People v. Braden

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CORY JUAN BRADEN, JR.,

Defendant and Appellant.

S268925

Fourth Appellate District, Division Two

E073204

San Bernardino County Superior Court

FVI18001116

June 5, 2023

Justice Corrigan authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Kruger, Groban, and

Jenkins concurred.

Justice Evans filed a dissenting opinion, in which Justice Liu

concurred.

PEOPLE v. BRADEN

S268925

Opinion of the Court by Corrigan, J.

Penal Code1 section 1001.36 authorizes pretrial diversion

for defendants with qualifying mental disorders. Here we

consider the latest point in the criminal proceedings at which a

defendant may request such diversion. We conclude that, in

keeping with the statutory language and overall scheme, the

request must be made before attachment of jeopardy at trial or

the entry of a guilty or no contest plea, whichever occurs first.

Accordingly, we affirm the judgment of the Court of Appeal,

which upheld the trial court’s denial of defendant’s request for

diversion made for the first time after the jury returned its

verdict.

I. BACKGROUND

On April 25, 2018, defendant Cory Juan Braden, Jr., then

38 years old, had a confrontation with his sister. When their

mother intervened, Braden kicked her in the groin and choked

her, prompting his sister to call 911. A uniformed sheriff’s

deputy responded. He had been told by dispatch that Braden

was schizophrenic with a history of violence. The deputy

identified himself to Braden and asked him to submit to a pat-

down search to ensure everyone’s safety. Braden initially

complied, but then turned and punched the deputy in the face.

1

All further undesignated statutory references are to the

Penal Code.

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Opinion of the Court by Corrigan, J.

The deputy backed up, and Braden advanced with fists

clenched. After the two men exchanged punches, the deputy

tackled Braden, knocking him to the ground and punching him

twice on the left side. Braden continued to resist until two

additional deputies arrived and the three officers were able to

restrain him. Braden’s mother later confirmed that he had

“charged” at the first responding deputy.

Braden was charged with resisting an executive officer

with force or violence (§ 69) and having two prior qualifying

felony convictions under the “Three Strikes” law (§§ 667, subds.

(b)–(i), 1170.12, subds. (a)–(d)).2 Following a trial at which

Braden represented himself, a jury found him guilty and found

the prior conviction allegations true.3 Before sentencing,

Braden requested and received appointed counsel, who moved

to have Braden considered for mental health diversion under

section 1001.36. The People opposed the motion, and the trial

court denied it, finding the motion both untimely and moot. The

court stated that it would “deny [the motion] in any event

2

Those convictions were assault with a firearm (§ 245,

subd. (a)(2)) and discharging a firearm in a grossly negligent

manner (§ 246.3). Both offenses occurred on the same date in

2006.

3

Braden was granted pro se status approximately a week

after arraignment. Before trial, he filed several written motions

with supporting authority, including a motion to dismiss for

outrageous police misconduct, a Pitchess motion (Pitchess v.

Superior Court (1974) 11 Cal.3d 531), a motion for pretrial

discovery and disclosure of Brady materials (Brady v. Maryland

(1963) 373 U.S. 83), a motion to reduce the charge to a

misdemeanor, and a motion for sanctions for failure to preserve

evidence.

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Opinion of the Court by Corrigan, J.

because it would still be discretionary.” The court sentenced

defendant to four years in state prison.

The appellate court affirmed, holding that Braden was

ineligible for pretrial diversion because his request was not

made before trial began. (People v. Braden (2021) 63

Cal.App.5th 330, 332, 342 (Braden).) It considered the statute’s

repeated use of the words “ ‘pretrial’ diversion” (id. at p. 333),

the requirement that a defendant waive speedy trial rights (id.

at pp. 334–335), and the nature of various other pretrial

diversion programs, “which long have had a purpose of reducing

the systemic burdens of criminal trials” (id. at p. 335). In so

concluding, the court expressly disagreed with People v. Curry

(2021) 62 Cal.App.5th 314, review granted July 14, 2021,

S267394 (Curry). (See Braden, at pp. 340–342.) Curry held that

“a defendant may ask the trial court for mental health diversion

until sentencing and entry of judgment.” (Curry, at p. 325.) A

third appellate court subsequently held that a defendant may

request pretrial diversion up until the verdicts are returned or

the defendant enters a plea of guilty or no contest. (People v.

Graham (2021) 64 Cal.App.5th 827, 833–835, review granted

Sept. 1, 2021, S269509 (Graham).)

We granted review to resolve the conflict in the Courts of

Appeal.

II. DISCUSSION

Enacted in 2018, section 1001.36 authorizes pretrial

diversion for defendants with qualifying mental disorders.

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Opinion of the Court by Corrigan, J.

(Stats. 2018, ch. 34, § 24; see § 1001.36, subd. (b)(1).)4 The

question here turns on the statute’s definition of “ ‘Pretrial

diversion,’ ” and specifically the phrase “until adjudication.”

(§ 1001.36, subd. (f)(1), hereafter 1001.36(f)(1).) The statute

provides: “As used in this chapter . . . ‘Pretrial 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,” subject to

specified conditions. (Ibid.)

We have once before considered the import of this

language, in People v. Frahs (2020) 9 Cal.5th 618 (Frahs), but

our decision in Frahs does not answer the question now before

us. The question in Frahs was whether section 1001.36 applies

retroactively to cases in which the judgment was not yet final on

appeal when the statute went into effect. Our inquiry was

governed by the rule in In re Estrada (1965) 63 Cal.2d 740,

which “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.” (People v. Conley

(2016) 63 Cal.4th 646, 657 (Conley).) We held the Legislature

did not clearly indicate a contrary intent as to retroactivity. As

a result, those defendants whose cases were not final on appeal,

4

Effective January 1, 2023, section 1001.36 was amended

in various particulars, including relettering and renumbering of

certain subdivisions and subparagraphs. (Stats. 2022, ch. 735,

§ 1.) We refer to the statute by its current designations.

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Opinion of the Court by Corrigan, J.

and who had no opportunity to request diversion in the trial

court, should be permitted to do so. (Frahs, at pp. 624, 628–637.)

In so concluding, we made some observations about the

normal order of proceedings in the trial court: “[W]e 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, [former subd.] (c)), which the People construe as until

the charge or charges against a defendant are resolved. 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.” (Frahs,

supra, 9 Cal.5th at pp. 632–633, fn. omitted.) We also rejected

the People’s argument that allowing for retroactivity would

impermissibly undermine the jury’s verdict, noting that such an

outcome “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’ [citation] even after a

verdict in which a mental health defense had been presented but

rejected by the trier of fact.” (Id. at p. 636.) The question of that

intent, which Frahs did not decide, is squarely at issue here.

In making its observations, Frahs made explicit that it

was only evaluating the Legislature’s intent in the limited

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Opinion of the Court by Corrigan, J.

context of the Estrada retroactivity inquiry. Unless it has

included an express savings clause, the Legislature must

demonstrate its intent to limit the retroactive effect of an

ameliorative change “ ‘with sufficient clarity that a reviewing

court can discern and effectuate it.’ ” (Conley, supra, 63 Cal.4th

at p. 657.) Accordingly, the question before us in Frahs “boil[ed]

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.” (Frahs, supra,

9 Cal.5th at pp. 631–632.) This inquiry is “quite different” from

how the “statute normally will apply going forward” as to

defendants who had the opportunity to seek pretrial diversion

during the course of their criminal cases. (Id. at p. 633; accord,

People v. Weaver (2019) 36 Cal.App.5th 1103, 1119 [under

Estrada, the court must “employ[] a different lens on legislative

intent”].) Recognizing this distinction, Frahs expressly left open

the precise meaning of the phrase “ ‘until adjudication,’ ” noting

that “we have no occasion here to precisely define” that term,

and “our analysis should not be read as tacitly adopting the

People’s interpretation of this language.” (Frahs, at p. 633 & fn.

3.)

Relying primarily on the Frahs discussion of legislative

intent, our dissenting colleagues argue that today’s decision

marks a “retreat” from Frahs’s recognition that the purpose of

section 1001.36 was to “ ‘ “[i]ncrease[] diversion of individuals

with mental disorders to mitigate the individuals’ entry and

reentry into the criminal justice system.” ’ ” (Dis. opn. of Evans,

J., post, at p. 2, quoting Frahs, supra, 9 Cal.5th at p. 632.) The

dissent also cites the observation that the definition of pretrial

diversion “simply reflect[s] the Legislature’s intent regarding

how the statute will generally operate when a case comes before

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Opinion of the Court by Corrigan, J.

the trial court after section 1001.36’s enactment” (Frahs, at p.

632, italics added), to argue that the statute’s reference to

“pretrial diversion” is simply shorthand and not meant to

establish a timeline for diversion requests. (Dis. opn. of Evans,

J., post, at pp. 6, 9.) But the dissent applies too broadly the

narrow focus of the Estrada retroactivity analysis. As explained

above, Frahs addressed those defendants whose cases were

disposed of before section 1001.36 went into effect. In that

context it considered only whether the Legislature intended

defendants, who had not had the opportunity to request mental

health diversion in the trial court before the enactment, should

be allowed to do so retroactively in cases pending on appeal. We

concluded that the “breadth of the statute’s statement of

purpose . . . is consistent with the retroactive application of the

diversion scheme” and “ ‘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 [retroactively] to every case to which it constitutionally

could apply.” (Frahs, at p. 632, italics added.) Further, we

rejected the People’s argument 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.’ ” (Ibid., italics

added.) In doing so, we explicitly declined to determine whether

the phrase “until adjudication” meant pretrial, during trial, or

until sentencing for cases that come before the trial court after

section 1001.36’s enactment. (Frahs, at pp. 632–633 & fn. 3.)

Because Frahs did not resolve that separate question, we turn

to it here. We are not now speaking of Estrada retroactivity, but

considering how the new statute, that was in effect before

Braden’s trial, applies to his case.

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Opinion of the Court by Corrigan, J.

“ ‘ “ ‘When we interpret a statute, “[o]ur fundamental task

. . . is to determine the Legislature’s intent so as to effectuate

the law’s purpose. We first examine the statutory language,

giving it a plain and commonsense meaning. We do not examine

that language in isolation, but in the context of the statutory

framework as a whole in order to determine its scope and

purpose and to harmonize the various parts of the enactment.

If the language is clear, courts must generally follow its plain

meaning unless a literal interpretation would result in absurd

consequences the Legislature did not intend. If the statutory

language permits more than one reasonable interpretation,

courts may consider other aids, such as the statute’s purpose,

legislative history, and public policy.” [Citation.] “Furthermore,

we consider portions of a statute in the context of the entire

statute and the statutory scheme of which it is a part, giving

significance to every word, phrase, sentence, and part of an act

in pursuance of the legislative purpose.” ’ ” ’ [Citation.] The

interpretation of a statute presents a question of law that this

court reviews de novo.” (Smith v. LoanMe, Inc. (2021) 11 Cal.5th

183, 190.)

A. Statutory Language and Framework

As noted, the statute defines “ ‘Pretrial diversion’ ” as

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

process from the point at which the accused is charged until

adjudication . . . .” (§ 1001.36(f)(1).) The statute does not

separately define “adjudication.” The basic legal definition of

that word refers to either (1) “[t]he legal process of resolving a

dispute; the process of judicially deciding a case” or (2) the

“judgment.” (Black’s Law Dict. (11th ed. 2019) p. 52, col. 1; see

Busker v. Wabtec Corp. (2021) 11 Cal.5th 1147, 1158–1159

(Busker) [considering dictionary definitions as an aid to

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statutory interpretation].) Accordingly, “adjudication” can

mean (1) the process of resolving the criminal charges by trial

or entry of plea or (2) the conclusion of all trial proceedings by

an entry of judgment. The holdings of the appellate courts

reflect this variance. The court below held that the defendant

must request pretrial diversion either before trial begins or the

defendant pleads guilty or no contest. (Braden, supra, 63

Cal.App.5th at pp. 332–333, 337, 342; accord, People v. Torres

(2019) 39 Cal.App.5th 849, 855.) Graham, supra, 64

Cal.App.5th 827, held that the defendant may request pretrial

diversion up until the verdicts are returned or the defendant

enters a plea of guilty or no contest. (Id. at pp. 833–835; accord

People v. Rodriguez (2021) 68 Cal.App.5th 584, 590–591, review

granted Nov. 10, 2021, S270895.)5 And Curry, supra, 62

Cal.App.5th 314, held that the defendant may request pretrial

diversion up until sentence is pronounced. (Id. at pp. 321–326.)

While the phrase “until adjudication,” standing alone, is

susceptible to more than one meaning, our task here is to

construe it in the context of the legislative scheme as a whole.

Turning to the text of section 1001.36, several aspects of

the statute’s language and its framework support the conclusion

that, to be timely, a request for pretrial diversion must be made

before the process of adjudicating the charges begins, i.e., before

jeopardy attaches at trial or the defendant enters a plea of guilty

or no contest, whichever occurs first.

