People v. Klein CA5

Filed 10/6/20 P. v. Klein CA5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

F077903

Plaintiff and Respondent,

(Super. Ct. No. F18900428)

v.

MICHAEL JOSEPH KLEIN, OPINION

Defendant and Appellant.

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Don D.

Penner, Judge.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Barton

Bowers, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for

Plaintiff and Respondent.

* Before Levy, Acting P.J., Poochigian, J. and Peña, J.

-ooOoo-

INTRODUCTION

In 2019, we filed an opinion in this matter holding that appellant Michael Joseph

Klein was not entitled to a remand for the lower court to conduct a mental health

diversion eligibility hearing under Penal Code section 1001.36.1 (People v. Klein (June

25, 2019, F077903) [nonpub. opn.].) On August 19, 2020, however, the California

Supreme Court transferred this matter back to this court with directions to vacate our

prior decision and reconsider the cause in light of People v. Frahs (2020) 9 Cal.5th 618

(Frahs).

Following that transfer, appellant filed a supplemental brief with us regarding

Frahs and its impact in this matter. Although it was given the opportunity, respondent

failed to file a supplemental brief with us.

On September 11, 2020, we vacated our prior decision. After reviewing Frahs,

we agree with appellant that section 1001.36 applies retroactively to him because his case

is not yet final on appeal. (See Frahs, supra, 9 Cal.5th at p. 637.) We further agree that

his conviction and sentence should be conditionally reversed, and his matter remanded

for the trial court to consider his eligibility for diversion under section 1001.36. If the

trial court determines that appellant is eligible for diversion, it may grant diversion. If

appellant successfully completes diversion, then the court shall dismiss the charges.

(Frahs, supra, at pp. 640–641.) However, if the court determines that appellant does not

meet the criteria under section 1001.36, or if he does not successfully complete diversion,

1 All further statutory references are to the Penal Code unless otherwise noted.

Section 1001.36 created a diversion program for defendants who suffer from medically

recognized mental disorders, “including, but not limited to, bipolar disorder,

schizophrenia, schizoaffective disorder, or post-traumatic stress disorder . . . .”

(§ 1001.36, subd. (b)(1)(A).)

2.

then his conviction and sentence shall be reinstated. (Frahs, supra, at p. 641.) We

remand for this limited purpose.

BACKGROUND

The following facts are taken from our prior opinion in People v. Klein, supra,

F077903. The probation report reflects that on December 23, 2017, around 7:50 p.m., the

victim was driving her vehicle when she observed appellant in the center median waving

his arms. As she passed appellant, she heard a loud bang on the driver’s side of her

vehicle. The victim pulled over to check for damage and called the police.

Officers arrived, observed the damage to the victim’s vehicle, and contacted

appellant. He stated he was throwing rocks because he wanted someone to contact the

police; someone was trying to kill him; and he needed help. He told the police he wanted

to kill himself and had a history of suicide attempts.

Appellant was transported to the hospital for a possible Welfare and Institutions

Code section 5150 hold. On December 24, 2017, appellant was medically cleared. He

was transported to jail and booked.

Appellant was charged on January 17, 2018, with felony vandalism in violation of

section 594, subdivision (a). The complaint further alleged that appellant had two prior

strike convictions, served two prior prison terms, and was ineligible to be sentenced to a

term in county jail because he was required to register as a sex offender. Appellant pled

not guilty and denied all the allegations.

On June 5, 2018, appellant signed a felony advisement, waiver of rights, and plea

form. In exchange for a plea of no contest to the felony vandalism count and admitting to

having to register as a sex offender and one prior strike offense, there would be a 32-

month lid on the term of imprisonment. On June 5, 2018, the trial court accepted the no

contest plea pursuant to the plea agreement.

3.

On July 20, 2018, appellant was sentenced in accordance with the plea

agreement.2 He filed a timely notice of appeal on August 6, 2018; he did not seek or

obtain a certificate of probable cause.

DISCUSSION

In 2018, the Legislature enacted sections 1001.35 and 1001.36, which created a

pretrial diversion program for certain defendants with mental health disorders. (Frahs,

supra, 9 Cal.5th at p. 624.) These laws took effect on June 27, 2018. (Stats. 2018,

ch. 34, § 24.) Section 1001.36 was enacted after appellant entered a no contest plea in

this matter. However, its enactment occurred a little over three weeks before he was

sentenced on July 20, 2018. (People v. Klein, supra, F077903.)

