime prevention
fine, and “any other mandatory fines and fees.” Defendant was
advised of her right to an ability to pay hearing.
C. Enactment of Section 1001.36 and Appeal
On June 27, 2018, the Legislature enacted section 1001.36,
which created a pretrial diversion program for certain defendants
with qualifying mental disorders. (§ 1001.36, subd. (a); Stats.
2018, ch. 34, § 24.)
Defendant timely appealed the May 30, 2018 order. She
argued that her conviction should be conditionally reversed and
the matter remanded for the trial court to determine,
retroactively, whether she qualified for a pretrial diversion
program for defendants with qualifying mental disorders under
section 1001.36. Relying on In Re Estrada (1965) 63 Cal.2d 740
and People v. Superior Court (Lara) (2018) 4 Cal.5th 299,
defendant argued section 1001.36 should apply retroactively
because it confers an ameliorative benefit to defendants whose
judgments are not yet final.
The People argued section 1001.36 was not retroactive,
focusing on the express language of the statute which provides
that pretrial mental health diversion is only available “until
adjudication.” According to the People, defendant’s claim had
already been “adjudicated” by the time of the statute’s
enactment.
In our December 2019 unpublished opinion, we agreed with
the People and affirmed the trial court’s judgment. (See People v.
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Colbert, Dec. 27, 2019, B291207 [nonpub. opn.], review granted
Mar. 11, 2020, review dismissed and remanded Aug. 19, 2020,
S260015.)
Our Supreme Court granted review, and transferred the
matter back to us with directions to vacate our prior decision and
reconsider the matter in light of Frahs.
DISCUSSION
I. Conditional Reversal of Judgment Is Required
Under Frahs to Determine Defendant’s Eligibility for
Diversion Under Section 1001.36.
A. Section 1001.36
Effective June 27, 2018, section 1001.36 authorizes pretrial
diversion in lieu of criminal prosecution for defendants with
qualifying mental disorders: “ ‘[P]retrial diversion’ means 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).)
A trial court may grant pretrial diversion under section
1001.36 if it finds: (1) the defendant suffers from an identified
mental disorder;3 (2) the mental disorder was a significant factor
in the commission of the charged offense; (3) the defendant’s
3 A “qualifying mental disorder” is any “mental disorder . . .
identified in the most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders, including, but not limited
to, bipolar disorder, schizophrenia, schizoaffective disorder, or
post-traumatic stress disorder, but excluding antisocial
personality disorder, borderline personality disorder, and
pedophilia. Evidence of the defendant’s mental disorder shall be
provided by the defense and shall include a recent diagnosis by a
qualified mental health expert.” (§ 1001.36, subd. (b)(1)(A).)
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symptoms will respond to treatment; (4) the defendant consents
to diversion and waives his or her speedy trial rights; (5) the
defendant agrees to comply with the treatment; and (6) the
defendant will not pose an unreasonable risk of danger to public
safety if treated in the community. (§ 1001.36, subd. (b).)
If the trial court grants diversion, the defendant will
undergo mental health treatment by an approved mental health
program that will provide regular reports of the defendant’s
progress. Criminal proceedings may be diverted for “no longer
than two years.” (§ 1001.36, subds. (c)(1)(B) & (c)(2)―(3).) If the
defendant performs satisfactorily in 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.” (§ 1001.36, subd. (e).) Under certain
circumstances, if the defendant commits additional crimes or
performs unsatisfactorily in diversion, the court may reinstate
criminal proceedings. (§ 1001.36, subd. (d).)
B. Defendant Is Entitled to Conditional Reversal of
Judgment Under Section 1001.36, Which Applies Retroactively.
The Courts of Appeal were divided on the question of
whether section 1001.36 applies retroactively to persons who
were tried, convicted, and sentenced before section 1001.36 went
into effect, but as to whom judgment is not yet final. In June
2020, our Supreme Court resolved the issue in Frahs. The
Supreme Court held that because section 1001.36 provides a
possible ameliorating benefit for a class of persons, namely,
certain defendants with qualifying mental disorders, and neither
the statute’s text nor its legislative history clearly signals the
Legislature’s intent to overcome Estrada’s inference of
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retroactivity, section 1001.36 applies retroactively to cases where
the judgment is not yet final. (Frahs, supra, 9 Cal.5th at p. 624.)