5

Like the Courts of Appeal (Graham, supra, 64 Cal.App.5th

at p. 833; Braden, supra, 63 Cal.App.5th at p. 337), we see no

distinction in this context between “ ‘adjudication of guilt based

on a plea of guilt and [an adjudication by] trial on the merits.’ ”

(In re Harris (1989) 49 Cal.3d 131, 135, quoting People v.

Greenwell (1962) 203 Cal.App.2d 1, 4.)

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The text of section 1001.36 refers eight times to the

diversion it provides for as “pretrial.” As one Court of Appeal

observed: “ ‘pretrial diversion’ connotes a diversion away from

trial. One cannot divert a river after the point at which it has

reached the sea.” (Graham, supra, 64 Cal.App.5th at p. 833.)

We also find it significant that the Legislature incorporated a

definition of pretrial diversion that has been in existence for

over 40 years. In 1977, the Legislature enacted a statutory

scheme authorizing local jurisdictions to implement diversion

programs pursuant to certain guidelines. (Former §§ 1001–

1001.10; Stats. 1977, ch. 574, § 2, pp. 1819–1821; see Davis v.

Municipal Court (1988) 46 Cal.3d 64, 73–75 [discussing history

of this legislative enactment].) Former section 1001.1 codified

for the first time the definition of pretrial diversion now used,

with minor grammatical variations, in several statutes,

including section 1001.36: “pretrial diversion refers to the

procedure of postponing prosecution either temporarily or

permanently at any point in the judicial process from the point

at which the accused is charged until adjudication.” (Former

§ 1001.1, italics added.)6 Consistent with the usual meaning of

the defined term, appellate courts long have understood section

1001.1’s definition of pretrial diversion as contemplating a

request for diversion before trial begins. (See, e.g., Gresher v.

Anderson (2005) 127 Cal.App.4th 88, 111–112 (Gresher); People

v. Padfield (1982) 136 Cal.App.3d 218, 227–229 & fn. 8.) In

6

The same definition also appears in sections 1001.50,

subdivision (c), 1001.70, subdivision (b), and 1001.80,

subdivision (k)(1). The current version of section 1001.1,

adopted in 1982, contains nearly identical language, except to

specify that it applies to “prosecution of an offense filed as a

misdemeanor.” (§ 1001.1; Stats 1982, ch. 42, § 2, p. 99.)

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Opinion of the Court by Corrigan, J.

Gresher, for example, the court invalidated the Department of

Social Services’ policy that those in diversion are ineligible to

apply for trustline registration (see Health & Saf. Code,

§§ 1596.60, subd. (e), 1596.601) because they are “ ‘awaiting

trial.’ ” (Gresher, at p. 111.) It reasoned: “The purpose of those

programs is precisely to avoid the necessity of a trial.” (Ibid.)

Construing the definition of pretrial diversion set forth in

section 1001.1, the court reasoned, “[g]iven that a trial is not

contemplated without first holding a [hearing to terminate

diversion], which is itself contingent on the person’s

performance, it cannot reasonably be said that persons in

diversion programs are ‘awaiting trial.’ ” (Gresher, at p. 111,

italics added7; accord, Padfield, at p. 228 & fn. 8 [explaining that

the purpose of pretrial diversion is to spare defendants the

stigma of a criminal record and reduce court congestion, and

observing that “[i]f the defendant has a legal right to pretrial

diversion, then the court should not proceed to trial”].) Under

well-established canons of statutory construction, “when the

same word [or phrase] appears in different places within a

statutory scheme, courts generally presume the Legislature

intended the word [or phrase] to have the same meaning each

time it is used.” (People v. Gray (2014) 58 Cal.4th 901, 906;

accord, Frahs, supra, 9 Cal.5th at p. 634 [the Legislature “ ‘is

7

Contrary to the dissent’s assertion (dis. opn. of Evans, J.,

post, at p. 8 & fn. 4), we do not interpret Gresher’s statements as

dictum. The Department had argued that those on diversion

were “ ‘awaiting trial.’ ” (Gresher, supra, 127 Cal.App.4th at p.

111.) In a three-paragraph analysis the court considered and

rejected the Department’s argument, relying on the language of

various diversion statutes. (Id. at pp. 111–112.)

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deemed to be aware of existing laws and judicial constructions

in effect at the time legislation is enacted’ ”].)

Had the Legislature intended mental health diversion to

be available up until the time of sentencing, it could easily have

said so, as it has in other contexts. Section 1368, subdivision

(a), for example, provides the court shall inquire about the

defendant’s mental competence if a doubt arises “during the

pendency of an action and prior to judgment.” (Italics added.)

“[T]he terms ‘judgment’ and ‘ “sentence” ’ are generally

considered ‘synonymous,’ ” and have a well-established meaning

in the Penal Code. (People v. McKenzie (2020) 9 Cal.5th 40, 46

(McKenzie); see People v. Karaman (1992) 4 Cal.4th 335, 344, fn.

9; § 1191 et seq. [Title 8, “Judgment and Execution”].) Instead,

the Legislature adopted a definition of “pretrial diversion” that

has long been understood as referring to the period before trial

begins.

The statute also provides for a grant of “pretrial diversion”

“[o]n an accusatory pleading.” (§ 1001.36, subd. (a).) It makes

no mention of a diversion grant following “conviction,” which

would be the more logical terminology if diversion were also

permitted after conviction by trial or plea. The statute

contemplates several sources of “relevant and credible evidence”

that can be used to determine if the defendant’s mental disorder

“was a significant factor in the commission of the charged

offense.” (§ 1001.36, subd. (b)(2).) Those sources include, but

are not limited to, “police reports, preliminary hearing

transcripts, witness statements, statements by the defendant’s

mental health treatment provider, medical records, records or

reports by qualified medical experts, or evidence that the

defendant displayed symptoms consistent with the relevant

mental disorder at or near the time of the offense.” (Ibid.) The

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enumerated sources are all categories of evidence available

before trial. Although the list is not exclusive, the omission of

any reference to the testimony of trial witnesses is noteworthy.

Likewise, the text provides that, upon a successful

completion 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.” (§ 1001.36,

subd. (h).) This language contemplates that the defendant is

facing “charges” “at the time” diversion is granted. The statute

gives the court no authority to set aside a plea or trial verdict,

which would be required if diversion were granted after

“adjudication” of guilt by trial or plea. Further the Legislature

specifically provides that if charges are dismissed, “the arrest

upon which the diversion was based shall be deemed never to

have occurred.” (Ibid., italics added.) Again the Legislature

made no mention of setting aside a plea or trial result.

The statute also requires that the defendant “consent[] to

diversion and waive[] the . . . right to a speedy trial,” unless the

defendant is mentally incompetent to do so. (§ 1001.36, subd.

(c)(2).) In Morse v. Municipal Court (1974) 13 Cal.3d 149

(Morse), we considered similar language in the context of a 1972

statute (former § 1000.1) which diverted first time drug

offenders away from criminal prosecution. The question there,

as here, was “how far into the criminal process a defendant may

go before he can no longer be afforded the right to consent to

consideration for diversion under section 1000.1 and thereby

secure the referral of his case to the probation department for

investigation.” (Morse, at p. 155, italics omitted.) We found

“that the language of the code itself carrie[d] us a considerable

distance” in answering that question. (Id. at p. 156.)

Specifically, we observed that the statute’s language

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“unequivocally ma[de] a defendant’s consent to consideration for

diversion contingent upon a simultaneous waiver of speedy trial

rights.[8] In using such language the Legislature was surely

aware of precedent decisions [citations] which recognize that the

right to speedy trial is one which must be asserted prior to the

actual commencement of trial, usually by means of a motion to

dismiss made at the time the trial date is set or at the time the

case is called for trial. Accordingly, the plain meaning of the

waiver of speedy trial language of section 1000.1 is that the

defendant’s consent to referral of his case to the probation

department should be tendered to the district attorney prior to

the commencement of trial.” (Id. at p. 156.) The statute, we

concluded, established an affirmative restriction on the timing

of a diversion request: the “clear wording of the diversion

provisions thus precludes a defendant from initiating diversion

proceedings by tendering a consent after commencement of trial

. . . .” (Id. at p. 157; see also id. at p. 160.)9 We interpret a

similar timing restriction from section 1001.36’s requirement

that the defendant waive speedy trial rights in order to

participate in diversion.10

8

The wording of the former statute, as quoted in Morse,

provided: “ ‘[I]f the defendant consents and waives his right to a

speedy trial the district attorney shall refer the case to the

probation department.’ ” (Morse, supra, 13 Cal.3d at p. 156.)

9

Morse went on to conclude that the legislative policy to

apply diversion liberally supported an interpretation that the

defendant could request diversion anytime during the pretrial

period. (Morse, supra, 13 Cal.3d at pp. 157–160.)

10

Frahs, supra, 9 Cal.5th 618 is not to the contrary. There,

addressing the retroactive application question, the People

argued that section 1001.36’s reference to “pretrial diversion”

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At the same time, the statute sets forth no procedure for

granting a mistrial or waiving double jeopardy. (See U.S.

Const., 5th Amend.; Cal. Const., art. I, § 15; Pen. Code, § 1023.)

This absence supports a conclusion that the Legislature

intended to require that the defendant request diversion before

jeopardy attaches. Notably, both the Graham and Curry rules

allow for midtrial diversion requests after jeopardy has attached

but before verdicts have been reached. A waiver of the right to

assert a once-in-jeopardy objection would be necessary in this

and its requirement of a speedy trial waiver signaled the

Legislature’s intent to deny retroactive application of the

statute to those defendants whose trials had concluded and were

no longer in a position to waive that right. (Id. at pp. 633, 636–

637.) We rejected this logic, reasoning, “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’ [citation] ‘with sufficient clarity that a reviewing

court can discern and effectuate it’ [citation].” (Id. at pp. 633–

634.) We further concluded that “the potential logistical

problems identified by the People in providing defendants with

a diversion eligibility hearing after conviction . . . do not provide

a sufficient basis to deny defendants the benefit of a hearing

altogether.” (Id. at p. 636; see also People v. Stamps (2020) 9

Cal.5th 685, 705–709 [articulating special procedures for

defendants seeking the benefit of an ameliorative statute for the

first time on appeal].) But as the quoted language from Frahs

and our discussion, ante, make clear, our inquiry under Estrada

does not necessarily inform how a statute will operate

prospectively to defendants whose guilt is adjudicated after the

statute’s effective date. For such persons, we conclude the

Legislature’s requirement of a speedy trial waiver conveys its

intent to require that the defendant request diversion before the

process of adjudicating guilt begins.

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circumstance in the event that diversion fails and criminal

proceedings are reinstated. (See § 1001.36, subd. (g).) Yet

nothing in the statute anticipates the double jeopardy problem

midtrial diversion would create, nor does it suggest how to

overcome such issues. The lack of any elaboration of the rules

that would be required to implement midtrial diversion suggests

the Legislature did not intend to authorize such a procedure.

Finally, section 1001.36 is positioned in title 6 of part 2 of

the Penal Code which is devoted exclusively to “Pleadings and

Proceedings Before Trial.” (§ 976 et seq., italics added; see City

of Ontario v. Superior Court (1970) 2 Cal.3d 335, 343

[considering statute’s placement in the code].) This section of

the code covers arraignment (§ 976), setting aside the

information or indictment (§ 995), and various other diversion

programs.11 It appears before, and separately from, the statutes

covering the entry of a guilty plea (§ 1018), jury trial (§ 1093 et

seq.), and sentencing (§ 1191 et seq.). All of these features are

consistent with the conventional understanding of pretrial

diversion: diverting a defendant’s case out of the adjudicatory

system before the process of determining guilt by trial or plea

begins. Indeed, Morse found that section 1000.1’s similar

placement in the code “cured” “[a]ny ambiguity that might exist”

about requiring the defendant to request diversion before

11

Sections 1000 [drug diversion]; 1001.1 [pretrial diversion

defined]; 1001.20 [diversion of defendants with cognitive

developmental disabilities]; 1001.40 [diversion of traffic

violators]; 1001.50 [diversion of misdemeanor offenders];

1001.60 [bad check diversion]; 1001.70 [parental diversion];

1001.80 [military diversion]; 1001.83 [primary caregiver

diversion]; 1001.85 [law enforcement assisted diversion]; and

1001.95 [court-initiated misdemeanor diversion].

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commencement of trial. (Morse, supra, 13 Cal.3d at p. 157, fn.

4.)

Braden and our dissenting colleagues offer several

counterarguments in support of their view that the text of

section 1001.36 entitled Braden to request diversion up until

sentence was pronounced. The arguments fail to persuade.

Braden argues it is inappropriate to consider the plain

meaning of the words “pretrial diversion” because section

1001.36 includes its own definition of that term. But as

explained above, and as Braden acknowledges, section

1001.36(f)(1)’s reference to “until adjudication” is susceptible to

more than one meaning. This ambiguity justifies considering

the plain meaning of the term “pretrial diversion” in parsing the

statutory language. (See Busker, supra, 11 Cal.5th at p. 1159.)

