The opinion
Filed 3/26/24; Certified for Publication 4/3/24 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081445
Plaintiff and Respondent,
v.
(Super. Ct. No. SCD287766)
GREGORY TERENCE BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Yvonne E. Campos, Judge. Reversed and remanded with instructions.
Sheila O’Connor, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Senior Assistant Attorney General,
and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
I. INTRODUCTION
The People charged Gregory Terence Brown with aggravated mayhem
and assault with a deadly weapon. Brown was initially declared incompetent
and, after his competency was restored, he moved the court for an order for
pretrial mental health diversion pursuant to Penal Code section 1001.36.1
The trial court denied the request, and the case proceeded to trial. Brown
was convicted in November 2022 and sentenced on January 11, 2023, ten
days after the effective dates of certain amendments to section 1001.36.
Brown argues that the trial court erred in denying his motion for
mental health diversion and asserts, in the alternative, that the recent
amendments to section 1001.36 are retroactive and that therefore the matter
must be remanded to the trial court to allow reconsideration of his request for
diversion under the amended statute. The People assert that Brown waived
his retroactivity argument by failing to bring a motion for reconsideration in
the trial court prior to sentencing. Brown disputes that he forfeited the issue,
and argues, in the alternative, that any forfeiture resulted from ineffective
assistance of counsel.
We conclude the trial court did not err in denying the motion in 2022,
but that the recent amendments are retroactive, and, under the narrow
circumstances presented here, Brown did not forfeit his right to assert
retroactivity by failing to bring a motion to reconsider in the trial court.
Accordingly, we conditionally reverse the judgment and remand the matter to
the trial court for further consideration under the amended statute.
II. FACTUAL AND PROCEDURAL BACKGROUND
Brown was arrested in October of 2020, based on an incident in which
he assaulted a neighbor with a metal cane, causing serious injuries, after the
neighbor knocked on his door and accused him of stealing a doorstop. The
People charged Brown with one count of aggravated mayhem (count 1), and
one count of assault with a deadly weapon (count 2). They alleged further in
1 All further unspecified statutory references are to the Penal Code.
2
count 1 that Brown personally used a deadly weapon within the meaning of
section 12022.7, subdivision (b)(1), and in count 2 that Brown personally
inflicted great bodily injury within the meaning of section 12022.7,
subdivision (a), and personally used a dangerous and deadly weapon within
the meaning of section 1192.7, subdivision (c)(23).
The trial court held a mental competency hearing under section 1368
on October 4, 2021, prior to trial. The court found that Brown was not
mentally competent and ordered that he receive treatment at Patton State
Hospital. In May 2022, the court ruled that Brown’s competency had been
restored and set the matter for further proceedings. Brown’s competency was
again questioned in June 2022, but in August, the trial court deemed him
competent once again.
In September 2022, Brown filed a motion seeking mental health
diversion under section 1001.36, which allows for the postponement of
prosecution so that a defendant can undergo mental health treatment.
Brown asserted that he had been diagnosed with schizophrenia during his
military service in his twenties and hospitalized as a result. He continued to
suffer from schizophrenia, and had been homeless on and off for over 30
years. He argued that he was peaceful and nonaggressive when properly
medicated, and had no history of aggressive or antisocial behavior prior to the
incident leading to the charges.
Brown included a report in support of the motion from Dr. Abraham
Loebenstein, who conducted a psychological evaluation of Brown. Dr.
Loebenstein opined that Brown met the criteria for mental health diversion.
He diagnosed Brown with schizophrenia and alcohol use disorder and noted
that although Brown “becomes delusional and paranoid when not complying
with his medication,” he was not “typically aggressive” and did not “harbor
3
violent and antisocial attitudes.” He noted further that Brown had been
medicated in the past, but was not at the time of the offense, and noted that
Brown had improved while in jail, likely because he was medication
compliant and did not have access to alcohol. He concluded that Brown’s
mental health issues played a significant role in the offense, and opined that
Brown’s “behavior can improve with both medication compliance and from
abstaining from alcohol.”
