1

Filed 12/14/21 P. v. Weith CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR 

THE PEOPLE,

Plaintiff and Respondent,

v.

JAN A. WEITH,

Defendant and Appellant.

A155950

(San Francisco County

Super. Ct. No. SCN229297)

Frustrated in his efforts to enter his parking garage without his 

monthly parking pass, defendant Jan A. Weith drove his car at the parking 

attendant, pinning him against the parking booth wall. The jury convicted 

Weith of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)),

battery with serious bodily injury (§ 243, subd. (d)) and leaving the scene of 

the accident (Veh. Code, § 20001, subd. (a)), but acquitted him of attempted 

murder. On appeal, Weith argues the trial court erroneously instructed the 

jury on assault with a deadly weapon by including—as applied to a car—in 

the deadly weapon definition, the phrase “that is inherently deadly.” We 

agree that including the phrase was error but, on this record, find it 

harmless. We also reject Weith’s argument that the jury should have been 

1 All further undesignated statutory references are to the Penal Code.
2

instructed that assault required a specific intent and an unlawful attempt. 

Similarly frivolous is Weith’s claim that the assault law is unconstitutionally 

vague.

Weith first requested pretrial mental health diversion (§ 1001.36) at 

sentencing and the trial court denied it. Weith asks us to remand for 

resentencing. Relying on Second and Fourth appellate district cases, the 

Attorney General argues that the diversion request—after the guilty 

verdict—was untimely. We agree and affirm the judgment.

PROCEDURAL BACKGROUND 

Weith was charged with attempted murder (§§ 664, 187, subd. (a)—

count 1), assault with a deadly weapon (§ 245, subd. (a)(1)—count 2), felony 

battery causing serious bodily injury (§ 243, subd. (d)—count 3), and leaving 

the scene of an accident (Veh. Code, § 20001, subd. (a)—count 4). With 

respect to counts 1 through 3, the information further alleged great bodily 

injury and deadly weapon enhancements (§§ 12022.7, subd. (a), 12022, subd. 

(b)(1)).

The jury convicted Weith of the assault with a deadly weapon and 

battery charges and of leaving the scene of an accident, but acquitted him of 

attempted murder. The jury also found true the great bodily injury and 

deadly weapon enhancement allegations.

In his sentencing memorandum and at the sentencing hearing, Weith 

sought probation or referral to the behavioral health court. In the alternative 

Weith asked the court to “allow the defense to vacate Mr. Weith’s conviction 

and petition for Mental Health Diversion.” Weith argued that under section 

1001.35 “anyone with a diagnosed mental disorder. . . can obtain pre-plea 

diversion” and “[e]ven though the statute does state that diversion is not 

available after trial, the [Court of Appeal in People v. Frahs (2018) 
3

27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220; see People v. 

Frahs (2020) 9 Cal.5th 618, 626 (Frahs)] finds that retroactivity principles 

require that a defendant who was convicted before diversion took effect but 

whose case is not yet final on appeal is entitled to ask that his conviction be 

vacated and that he be considered for diversion.” The trial court found Weith 

to be “a danger to the community” because “he came within a hair of killing 

someone.” “[H]e has been on probation a number of times, in [the] last 20/25 

years and has never, apparently, addressed these mental health issues in a 

way that prevented or would have prevented this incident.” Absent unusual 

circumstances, which the court did not find, Weith was ineligible for 

probation (§ 1203, subds. (e)(2), (e)(3)). The court did not conduct a mental 

health diversion hearing and sentenced Weith to five years in state prison.

FACTUAL BACKGROUND

On May 5, 2018, Weith purchased a new “Chevrolet Camaro, Super 

Sport Hot Wheels” edition at a dealership in San Jose. Unlike his previous 

cars, the Camaro had paddle gear shifters on the steering wheel, in addition 

to a traditional gear shift. The Camaro, with its 485 horsepower engine, was 

twice as fast as any vehicle he had driven. Weith testified that he drove from 

San Jose to the San Francisco Hilton parking garage, where he had a 

monthly parking pass. As he entered the garage, Weith realized he left his 

entry card in San Jose. Rather than taking a parking ticket, he skirted the 

entry gate and drove over the center pylons between the entrance and exit 

lanes. Once in the garage he changed his mind, made a U-turn, and drove 

back over the pylons. Having exited, he decided to reenter and, in doing so

positioned his car across the entry and exit lanes. He accelerated and the 

Camaro reversed “rather quickly,” hitting the garage wall. Weith put the car 

in drive, using the center console, and prepared to drive forward, but when he 
4

took his foot off the brake, the car did not move. So he stepped on the 

accelerator;the car lurched forward, “smash[ing] into” the arm gate and 

knocking it to the ground. Weith put the car in park, got out, saw “significant 

damage” to the front of the car, and “felt terrible” because he had “wrecked” 

his new car less than two hours after purchasing it.

The parking garage manager, Victor Delos Santos, who was next to his 

office booth and about 10 to 15 feet from the car, asked Weith if he needed 

anything. Weith did not respond to Delos Santos. Delos Santos testified that 

he made eye contact with Weith for about five seconds, before Weith got back 

into his car. 