“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 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.)” (Frahs, supra, 9 Cal.5th at

pp. 626–627.)

2 Prior to sentencing, the probation department interviewed appellant. Appellant,

who had been born in 1959, stated that he had been “diagnosed with PTSD and Bipolar

and is currently taking medication, though he could not remember the names for certain.”

Appellant stated he had attempted suicide one time in 2009, but denied having any

current suicidal ideations.

4.

“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).)”

(Frahs, supra, 9 Cal.5th at p. 627.)

In our prior opinion, we had held that section 1001.36 did not apply to appellant.

We determined that he had been competent to stand trial, the record did not contain

evidence of a diagnosed mental disorder, and section 1001.36 was effective after he had

been adjudicated guilty. Further, we noted that appellant had pled to the offense and

admitted enhancements pursuant to a plea agreement. Finally, we concluded that

appellant had not sought or obtained a certificate of probable cause. As such, we had

affirmed appellant’s judgment. (People v. Klein, supra, F077903.)

We summarize the opinion which our Supreme Court has asked us to consider. In

Frahs, the defendant entered a market where he had previously tried to steal a pack of

cigarettes. The owner told him to leave. The defendant exited the store, picked up rocks,

and threw them at passing cars. He struck the windshield of one car, shattering the glass.

He then reentered the store and grabbed some items. The store owner and his son tried to

block the defendant from leaving. The defendant punched the owner in the head, and

5.

eventually pushed his way through. The store owner and his son detained the defendant

in the parking lot and called police. (Frahs, supra, 9 Cal.5th at p. 625.)

The defendant in Frahs was charged with two counts of second degree robbery

and one felony count of throwing a substance at a motor vehicle with intent to cause

injury. A prior serious felony conviction was alleged. (Frahs, supra, 9 Cal.5th at

p. 625.) The defendant testified at trial. “He stated that he experienced hallucinations

and delusions beginning in his early 20s and had been hospitalized at least eight times. In

2015, a conservator was appointed to care for him for approximately seven months.”

(Ibid.) Four days before this incident he had stopped taking prescribed medications and

he “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.” (Ibid.)

A clinical and forensic psychologist testified on the defendant’s behalf, stating that

the defendant had been previously diagnosed with schizoaffective disorder.3 (Frahs,

supra, 9 Cal.5th at p. 625.) The psychologist described the defendant as “very ill and

unstable.” (Ibid.) The psychologist concluded that the defendant had been suffering

from a psychotic episode and was not in touch with reality in the days preceding this

criminal incident. He testified that the defendant’s behavior at the market was a

byproduct of a psychotic episode. (Ibid.)

A jury found the 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. (Frahs, supra, 9 Cal.5th at pp. 625–626.) The trial court

found true the prior serious felony conviction allegation. The defendant was sentenced to

3 “Schizoaffective disorder” was defined as “a combination of schizophrenia and

bipolar disorder[.]” (Frahs, supra, 9 Cal.5th at p. 625.)

6.

nine years in prison. (Id. at p. 626.) While the defendant’s appeal was pending, the

Legislature enacted sections 1001.35 and 1001.36. (Frahs, supra, at p. 626.)

The Frahs court concluded it was “undisputed” that section 1001.36 provides a

possible benefit to a class of criminal defendants. (Frahs, supra, 9 Cal.5th at p. 631.)

Further, the statute does not contain an express savings clause that limits the program to

prospective-only application. (Ibid.) Thus, the issue was whether the Legislature clearly

signaled an intent to overcome the inference from In re Estrada (1965) 63 Cal.2d 740

(Estrada) that section 1001.36 applies retroactively to all cases not yet final on appeal.

The Frahs court determined that section 1001.36 did not clearly signal such an intent.4

(Frahs, supra, 9 Cal.5th at pp. 631–632.)

After reviewing relevant authorities and rejecting various arguments from the

People, the Frahs court held that section 1001.36 applies retroactively to all cases not yet

final on appeal.5 (Frahs, supra, 9 Cal.5th at pp. 632–637.) The high court then focused

on the remedy. (Id. at p. 637.) The Supreme Court stated it is “unduly onerous and

impractical” to require a defendant at the appellate level to demonstrate that he or she

4 In Estrada the Supreme Court “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.” (Frahs, supra, 9 Cal.5th

at p. 624.) In People v. Superior Court (Lara) (2018) 4 Cal.5th 299 our high court

“applied the Estrada rule to legislation that mitigated the possible punishment for a class

of persons.” (Frahs, supra, at p. 624.) The Frahs court stated that section 1001.36 “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.” (Frahs, supra, at p. 624.)