Dr. Loebenstein further opined that Brown was willing to engage in
treatment, but added a caveat: “[Brown’s] willingness to participate in
treatment will therefore likely be dependent upon his ability to maintain
medication adherence once he is released from jail.” He stated firmly that
Brown’s symptoms would respond well to treatment (i.e. medication), and
that he did not pose an unreasonable risk to public safety, “provided that he
remains adherent to his psychiatric medications, and he avoids alcohol.” Dr.
Loebenstein conceded that Brown “can become quite deteriorated when not
medication compliant.”
The trial court held a hearing on Brown’s diversion motion on October
12, 2022. The court found that Brown did suffer from a mental health
disorder but that the disorder did not contribute in any way to the offense.
The court also raised concerns regarding Brown’s willingness to comply with
treatment and concluded he would pose an unreasonable risk to public safety.
Accordingly, the court denied Brown’s request for diversion.
The case proceeded to trial and, on November 17, 2022, a jury found
Brown guilty of the lesser-included offense of mayhem in count 1, and guilty
of assault with a deadly weapon in count 2. The jury also found that Brown
personally used a deadly and dangerous weapon and personally inflicted
great bodily injury in the commission of the assault, and found true
4
allegations that the victim was vulnerable and that the offense involved great
violence or other acts disclosing a high degree of cruelty, viciousness or
callousness. On January 11, 2023, the trial court sentenced Brown to nine
years in prison.
III. DISCUSSION
On appeal, Brown argues that the trial court abused its discretion in
denying his original motion for pretrial diversion based on findings that his
diagnosed schizophrenia did not contribute to the commission of the offense
and that he posed an unreasonable risk to the community even if in
treatment. As to the first factor, he also asserts that “remand is necessary
for the court to address the recent changes in the law.” The People contend
that the trial court did not abuse its discretion by denying Brown’s original
request for mental health diversion, and that Brown forfeited any request for
reconsideration under the amended statute by failing to ask the trial court to
reconsider his diversion motion at any point before or during the sentencing
proceedings.
A. Relevant Statutory History
Since 2018, section 1001.36 has afforded trial courts discretion to grant
criminal defendants suffering from certain recognized mental disorders
pretrial diversion to receive mental health treatment. (Former § 1001.36,
subd. (a), originally enacted by Stats. 2018, ch. 34, § 24, eff. June 27, 2018;
Assem. Bill No. 1810 (2017-2018 Reg, Sess.).) “The stated purpose of the
diversion statute ‘is to promote all of the following: [¶] (a) Increased
diversion of individuals with mental disorders to mitigate the individuals’
entry and reentry into the criminal justice system while protecting public
safety. [¶] (b) Allowing local discretion and flexibility for counties in the
development and implementation of diversion for individuals with mental
disorders across a continuum of care settings. [¶] (c) Providing diversion
5
that meets the unique mental health treatment and support needs of
individuals with mental disorders.’ (§ 1001.35, subds. (a)−(c).)” (People v.
Frahs (2020) 9 Cal.5th 618, 626 (Frahs).)
In September 2022, when Brown first brought his motion for mental
health diversion, section 1001.36 listed six criteria that a defendant had to
meet to be eligible for diversion. The first, second, and sixth required that
the court be “satisfied” that (1) the defendant suffered from a recognized
mental disorder, (2) the disorder was a “significant factor in the commission
of the charged offense,” and (3) “the defendant [would] not pose an
unreasonable risk of danger to public safety, as defined in section 1170.18, if
treated in the community.” (Former § 1001.36, subd. (b)(1)(A)−(B), (F), as
amended by Stats. 2022, ch. 47, §38 (Sen. Bill No. 184, eff. June 30, 2022 to
Dec. 31, 2022.)2 The remaining criteria required that a mental health expert
provide an opinion that the defendant’s mental health symptoms would
respond to treatment; that the defendant give their consent to waive their
right to a speedy trial to participate in diversion; and that the defendant
agree to comply with treatment as a condition of diversion. (Id., subd.
