Pretrial diversion for defendants with certain mental disorders must be made before trial, the California Supreme Court ruled June 5.
The ruling affirms a ruling by San Bernardino Superior Judge John Tomberlin, who denied diversion for a three-strikes defendant diagnosed with schizophrenia after a jury convicted the defendant of resisting a police officer. Rare for the California Supreme Court, the ruling comes with a two-justice dissenting opinion.
Justices Kelli Evans and Goodwin Liu argued that the majority opinion unnecessarily limits treatment placement and goes against legislative intent.
Diversion history
Penal Code Section 1001.36, established in 2018, authorizes pretrial diversion for criminal defendants with mental disorders. The diversion program would pause the prosecution of the offense and place the defendant in a treatment program. Ultimately, if the defendant has performed well in treatment, the court can dismiss the charges.
People with schizophrenia, bipolar disorder, post-traumatic stress disorder, schizoaffective disorder and other undetermined mental disorders qualify for relief, and people with antisocial personality disorder, borderline personality disorder and pedophilic disorder are specifically denied relief. Defendants accused of murder and rape are also excluded from relief. The defendant’s mental disorder must be a significant factor in the commission of the charged offense to qualify for the program.
Case history
The court’s opinion laid out the facts of the case.
On April 25, 2018, Cary Braden Jr., who had been diagnosed as schizophrenic, had a confrontation with his sister. When his mother intervened, Braden kicked her in the groin and choked her. His sister called 911. Braden agreed to a pat-down requested by the responding sheriff’s deputy, then punched the deputy in the face. Braden and the deputy boxed, and the deputy tackled him and punched him twice. It took two more deputies to restrain Braden.
He was charged with resisting an executive officer with force or violence. He had two prior qualifying felony convictions under the Three Strikes Law. Both charges, one for assault with a firearm and another from discharging a firearm in a grossly negligent manner, came from the same date in 2006.
Braden represented himself during the trial, and was found guilty Aug. 9, 2018. After the conviction, but before sentencing, Braden requested and received court-appointed counsel. The counsel moved to have Braden considered under mental health diversion.
Tomberlin, the judge, denied the motion. He found it untimely and moot, and also said he would deny the discretionary motion anyway.
Braden was sentenced to four years in state prison on Nov. 16, 2018. He appealed Tomberlin’s ruling on July 17, 2019.
Appellate and Supreme Court agreement
On April 20, 2021, the Fourth District Court of Appeal, Division Two, affirmed Tomberlin’s decision. The ruling gave three reasons for this finding:
- The text of Section 1001.36 identifies the mental health diversion program as “pretrial” diversion
- California Supreme Court precedent established by the 1978 case Morse v. Municipal Court for the San Jose-Milpitas Judicial District determined that diversion is only pretrial
- Requiring the request be made before trial is consistent with California’s diversion programs’ purpose of reducing the burden of criminal trials.
The Supreme Court’s ruling said the court took up the case to resolve differences between the Braden appellate ruling and the 2021 People v. Curry ruling, authored by California’s Third Appellate District. The Curry ruling held that a request for pretrial diversion could be made until the entry of judgment, after the trial was concluded.
The Supreme Court repeated the findings of the Fourth District Court of Appeal in their Braden ruling.
The text of Section 1001.36 calls the program “pretrial” eight times. If the legislature intended the diversion program to be available until sentencing, it could have said so, as it did in Penal Code Section 1368, the ruling continued.
“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,” the majority opinion reads.
Evans’ dissenting opinion
Supreme Justice Kelli Evans, who joined the court Aug. 10, 2022, dissented in an opinion joined by Justice Goodwin Liu.
Evans said the intent of Section 1001.36 was to place defendants in treatment programs instead of jail or prison, and that saving resources by avoiding trials was a side benefit. Placing a limit on when defendants can seek rehabilitation, she argued, ran counter to the legislative intent.
She quoted one legislative report made regarding the bill that inserted Section 1001.36: “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.”
The use of “pretrial diversion” throughout the statute simply was done to meet the statutory description of the program, and was not intended to be taken literally, Evans wrote. The use of “pretrial” was also made to differentiate Section 1001.36 from pre-existing diversion programs that occurred after sentencing and incarceration, she wrote.
Evans continued to say that the nature of mental disorders could delay diversion requests. Braden, as an example, represented himself at trial, and only requested diversion after he received court-appointed counsel. Placing a time barrier on the request would therefore limit who could receive diversion, Evans said.
“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,” Evans wrote.
She concluded by saying the legislature can clarify that the phrase “until adjudication” means until entry of judgment.
Case information
Cindy Brines and Arthur Martin, under appointment, represented Braden.
Attorneys General Xavier Becerra and Rob Bonta, Chief Assistant Attorney General Lance Winters, Assistant Attorneys General Julie Garland and Steve Oetting and Deputy Attorneys General A. Natasha Cortina, Christine Levingston Bergman and Amanda Lloyd represented the People.
San Bernardino Case No. FVI18001116
Appellate Case No. E073204
Supreme Court Case No. S268925
California Supreme Justice Carol Corrigan authored the majority ruling.
Read the appellate ruling here.
Read the Supreme Court ruling here.