Our dissenting colleagues contend that interpreting the

term “until adjudication” to mean “until entry of judgment” is

the most natural reading of the statute because it does not

require “elaboration, refinement, or insertion of additional

words.” (Dis. opn. of Evans, J., post, at p. 4.) The dissent further

argues that such an interpretation “comports with the

commonsense understanding that typically there is no

adjudication of a matter until there is some outcome.” (Ibid.)

Braden echoes these arguments, and cites McKenzie, supra, 9

Cal.5th 40, for the proposition that a case is not adjudicated, and

a judgment not issued, unless and until a sentence is rendered.

The arguments overlook the reality that if the Legislature

intended to allow mental health diversion up until the time of

“judgment,” it could have said so. But it did not. And, as noted

ante, the definition of adjudication can mean either (1) “[t]he

legal process of resolving a dispute; the process of judicially

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deciding a case” or (2) the “judgment.” (Black’s Law Dict. (11th

ed. 2019) p. 52, col. 1.) Interpreting the word “adjudication” to

refer to a point in the process rather than a result of that process

is not novel. As for Braden’s reliance on McKenzie, that case is

inapposite. There we considered at what point a case is reduced

to a final judgment for purposes of Estrada retroactivity

principles. (McKenzie, at pp. 44–46.) The case contained no

discussion of the meaning of the word “adjudication.”

Braden further argues that construing the word

“adjudication” to mean the “legal process of resolving a dispute”

(Black’s Law Dict. (11th ed. 2019) p. 52, col. 1) upends the

sentence structure of section 1001.36(f)(1). He urges that the

legal process of resolving a dispute is not a single “point” in the

process (§ 1001.36(f)(1)), but that the judgment is. This

semantic argument is unconvincing. Our interpretation of the

statute does indeed identify a discrete “point” in the judicial

process: the point at which adjudication of the charges begins,

either when trial commences or the defendant opts to forgo trial

by entering a plea of guilty or no contest, whichever occurs first.

Read most naturally, this is the “point” in the process that the

statute identifies.

Significantly, interpreting “until adjudication,” to permit

diversion mid- or posttrial, produces considerable dissonance

with the overarching concept of “pretrial” diversion. By

contrast, interpreting “until adjudication” to require a request

for diversion to be made before jeopardy attaches at trial or

before defendant enters a guilty or no contest plea produces no

such dissonance. As the Court of Appeal below reasoned: “If, as

Braden would like, ‘until adjudication’ refers to a posttrial

moment such as the time of sentencing, the definition of ‘pretrial

diversion’ would be at odds with the ordinary meaning of the

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word pretrial. That is, the very term being defined would be

read out of the statute. That is not a tenable way to read a

statute. Further, it is understandable why the Legislature used

the term ‘until adjudication’ rather than a phrase such as ‘until

trial.’ Most adjudications occur by guilty plea, rather than

through trial, so defining ‘pretrial’ using the term ‘until

adjudication’ encompasses both a plea hearing and an

adjudication by trial.” (Braden, supra, 63 Cal.App.5th at p. 337.)

Our dissenting colleagues resist this conclusion by

arguing that the label “pretrial diversion” is simply a shorthand

for how the statute generally will operate, rather than an

affirmative time constraint on diversion requests. (Dis. opn. of

Evans, J., post, at pp. 5–6.) But if that were true, the word

“pretrial” would be unnecessary. The Legislature simply could

have referred to “diversion” for persons suffering from mental

disorders. Moreover, the definition of pretrial diversion in

section 1001.36(f)(1) unquestionably contemplates a timeline:

“[A]t any point in the judicial process from the point at which

the accused is charged until adjudication . . . .” (Italics added.)

The dissent’s interpretation, which allows for pretrial diversion

requests from the time of charging until sentencing effectively

states no timeline because it would authorize diversion requests

at any point when the trial court exercises jurisdiction over the

case. This view renders the words “from the point at which the

accused is charged until adjudication” superfluous.

Both Braden and the dissent question our reliance on

Morse’s holding that the requirement of a speedy trial waiver

amounts to an affirmative restriction on the timing of a

diversion request, requiring that the request be made before

trial begins. (Morse, supra, 13 Cal.3d at p. 156.) They contend

Morse is inapposite due to variations between the statute at

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issue there and section 1001.36, most notably, that former

section 1000.1 did not expressly define pretrial diversion, while

section 1001.36 does. (Dis. opn. of Evans, J., post, at p. 10, fn.

5.) But to the extent the phrase “until adjudication” is

susceptible to more than one interpretation, the statute’s

separate requirement that the defendant waive speedy trial

rights enlightens the meaning of that term. Morse directly

addressed the significance of a speedy trial waiver in the context

of a diversion statute and concluded that the requirement

established an affirmative restriction on the timing of a

diversion request. (Morse, at p. 157.)

Braden further observes that the Legislature amended the

statute at issue in Morse (§ 1000.1) to expressly require, not only

waivers of speedy preliminary and speedy trial rights, but also

the waiver of a jury trial right itself (id., subd. (a)(3); Stats. 2017,

ch. 778, § 2). Yet, it did not similarly amend section 1001.36.

Based on this variance, Braden argues that “[t]he express

omission that a defendant must waive his or her right to a jury

trial to be considered for mental health diversion supports the

construction that diversion is an option after a trial has begun.”

We read the statute differently. The Legislature’s inclusion of a

separate jury trial waiver in section 1000.1 means that

defendants who fail drug diversion are only entitled to a court

trial should criminal proceedings resume. By contrast,

defendants who fail mental health diversion will be able to

exercise their full jury trial right. As Morse explained, the

requirement of a speedy trial waiver, applicable to both statutes,

addresses a different issue: the timing of a defendant’s request

for diversion. (Morse, supra, 13 Cal.3d at pp. 157, 160.) In that

respect, sections 1000.1 and 1001.36 remain the same.

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Braden and the dissent look to section 1001.36,

subdivision (e), which states that the court may require the

defendant to make a prima facie showing of eligibility for

diversion “[a]t any stage of the proceedings.” Braden argues

that this broad language includes sentencing, which is a stage

of the proceedings. And the dissent reasons that it “defies logic”

to read this phrase as excluding the trial, which is “the most

widely known stage of the proceedings.” (Dis. opn. of Evans, J.,

post, at p. 11.) But this language can also be understood to

reflect that pretrial proceedings themselves have multiple

stages. Significantly, subdivision (e) does not define the terms

“pretrial diversion” or “until adjudication.” Instead, it identifies

the defendant’s burden to make a prima facie showing that he

or she “will meet the minimum requirements of eligibility for

diversion and that the defendant and the offense are suitable for

diversion.” (Ibid.) Section 1001.36(f)(1) employs similar

language, referring to postponement of the prosecution “at any

point in the judicial process,” but that language is qualified by

the term “until adjudication.” Likewise, subdivision (e)’s

provisions are only as broad as the definition of “pretrial

diversion” in subdivision (f)(1). In other words, the trial court

may require the defendant to make a prima facie showing of

eligibility “at any stage of the proceedings” in which the

defendant is entitled to request diversion. Subdivision (e) does

not assist us in understanding the definition of “pretrial

diversion” in the first instance.

Finally, the dissent asserts that sections 1001.2 and

1001.51, dealing with misdemeanor diversion, authorize such

diversion after the start of trial notwithstanding the same

definition of pretrial diversion at issue here. (Dis. opn. of Evans,

J., post, at p. 9.) In support, the dissent cites language in these

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sections exempting certain “pretrial diversion or posttrial

programs” from their scope, and expressly stating that their

provisions should not be read to authorize “pretrial diversion or

posttrial programs” for certain Vehicle Code offenses. (§ 1001.2,

subd. (a), italics added; see also § 1001.51, subd. (b).)12 The

dissent cites no authority, and we have found none, construing

this exclusionary language to mean that misdemeanor diversion

may be ordered after the start of trial. On the contrary, the

statutes’ separate references to pretrial diversion “or” posttrial

programs suggests the opposite.13

12

The language, in context, reads as follows: “This chapter

shall not apply to any pretrial diversion or posttrial programs

for the treatment of problem drinking or alcoholism utilized for

persons convicted of one or more offenses under Section 23152

or 23153 or former Section 23102 of the Vehicle Code or to

pretrial diversion programs established pursuant to Chapter 2.5

(commencing with Section 1000) of this title nor shall this

chapter be deemed to authorize any pretrial diversion or

posttrial programs for persons alleged to have committed

violation of Section 23152 or 23153 of the Vehicle Code.”

(§ 1001.2, subd. (a).) “This chapter shall not apply to any

pretrial diversion or posttrial program otherwise established by

this code, nor shall this chapter be deemed to authorize any

pretrial diversion or posttrial program for any person alleged to

have committed a violation of Section 23152 or 23153 of the

Vehicle Code.” (§ 1001.51, subd. (b).)

13

The dissent further contends that the diversion scheme for

individuals with cognitive disabilities (§§ 1001.20–1001.34)

authorizes diversion after trial begins despite sharing several of

the same features present in section 1001.36 that we have relied

upon to support a contrary conclusion. (Dis. opn. by Evans, J.,

post, at p. 10, fn. 6.) Again, the dissent cites no authority for

this proposition, and we have found none. The diversion scheme

for individuals with cognitive disabilities, operative January 1,

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B. Section 1001.36 and Statutes Governing Incompetence

to Stand Trial and Victim Restitution

Both Braden and our dissenting colleagues look to the

interplay between section 1001.36 and the statutes governing

incompetence to stand trial (§ 1368 et seq.) to support the

argument that mental health diversion may be requested up

until sentencing. (Dis. opn. of Evans, J., post, at pp. 13–16.)

They reason that, when the Legislature created mental health

diversion, it also amended section 1370 to authorize trial courts

to grant mental health diversion when a defendant is found

mentally incompetent to stand trial. (§ 1370, subd. (a)(1)(B)(iv),

(v); as amended by Stats. 2018, ch. 34, § 25.) Because an

incompetency finding can occur midtrial, or even up until

sentencing (see § 1368, subd. (a); People v. Rogers (2006) 39

Cal.4th 826, 847), section 1370 authorizes mental health

diversion at these later times. According to Braden, our

construction of section 1001.36 would effectively make the

portions of section 1370 that allow for diversion after trial

commences surplusage.

The argument presumes that there is one uniform

timeline that governs referral to mental health diversion for all

defendants, whether competent or incompetent. Not so. There

are significant differences between competent and incompetent

defendants that would cause the Legislature to adopt a more

flexible timeline for mental health diversion in the latter group.

2021, (Stats. 2020, ch. 11, § 23) has not yet been construed by

any appellate court. We decline to undertake that task here. It

is sufficient for our purposes to note that this scheme does not

include the definition of pretrial diversion that is the focus of our

discussion.

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An incompetent person is incapable of adequately

defending against a charge. Thus, under the federal

Constitution, an incompetent defendant cannot be tried,

convicted, or punished. (Drope v. Missouri (1975) 420 U.S. 162,

171–172; see § 1367, subd. (a); 5 Witkin & Epstein, Cal.

Criminal Law (4th ed. 2012) §§ 820, 821, pp. 1255–1258.) A

doubt about the defendant’s competency can arise at any time

before judgment is pronounced (§ 1368, subd. (a)), and the

statute imposes on the trial court a sua sponte duty to evaluate

competency at any time such a concern arises (ibid.; Hale v.

Superior Court (1975) 15 Cal.3d 221, 226; People v. Aparicio

(1952) 38 Cal.2d 565, 568; Witkin & Epstein, supra, § 825, at pp.

1262–1263). Failure to comply with section 1368’s mandate goes

to the legality of the proceedings and results in an act in excess

of jurisdiction. (People v. Superior Court (Marks) (1991) 1

Cal.4th 56, 64–71; Witkin & Epstein, supra, §§ 821, 828, at pp.

1255–1256, 1268–1270.) By incorporating the provisions of

section 1001.36 into the competency statutes, the Legislature

signaled its intent to have mental health diversion operate in

tandem with an incompetency finding, whenever it arises before

judgment.

Mental health diversion for competent defendants works

differently. There is no question that the court has jurisdiction

over defendants who are competent to stand trial and assist in

their own defense. Competent defendants are capable of, and

required to, request diversion, consent to it, demonstrate their

eligibility, waive the right to a speedy trial, and agree to comply

with treatment. (§ 1001.36, subd. (c)(2) & (3).) “Nowhere . . .

does the scheme mandate a sua sponte duty for trial courts to

consider mental health diversion” (People v. Banner (2022) 77

Cal.App.5th 226, 235), and the court’s decision to refer the

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defendant to mental health diversion is discretionary

(§ 1001.36, subd. (a)). The inquiry focuses on whether the

defendant has been diagnosed with a specified mental disorder

that was a significant factor in the commission of the offense.

(§ 1001.36, subd. (b).)

Such a condition is not a moving target, as can be the case

with a person who becomes incompetent to be tried even after

charges have been brought. To support a diversion request, the

condition in question must exist at the time of the offense.