(C)−(E).)
“In successive versions of section 1001.36, the Legislature has provided
increasingly detailed guidance for deciding whether a defendant qualifies for
diversion.” (Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891
(Sarmiento).) As relevant here, a series of amendments to section 1001.36
became effective on January 1, 2023, after Brown’s conviction, but prior to his
2 Hereafter we will refer to this version as the 2022 amendment.
6
sentencing.3 (§ 1001.36, subd. (b), as amended by Stats. 2022, ch. 735, §1, eff.
Jan. 1, 2023 to Dec. 31, 2023.)4 Among other changes, the 2023 amendments
recharacterized the first two requirements—that the defendant be diagnosed
with a recognized mental illness and that the mental illness be a significant
factor in the commission of the charged offense—as eligibility criteria.
(§ 1001.36, subd. (b).)
Thus, as this court recently explained: “Effective January 1, 2023,
mental health diversion requires trial court findings that the defendant is
both eligible for diversion and suitable for the program. The criteria for each
are specified in the statute. (§ 1001.36, subds. (b) & (c).)” (Sarmiento, supra,
98 Cal.App.5th at p. 891.) Under the amended statute, “a defendant’s
eligibility no longer turns on findings to the court’s ‘satisfaction.’ ” (Ibid.)
Rather, a defendant is generally eligible for diversion if the defendant “has
been diagnosed” with a recognized mental disorder. (§ 1001.36, subd. (b);
Sarmiento, at p. 891.) Beyond that, the amended statute creates a
presumption that the defendant’s diagnosed mental disorder was a
significant factor in the commission of the charged crime, “unless there is
clear and convincing evidence that [the mental disorder] was not a
motivating factor, causal factor, or contributing factor to the defendant’s
involvement in the alleged offense.” (§ 1001.36, subd. (b)(2).)
If the defendant meets the two enumerated eligibility requirements,
“the court must consider whether the defendant is suitable for pretrial
3 The Legislature has amended section 1001.36 twice more since January
1, 2023. The additional amendments are not material here and we therefore
quote the statute in its current form throughout the remainder of this
opinion.
4 Hereafter we will refer to this version as the 2023 amendments.
7
diversion.” (§ 1001.36, subd. (c).) “A defendant is suitable for pretrial
diversion if all of the following criteria are met:” (1) “In the opinion of a
qualified mental health expert, the defendant’s symptoms of the mental
disorder causing, contributing to, or motivating the criminal behavior would
respond to mental health treatment”; (2) “The defendant consents to
diversion and waives the defendant’s right to a speedy trial”; (3) “The
defendant agrees to comply with treatment as a condition of diversion”; and
(4) “The defendant will not pose an unreasonable risk of danger to public
safety, as defined in [s]ection 1170.18, if treated in the community.”
As used in section 1001.36, subdivision (c)(4), “ ‘unreasonable risk of
danger to public safety’ means an unreasonable risk that the petitioner will
commit a new violent felony within the meaning of [667, subdivision
(e)(2)(C)(iv)].” (§ 1170.18, subd.(b).) Section 667, subdivision (e)(2)(C)(iv) in
turn, includes an enumerated list of specific categories of serious and violent
offenses, including, among others, sexually violent offenses, sex acts against
minors, homicide, and other serious felonies punishable by life imprisonment
or death. Thus, the courts have held that the “unreasonable risk of danger”
criteria is limited to a narrow set of statutorily defined violent felonies.
(Sarmiento, supra, 98 Cal.App.5th at p. 892.)