5 Some appellate decisions, including one from this court in People v. Craine (2019)

35 Cal.App.5th 744, review granted Sept. 11, 2019, S256671, had reached opposite

conclusions. (Frahs, supra, 9 Cal.5th at p. 631, fn. 2.) In our prior opinion in this matter,

we had cited Craine. (People v. Klein, supra, F077903.) The Supreme Court, however,

disapproved Craine to the extent it is inconsistent with Frahs. (Frahs, supra, 9 Cal.5th at

p. 641.)

7.

satisfies all six threshold eligibility requirements before an appellate court may remand

the case to the trial court for a diversion eligibility hearing. (Id. at p. 638.) When a

defendant is tried and convicted before section 1001.36 became effective, the record on

appeal is unlikely to include information pertaining to several eligibility factors. (Frahs,

supra, at p. 638.) “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.” (Ibid.)

The Supreme Court concluded that a conditional limited remand is warranted for a

trial court to conduct a mental health diversion eligibility hearing when “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)).”6 (Frahs, supra, 9 Cal.5th at

p. 640.)

The Frahs court determined that evidence in its record appeared to support the

first of the statute’s threshold eligibility requirements, and the evidence also appeared to

support one additional requirement. The psychologist had testified that the defendant

suffered from a qualifying mental disorder (see § 1001.36, subd. (b)(1)(A)) and the

6 The Frahs court stated it was not addressing “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’ [citation] and is therefore ineligible for diversion. Nor are we here

addressing the separate question of whether the 2019 amendments, which rendered

defendants charged with certain crimes categorically ineligible for diversion, apply

retroactively. [Citation.]” (Frahs, supra, 9 Cal.5th at p. 640.)

8.

defendant’s behavior at the market was a consequence of that disorder (see id. at

subd. (b)(1)(B)). The high court held that “[t]his evidence suffices to make a conditional

limited remand appropriate here.” (Frahs, supra, 9 Cal.5th at p. 640.)

In the present matter, appellant contends that he meets the minimum eligibility

requirement under Frahs for a conditional remand. We agree.

Appellant informed probation that he had been “diagnosed” with posttraumatic

stress and bipolar disorders. These are qualifying conditions for mental health diversion.

(§ 1001.36, subd. (b)(1)(A).) Moreover, appellant exhibited bizarre behavior during this

crime. When officers contacted him, he stated he was throwing rocks because he wanted

someone to contact the police. He claimed that someone was trying to kill him, and he

needed help. He told the police he wanted to kill himself and had a history of suicide

attempts. Appellant was transported to the hospital for a possible Welfare and

Institutions Code section 5150 hold. Although appellant was released from that hold, the

statute required the officer to initiate it based on probable cause that appellant was either

gravely disabled or, as a result of a mental health disorder, he was a danger to others or to

himself. (See Welf. & Inst. Code, § 5150, subd. (a).)

Because appellant did not go to trial, his record is very sparse compared to the

record in Frahs. However, our Supreme Court has stated that it is “unduly onerous and

impractical” to require a defendant at the appellate level to demonstrate eligibility for

diversion before an appellate court may remand the case. (Frahs, supra, 9 Cal.5th at

p. 638.) Instead, it is for the trial court to determine eligibility, and we are to infer that

the Legislature intended this ameliorative statute to apply as broadly as possible within

the constraints of finality. (Ibid.)

In our prior opinion, we had determined that the record did not contain evidence of

a diagnosed mental disorder. (People v. Klein, supra, F077903.) Frahs makes it clear,

however, that a conditional remand is appropriate if the record “affirmatively discloses”

that the defendant “appears” to suffer from a qualifying mental disorder under

9.

section 1001.36, subdivision (b)(1)(A). (Frahs, supra, 9 Cal.5th at p. 640.) Although it

is minimal, this record meets this standard. Consequently, appellant is entitled under

Frahs for the trial court to determine if he qualifies for mental health diversion. A

conditional limited remand is appropriate.7

In our prior opinion, we had found it significant that appellant had pleaded to the

offense and admitted enhancements pursuant to a plea agreement. His plea agreement

had resulted in the dismissal of certain allegations, and it contained a stipulated

sentencing lid of 32 months. (People v. Klein, supra, F077903.) We also found it

significant that the sentencing hearing had been continued for appellant to confer with

counsel. At the continued sentencing hearing, appellant had waived time and the matter

was again continued. (Ibid.) At the next sentencing hearing on July 20, 2018, appellant

raised no objection to proceeding with sentencing. He did not seek to withdraw his plea,

and he did not invoke section 1001.36. Appellant was sentenced in accordance with his

plea agreement. (People v. Klein, supra, F077903.)

