Filed 12/28/23 P. v. Sanchez CA4/1

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR DANIEL SANCHEZ,

Defendant and Appellant.

 D080380

 (Super. Ct. No. RIF2002495)

APPEAL from a judgment of the Superior Court of Riverside County, 

Randall S. Stamen, Judge. Affirmed.

Robert F. Somers, 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, Assistant Attorney General, Paige B. 

Hazard, Anthony DaSilva and Steve Oetting, Deputy Attorneys General, for 

Plaintiff and Respondent. 
2

A jury convicted Hector Daniel Sanchez of making a criminal threat 

(Pen. Code, § 4221) and misdemeanor vandalism (§ 594). After the jury 

convicted him, and before sentencing, Sanchez filed a motion for mental 

health diversion under section 1001.36. The trial court denied the motion as 

untimely and sentenced Sanchez to one year and four months in prison. On 

appeal, Sanchez challenges the denial of his motion, asserting that the 

motion was timely because it was filed before sentencing. 

After his appeal was briefed, we permitted Sanchez to submit 

supplemental briefing on the issue of whether he is eligible for resentencing 

based on a new statute, section 17.2, which requires trial courts to consider 

the least restrictive means of punishment available and to consider 

alternatives to incarceration.2 

In our original opinion, we concluded the trial court properly denied 

Sanchez’s motion for mental health diversion as untimely because it was filed 

after his conviction, and we rejected his request for relief under section 17.2. 

Thereafter, the Supreme Court granted Sanchez’s petition for review and 

transferred the matter back to this court “with directions to vacate [our] 

decision and reconsider the cause in light of People v. Braden (2023) 14

Cal.5th 791” (Braden). We have reconsidered the matter as directed, and 

conclude Braden supports our prior application of section 1001.36. We 

therefore affirm.

1 Subsequent undesignated statutory references are to the Penal Code.

2 Sanchez’s motion to file a supplemental reply brief, which was 

previously deferred to this panel, is granted. 
3

FACTUAL AND PROCEDURAL BACKGROUND

On July 11, 2020, Sanchez went to his mother’s home in Moreno Valley. 

Sanchez, who was homeless, was not allowed inside of the house because of 

the Covid-19 pandemic. During trial, Sanchez’s mother testified that he was 

permitted to be in the backyard and that she provided him with food. 

Sanchez’s mother told the jury that Sanchez asked her if he could use the 

bathroom inside the house. She let him in, but she thought he seemed unwell 

and believed he was under the influence of drugs. Sanchez and his mother 

began to argue. Sanchez picked up a bottle, threw it on the ground, and 

stormed out of the house. 

Sanchez’s mother testified that she then went to lock the door to 

prevent Sanchez from coming back inside. As she closed the door, she saw 

Sanchez pick up a shoe, which he threw and shattered a window of the house. 

Fearful of her son, she left the house through the front door and ran into her 

neighbor’s home. She went upstairs and knocked on a bedroom door. 

Her neighbor’s daughter, Cristal P., opened the bedroom door. 

Sanchez’s mother held her cellphone, and she was crying and shaking. She 

told Cristal she was afraid and asked her to call the police. Cristal testified 

that earlier that morning she heard Sanchez in the backyard screaming that 

he was going to kill his mother. Cristal called 911. During the call, Cristal 

saw Sanchez walking by her house and she feared he might come inside and 

attack his mother. 

Riverside County Sheriff’s Deputy Rudy Alvarado responded to the call. 

Alvarado found Sanchez nearby and placed him under arrest. Alvarado took 

Sanchez to his mother’s house. Alvarado interviewed Sanchez’s mother, who 

was upset, scared, and shaking. She said Sanchez was not allowed inside, 

and he came in through the unlocked back door. She also told Alvarado that 
4

Sanchez threatened to kill her and her husband, and she did not want him to 

come back into the house. Deputy Alvarado saw a broken window in the 

kitchen and Sanchez’s mother said Sanchez threw his shoe through the 

window. Sanchez’s mother told Alvarado repeatedly that Sanchez had 

threatened her and her husband’s lives, and that she believed Sanchez was 

capable of murder. She told Alvarado she wanted to press charges against 

her son. 

Sanchez was charged with making a criminal threat (§ 422; count 1) 

and misdemeanor vandalism (§ 594; count 2). The case went to trial and, on 

December 9, 2021, the jury found Sanchez guilty of both counts. Before the 

sentencing hearing, defense counsel submitted a sentencing memorandum 

asking the court to reduce the criminal threat conviction to a misdemeanor 

or, alternatively, to continue the sentencing hearing for Sanchez “to complete 

a one-year inpatient treatment program, and upon successful completion 

thereof, sentence him to a misdemeanor.” (Italics omitted.) 

Defense counsel also submitted a motion seeking to continue 

sentencing and for the court to order an evaluation under section 1017, at no 

cost to Sanchez, so that he could seek relief under section 1001.36. Two days 

before the scheduled sentencing hearing, defense counsel submitted a request 

for mental health diversion under section 1001.36. In support, counsel 

submitted the report of a clinical therapist who evaluated Sanchez the day 

after his arrest while he was in jail. Sanchez had been placed into a safety 

cell after making homicidal statements. The therapist reported that Sanchez 

was experiencing delusions and symptoms consistent with schizophrenia. 