“Assuming the defendant is both eligible and suitable, the trial court
must also be satisfied ‘that the recommended inpatient or outpatient program
of mental health treatment will meet the specialized mental health treatment
needs of the defendant.’ (§ 1001.36, subd. (f)(1)(A)(i); see People v. Gerson
(2022) 80 Cal.App.5th 1067, 1079 (Gerson).)” (Sarmiento, supra, 98
Cal.App.5th at p. 892.) “Finally, even where defendants make a prima facie
showing that they meet all the express statutory requirements, the court may
still exercise its discretion to deny diversion.” (Ibid.) “But this ‘residual’
8
discretion must be exercised ‘ “consistent with the principles and purpose of
the governing law.” ’ ” (Ibid.)
B. The Court Did Not Abuse Its Discretion by Denying Brown’s
Pretrial Diversion Motion in October 2022
We turn first to the trial court’s ruling on Brown’s motion for diversion,
which occurred on October 12, 2022, under the 2022 amendment.
We review the trial court’s factual findings as to the enumerated
statutory criteria for substantial evidence. (Gerson, supra, 80 Cal.App.5th at
p. 1079.) Under this deferential standard of review, “ ‘we must view the
evidence in the light most favorable to the People and must presume in
support of the judgment of every fact the trier could reasonably deduce from
the evidence.’ ” (Ibid.) “ ‘Although we must ensure the evidence is
reasonable, credible, and of solid value, nonetheless it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts on which that determination depends.’ ”
(Ibid.) We review the trial court’s ultimate decision whether to grant the
request, after considering its findings as to each of the relevant criteria, for
abuse of discretion. (Id. at p. 1080.)
In ruling on Brown’s motion, the trial court acknowledged that section
1001.36 provides specific criteria for courts to consider in deciding whether to
grant diversion.5 It began with the first enumerated criterion as set forth in
5 For ease of reference, in October 2022, section 1001.36, listed the
following criteria, in relevant part, for the trial court to consider in granting
pretrial diversion:
“(A) The court is satisfied that the defendant suffers from a
mental disorder as identified in the most recent edition of the
Diagnostic and Statistical Manual of Mental Disorders,
including, but not limited to, bipolar disorder, schizophrenia,
schizoaffective disorder, or post-traumatic stress disorder.
9
the 2022 amendment, and found that Brown did suffer from both alcohol
dependence disorder and schizophrenia, the latter of which was recognized as
a qualifying disorder. As to the second criterion, the trial court noted that
Brown was not on any medication at the time of the offense, and had not been
for years, but was using alcohol on a daily basis. The court then discussed
the circumstances of the offense, including that when a witness told Brown
they were going to call the police, Brown responded by stating “I don’t care.
She was knocking on my fucking door.” In the trial court’s view, this
response was wrong, but also “rational” and “not delusional.” Thus, the court
concluded that there was no evidence that Brown’s mental health “had
anything to do with the incident, let alone [a] significant [factor].”
As to the third criterion, whether Brown’s symptoms would respond to
treatment, the trial court noted that Brown had gotten better while in
custody and concluded, “being on meds has been helpful to him. But what’s
really been helpful, I think, in terms of his judgment is being off alcohol
because, presumably since he’s been in custody, he’s been sober.” The court
found the fourth criterion had been met, since Brown did consent to diversion
“(B) The court is satisfied that the defendant’s mental disorder
was a significant factor in the commission of the charged
offense.
“(C) In the opinion of a qualified mental health expert, the
defendant’s symptoms of the mental disorder motivating the
criminal behavior would respond to mental health treatment.
“(D) The defendant consents to diversion and waives [their]
right to a speedy trial.
“(E) The defendant agrees to comply with treatment as a
condition of diversion.
“(F) The court is satisfied that the defendant will not pose an
unreasonable risk of danger to public safety, as defined in
Section 1170.18, if treated in the community.”
10
and waive his right to a speedy trial. However, it went on to raise concerns
regarding the fifth criterion, whether Brown would comply with treatment.
The court noted that Brown had refused to cooperate with mental health
professionals both in the past and at the outset of this case, and that he had
refused to take medication.