Appellant did not seek or obtain a certificate of probable cause. In our prior

opinion we had concluded that, even if section 1001.36 applied to appellant, his failure to

request a certificate of probable cause limited appellate review to issues concerning the

jurisdiction of the court or the legality of the proceedings.8 Because appellant had not

raised such issues, we determined further grounds existed to affirm appellant’s judgment.

(People v. Klein, supra, F077903.)

7 We note that, when this matter is remanded, section 1001.36 requires appellant, in

part, to provide a recent diagnosis by a qualified mental health expert establishing a

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

8 When a defendant pleads guilty or no contest, the defendant may generally not

appeal without first obtaining a certificate of probable cause. (§ 1237.5, subd. (b); People

v. Cuevas (2008) 44 Cal.4th 374, 379; see also People v. Mendez (1999) 19 Cal.4th 1084,

1098 [§ 1237.5 is applied strictly].)

10.

However, in People v. Stamps (2020) 9 Cal.5th 685 (Stamps), our Supreme Court

recently held that a certificate of probable cause is not required if a defendant is seeking

retroactive application of a subsequently enacted ameliorative provision. (Id. at p. 696.)

In such a situation, the defendant is not challenging the validity of the plea.9 (Stamps, at

p. 696.) The Stamps court reiterated that, in California, “ ‘plea agreements are deemed to

incorporate the reserve power of the state to amend the law or enact additional laws for

the public good and in pursuance of public policy.’ ” (Stamps, supra, at p. 695, quoting

Doe v. Harris (2013) 57 Cal.4th 64, 71.)

Here, appellant does not seek to put aside or withdraw his plea. He does not assert

that his plea was invalid when made. He does not request resentencing of a stipulated

sentence. Instead, the law subsequently changed to his potential benefit and he seeks

retroactive application of a pretrial diversion statute. Thus, his appeal does not attack the

plea itself. Accordingly, a certificate of probable cause was not required.10 (Stamps,

supra, 9 Cal.5th at p. 698.)

Because appellant meets the minimum eligibility requirement under Frahs, we

turn to the remedy. If the trial court finds that appellant suffers from a mental disorder,

he does not pose an unreasonable risk of danger to public safety, and he 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 appellant successfully

9 In contrast, a certificate of probable cause is required for a claim that seeks to

avoid a term of a plea agreement, which is deemed an attack on the validity of the plea

itself. (Stamps, supra, 9 Cal.5th at p. 696.)

10 We likewise decline to find forfeiture or waiver in this situation. Forfeiture is the

failure to make the timely assertion of a right. In contrast, waiver is the intentional

relinquishment or abandonment of a known right. (Cowan v. Superior Court (1996) 14

Cal.4th 367, 371.) At the time of sentencing, section 1001.36 had been in effect for just

over three weeks. (Stats. 2018, ch. 34, § 24; People v. Klein, supra, F077903.) This

record does not demonstrate that appellant forfeited or waived his rights under

section 1001.36 when he was sentenced.

11.

completes diversion, then the court shall dismiss the charges. However, if the court

determines that appellant does not meet the criteria under section 1001.36, or if appellant

does not successfully complete diversion, then his conviction and sentence shall be

reinstated. (Frahs, supra, 9 Cal.5th at p. 641.) We express no view regarding whether

appellant 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.

DISPOSITION

The judgment is conditionally reversed. The cause is remanded for the limited

purpose for the superior court to conduct a diversion eligibility hearing as discussed

within this opinion. If the trial court determines that appellant qualifies for diversion

under section 1001.36, then the court may grant diversion. If appellant successfully

completes diversion, then the trial court shall dismiss the charges. However, if the court

determines that appellant is ineligible for diversion, or if appellant does not successfully

complete diversion, then his conviction and sentence shall be reinstated.

12.