On January 6, 2022, the trial court continued the sentencing hearing

because it had not yet received a report from the probation department. On 
5

January 12, 2022, the District Attorney filed an opposition to the motion for 

mental health diversion, asserting the motion should be denied as untimely. 

At the continued sentencing hearing on January 19, 2022, the trial 

court denied the motion for mental health diversion as untimely and denied 

Sanchez’s request to reduce the felony conviction to a misdemeanor. The

court sentenced Sanchez to prison for the low term of one year and four 

months on the criminal threat conviction and to a concurrent term of 364 

days on the misdemeanor vandalism conviction. The court also credited 

Sanchez with 676 custody credits, which exceeded the sentence, and ordered 

Sanchez to be released and to report to probation. Sanchez timely appealed.

DISCUSSION

I

In his initial appellate briefing, Sanchez argued that the trial court 

erred by denying his motion for mental health diversion under section 

1001.36. He asked this court to follow the decision of the Third District Court 

of Appeal in People v. Curry (2021) 62 Cal.App.5th 314 (Curry), review denied 

(May 12, 2021), order vacated (June 16, 2021), cause transferred and opinion 

not citable (Cal. 2023) 314 Cal.Rptr.3d 367 disapproved of by Braden, supra, 

14 Cal.5th 791, and conclude that such motions are timely so long as they are 

filed before sentencing. In response, the Attorney General noted the issue 

was currently pending before the California Supreme Court, argued that the 

trial court properly denied the motion, and urged this court to reject Curry

and follow the decisions of three other appellate districts, including this 

court’s decision in People v. Rodriguez (2021) 68 Cal.App.5th 584, review 

dismissed, cause remanded (Cal. 2023) 314 Cal.Rptr.3d 368 (Rodriguez), 

which concluded that a diversion request under section 1001.36 must be 

made either before trial or before guilt is adjudicated. (See Rodriguez, at 
6

p. 589 [request made after guilty plea untimely]; People v. Braden (2021) 63 

Cal.App.5th 330, affd. (2023) 14 Cal.5th 791 [ineligible if request is made 

after trial begins], and People v. Graham (2021) 64 Cal.App.5th 827, review 

granted September 1, 2021, S269509 [request after guilt determined 

untimely] (Graham).) 

Effective June 27, 2018, the Legislature enacted sections 1001.35 and 

1001.36, which created a pretrial diversion program for certain defendants 

with mental health disorders. (Stats. 2018, ch. 34, § 24.) Section 1001.36 

provides that a trial court may grant pretrial mental health diversion if it 

finds that the defendant suffers from a qualifying mental disorder, the 

disorder played a significant role in the commission of the charged offense, 

and the defendant’s symptoms will respond to mental health treatment. 

(§ 1001.36, subd. (f)(1)(A)–(D); People v. Frahs (2020) 9 Cal.5th 618, 626–627 

(Frahs).) The statute specifically defines “pretrial diversion” as “the 

postponement of prosecution, either temporarily or permanently, at any point 

in the judicial process from the point at which the accused is charged until 

adjudication, to allow the defendant to undergo mental health treatment.” 

(§ 1001.36, subd. (f), italics added.) The maximum period of diversion is two 

years, and if the defendant performs satisfactorily in diversion, the trial court 

must dismiss the criminal charges that were the subject of the criminal 

proceedings at the time of the initial diversion. (§ 1001.36, subds. (c)(3), (e).)

Frahs involved the question of whether section 1001.36 relief was 

available to a defendant whose convictions were still under direct appellate 

review when the statute became effective. Resolution of this question 

“turned on whether the Legislature, in enacting section 1001.36 had ‘ “clearly 

signal[ed] its intent” ’ to overcome the presumption erected by In re Estrada

(1965) 63 Cal.2d 740 that statutes having an ameliorative effect in criminal 
7

cases apply retroactively to convictions that are not yet final.” (Graham, 

supra, 64 Cal.App.5th at p. 834, review granted.) “Frahs ruled that the 

‘ “until adjudication” ’ language in section 1001.36 did not constitute ‘clear’ 

signaling [citation], such that defendants whose convictions were in the 

‘pipeline’ of direct appellate review when section 1001.36 took effect could 

still take advantage of the statute. But Frahs was careful to limit its 

analysis to the availability of section 1001.36 to these pipeline defendants, 

and to note that its holding involved a ‘quite different’ question from how the 

‘statute normally will apply going forward’ as to the defendants who had had 

the opportunity [to] seek pretrial diversion from the very beginning.” 

(Graham, at p. 834.)