The trial court’s greatest concern, though, was the final criterion,
whether Brown would pose an unreasonable risk to the public while in
diversion. The court noted that, when asked what he would do in the future,
Brown’s statement that he would call 911 or hide indicated that he still
believed that he was the victim. The court found that Brown lacked insight,
that he previously decided to viciously beat the victim over a minor
altercation, and that he could be “triggered” again in a similar manner.
Accordingly, it concluded that Brown would pose an unreasonable risk of
danger to the public.
Brown asserts the trial court erred by concluding that his mental
health did not substantially contribute to the commission of the offense and
by finding that he would pose an unreasonable risk of danger to public safety
if treated in the community. He argues that the court improperly discounted
Dr. Loebenstein’s expert analysis regarding the impact of his schizophrenia
and concluded, without adequate evidence, that his decision-making was
impacted only by his dependency on alcohol.
We do not read the trial court’s ruling so narrowly. The trial court
acknowledged that Brown did have a diagnosed mental illness and that he
was not on medication at the time of the offense. However, the trial court
also noted that he had not been on medication at various times over the years
and had not previously been involved in any other violent crimes. The court
also relied on Brown’s own statements at the time of the offense which, in its
11
view, suggested that Brown attacked the victim because he was upset that
she was knocking on his door, and not because of some paranoid delusion.
At the time of the trial court’s ruling, in October 2022, section 1001.36
required that the trial court be “satisfied that the defendant’s mental
disorder was a significant factor in the commission of the charged offense,”
and further specified that the court could reach that conclusion if it
“concludes that the defendant’s mental disorder substantially contributed to
the defendant’s involvement in the commission of the offense.” (2022
amendment.) The statute did not raise any presumption that a defendant’s
diagnosed mental disorder was a significant factor in the commission of the
underlying offense. Instead, the trial court was entitled to weigh the
evidence and make a factual determination as to this criterion. Our review is
limited to whether substantial evidence supports that finding.
Under the statutory framework, as it stood in October 2022, we
conclude that it was reasonable for the trial court to infer from the totality of
evidence—including Brown’s contemporaneous statements—that Brown was
not suffering from paranoia or delusions at the time of the offense, and that
his diagnosed schizophrenia did not substantially contribute to his
commission of the offense. While, in our view, there is at least some evidence
to support the opposite conclusion—that Brown’s unmedicated schizophrenia
was a significant factor in a more subtle sense, insofar as it informed his
reaction to the perceived confrontation, and thus, the commission of the
crime—under the applicable standard of review, we may not substitute our
own judgment for that of the trial court, and instead must defer to the trial
court’s weighing of the evidence. (See, Gerson, supra, 80 Cal.App.5th at
p. 1086 [it is not within the appellate court’s province to reweigh the evidence
where there is at least some support for two different inferences].)
12
In addition, the trial court did not rely solely on the impact of Brown’s
schizophrenia on the crime in denying the request for diversion. Rather, the
trial court expressed even greater concern that Brown would pose an
unreasonable risk of danger to public safety. To deny diversion based on this
final factor, the trial court had to conclude that there was an unreasonable
risk that Brown would commit a serious, violent felony of the type
enumerated in section 667, subdivision (e)(2)(C)(iv). (See §§ 1001.36, subd.
(c)(4); 1170.18, subd.(b).) The jury convicted Brown of mayhem and assault
with a deadly weapon, and found true an allegation that the victim was
vulnerable and the offense involved great violence and a high degree of
cruelty, viciousness or callousness, and the court expressed concern about his
lack of insight and remorse. From this, the trial court could reasonably infer
that there was a significant risk that Brown could commit an even more
serious, violent felony in the future, and therefore posed an unreasonable risk
under section 1001.36, subdivision (c)(4). (See People v. Pacheco (2022)
75 Cal.App.5th 207, 214 [facts surrounding conviction for arson raised
inference of risk that defendant could commit murder by arson in the
future].)