In Frahs, our Supreme court also rejected the People’s
argument that the defendant was not entitled to remand because
he failed to demonstrate that he satisfied all six threshold
eligibility requirements for diversion. (Frahs, supra, 9 Cal.5th at
pp. 637–638; see § 1001.36, subd. (b).) The Court concluded “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.” (Frahs, at p. 640.)
Pursuant to our Supreme Court’s decision in Frahs, the
People concede and we now conclude defendant is entitled to
conditional reversal of judgment and remand to the trial court for
a determination of her eligibility for mental health diversion
under section 1001.36. (See Frahs, supra, 9 Cal.5th at pp. 639–
641.) Here, the record affirmatively discloses that a forensic
psychiatrist diagnosed defendant with “Unspecified
Schizophrenia Spectrum and Other Psychotic Disorder,” a
qualifying mental disorder “as identified in the most recent
edition of the Diagnostic and Statistical Manual of Mental
Disorders.” (See § 1001.36, subd. (b)(1)(A); American Psychiatric
Assn., Diagnostic and Statistical Manual of Mental Disorders
(5th ed. 2013), p. 122.) Accordingly, defendant “appears to meet
at least the first threshold eligibility requirement for mental
health diversion.” (Frahs, at p. 640.) Pursuant to Frahs and
based on the record before us, we conclude a conditional reversal
of judgment and remand is appropriate for the trial court to
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conduct a mental health diversion eligibility hearing. (See id., at
p. 640; § 1001.36, subd. (b)(3).) We express no opinion on
whether defendant will be able to demonstrate eligibility for
mental health diversion under section 1001.36, or whether the
trial court should exercise its discretion to grant diversion if it
finds defendant eligible.
II. Defendant Has Forfeited Any Challenge to the
Restitution Fine and Court Assessments.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas), defendant argues the court violated her due process
rights by imposing the $400 restitution fine and various court
assessments without making a finding as to her ability to pay.
We conclude the issue was forfeited.
Section 1202.4, subdivision (d) allows a court to consider a
defendant’s inability to pay a restitution fine if the fine is more
than the minimum fine of $300. (§ 1202.4, subd. (d); People v.
Avila (2009) 46 Cal.4th 680, 729 (Avila).) The statute provides
that a defendant who is unable to pay more than the minimum
fine must raise a challenge in the trial court: “A defendant shall
bear the burden of demonstrating his or her inability to pay.”
(§ 1202.4, subd. (d).) Thus, to preserve the issue on appeal,
defendant was required to object to the amount of the fine and
demonstrate her inability to pay more than the $300 minimum.
(See Avila, at p. 729.)
Dueñas is distinguishable because the court imposed the
minimum restitution fine under section 1202.4, subdivision (b),
and the defendant clearly advised the court of her inability to
pay. (Dueñas, supra, 30 Cal.App.5th at pp. 1162, 1169.) Here,
the trial court did not impose the minimum restitution fine, and
defendant did not object to the fine and assessments or indicate
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an inability to pay, as statutorily required, even after the trial
court advised her of the right to an ability to pay hearing.
Defendant concedes her trial counsel failed to object to the
fine and assessments, but argues there was no forfeiture because:
(1) she presents a pure question of law based on undisputed facts
that can be raised for the first time on appeal; and (2) it would
have been futile to object before the trial court. We do not agree.
By claiming indigence, defendant requests a factual
determination of her inability to pay based on facts the People
dispute and which the record does not conclusively establish.
Further, an objection based on her inability to pay would not
have been futile, especially in light of the court’s advisement and
under governing law which clearly contemplates such an
objection. (§ 1202.4, subd. (d); see also Avila, supra, 46 Cal.4th at
p. 729.) Having failed to object in the trial court based on her
inability to pay, defendant has forfeited this issue. (See People v.
Scott (1994) 9 Cal.4th 331, 352―353.)
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DISPOSITION
We vacate our previous decision, conditionally reverse the
judgment, and remand the matter to the trial court for an
eligibility determination 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 [her] conviction[ ] and sentence shall be
reinstated.’ ” (Frahs, supra, 9 Cal.5th at p. 641.)
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
DHANIDINA, J.
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