After Frahs, the appellate courts reached different conclusions about 

how late in the process mental health diversion can be sought by a defendant 

who is prosecuted after the effective date of section 1001.36. Graham held a 

request for diversion must be made before guilt is determined. (Graham, 

supra, 64 Cal.App.5th at p. 833 [“a request for ‘pretrial diversion’ under 

section 1001.36 is timely only if it is made prior to the jury’s guilty verdict”], 

review granted.) In Braden, the Court of Appeal concluded “a defendant is 

ineligible for diversion under section 1001.36 after his trial begins.” (Braden, 

supra, 63 Cal.App.5th at p. 333, affd.) In Rodriguez, this court concluded 

that a request made after the entry of a guilty plea is untimely. In contrast, 

Curry held that a defendant may request diversion up to and until the time of 

sentencing. (Curry, supra, 62 Cal.App.5th at p. 321 [“section 1001.36 

contemplates mental health diversion until entry of the judgment of 

conviction”], disapproved.)

The majority of the published decisions to consider this issue correctly 

interpreted section 1001.36 to preclude relief if the request for diversion 
8

comes after a conviction. As we stated in Rodriguez, “[b]oth Graham and 

Braden found Curry’s reliance on dicta from Frahs problematic. (Graham, 

supra, 64 Cal.App.5th at p. 834, review granted; Braden, supra, 63 

Cal.App.5th at p. 341, review granted.) After our original opinion in this case 

was filed affirming the trial court’s denial of Sanchez’s motion for pretrial

mental health diversion as untimely, the Supreme Court issued its decision 

on the issue in Braden, supra, 14 Cal.5th 791. Braden holds that a request 

for mental health diversion under section 1001.36 “must be made before 

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

whichever occurs first.” (Braden, at p. 800.) 

Thereafter, the Supreme Court remanded this case back to our court to 

consider our decision in light of Braden. As we previously held, the trial 

court properly rejected Curry and relied on Braden, which held that in the 

context of section 1001.36, “ ‘adjudication’ refers to the process of adjudicating 

an issue, such as a court’s adjudication of guilt or innocence through a trial.” 

(Braden, supra, 63 Cal.App.5th at p. 336.) Accordingly, the trial court did not 

err when it ruled that Sanchez’s motion for mental health diversion, which 

was filed after he had been found guilty by a jury but before sentencing, was 

untimely.

II

In supplemental briefing, Sanchez also argues that his case should be 

remanded for resentencing in light of newly enacted section 17.2. The 

Attorney General responds that even assuming the new law applies 

retroactively in this case, remand is not appropriate since the trial court’s 

statements make clear it would not have made a different sentencing decision 

under the new law and, further, Sanchez told the probation department he 

was not interested in probation. 
9

New section 17.2 provides: “(a) It is the intent of the Legislature that 

the disposition of any criminal case use the least restrictive 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.” (Assem. 

Bill No. 2167 (2022–2023 Reg. Sess.) § 2, added September 29, 2022.) The 

law took effect on January 1, 2023. (Cal. Const., art. IV, § 8, subd. (c).) 

For purposes of this case, we assume without deciding that section 17.2 

is retroactive to nonfinal criminal cases under In re Estrada, supra, 63 Cal.2d 

740. In such situations, where the trial court is unaware that it had 

sentencing discretion—as often occurs when new legislation has been 

enacted—the Supreme Court has held that “the appropriate remedy is to 

remand for resentencing unless the record ‘clearly indicate[s]’ that the trial 

court would have reached the same conclusion ‘even if it had been aware that 

it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; 

see also People v. Mataele (2022) 13 Cal.5th 372, 437 [applying “clear 

indication” standard to new discretion to dismiss serious felony prior].) 

Here, as the Attorney General argues, the record is clear that the trial 

court would not have sentenced Sanchez any differently had section 17.2 been 

in effect at the time of sentencing. As an initial matter, the court sentenced 

Sanchez to the low term, not the presumptive middle term. Further, the 

court considered, but rejected, probation based on Sanchez’s statements to 

the probation department that he would not abide by the terms of probation, 

and that he did not want to attend treatment for mental health or substance 

abuse issues. The court also considered and credited Sanchez’s statement to 
10

the probation department that he thought the appropriate sentence for his 

crimes was to “finish his time” in custody.3 

The trial court also carefully considered Sanchez’s request to reduce 

the felony conviction to a misdemeanor, and found, as the jury did, that 

Sanchez’s criminal conduct did not warrant such treatment. The court 

pointed to the 911 call and Sanchez’s mother’s decision to run into her 

neighbor’s home, which showed her evident and intense fear of Sanchez 

during the incident. Sanchez does not challenge these findings and provides 

no reason for us to conclude the court would reassess them in light of the 

general language of section 17.2. 

The new law did not provide the trial court with any specific directive 

that would change the outcome of this case. Instead, section 17.2 requires 

the trial court to consider less restrictive alternatives to prison. The record 

shows the court did just this in its evaluation of the defense’s sentencing 

memorandum requesting reduction of the felony charge to a misdemeanor 

and requesting the court order Sanchez into a treatment program. In this 

circumstance, the record is clear that the court would have made no different 

sentencing choice even had section 17.2 already been in effect. 

3 Although Sanchez’s defense attorney stated her client did desire 

probation at the hearing, she did not offer her client’s statements to confirm 

this change in position. 
11

DISPOSITION

The order denying Sanchez’s motion for mental health diversion and 

judgment of conviction are affirmed. 

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

DATO, J.