Brown relies on People v. Moine (2021) 62 Cal.App.5th 440 and People
v. Williams (2021) 63 Cal.App.5th 990. In each, the appellate courts found
that the defendant’s prior convictions for making criminal threats and
stalking, respectively, were not sufficient to support an inference of
unreasonable risk going forward. But those cases are not instructive here.
(See Moine, at p. 443; Williams at p. 993.) Brown did not just threaten or
intimidate the victim in this case—he invoked extreme physical violence
against a vulnerable victim in response to a relatively minor altercation.
And, as the trial court pointed out, Brown continued to believe he was the
13
victim, raising a reasonable inference that he may react similarly, or even
more severely, to perceived conflict in the future.
Brown reiterates that the trial court improperly discounted the role
that his schizophrenia played in the altercation, as well as Dr. Loebenstein’s
opinion that he would not pose a significant risk so long as he stayed
compliant with his medication. Although Dr. Loebenstein’s opinion is
evidence that would support the opposite finding—that Brown would not
continue to pose an unreasonable risk if medicated—it is not the only
evidence that the trial court considered. For the same reasons we have
explained with respect to the court’s finding regarding the significance of
Brown’s schizophrenia to the circumstances of the offense, the existence of
some evidence in support of either conclusion is not a sufficient basis for this
court to supplant the findings of the trial court. (See, Gerson, supra,
80 Cal.App.5th at p. 1086.)
Nonetheless, as we explain next, Brown is entitled to remand and
reconsideration of his motion under the current statute, as amended in
January 2023.
C. Brown Is Entitled to Remand Due to the Intervening Statutory
Amendments
Setting aside the trial court’s denial of his request for mental health
diversion in October 2022, Brown asserts that the 2023 amendments to
section 1001.36 are retroactive and that he is entitled to remand so that the
trial court may reconsider his request in light of those amendments. We
agree.
In Frah, our high court concluded the original enactment of section
1001.36 applied retroactively to all nonfinal judgments. (Frah, supra,
9 Cal.5th at pp. 626, 630−631.) In reaching that conclusion, the Court
14
explained that section 1001.36 “offers a potentially ameliorative benefit for a
class of individuals—namely, criminal defendants who suffer from a
qualifying mental disorder,” invoking the Estrada6 rule and raising an
inference of retroactivity, and the Legislature did not clearly signal its intent
to overcome that inference. (Id. at pp. 631−632.)
The Court addressed the inherent conflict between the stated focus on
pretrial diversion in section 1001.36, and the fact that retroactivity would
necessarily require consideration of diversion after trial and adjudication had
already occurred in some cases. (Frah, supra, 9 Cal.5th at p. 633.) The Court
concluded the language of the statute was intended to explain “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.” (Ibid.) However, that same
language did not “demonstrate a legislative intent to ‘modify, limit, or
entirely forbid the retroactive application of ameliorative criminal-law
amendments.’ ” (Id. at pp. 633−634.)
This same reasoning applies to the amendments to section 1001.36 that
became effective on January 1, 2023. (See Frah, supra, 9 Cal.5th at pp.
631−632; People v. Doron (2023) 95 Cal.App.5th 1, 6−7 (Doron) [applying
Frah and concluding the January 2023 amendments to section 1001.36
likewise apply retroactively].) The amendments are ameliorative. (Doron, at
p. 7.) They provide “increasingly detailed guidance for deciding whether a
defendant qualifies for diversion,” and specifically decrease the burden on the
defendant to establish one of the enumerated criteria—that their diagnosed
6 See People v. Estrada (1965) 63 Cal.2d 740.
15
mental health disorder was a significant factor in the commission of the
crime. (Sarmiento, supra, 98 Cal.App.5th at p. 891.)