Section 1001.36, subdivision (b)(1) places the burden on the

defendant to provide evidence in support of the diversion

request, including the existence of a mental health disorder.

Accordingly, when such a showing can be made there is reason

to incentivize a competent defendant to make a timely request

for diversion to encourage early intervention and obviate the

need for trial.

Incompetent individuals cannot agree to the diversion

requirements and the court cannot preside over their trial or

impose sentence on them. The question of incentivizing a

defendant’s agreement to treatment simply does not arise.

Rather, as discussed in further detail below (see pt. II.D., post),

the availability of diversion for individuals found incompetent

to be tried was added to reduce the burden of housing such

individuals by the State Department of State Hospitals.

The wording of the statutory scheme bears out these

differences. Section 1370, subdivision (a)(1)(B)(iv)(I) provides

broadly that the court may make a finding that the defendant is

an appropriate candidate for mental health diversion “at any

time after the court finds that the defendant is mentally

incompetent and before the defendant is transported to a facility

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pursuant to this section . . . .” (Italics added.) Even after the

defendant has been transferred to a facility, the court may make

such a finding “at any time upon receiving any information that

the defendant may benefit from diversion . . . .” (Id., subd.

(a)(1)(B)(iv)(II), italics added.) Section 1370, subdivision

(a)(1)(B)(v) makes clear that it establishes independent

authorization for the court to consider mental health diversion

pursuant to the timeline set out in that statute. It provides: “If

a defendant is found by the court to be an appropriate candidate

for diversion pursuant to clause (iv), the defendant’s eligibility

shall be determined pursuant to Section 1001.36.” (Id., subd.

(a)(1)(B)(v), italics added; accord, § 1370.01, subd. (b)(1)(A)

[upon a finding of incompetence, the court may “[c]onduct a

hearing, pursuant to [section 1001.36], and, if the court deems

the defendant eligible, grant diversion” pursuant to that

section], italics added.) Under section 1001.36, the question of

the defendant’s eligibility for diversion (id., subd. (b)(1)) is

separate from the timeliness of the request (id., subd. (f)(1)).

Other aspects of section 1001.36 similarly distinguish

between competent and incompetent defendants. Section

1001.36 specifically excepts incompetent persons from the

statutory requirements that they consent to diversion, waive

speedy trial rights, and agree to comply with treatment.

(§ 1001.36, subd. (c)(2), (3).) These variances defeat the call for

parallel construction between the timelines governing referral

of competent and incompetent defendants to mental health

diversion. Instead, the Legislature expressly authorized mental

health diversion under section 1370 any time a finding of

incompetency is made, thus creating a specific exception to the

timeline in section 1001.36 that governs a diversion request by

a defendant who is competent to stand trial.

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Braden’s reliance on the provisions governing victim

restitution is similarly misplaced. He notes that section

1001.36, subdivision (f)(1)(D) provides that the trial court, upon

request, shall conduct a hearing to determine whether

restitution is owed to any victim as a result of the diverted

offense, and order payment of restitution during the diversion

period. Under the general restitution statutes, restitution is

triggered by a conviction (§ 1202.4, subd. (a)(1)), and is

ascertained at or after sentencing (id., subd. (f)(3)). Braden

argues that “[s]ince a person who is granted mental health

diversion under section 1001.36 can be ordered to pay

restitution, the statute must contemplate [that] the granting of

diversion should be treated as a ‘diversion sentence’ and include

[the period] after the determination of guilt at sentencing.”

We are not persuaded. Section 1001.36 subdivision

(f)(1)(D) simply provides that the trial court can extend to a

defendant all the benefits of mental health diversion, yet also

make a victim whole by ordering the payment of restitution that

would normally be ordered at sentencing. In this situation, a

court is not forced to choose between assisting a defendant with

mental health concerns and ordering restitution for a victim.

This approach makes sense. A main feature of the diversion

system is to allow the court to intervene early to support a

defendant’s rehabilitation and recovery without the stigma of a

conviction. But, as with probation conditions, agreeing to make

victim restitution can also be part of the rehabilitative and

therapeutic process. The inclusion of restitution in this context

honors the victims’ interest in being made whole when they are

injured by competent defendants who are willing to address the

harmful consequences of their actions, and to seek treatment for

the underlying causes of their behavior. It reflects a legislative

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policy choice to consider the interests of defendants and victims

alike.

C. Legislative Purpose

Both Braden and the dissent argue that interpreting

section 1001.36(f)(1)’s definition of “pretrial diversion” to require

a diversion request before trial begins or a plea of guilty or no

contest is entered contravenes the Legislature’s intent to have

mental health diversion apply as broadly as possible. For

support, they look to the Legislature’s codified statement of

purpose, which appears in section 1001.35. (See People v.

Bryant (2021) 11 Cal.5th 976, 987; Carter v. California Dept. of

Veterans Affairs (2006) 38 Cal.4th 914, 925.) That section

states: “The purpose of this chapter 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.

[And] [¶] (c) Providing diversion that meets the unique mental

health treatment and support needs of individuals with mental

disorders.” (§ 1001.35.) Braden observes that in Frahs, we

relied on section 1001.35’s policy statements to conclude that

“ ‘the Legislature intended the mental health diversion program

to apply as broadly as possible,’ ” so that defendants like Frahs,

whose cases were not final on appeal, could take advantage of

the new enactment. (Frahs, supra, 9 Cal.5th at p. 632.)

Braden and the dissent also look to newly enacted section

17.2, which provides: “(a) It is the intent of the Legislature that

the disposition of any criminal case use the least restrictive

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means available. [¶] (b) The court presiding over a criminal

matter shall consider alternatives to incarceration, including,

without limitation, collaborative justice court programs,

diversion, restorative justice, and probation. [¶] (c) The court

shall have the discretion to determine the appropriate sentence

according to relevant statutes and the sentencing rules of the

Judicial Council.” (Added by Stats. 2022, ch. 775, § 2, eff. Jan.

1, 2023.) Braden asserts that “[f]ulfilling these purposes calls

for broad application of the statute to as many qualified people

as possible, which would require diversion to be available until

sentence is imposed. If the law could apply to a person, the

underlying policy calls for applying it.” The dissent agrees:

“[W]hile earlier diversion consideration is better, later is still

good.” (Dis. opn. of Evans, J., post, at p. 20.)

Contrary to these assertions, interpreting section 1001.36

to include a timeliness requirement is not inconsistent with the

Legislature’s stated goals regarding diversion. Our holding

today does not change the eligibility criteria or limit who is

eligible for diversion. (See § 1001.36, subd. (b).) Instead, it

establishes when eligible individuals must make a diversion

request.

Nor is it true that only the broadest possible reading of an

ameliorative statute can be deemed consistent with the

Legislature’s purpose in enacting such a statute. When section

1001.36 was enacted, it had long been recognized that the

purpose of pretrial diversion programs “is precisely to avoid the

necessity of a trial.” (Gresher, supra, 127 Cal.App.4th at p. 111.)

As one Court of Appeal observed, “Were we to construe section

1001.36 to permit a defendant to seek pretrial diversion after

the adjudication of guilt or after a plea (ostensibly, by construing

the term ‘adjudication’ to mean ‘entry of judgment’), we would

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be inviting the inefficient use of finite judicial resources.”

(Graham, supra, 64 Cal.App.5th at pp. 833–834.) By contrast,

“[r]equiring diversion requests before trial encourages

defendants to make their request to be exempted from the

criminal process before they invoke the most burdensome aspect

of it.” (Braden, supra, 63 Cal.App.5th at pp. 341–342.)14 The

Legislature did not adopt a definition of pretrial diversion

specific to the mental health context. Rather, as noted above, it

employed a definition that had been in existence since 1977.

Given the statutory scheme of which section 1001.36 is a part,

and the longstanding definition of “pretrial diversion”

incorporated therein, we conclude that among the Legislature’s

goals was conservation of judicial resources. The Legislature’s

codified statement of purpose to have diversion apply broadly

cannot override its express language applying the statute to

“pretrial diversion.” (See In re Gadlin (2020) 10 Cal.5th 915,

940–942 (Gadlin).)

Although limiting diversion to pretrial requests might

foreclose some otherwise potentially meritorious diversion

claims, the Legislature was entitled to conclude that doing so

would create better incentives to expeditiously surface and

14

We note that, in terms of inefficiencies, the Graham rule,

which allows for midtrial diversion requests up until verdicts

are returned, is most likely to result in wasted judicial

resources. In the case of a jury trial, advocates must prepare for

trial, the jury will be empaneled, witnesses assembled, and

evidence presented. If the defendant makes a prima facie

showing for relief, the trial court would be required to dismiss

the jury without completing the trial or receiving verdicts.

Further, section 1001.36 does not require a jury trial waiver

upon request for diversion, so the case could well require a

second jury trial if diversion is unsuccessful.

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address mental health concerns, and that other forms of

posttrial relief are sufficient to address mental health issues in

a posttrial setting. Notably, while section 17.2 states a

preference for the least restrictive criminal disposition, the

Legislature’s use of the words “available” and “according to

relevant statutes and the sentencing rules of the Judicial

Council” indicate that the Legislature did not intend to alter

existing statutory requirements, including section 1001.36’s

timeliness requirement.

In the end the Legislature has chosen an approach which

strikes a balance. Requiring that a request be made before trial

begins makes a diversion request available for all who qualify.

If diversion is deemed appropriate, a grant saves pretrial

expenditures, including those attendant on repeated

appearances and pretrial custody costs, as well as resources

consumed by trials. Encouraging resort to early mental health

treatment can increase the chances for therapeutic success and

protect both the public and the defendant from future burdens

resulting from treatable mental health conditions. (See pt. II.D.,

post.)

Braden’s counsel acknowledged at oral argument that it

would be unusual for defense counsel to become aware only

during trial that the defendant has a mental health disorder

that factored significantly in the commission of the offense. This

is the type of evidence that the defense would be expected to

develop early if relevant to a disputed issue at trial. Once

defense counsel announces ready for trial, he or she will most

often be well aware of evidence that would support a request for

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diversion.15 The defense is likewise empowered to delay the

entry of plea and to waive time for trial in order to investigate

further or consider whether the defendant is “willing to

embrace” mental health treatment. (Dis. opn. of Evans, J., post,

at p. 21.) Given all of these considerations, the dissent’s concern

that today’s ruling will severely compromise early intervention

is unfounded. (Dis. opn. of Evans, J., post, at pp. 15–16, 19–22.)

Moreover, it is important to note that the trial court is not

without means to address a defendant’s mental disorder in the

context of sentencing a defendant who has been convicted by

trial or plea. Even before section 1001.36 was enacted, a court

could place the defendant on probation on the condition that he

or she cooperate with mental health treatment. That option

15

Such was the case here. Braden’s family members advised

police of his schizophrenia diagnosis when they called for

emergency assistance. Police dispatch made the responding

officer aware of that diagnosis. It appears that Braden, who was

deemed competent to represent himself, was unaware of section

1001.36’s pretrial diversion program, which became effective

shortly before his trial. The issue was raised for the first time

after counsel was appointed to assist Braden at sentencing. The

general rule is that defendants who validly choose to represent

themselves are charged with knowing the law. Braden’s pro se

status is therefore not a ground for excusing his failure to seek

mental health diversion in a timely manner. (See People v.

Espinoza (2016) 1 Cal.5th 61, 75.)

Nor does Braden argue that he should be excused from

failing to timely seek mental health diversion before trial

because he could not have anticipated the meaning we have

attributed to the term “until adjudication” in section 1001.36.

(Cf. People v. Black (2007) 41 Cal.4th 799, 810–812; People v.

Turner (1990) 50 Cal.3d 668, 703–704; In re Gladys R. (1970) 1

Cal.3d 855, 861.)

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Opinion of the Court by Corrigan, J.

remains available and successful completion of probation is

grounds to have a conviction vacated. (§ 1203.4, subd. (a)(1).)

In sum, although the phrase “until adjudication”

(§ 1001.36(f)(1)), standing alone, is susceptible of more than one

meaning, we resolve that ambiguity in light of the language of

section 1001.36 as a whole and the entire statutory scheme

governing diversion, including the Legislature’s codified

statement of purpose. Accordingly, we hold that, to be timely, a

request for diversion must be made before attachment of

jeopardy at trial or the entry of a guilty or no contest plea,

whichever occurs first. This interpretation best comports with

the concept of “pretrial diversion,” harmonizes section 1001.36

within the statutory scheme, and is consistent with the

Legislature’s goals to accelerate mental health diversion, reduce

pretrial incarceration, and preserve finite judicial resources. We

disapprove People v. Graham, supra, 64 Cal.App.5th 827, and

People v. Curry, supra, 62 Cal.App.5th 314, to the extent they

are inconsistent with the holding here.

While the dissent offers several reasons why permitting

mental health diversion until entry of judgment might be a

preferable policy, the statutory language and contextual scheme

point in a different direction. Of course, if the Legislature

wishes to expand the window during which a request may be

made it is free to amend the statute. But that is a policy choice

for the Legislature to make.

