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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 Hec tor Daniel Sanchez of making a criminal threat (Pen. Code, § 422 1 ) and misdemeanor vandalism (§ 594). After the jury convict ed 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, w e permitted Sanchez to submit supplemental briefing on the issue of whether he is eligible for resentencing based on a new statute , secti on 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 healt h diversion as untimely because it was filed after his conviction , and we rejected his request for relief under section 17.2. Thereafter, t he Supreme Court granted Sanchez’s petition for review and transferred the matter back to this court “ with direction s to vacate [our] decision and reconsider the cause in light of People v. Braden (20 23 ) 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 FAC TUAL 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 h e was
pe rmitted 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 influen ce 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

. A s she clos ed 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 ne ighbor’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 c all 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 , Cr i stal saw Sanchez walking by her house and she feared he might come inside and attack his mother

. Riverside County Sheriff’s Deputy Rudy Alvarado resp onded 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 i n through the unlocked back door. She also told Alvarado that4

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 p ress 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

sente ncing 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 progra m, 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 t hat 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. O n January 6, 2022, the trial court continued the sentencing hearing because it had not yet received a report from the probation department. On5

January 12, 2022, the District Attorney filed an opposition to the motion for mental health diversion , asserting t he 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 opin ion 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, at6

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 begin s] , 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 di version 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 disor der, 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 statu te 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 t he 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 criminal7

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 ‘c lear’ 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 availabilit y 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 fro m 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 .) I n Rodriguez , this court conc luded 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 h ealth diversion until entry of the judgment of conviction”] , disapproved .)
T he majority of the published decisions to consider this issue correctly interpret ed section 1001.36 to preclude relief if the request for diversion8

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 grant ed; 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.” ( Brade n, at p. 800.)
T hereafter, 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 tha t 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 ne wly 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 discret ion 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 concl usion ‘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 pri or].) 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 th e time of sentencing

. As an initial matter, the court sentenced Sanchez to the lo w 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 m ental health or substance abuse issues. The court also considered and credited Sanchez’s statement to10

the probation department that he thought the appropriate sentence for his crimes was to “finish his time” in custody. 3
The trial court also carefull y 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 w ould 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 m a d e 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 confir m 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.