As the court in Sarmiento recently explained, “a defendant’s eligibility
no longer turn[s] on findings to the court’s ‘satisfaction.’ Rather, defendants
are generally eligible if they ‘ha[ve] been diagnosed’ with a recognized mental
disorder. (§ 1001.36, subd. (b)(1).) Beyond that, the amended statute creates
a presumption that the defendant’s diagnosed mental disorder was a
significant factor in the commission of the charged crime. The court is
directed to find a causal connection ‘unless there is clear and convincing
evidence that [the mental disorder] was not a motivating factor, causal factor,
or contributing factor to the defendant’s involvement in the alleged offense.’
(Id., subd. (b)(2).)” (Sarmiento, supra, 98 Cal.App.5th at p. 891.) And, as in
the original enactment, there is nothing in the January 2023 amendment to
signal the Legislature’s intent to overcome the inference of retroactivity.
(Doron, supra, 95 Cal.App.5th at p. 7.)
The People concede that the January 2023 amendments to section
1001.36 apply retroactively, but assert that Brown forfeited this issue by
failing to raise it in the trial court. They argue that here, unlike the
defendants in Frahs and Doran, Brown had the opportunity to request
diversion under the amended statute but failed to do so. Specifically, they
contend that Brown’s trial counsel could, and should, have brought a motion
for reconsideration of his prior request for mental health diversion at or
before sentencing and, having failed to do so, Brown should now be precluded
from raising the issue on appeal. In response, Brown asserts that any such
request would have been untimely under People v. Braden (2023) 14 Cal.5th
791, and, in the event that we agree that he forfeited the issue, that forfeiture
was the result of ineffective assistance of counsel.
16
A defendant may forfeit a right in a criminal case by failing to timely
assert the right before the tribunal with jurisdiction to determine it.
(People v. Trujillo (2015) 60 Cal.4th 850, 856.) “However, neither
forfeiture nor application of the forfeiture rule is automatic. [Citation.]
Competing concerns may cause an appellate court to conclude that an
objection has not been forfeited. [Citations.] Similar concerns may also
cause an appellate court to refrain from applying the forfeiture bar.”
(People v. McCullough (2013) 56 Cal.4th 589, 593.)
Brown’s sentencing hearing occurred just 10 days after the
amendments became effective. At the sentencing hearing, defense counsel
asked the court to grant Brown probation, and put significant emphasis on
his mental health as the basis for that request. He argued Brown’s
schizophrenia impacted his entire life; that Brown had been living “on the
edge of society” for nearly 40 years as a result, and that he did not really have
any typical relationships with other people. He also pointed out that Brown
was not medicated at the time of the incident, that Brown had previously
presented as paranoid and rigid, consistent with his schizophrenia diagnosis,
and that Brown’s demeanor had changed significantly after his arrest, and
since being medicated.
At sentencing, despite this emphasis on Brown’s schizophrenia, and Dr.
Loebenstein’s expert opinion regarding the impact of that diagnosis on
Brown’s mindset at the time of the underlying offense, neither defense
counsel, the prosecutor, nor the court acknowledged the court’s previous
ruling on Brown’s request for mental health diversion, or the recent
amendments to the mental health diversion statute. This lack of
acknowledgment, despite defense counsel’s emphasis on Brown’s mental
health, raises a reasonable inference that neither counsel nor the court was
17
fully cognizant of the amendments, or their potential retroactivity, at the
time of the sentencing hearing. Courts generally decline to apply the
forfeiture rule to a right derived from recent, unanticipated changes to the
law. (See People v. Edwards (2013) 57 Cal.4th 658, 704–705; People v. Black
(2007) 41 Cal.4th 799, 810; People v. Turner (1990) 50 Cal.3d 668, 703.) We
likewise decline to do so here.
Because we decline to find forfeiture, we need not address Brown’s
assertion that his counsel was ineffective for failing to seek reconsideration of
his request for diversion. However, we briefly address the parties’ arguments
regarding the timeliness of such a request under the rule recently announced
in Braden. In Braden the California Supreme Court held 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.” (Braden,
supra, 14 Cal.5th 791 at p. 819.) Notably, though, there was no intervening
statutory amendment at issue in Braden. Braden simply failed to raise any
request for pretrial diversion until after a jury had convicted him. (Id. at
pp. 800−801.)