D. Legislative History Materials

Having reached this conclusion based on the statutory

language and its context, “we need go no further.” (Microsoft

Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750, 758.)

Nonetheless, even if we were to consider extrinsic aids, a review

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Opinion of the Court by Corrigan, J.

of the legislative history of section 1001.36 comports with our

reading of the statute. (See, e.g., Gadlin, supra, 10 Cal.5th at p.

936; Curle v. Superior Court (2001) 24 Cal.4th 1057, 1067.)

Section 1001.36 came into existence by a somewhat

complex legislative process, which was aptly summarized in

Tellez v. Superior Court (2020) 56 Cal.App.5th 439 (Tellez). We

draw liberally from that discussion here. “Before the enactment

of Penal Code section 1001.36, two different bills proposed

pretrial mental health diversion. The bill that ultimately

enacted Penal Code section 1001.36 was Assembly Bill No. 1810

(2017–2018 Reg. Sess.).” (Tellez, at p. 445; Stats. 2018, ch. 34,

§ 24, eff. June 27, 2018.) “Assembly Bill 1810 was an ‘omnibus

health’ budget trailer bill authored by the Assembly Committee

on Budget. (Stats. 2018, ch. 34, § 37; Sen. Rules Com., Off. of

Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1810

(2017–2018 Reg. Sess.), as amended June 12, 2018, p. 1.) . . . [As

first introduced,] the bill contained only one section and merely

stated that the Legislature intended ‘to enact statutory changes

relating to the Budget Act of 2018.’ (Assem. Bill 1810 (2017–

2018 Reg. Sess.) as introduced Jan. 10, 2018.) The Senate

amended the bill in June and added 37 sections, including the

one that became Penal Code section 1001.36. (Sen. Amend. to

Assem. Bill 1810 (2017–2018 Reg. Sess.) June 12, 2018.)”

(Tellez, at pp. 445–446.)

“Senate Bill No. 215 (2017–2018 Reg. Sess.) . . . separately

proposed mental health diversion, and it eventually amended

Penal Code section 1001.36” to address restitution for diverted

offenses and to set forth a list of ineligible offenses. (Tellez,

supra, 56 Cal.App.5th at p. 445; see id. at p. 447; Stats. 2018,

ch. 1005, § 1, eff. Jan. 1, 2019.) The mental health diversion

language was added to the bill on January 3, 2018, predating

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Opinion of the Court by Corrigan, J.

the introduction of such language in Assembly Bill No. 1810

(2017–2018 Reg. Sess.) (Assembly Bill 1810). (Sen. Amend. to

Sen. Bill No. 215 (2017–2018 Reg. Sess.) Jan. 3, 2018.) Senate

Bill No. 215 (2017–2018 Reg. Sess.) (Senate Bill 215) contained

the same definition of “pretrial diversion” and the same

requirement of a speedy trial waiver eventually enacted in

section 1001.36. (Sen. Amend. to Sen. Bill No. 215 (2017–2018

Reg. Sess.) Jan. 3, 2018.) Frahs, supra, 9 Cal.5th at page 635

considered legislative history materials related to Senate Bill

215 in ascertaining the Legislature’s intent. Likewise, both

Braden and the Attorney General rely on various legislative

history materials related to Assembly Bill 1810 and Senate Bill

215, and we have granted their unopposed requests to take

judicial notice of those documents.

Braden and the dissent argue that the legislative history

of section 1001.36 reflects the Legislature’s goal to provide

mentally ill offenders with treatment, rather than incarceration.

One analysis of Senate Bill 215 included the author’s statement

that “ ‘[r]oughly a third of inmates in California’s jails suffer

from serious mental illness’ ” and California’s jails are “ ‘ill-

equipped’ ” to treat such conditions or to deal with the housing

and staffing demands such prisoners present. (Assem. Com. on

Public Safety, Analysis of Sen. Bill No. 215 (2017–2018 Reg.

Sess.) as amended Jan. 25, 2018, p. 5; id. at pp. 5–6

[summarizing statistics on incarcerated mentally ill offenders].)

Another analysis observed that “[t]he goal of the diversion

program created by this bill is to address the population of jail

inmates who suffer from a mental disorder whose incarceration

often leads to worsening of their condition and in some cases

suicide.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No.

215 (2017–2018 Reg. Sess.) as amended Jan. 3, 2018, p. 7.) The

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Opinion of the Court by Corrigan, J.

legislative history recounted other deleterious effects, such as

the inability of inmates with mental health conditions to

function within the prison system and the tendency of

incarceration to aggravate these preexisting conditions. (Id. at

p. 4; Assem. Com. on Public Safety, Analysis of Sen. Bill No. 215,

supra, p. 8.) Braden reasons that, “[b]y focusing on getting

mentally ill defendants the treatment they need prior to being

incarcerated, the Legislature made clear [its] intention to give

courts the ability to grant mental health diversion at any time

before a defendant is incarcerated, which strongly supports the

interpretation that diversion was meant to be an available

option until sentence is imposed.”

Reducing the incarceration of mentally ill defendants was

one legislative purpose, but it did not stand alone. (See Palos

Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch.

Dist. (1978) 21 Cal.3d 650, 663–664.) Rather, the available

legislative history bears out that the Legislature also considered

the benefits to the defendant and the judicial system of having

diversion occur pretrial. The author’s statement in support of

Senate Bill 215 explained that the statute was designed to

remedy problems associated with the inability of trial courts to

“order mental health treatment, relevant counselling, or

adherence to a medication regime unless the [defendant] was

first convicted, and then placed on probation or sent to jail at

county expense.” (Sen. Rules Com., Off. of Sen. Floor Analyses,

Unfinished Business Analysis of Sen. Bill No. 215 (2017–2018

Reg. Sess.) as amended Aug. 23, 2018, p. 2, italics added.) The

comments continue: “The predictable results of California’s

reliance on this outdated method are higher costs for taxpayers,

who are forced to pay for the continuous warehousing of the

mentally ill, when early, court-assisted interventions are far

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Opinion of the Court by Corrigan, J.

more likely to lead to longer, cheaper, more stable solutions for

the community, and for the person suffering from mental illness.

[¶] . . . By granting courts the ability to divert those suffering

from mental illness into treatment at an early stage in the

proceedings, [Assembly Bill] 1810 seeks to reduce recidivism

rates for mentally ill defendants, and to avoid unnecessary and

unproductive costs of trial and incarceration.” (Id. at pp. 2–3,

italics added.) A Judicial Council task force concurred that

“interventions and diversion possibilities must be developed and

utilized at the earliest possible opportunity.” (Assem. Com. on

Public Safety, Analysis of Sen. Bill No. 215, supra, p. 6, italics

added.) In assessing the fiscal effect of the legislation, one

analyst observed that the cost of publicly funded programs

“could be offset by savings achieved through reduced workload

in not preparing for and litigating cases to trial.” (Sen. Rules

Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen.

Bill No. 215 (2017–2018 Reg. Sess.) as amended Jan. 25, 2018,

p. 6, italics added; see also Assem. Com. on Public Safety,

Analysis of Sen. Bill No. 215, supra, p. 5 [because diversionary

sentences “ ‘take advantage of existing community resources for

the mentally ill, research suggests that such sentences will save

counties money in the short-term on reduced trial and

incarceration costs, and in the long-term based on reduced

recidivism rates’ ” (italics added)].)

Moreover, the legislative history materials reflect that the

Legislature considered the benefit to defendants of being

diverted before suffering a conviction. The author’s statement

in support of Senate Bill 215 observed that, under current laws,

trial courts were not able to rehabilitate mentally ill offenders

“ ‘without first convicting them of the underlying offense,

thereby damaging their prospects for future employment and

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Opinion of the Court by Corrigan, J.

housing.’ ” (Assem. Com. on Public Safety, Analysis of Sen. Bill

No. 215, supra, p. 5.) The author explained that “[b]y reserving

court-ordered services for the mentally ill until after a

conviction, the prior system led to higher recidivism rates for

mentally ill Californians, who were not only left untreated, but

with the additional burden of a criminal record. This approach

was unfair, impractical and costly.” (Sen. Rules Com., Off. of

Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill

No. 215, supra, p. 2, italics added.) By contrast, under the

proposed legislation to enact section 1001.36, “ ‘a court may (but

is not required to) impose the same rehabilitative probationary

conditions on a defendant it would have imposed had the

defendant been convicted (including that the defendant comply

with a mental health treatment plan, obey all laws and make

restitution to any victims), with the added incentive that

successful completion of diversion would result in dismissal of

the criminal case, without the permanent detriment of a criminal

record.” (Assem. Com. on Public Safety, Analysis of Sen. Bill No.

215, supra, p. 5, italics added.) As one analyst emphasized,

“[b]ecause diversion does not result in a conviction, once a

defendant completes diversion he or she would not be foreclosed

from housing and employment opportunities.” (Sen. Com. on

Public Safety, Analysis of Sen. Bill No. 215, supra, p. 7, italics

added; see also ibid. [explaining that the proposed legislation

authorizes a court “to order treatment early in the process

rather than waiting for the disposition of the case” (italics

added)].)

The comments in one analysis of Senate Bill 215

emphasized the difference between pretrial diversion and

deferred entry of judgment: “In deferred entry of judgment, a

defendant determined by the prosecutor to be eligible for

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Opinion of the Court by Corrigan, J.

deferred entry of judgment must plead guilty to the underlying

drug possession charge. The court then defers entry of judgment

and places the defendant in a rehabilitation and education

program. If he or she successfully completes the program, the

guilty plea is withdrawn and the arrest is deemed to have not

occurred. If the defendant fails in the program, the court

imposes judgment and sentences the defendant. [¶] In pretrial

diversion, the criminal charges against an eligible defendant are

set aside and the defendant is placed in a rehabilitation and

education program treatment. If the defendants successfully

complete the program, the arrest is dismissed and deemed to not

have occurred. If the defendant fails in the program, criminal

charges are reinstated. . . . [¶] This bill would give the courts

the authority to grant pretrial diversion to defendant charged

with misdemeanors or felonies that are punishable in county jail

under Realignment, if the defendant has a mental illness, the

mental illness played a significant role in the commission of the

offense, and the defendant would benefit from mental health

treatment.” (Assem. Com. on Public Safety, Analysis of Sen. Bill

No. 215, supra, pp. 6–7.) The comments to Senate Bill 215

likewise emphasized the existing definition of pretrial diversion

as “the procedure of postponing prosecution of an offense filed

as a misdemeanor either temporarily or permanently at any

point in the judicial process from the point at which the accused

is charged until adjudication.” (Sen. Rules Com., Off. of Sen.

Floor Analyses, 3d reading analysis of Sen. Bill No. 215, supra,

p. 1; Sen. Com. on Public Safety, Analysis of Sen. Bill No. 215,

supra, p. 1.) These comments indicate that the Legislature

understood the existing definition of pretrial diversion as well

as the difference between pretrial diversion and deferred entry

of judgment.

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Opinion of the Court by Corrigan, J.

Finally, the legislative history materials reflect the

Legislature’s goal to reduce the number of persons referred to

the State Department of State Hospitals after having been

found incompetent to stand trial under section 1370. (Assem.

Con. Sen. Amends. to Assem. Bill No. 1810 (2017–2018 Reg.

Sess.) as amended June 12, 2018, p. 7; Cal. Health & Human

Services Agency, Enrolled Bill Rep. on Sen. Bill No. 215 (2017–

2018 Reg. Sess.) prepared for Governor Brown (Sept. 4, 2018)

pp. 1–2.) As explained ante, the provisions of section 1370

achieve this goal by broadly authorizing the trial court to

consider a defendant for diversion “at any time after the court

finds that the defendant is mentally incompetent and before the

defendant is transported to a facility” (id., subd. (a)(1)(B)(iv)(I))

or, after the defendant is transported, “at any time upon

receiving any information that the defendant may benefit from

diversion” (id., subd. (a)(1)(B)(iv)(II)).

The dissent urges that today’s opinion “narrowly fixates

on the need to avoid costs of jury trials” when the Legislature’s

primary purpose was to avoid the costs associated with

incarceration and recidivism. (Dis. opn. of Evans, J., post, at p.

18.) Our dissenting colleagues assert that the vast majority of

cases are resolved by plea agreement and that the “costs of jury

trials pale in comparison to the greater costs the Legislature had

in mind — namely, costs associated with incarceration and

recidivism.” (Ibid.) But as explained above, the dissent

overstates the risk that imposing a timeline will leave

defendants unable to avail themselves of diversion or otherwise

receive mental health assistance as a condition of probation.

Moreover, the dissent’s interpretation of the statute would

incentivize jury trials, as well as delay treatment. A defendant

could wait until trial to seek an acquittal. Then, if convicted,

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Opinion of the Court by Corrigan, J.

the defendant could request diversion. Requiring a defendant

to request diversion before proceeding to trial avoids such

wasted resources and also assists the defendant by accelerating

therapeutic intervention rather than incurring additional delay

by waiting for trial. (Graham, supra, 64 Cal.App.5th at pp. 833–

834; Braden, supra, 63 Cal.App.5th at pp. 341–342.) At the

same time, the statute does not require the defendant to plead

guilty or waive the right to jury trial in order to participate in

diversion. If a diversion referral proves unsuccessful, the

defendant may still exercise the jury trial right.