“Relying primarily on the Frahs discussion of legislative intent,” and
the associated conclusion that pretrial diversion did not preclude retroactive
application of the statute, Braden argued that the statute similarly did not
preclude him from bringing a request for pretrial diversion for the first time
after trial. (Braden, supra, 14 Cal.5th at p. 803.) In response, the Court
explained that “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
18
appeal.” (Braden, at p. 803.) However, the Court pointed out that Frahs did
not address the timeliness of such a request where retroactivity was not at
issue, and concluded that in such cases, a defendant must bring a motion for
mental health diversion “before attachment of jeopardy at trial or the entry of
a guilty or no contest plea, whichever occurs first.” (Id. at pp. 803, 824.)
Here, as we have explained, Brown did bring a motion for mental
health diversion prior to trial, as required under Braden. However, when the
court decided that motion, it did so under a statutory framework that the
Legislature subsequently amended to be more favorable to defendants.
Accordingly, this case falls somewhere between Frahs and Braden. Under
these very narrow circumstances, where ameliorative amendments became
effective just days before Brown’s sentencing, we cannot say with any
certainty that a motion for reconsideration would have been untimely under
Braden, or that Brown’s counsel should have been aware of the need to bring
one. Rather, for the reasons we have explained, we decline to find forfeiture
and find it more appropriate to remand the matter for further consideration
under the amended statute. While it may have been preferable for Brown’s
counsel to have moved for reconsideration of Brown’s request at the time of
sentencing, we cannot fault Brown’s trial counsel for failing to seek
reconsideration based on a recent amendment that had become effective only
10 days earlier, and that no court had yet found to be retroactive, particularly
in light of Braden’s focus on the general requirement that such motions be
brought prior to trial.
As a final matter, the People contend that remand is not necessary in
any event because the trial court properly denied Brown’s request for mental
health diversion on the still valid, independent basis that he would pose an
unreasonable risk to public safety. We do not believe that this criterion can
19
be so readily separated from the newly enacted presumption that a
defendant’s diagnosed mental health disorder was a significant factor in the
commission of the crime. This is particularly so in this case, where the trial
court relied on Brown’s lack of insight and decision-making ability to
conclude that he posed an unreasonable risk, while simultaneously
discounting Dr. Loebenstein’s presumption that Brown was paranoid at the
time of the offense. If the trial court accepts the presumption that Brown’s
diagnosed disorder was a significant factor in the commission of the crime—
as it is now required to do absent clear and convincing evidence to the
contrary—then it must also consider whether Brown’s response to a future
“trigger” might be different while under treatment.
Thus, as in Doron, “[w]e decline to conclude that on this record, the
court would clearly reach the same conclusions about eligibility or suitability
under the new law.” (Doron, supra, 95 Cal.App.5th at p. 10.)
20
IV. DISPOSITION
The judgment is conditionally reversed, and the matter is remanded to
the trial court with directions to reconsider whether Brown is eligible for
mental health diversion under the current section 1001.36. If the trial court
determines Brown qualifies for diversion, it may grant diversion. If the court
determines Brown is ineligible for diversion, then the court shall reinstate
the judgment of conviction.
KELETY, J.
WE CONCUR:
MCCONNELL, P. J.
HUFFMAN, J.
21
Filed 4/3/24
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081445
Plaintiff and Respondent,
(Super. Ct. No. SCD287766)
v.
GREGORY TERENCE BROWN,
ORDER CERTIFYING OPINION
Defendant and Appellant. FOR PUBLICATION
THE COURT:
The opinion in this case filed March 26, 2024 was not certified for
publication. It appearing the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the request pursuant to
rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page one of said opinion be deleted and the opinion herein be
published in the Official Reports.
MCCONNELL, P. J.
cc: All Parties