Ultimately, it is for the Legislature to decide how to

balance, on the one hand, reducing costs of incarceration and

recidivism and, on the other, conserving judicial resources and

encouraging early intervention. Avoiding trial through “pretrial

diversion” benefits the defendant, as well as victims and

witnesses and the system itself. The available legislative

history bears out that the Legislature considered these benefits,

and supports our interpretation of section 1001.36 to require

that a request for mental health diversion be made before

attachment of jeopardy at trial or the entry of a guilty or no

contest plea, whichever occurs first.

E. Rule of Lenity

Finally, Braden invokes the rule of lenity to argue that any

ambiguity in the statute’s scope should be resolved in his favor.

“[W]e have repeatedly stated that when a statute defining a

crime or punishment is susceptible of two reasonable

interpretations, the appellate court should ordinarily adopt that

interpretation more favorable to the defendant.” (People v.

Avery (2002) 27 Cal.4th 49, 57, italics added.) It is not apparent

that the rule of lenity would extend to a procedural rule

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Opinion of the Court by Corrigan, J.

governing the timeliness of a diversion request. But even when

properly invoked, the rule applies “ ‘only if the court can do no

more than guess what the legislative body intended; there must

be an egregious ambiguity and uncertainty to justify invoking

the rule.’ ” (Id. at p. 58; accord, People v. Manzo (2012) 53

Cal.4th 880, 889.) In other words, “the rule of lenity is a tie-

breaking principle, of relevance when ‘ “two reasonable

interpretations of the same provision stand in relative equipoise

. . . .” ’ ” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1102,

fn. 30.) We do not face such uncertainty here. The language

and structure of the statute, its placement in the code, the

settled provisions of pretrial diversion, and the legislative

history all point to an understanding that the Legislature

intended to require that a defendant request pretrial mental

health diversion before jeopardy attaches at trial or before the

entry of a plea of guilty or no contest, whichever occurs first.

III. DISPOSITION

The judgment of the Court of Appeal is affirmed.

CORRIGAN, J.

We Concur:

GUERRERO, C. J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

42

PEOPLE v. BRADEN

S268925

Dissenting Opinion by Justice Evans

Cory Juan Braden, Jr., was involved in a confrontation

with his sister. Their mother intervened and Braden physically

assaulted her. Braden’s sister called 911 for assistance and

informed the dispatcher that Braden was schizophrenic and was

off his medication. Braden fought with a responding deputy and

was charged with resisting arrest and with having two prior

strikes. Braden represented himself at trial and a jury convicted

him. Before sentencing, he requested an attorney. The attorney

promptly requested that Braden be considered for mental health

diversion under Penal Code1 section 1001.36. After denying the

motion as untimely and moot,2 the trial court sentenced Braden

to four years in state prison.

The question in this case is whether a trial court has the

discretion to consider a defendant’s request for mental health

diversion up until the entry of judgment. Based on the

legislative history, the plain language of the statute, and the

1

All further unspecified statutory references are to the

Penal Code.

2

In summarily denying Braden’s mental health diversion

request, the court remarked that it would have denied the

motion as a matter of discretion had it not found it to be

untimely and moot. The court’s alternate ruling was invalid

because it was not based on any apparent consideration of

whether Braden was eligible or suitable for diversion. (See

§ 1001.36, subds. (b)–(c).)

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PEOPLE v. BRADEN

Evans, J., dissenting

overall scheme of which it is a part, I would hold trial courts

have such discretion. Thus, I respectfully dissent.

Section 1001.36 allows defendants to request mental

health diversion “at any point in the judicial process from” the

time they are charged “until adjudication.” (Id., subd. (f)(1),

italics added.) The majority opinion holds that the statute’s

reference to “until adjudication” requires a defendant to request

diversion “before attachment of jeopardy at trial or the entry of

a guilty or no contest plea, whichever occurs first.” (Maj. opn.,

ante, at p. 1.) In so holding, contrary to legislative intent, the

majority divests trial courts of the discretion to grant mental

health diversion to suitable, mentally ill defendants. The

Legislature can correct today’s decision by expressly clarifying

that the phrase “until adjudication” in section 1001.36 means

until entry of judgment.

Today’s decision marks a retreat from our recognition in

People v. Frahs (2020) 9 Cal.5th 618 (Frahs) of “[t]he 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.’ ”

(Id. at p. 632.) Although we did not squarely address the

meaning of “until adjudication,” we understood that “[t]he

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’

[citation] even after a verdict . . . .” (Id. at p. 636.) While the

majority discounts Frahs on the grounds it concerned the issue

of retroactivity, Frahs’s recognition of mental health diversion’s

legislative purposes, its import, and its features applies with

equal force as we consider the “timeliness” issue before us today.

2

PEOPLE v. BRADEN

Evans, J., dissenting

I.

This case presents an issue of statutory interpretation.

The mental health diversion statute, section 1001.36, authorizes

courts to grant “pretrial diversion” to people with mental health

conditions to divert them out of the carceral system and into

treatment if they do not pose an unreasonable risk to public

safety. Section 1001.36, subdivision (f)(1) defines “pretrial

diversion” as “postponement of prosecution . . . 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 . . . .”

In interpreting the meaning of a statute, the fundamental

task of courts is to determine the Legislature’s intent in order to

effectuate the statute’s purpose. (First Student Cases (2018) 5

Cal.5th 1026, 1034–1035.) We first consider whether the plain

meaning of the statute is unmistakably clear from the statute’s

text. (Id. at p. 1035.) We construe the statute’s language “ ‘in

the context of the statutory framework, seeking to discern the

statute’s underlying purpose and to harmonize its different

components.’ ” (Ibid.) We must interpret a statute “ ‘ “with

reference to the whole system of law of which it is a part so that

all may be harmonized and have effect.” ’ ” (Kavanaugh v. West

Sonoma County Union High School Dist. (2003) 29 Cal.4th 911,

919 (Kavanaugh).) “In order to ascertain a statute’s most

reasonable meaning, we often examine its legislative history.”

(Id. at p. 920.)

A. The Language of Section 1001.36

In interpreting the phrase “until adjudication,” the

majority defines “adjudication” to mean “attachment of jeopardy

at trial or the entry of a guilty or no contest plea, whichever

3

PEOPLE v. BRADEN

Evans, J., dissenting

occurs first.” (Maj. opn., ante, at p. 1.) But the more natural

reading is that “until adjudication” means “until entry of

judgment.” (See Black’s Law Dict. (11th ed. 2019) p. 52, col. 1)

[defining adjudication as either (1) “[t]he legal process of

resolving a dispute; the process of judicially deciding a case” or

(2) the “judgment”].) Unlike the definition adopted by the

majority opinion, the latter definition does not require any need

for elaboration, refinement, or insertion of additional words. It

also comports with the commonsense understanding that

typically there is no adjudication of a matter until there is some

outcome.3 (Kavanaugh, supra, 29 Cal.4th at p. 919 [we must be

“careful to give the statute’s words their plain, commonsense

meaning”].) And it is in harmony with the Legislature’s intent

that “the disposition of any criminal case use the least

restrictive means available” and effectuates its corresponding

mandate that trial courts consider alternatives to incarceration,

such as diversion. (§ 17.2, subd. (a), added by Stats. 2022, ch.

775, § 2, eff. Jan. 1, 2023, italics added; see Stats. 2022 ch. 775,

§ 1, subds. (a), (b) [“California’s overreliance on incarceration

has failed to improve public safety while disproportionately

harming vulnerable and marginalized communities” and

“California can . . . mak[e] greater use of alternatives to

3

The majority asserts this interpretation “effectively states

no timeline because it would authorize diversion requests at any

point when the trial court exercises jurisdiction over the case”

and therefore “renders the words ‘from the point at which the

accused is charged until adjudication’ superfluous.” (Maj. opn.,

ante, at p. 19.) The majority is mistaken. The deadline is the

one the Legislature set: defendants may request and courts may

order mental health diversion at any point until adjudication

(i.e., before entry of judgment). After sentencing, a trial court

would be precluded from granting a diversion request.

4

PEOPLE v. BRADEN

Evans, J., dissenting

incarceration, which often lead to better outcomes than

incarceration, including reduced rearrest rates, better economic

outcomes, and reduced racial disparities”].)

The majority asserts that “[i]nterpreting the word

‘adjudication’ to refer to a point in the process rather than a

result of that process is not novel.” (Maj. opn., ante, at p. 18.) I

do not disagree. However, adjudication either refers to the legal

process itself (i.e., “[t]he legal process of resolving a dispute”) or

the point at which the legal process is resolved (i.e., “judgment”).

(Black’s Law Dict. (11th ed. 2019) p. 52, col. 1.) What is novel is

selecting more than one point in that process, as the majority

has done, and claiming they both somehow mean “adjudication.”

(See maj. opn., ante, at p. 18 [“Our interpretation of the statute

does indeed identify a discrete ‘point’ in the judicial process: the

point at which adjudication of the charges begins, either when

trial commences or the defendant opts to forgo trial by entering

a plea of guilty or no contest, whichever occurs first”].) The two

points that the majority has selected — the commencement of

trial and the entry of a plea — are not only different from each

other, but also conflict and are inconsistent with the point

provided in the definition of “adjudication” itself — “judgment.”

(See McAlpine v. Superior Court (1989) 209 Cal.App.3d 1, 7

[explaining that, in a criminal case, the judgment is the

conclusion of the legal proceeding].)

In recognizing the ambiguity of the word “adjudication,”

the majority excises the word “pretrial” from its context. In the

majority’s view, “until adjudication” must be narrowed to avoid

“dissonance” between pretrial diversion requests and those that

occur midtrial and posttrial. (Maj. opn., ante, at p. 18.) But the

Legislature’s choice to label, in shorthand, mental health

diversion as “pretrial diversion” has a different purpose. (Cf.

5

PEOPLE v. BRADEN

Evans, J., dissenting

Frahs, supra, 9 Cal.5th at p. 632 [“the definition of ‘pretrial

diversion’ . . . simply reflect[s] 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” (italics

added)].) Prior to the enactment of section 1001.36, courts were

unable to order mental health services until after a defendant

was convicted, sentenced, and then placed on probation or sent

to jail or prison. (Sen. Rules Com., Off. of Sen. Floor Analyses,

Analysis of Sen. Bill No. 215 (2017–2018 Reg. Sess.) as amended

Aug. 23, 2018, p. 2 [trial courts could not “order mental health

treatment, relevant counselling, or adherence to a medication

regime unless the person was first convicted, and then placed on

probation or sent to jail at county expense”].) The Legislature

enacted mental health diversion to allow rehabilitative

interventions before such occurrences. Diversion requests

before trial were, understandably, the ones most contemplated

and anticipated by the statute since most defendants would

prefer to avoid trial and, if detained pretrial, to be released from

custody as early as possible. Given this backdrop, the

“dissonance” identified by the majority between the literal

meaning of the word “pretrial” standing alone and the statutory

definition of “pretrial diversion” disappears.

In focusing on the word “pretrial” in isolation, the majority

places undue emphasis on diverting defendants away from trial.

Diversion from trial is one purpose of the statute to be sure. (See

Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen.

Bill No. 215 (2017–2018 Reg. Sess.) as amended Aug. 23, 2018,

p. 2.) However, the Legislature made clear that the overriding

purpose of mental health diversion is to divert people with

mental illness into treatment and rehabilitation and away from

the normal criminal process — particularly incarceration. (Sen.

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PEOPLE v. BRADEN

Evans, J., dissenting

Com. on Public Safety, Analysis of Sen. Bill No. 215 (2017–2018

Reg. Sess.) as amended Jan. 3, 2018, p. 8 [“There is an urgent

need for specific and targeted efforts to reduce the rates of

incarceration of people with mental illness, and to facilitate

successful diversion and reentry”]; Sen. Com. on Public Safety,

Analysis of Sen. Bill No. 1223 (2021–2022 Reg. Sess.) as

amended Mar. 9, 2022, p. 5 [“ ‘To avoid incarceration,

individuals with serious mental illness need to be diverted from

the legal system and offered rehabilitative resources’ ”]; People

v. Trask (2010) 191 Cal.App.4th 387, 394 [the conventional

understanding of pretrial diversion is to divert from “ ‘ “the

normal criminal process” ’ ”]; People v. Superior Court (On Tai

Ho) (1974) 11 Cal.3d 59, 61 [diversion programs serve to divert

defendants into “program[s] of treatment and rehabilitation”].)

The Legislature was focused on diverting individuals

away from incarceration and into mental health treatment

because incarcerating mentally ill individuals compromises

public health and safety, whereas providing mental health

treatment for mentally ill individuals advances it. (See Sen.

Com. on Public Safety, Analysis of Sen. Bill No. 215 (2017–2018

Reg. Sess.) as amended Jan. 3, 2018, p. 5 [“For many people

suffering from mental disorders, incarceration only serves to

aggravate preexisting conditions and does little to deter future

lawlessness [¶] . . . [and] diversion into treatment is . . . more

likely to protect public safety by reducing the likelihood that a

person suffering from a mental health disorder reoffends in the

future”]; see also Sen. Com. on Public Safety, Analysis of Sen.

Bill No. 1223 (2021–2022 Reg. Sess.) as amended Mar. 9, 2022,

p. 9 [“ ‘California enacted AB 1810, which authorized courts to

divert people with mental health conditions . . . out of the

carceral system and into treatment. By ensuring that these

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Evans, J., dissenting

people are connected to meaningful, long-term mental health

treatment instead of simply jailed and released, the diversion

statute protects public safety by lowering recidivism rates . . .

and leads to better outcomes for these individuals and their

families”].) Incarceration — not trial — is “ ‘the sea’ ” from

which the river is intended to be diverted. (Maj. opn., ante, at p.

10.)

The majority argues the Legislature, in enacting section

1001.36, has used the same definition of “pretrial diversion” that

existed when section 1001.1 was enacted. Relying largely upon

dicta, the majority represents that “[a]ppellate courts long have

understood section 1001.1’s definition of pretrial diversion as

contemplating a request for diversion before trial begins.” (Maj.

opn., ante, at p. 10, citing Gresher v. Anderson (2005) 127

Cal.App.4th 88, 111–112 (Gresher) and People v. Padfield (1982)

136 Cal.App.3d 218, 227–229 & fn. 8.)4 “Of course, we are not

bound by . . . dicta.” (Gomez v. Superior Court (2005) 35 Cal.4th

4

Contrary to the majority’s assertion, Gresher did not

construe section 1001.1’s definition of pretrial diversion to

preclude requests made after trial begins. In Gresher, the court

issued a writ of mandate directing the Department of Social

Services to allow individuals in diversion and deferred entry of

judgment programs to apply for Trustline registration. Gresher

rejected the Department’s argument that, because individuals

in diversion and deferred entry of judgment programs are

awaiting trial, it could close the application process for those

individuals. It reasoned that a hearing to terminate

diversion — contingent upon one’s performance — was required

before any trial would occur in the future, and thus, concluded

“it cannot reasonably be said that persons in diversion programs

are ‘awaiting trial.’ ” (Gresher, supra, 127 Cal.App.4th at p.

111.) The issue in Gresher does not involve the construction of

the definition of “pretrial diversion” and has no bearing on the

issue before us today.

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PEOPLE v. BRADEN

Evans, J., dissenting

1125, 1155.) More significantly, the majority simply ignores

that diversion consideration after the start of trial is

contemplated by other “pretrial” diversion programs

notwithstanding their label or the definition of pretrial

diversion in section 1001.1 and at issue here. (See §§ 1001.1

[same definition of “pretrial diversion”], 1001.50, subd. (c) [same

definition of “pretrial diversion”].) These statutes sanction

diversion after trial begins. (See §§ 1001.2, subd. (a) [listing

certain Veh. Code offenses not eligible for “pretrial diversion or

posttrial programs” (italics added)], 1001.51, subd. (b) [listing

certain Veh. Code offenses not eligible for “pretrial diversion or

posttrial program” (italics added)].)

The majority highlights section 1001.36’s placement in a

section of the Penal Code labeled “Pleadings and Proceedings

Before Trial” to support its interpretation. As we have observed,

these headings “are not binding upon the courts.” (In re

Halcomb (1942) 21 Cal.2d 126, 130; see In re Young (2004) 32

Cal.4th 900, 907, fn. 4 [“article headings are unofficial and do

not affect the scope, meaning, or intent of a statute”].) Section

1001.36’s placement in this section of the Penal Code is practical

given that diversion is typically sought prior to trial. This is no

different from other diversion statutes that operate pretrial and

posttrial yet also are located in the “Pleadings and Proceedings

Before Trial” section of the Penal Code. (See § 1001.1 et seq.;

§ 1001.50 et seq.)

The other features of section 1001.36 relied upon by the

majority reflect the expectation that mental health diversion

“generally” will be sought prior to trial. (Frahs, supra, 9 Cal.5th

at p. 632.) These features do not stand for the proposition that

diversion consideration is foreclosed at all other points in the

proceedings. For instance, section 1001.36, subdivision (c)(2)’s

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Evans, J., dissenting

requirement of a speedy trial waiver is only applicable when

relevant.5 And since jeopardy can be waived, the Legislature

reasonably deemed it unnecessary to include a waiver procedure

in section 1001.36. (See People v. Batts (2003) 30 Cal.4th 660,

679–680 [defendant may consent to a mistrial and waive

jeopardy]; People v. Overby (2004) 124 Cal.App.4th 1237, 1243.)

Each of these statutory elements should — and easily can — be

harmonized with the statutory scheme and the Legislature’s

purpose of diverting people with mental illness into treatment

and out of the criminal justice system.6

5

Contrary to the majority’s assertion, Morse v. Municipal

Court (1974) 13 Cal.3d 149 (Morse) did not hold the speedy trial

waiver requirement was dispositive of whether a diversion

request must be made before trial begins. Instead, Morse

discussed the significance of that requirement in another

diversion statute, which did not include the definition of

“pretrial diversion” at issue here, the unique provisions of

section 1001.36, nor its legislative history.

6

The diversion scheme for individuals with cognitive

disabilities (§ 1001.20 et seq.) is also located in Title 6

(“Pleadings and Proceedings Before Trial”). The Attorney

General acknowledges that trial courts may consider section

1001.20 diversion after trial begins notwithstanding that this

diversion program has many of the very same features relied

upon by the majority to support its conclusion that mental

health diversion may only be considered before the start of trial

or entry of a guilty or no contest plea. Like section 1001.36,

section 1001.20 et seq. is referred to as a “pretrial” diversion

program (§ 1001.29; see generally § 1001.36); states that

diversion may occur “upon an accusatory pleading at any stage

of the criminal proceedings” (§ 1001.21, subd. (a); see § 1001.36,

subd. (a)); requires a speedy trial waiver (§ 1001.23 subd. (a); see

§ 1001.36, subd. (c)(2)); provides for the dismissal of charges

without reference to setting aside a plea (§ 1001.31; see

§ 1001.36, subd. (h)): and does not list a procedure for waiving

double jeopardy (§ 1001.20 et seq.; see generally § 1001.36).

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Evans, J., dissenting

Stated plainly, the majority focuses on the wrong features

of section 1001.36 while ignoring the significance of others. For

example, several features of section 1001.36 — including its

prima facie showing and “relevant and credible evidence”

provisions — confirm the Legislature meant “until adjudication”

to mean until entry of judgment.

Shortly after the enactment of the mental health diversion

statute, the Legislature added a unique feature to section

1001.36, enabling trial courts “at any stage of the proceedings”

to require a defendant to make a prima facie showing of

eligibility and suitability for diversion. (§ 1001.36, subd. (e).)

The prima facie showing provision serves as a gatekeeping

mechanism for trial courts to quickly determine whether there

is a need to conduct a hearing on the defendant’s diversion

request or to proceed with regular criminal proceedings. It

defies logic that the Legislature would authorize courts to

require a prima facie showing “at any stage of the proceedings”

yet preclude courts from using the provision during the most

widely known stage of the proceedings — i.e., “the process of

resolving the criminal charges by trial.” (Maj. opn., ante, at p.

9.)

In addition to the prima facie showing mechanism, the

Legislature conditioned eligibility for mental health diversion

on there being a nexus between the defendant’s mental disorder

and the offense. (§ 1001.36, subd. (b)(2) [providing that one of

the two eligibility requirements for mental health diversion is

that “[t]he defendant’s mental disorder was a significant factor

in the commission of the charged offense”].) In making this

finding, “[a] court may consider any relevant and credible

evidence, including, but not limited to, police reports,

preliminary hearing transcripts, witness statements,

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PEOPLE v. BRADEN

Evans, J., dissenting

statements by the defendant’s mental health treatment

provider, medical records, records or reports by qualified

medical experts, or evidence that the defendant displayed

symptoms consistent with the relevant mental disorder at or

near the time of the offense.” (Ibid.)

The “relevant and credible evidence” provision confirms

the Legislature intended trial courts to retain discretion to

consider midtrial requests for diversion. While evidence

developed before trial may suffice in most cases, a trial court

may determine it is only capable of making an informed

determination regarding this eligibility factor or the defendant’s

suitability for diversion for the first time during trial. Indeed,

trial courts may wish to defer ruling on a diversion request to

allow for consideration of evidence adduced at trial. (See, e.g.,

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887 [in

denying the defendant’s request for mental health diversion

“ ‘without prejudice [for renewal],’ ” the trial court noted the

possibility that, if “ ‘presented with additional evidence at trial,

[it] could conclude that such diversion is appropriate’ ”].) In

some circumstances, the examination of lay and expert

witnesses at trial may present the earliest possible opportunity

to resolve this eligibility factor. The absence of “witness

testimony” in the enumerated sources is not significant, as the

subdivision explicitly states the list of enumerated sources of

evidence is not exhaustive. Its absence from the list of

enumerated sources makes sense because trial testimony is the

relevant and credible evidence that courts routinely may rely

upon, whereas the enumerated sources of evidence are ones that

courts might not otherwise be able to consider.

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Evans, J., dissenting

B. Framework of Assembly Bill 1810

The Legislature enacted mental health diversion as part

of Assembly Bill No. 1810 (2017–2018 Reg. Sess.) (Assembly Bill

1810) (Stats. 2018, ch. 34, § 24, eff. June 27, 2018) — an

omnibus trailer bill. In the very same bill, the Legislature

amended the mental competency scheme to incorporate a trial

court’s authority to consider mental health diversion for

defendants found incompetent to stand trial (IST). (See State

Dept. of State Hospitals, Enrolled Bill Rep. on Assem. Bill No.

1810 (2017–2018 Reg. Sess.) June 21, 2018, p. 2 [section 1001.36

“allow[s] individuals who may be found IST on felony charges

and referred to a DSH [(Department of State Hospitals)] facility

to also be diverted to community-based mental health treatment

thus potentially reducing the number of individuals referred to

DSH for treatment”].)

The Legislature was aware that an individual may be

found incompetent to stand trial after a trial has started. (See

§ 1368, subd. (a); People v. Rogers (2006) 39 Cal.4th 826, 847.)

Yet, for both felony and misdemeanor cases, the Legislature

authorized the court to consider whether an IST defendant is an

appropriate candidate for mental health diversion “pursuant to”

section 1001.36 — the mental health diversion scheme.

(§§ 1370, subd. (a)(1)(B)(iv) [a court may determine an IST

defendant is an appropriate candidate for mental health

diversion “pursuant to Chapter 2.8A (commencing with Section

1001.35) of Title 6” (italics added)], 1370, subd. (a)(1)(B)(v)

[authorizing court to determine whether the IST defendant is

eligible for mental health diversion “pursuant to Section

1001.36” (italics added)], 1370.01, subd. (b)(1)(A) [upon a finding

of incompetency, a court must either dismiss the case or

“conduct a hearing, pursuant to Chapter 2.8A (commencing with

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Evans, J., dissenting

Section 1001.35) of Title 6” (italics added)], 1370.01, subd.

(b)(2).)

In doing so, the Legislature did not state that diversion

consideration for IST defendants was “notwithstanding” any

otherwise applicable deadlines for requesting diversion. This

reflects the Legislature’s understanding that consideration for

mental health diversion is always available until entry of

judgment. In Assembly Bill 1810, the Legislature

contemporaneously enacted interconnected statutes (mental

health diversion and amendments to the competency scheme)

intended to work together. (Riverside County Sheriff’s Dept. v.

Stiglitz (2014) 60 Cal.4th 624, 632 [“we consider the language of

the entire scheme and related statutes, harmonizing the terms

when possible”].) The inextricable relationship between these

two statutes is further evinced by the Legislature

contemporaneously enacting subsequent amendments to each.

(Stats. 2022, ch. 735, § 1, eff. Jan. 1, 2023; Sen. Bill No. 1223

(2021–2022 Reg. Sess.).)

The provisions of sections 1370 and 1370.01 authorize a

court to grant mental health diversion to IST defendants

without restoration of competency and reinstatement of

criminal proceedings. Without this express authorization,

mental health diversion would be unavailable to IST defendants

due to the suspended nature of criminal cases while competency

proceedings occur. Together, the mental health diversion and

mental competency schemes provide, where relevant, express

exceptions applicable to IST defendants. (See, e.g., § 1001.36,

subd. (c)(2)–(3) [a speedy trial waiver and consent to diversion

are not required for IST defendants because they are unable to

provide such a waiver or consent due to their incompetency

status].)

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PEOPLE v. BRADEN

Evans, J., dissenting

The majority concludes that the Legislature intended a

more “flexible” timeline for mental health diversion

consideration for IST defendants than for other defendants.

(Maj. opn., ante, at p. 23.) The majority’s interpretation lacks

support. Nowhere in the statutory scheme nor in the legislative

history is there any indication that the Legislature intended to

apply a different timing requirement based on one’s competency

status. The Legislature intended to treat all defendants the

same regardless of competency status by enacting section

1001.36 to divert all defendants who could potentially be found

incompetent to stand trial. (State Dept. of State Hospitals,

Enrolled Bill Rep. on Assem. Bill No. 1810 (2017–2018 Reg.

Sess.) June 21, 2018, p. 1 [noting the need for “the development

of diversion programs for individuals with serious mental

disorders with the potential to be found or who have been found

Incompetent to Stand Trial (IST)” (italics added)].) Had the

Legislature meant to create an exception to any otherwise

applicable timing requirement in section 1001.36, it would have

said so just as it did with respect to the speedy trial waiver and

consent requirements. (See § 1001.36, subd. (c)(2)–(3).) While

there may be differences between competent and incompetent

defendants that could justify adopting a more flexible timeline

for mental health diversion in the latter group (maj. opn., ante,

at pp. 23–24), that is not what the Legislature did here. “We

cannot . . . rewrite the statute to create an exception the

Legislature has not enacted.” (Wilson v. Cable News Network,

Inc. (2019) 7 Cal.5th 871, 892.)

Notably, the majority’s creation of two different timelines

not only contravenes the Legislature’s efforts to divert

individuals who could be found incompetent to stand trial, but

wastes judicial resources and severely compromises early

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PEOPLE v. BRADEN

Evans, J., dissenting

intervention. Under the majority’s interpretation, a trial court

that wishes to grant a defendant’s midtrial mental health

diversion request would be precluded from doing so. Yet, if a

doubt is later declared as to that same defendant’s competency,

the trial court would be required to suspend criminal

proceedings and then wait until the conclusion of competency

proceedings — which can be lengthy and costly — before it could

consider mental health diversion for the defendant if found

incompetent. The impact of delay on IST defendants is

significant and can be damaging. (See, e.g., In re Chunn (2022)

86 Cal.App.5th 639, 650–651 [explaining how IST defendants

“ ‘are usually held in solitary cells or restricted conditions for at

least 6 weeks after the initial declaration of doubt regarding

their competency as the court awaits alienist evaluations and

placement recommendations. These defendants have often

clinically deteriorated even before the DSH commitment order

is made and quite often . . . their troubling symptoms have

increased during the period of time after the commitment order

and before DSH offers them a bed. The situation is dire for these

patients as they routinely face another 60–90 days without

treatment after the DSH commitment is made until treatment

commences.’ . . . ‘IST defendants have suffered and are suffering

devastating injury as they are warehoused without meaningful

treatment as they await DSH intervention’ ”].) Allowing trial

courts to consider diversion in the first instance — as the

Legislature intended — would potentially save untold judicial

resources, as well as time during which suitable defendants

could have been receiving effective treatment.

C. The Purpose and History of Mental Health Diversion

The Legislature enacted section 1001.36 to create a

mental health diversion program to divert as many qualifying

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PEOPLE v. BRADEN

Evans, J., dissenting

mentally ill defendants out of the criminal justice system and

into meaningful, effective mental health treatment. With

incentives unique and distinct from probation and

incarceration, the Legislature equipped trial courts with an

effective tool that offers one of the best opportunities for

advancing public safety and reducing recidivism. (Sen. Com. on

Public Safety, Analysis of Sen. Bill No. 215 (2017–2018 Reg.

Sess.) as amended Jan. 3, 2018, p. 4 [“Courts, as one of the first

points of contact between the mentally ill and the state, can

serve as a useful function in identifying defendants with mental

disorders and connecting them to existing services, thereby

reducing recidivism”]; Sen. Com. on Appropriations, Analysis of

Sen. Bill No. 215 (2017–2018 Reg. Sess.) as amended Jan. 9,

2018, pp. 3–4 [referencing a study that concluded “ ‘a mental

health court can reduce recidivism and violence by people with

mental disorders who are involved in the criminal justice

system’ ”]; Sen. Com. on Public Safety, Analysis of Sen. Bill No.

1223 (2021–2022 Reg. Sess.) as amended Mar. 9, 2022, p. 5

[“Promoting treatment over incarceration has shown positive

results in reducing recidivism”].)

Since the passage of Assembly Bill 1810, the Legislature

has taken steps to increase the use of mental health diversion

in response to concerns that it has been “ ‘substantially

underutilized.’ ” (Sen. Com. on Public Safety, Analysis of Sen.

Bill No. 1223 (2021–2022 Reg. Sess.) as amended Mar. 9, 2022,

p. 5 [“ ‘the mental health diversion law has been substantially

underutilized due, in part, to its narrow eligibility

requirements’ ”]; ibid. [“ ‘ “LA County has only diverted a few

hundred people using the law[,] [y]et an estimated 61% of people

in the LA County jail system’s mental health population were

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PEOPLE v. BRADEN

Evans, J., dissenting

found to be appropriate for release into a community-based

diversion program” ’ ”].)7

The majority ignores the Legislature’s demonstrated

commitment to the broad application of mental health diversion.

Notwithstanding the fact that approximately 94% to 97% of

criminal filings are resolved by plea agreement (Missouri v. Frye

(2012) 566 U.S. 134, 143), the majority narrowly fixates on the

need to avoid costs of jury trials. However, the costs of jury

trials pale in comparison to the greater costs the Legislature had

in mind — namely, costs associated with incarceration and

recidivism. (Frahs, supra, 9 Cal.5th at p. 635 [noting

“community-based treatment for a mentally ill individual costs

much less than jailing the same individual, and greatly reduces

recidivism”].) Community-based treatment costs roughly

$20,000 per year, whereas incarceration costs approximately

$106,000. (See Sen. Rules Com., Off. of Sen. Floor Analyses,

Analysis of Sen. Bill No. 215 (2017–2018 Reg. Sess.) as amended

Aug. 23, 2018, p. 2; see also Sen. Com. on Public Safety, Analysis

7

Senate Bill No. 1223 (2021–2022 Reg. Sess.) amended

section 1001.36 by, among other things, reducing barriers to

eligibility and requiring courts to consider whether eligible

defendants are suitable for mental health diversion. The first

eligibility factor no longer requires a court to find the defendant

suffers from a mental disorder. That factor is now satisfied by

a diagnosis of a mental disorder within the last five years.

(§ 1001.36, subd. (b)(1).) For the second eligibility factor, the

court is now required to find that the defendant’s mental

disorder was a significant factor in the commission of the

charged offense unless there is clear and convincing evidence

otherwise. (§ 1001.36, subd. (b)(2).) If these two eligibility

factors are met, “the court must consider whether the defendant

is suitable for pretrial diversion.” (§ 1001.36, subd. (c), italics

added.)

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PEOPLE v. BRADEN

Evans, J., dissenting

of Assem. Bill No. 2167 (2021–2022 Reg. Sess.) as amended May

19, 2022, p. 2 [“ ‘it costs about $106,000 per year to incarcerate

an individual in California prisons’ ”].) Considering the

potential prison exposure for many defendants, the savings

captured by diverting defendants into treatment can be

substantial. For example, mental health diversion for the

defendant in Frahs could have saved the state a total of

$914,000: $86,000 annually for each year in the two-year

diversion program, plus $106,000 annually for each of the

remaining seven years. (See Frahs, supra, 9 Cal.5th at p. 635

[“for an individual like defendant, 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”].) In addition to the short-term cost savings of

diverting defendants away from incarceration, the Legislature

highlighted the long-term savings captured by reducing

recidivism, as mental health diversion mitigates the

compounding costs of future criminal proceedings and periods of

incarceration. (Assem. Com. on Public Safety, Analysis of Sen.

Bill No. 215 (2017–2018 Reg. Sess.) as amended Jan. 25, 2018,

p. 5 [mental health diversion “ ‘will save counties money in the

short-term on reduced . . . incarceration costs, and in the long-

term based on reduced recidivism rates’ ”].) By ignoring these

short-term and long-term savings, the majority adopts a penny

wise but pound foolish approach in contravention to the

Legislature’s aims.

The majority also misconstrues the legislative history of

mental health diversion by juxtaposing pretrial diversion

programs with deferred entry of judgment (DEJ). The majority

states the Legislature knew the difference between the two and

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PEOPLE v. BRADEN

Evans, J., dissenting

chose pretrial diversion. (Maj. opn., ante, at p. 39.) It is true the

Legislature did not choose to enact a narrow DEJ scheme for

mental health diversion, wherein a defendant is required to

plead guilty. The fact that DEJ programs exist is not contrary

to or in tension with the Legislature’s intent to allow trial courts

to grant mental health diversion up until sentencing and entry

of judgment given the Legislature’s desire to divert mentally ill

defendants away from the carceral system.

Lastly, the majority implies its interpretation incentivizes

early intervention and posits that allowing trial courts to grant

diversion requests until entry of judgment “would incentivize

jury trials.” (Maj. opn., ante, at p. 40.) Certainly, I agree with

the majority opinion that the earlier one can be diverted into

mental health treatment, the better. However, significant

incentives for early treatment are baked into mental health

diversion. For one, mental health diversion “ ‘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.”

(Frahs, supra, 9 Cal.5th at p. 630; id. at p. 631 [“the procedures

instituted by the enactment carry the potential of substantial

reductions in punishment for the aforementioned parties”].)

Additionally, for some, it may mean release from detention and

otherwise avoiding a lengthy period of incarceration. (See ibid.

[“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”].)

20

PEOPLE v. BRADEN

Evans, J., dissenting

In any event, I agree with Braden that, while earlier

diversion consideration is better, later is still good. The majority

asserts that its holding today does not limit who is eligible for

diversion, only when eligible individuals must make a diversion

request. (Maj. opn., ante, at p. 29.) But the majority’s view is

divorced from the reality of mental illness and intervention. A

defendant seeking mental health diversion must be willing to

embrace treatment. (See § 1001.36, subd. (c)(2).) This is not a

decision that persons with serious mental illness may arrive at

on a neat and tidy timeline. The facts of this case are illustrative

of the reality that, although mental health diversion will

ordinarily be requested before trial, there may be circumstances

in which it is only requested later. Braden, who is diagnosed

with schizophrenia, represented himself at trial. Although

those who choose to represent themselves are charged with

“knowing the law” (maj. opn., ante, at p. 32, fn. 15), those

suffering from mental illness may not always appreciate or be

immediately able to accept that they are in need of treatment.

Once counsel was appointed, Braden promptly requested mental

health diversion — yet his request was denied as untimely.

Thus, as this case makes clear, requiring defendants to request

mental health diversion early in the judicial process will limit

who receives such treatment and necessarily exclude some who

would benefit from the program. This is contrary to the

Legislature’s clear intent that courts provide appropriate

alternatives to incarceration. (§ 17.2.)

II.

Mental health diversion is a mechanism for trial courts to

grant suitable defendants access to community-based mental

health treatment in lieu of trial, conviction, and placement on

probation or commitment to county jail or state prison. By

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PEOPLE v. BRADEN

Evans, J., dissenting

injecting an unnecessary timing requirement for requesting

diversion consideration for defendants presumed to be mentally

competent, the majority “foreclose[s] some otherwise potentially

meritorious diversion claims.” (Maj. opn., ante, at p. 30.) This

is inconsistent with the Legislature’s purpose in enacting

mental health diversion and its recent efforts to expand its use.

Divesting trial courts of the discretion to consider midtrial and

posttrial diversion requests contravenes the plain language of

the statute, misapprehends the statutory scheme, undermines

the statute’s codified purposes, and frustrates the general

purpose of mental health diversion to avoid costs of

incarceration and recidivism.

Today’s decision will stymie the Legislature’s efforts to

divert suitable defendants away from incarceration and the

cycles of recidivism and will contribute to the continued

underutilization of mental health diversion. Allowing

defendants to request and trial courts to grant mental health

diversion — at any stage of the proceedings — is true to the

plain language of the statute and effectuates the Legislature’s

purpose. The Legislature can correct today’s decision by

expressly clarifying that the phrase “until adjudication” in

section 1001.36 means until entry of judgment.

I respectfully dissent.

EVANS, J.

I Concur:

Liu, J.

22

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Braden

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 63 Cal.App.5th 330

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S268925

Date Filed: June 5, 2023

__________________________________________________________

Court: Superior

County: San Bernardino

Judge: John M. Tomberlin

__________________________________________________________

Counsel:

Cindy G. Brines and Arthur Martin, under appointments by the

Supreme Court, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,

Chief Assistant Attorney General, Julie L. Garland and Steve Oetting,

Assistant Attorneys General, A. Natasha Cortina, Christine

Levingston Bergman and Amanda Lloyd, Deputy Attorneys General,

for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Arthur Martin

Appellate Defenders, Inc.

555 West Beech Street, Suite 300

San Diego, CA 92101

(619) 696-0282

Amanda Lloyd

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9015