According to Weith, when he took his foot off the brake, the car did not 

move. Weith then stepped on the accelerator and “may have used the paddle 

shifter” on the steering wheel. As the car lurched forward, Weith “gripped the 

steering wheel” and “braced for impact.” Delos Santos tried to move out of the 

way, but it “was too late.” In a “split second,” the car crashed into Delos 

Santos, impaling him against the office booth causing a “very violent,” “loud” 

collision that sounded “like an explosion.” Weith testified that he had not 

seen Delos Santos, and he “absolutely” did not intend to back into the wall, 

drive into the arm gate, or crash into the booth and Delos Santos. 

It sounded to one eyewitness like Weith had “floored” the engine. Video 

surveillance footage and eyewitness testimony established that Weith drove 

straight into Delos Santos and the office booth. The glass windows of the 

booth “exploded” and the concrete buckled.

Delos Santos, who was pinned between the rubble of the booth and the 

car, screamed in pain. His broken left shin bone protruded through his skin.2

2 The defense stipulated that Delos Santos suffered great bodily injury. 
5

Joseph Walters, who was across the street from the parking garage, 

heard a “loud crash” and saw that a car had “slammed” into the garage. The 

car “skirted along the wall” of the garage before it crashed into the arm gate

and into the parking booth. As he approached the Camaro, Walters heard

Delos Santos screaming in pain, yelling, “he tried to kill me,” and saw Weith 

in the driver’s seat. With the engine running, Weith exited the car, walked 

past Walters and left the garage.

Weith testified that he did not hear anyone crying for help and did not 

call the police. “[D]isoriented and on “auto mode,” Weith walked back to his 

apartment, where he drank some vodka. He then went to a nearby bar and 

drank some whiskey. Weith went to a second bar, but could not remember if 

he had a drink there. As Weith was returning to the garage about 15 minutes 

after the collision, he was apprehended by the police.

Weith appeared calm, and unaffected when told by an officer that his 

car injured someone. Weith told police the Camaro had no mechanical issues,

he was not on any medications and had no physical or mental impairments. 

After administering various tests, police concluded Weith was not under the 

influence of alcohol.

DISCUSSION

Weith contends his convictions for assault with a deadly weapon and 

battery should be reversed due to various instructional errors and on 

constitutional grounds. Alternatively, he argues the matter should be 

remanded for a mental health diversion hearing. We disagree and affirm.

I. Jury Instructions 

Weith claims the trial court prejudicially erred by incorrectly 

instructing the jury on assault in several respects. 
6

A. Instructions Given 

For the assault with a deadly weapon charge, the court used CALCRIM 

No. 875, which instructed that the People had to prove the following: “1. The 

defendant did an act with a deadly weapon other than a firearm that by its 

nature would directly and probably result in the application of force to a 

person; [¶] 2. The defendant did the act willfully; [¶] 3. When the defendant 

acted, he was aware of facts that would lead a reasonable person to realize 

that his act by its very nature would directly and probably result in the 

application of force to someone; [¶] AND [¶] 4. When the defendant acted, he 

had the present ability to apply force with a deadly weapon other than a 

firearm.”

As given, CALCRIM No. 875 defined a “deadly weapon other than a 

firearm” as “any object, instrument, or weapon that is inherently deadly or 

one that is used in such a way that it is capable of causing and likely to cause 

death or great bodily injury.” (CALCRIM No. 875; italics added.) Regarding 

the weapon enhancement, the court instructed that “a deadly or dangerous 

weapon is any object, instrument, or weapon that is inherently . . . dangerous

or one that is used in such a way that it is capable of causing or likely to 

cause death or great bodily injury. [¶] In deciding whether an object is a

deadly weapon, consider all the surrounding circumstances, including when 

and where the object was possessed . . . and any other evidence that indicates 

whether the object would be used for a dangerous, rather than a harmless, 

purpose.” (CALCRIM No. 3145.) The court did not include the CALCRIM 

Nos. 875 or 3145 definition of “inherently deadly.”3

3 “An object is inherently deadly if it is deadly or dangerous in the 

ordinary use for which it was designed.” (CALCRIM Nos. 875 & 3145.)
7

For the lesser included offense of simple assault, the court instructed,

using CALCRIM No. 915, that the People had to prove the following: “1. The 

defendant did an act that by its nature would directly and probably result in 

the application of force to a person; [¶] 2. The defendant did that act willfully; 

[¶] 3. When the defendant did the act, he was aware of facts that would lead 

a reasonable person to realize that his act by its nature would directly and 

probably result in the application of force to someone; [¶] AND [¶] 4. When 

the defendant acted, he had the present ability to apply force to a person.” 

(CALCRIM No. 915).

B. Inclusion of “Inherently Deadly” Language 

Weith contends the trial court prejudicially erred by instructing the 

jury that it could find him guilty of using a deadly weapon under the theory 

that a car is “inherently deadly.”

In considering the assault with a deadly weapon charge in count 2 and 

the deadly weapon enhancement in counts 1 and 3, the jury had to determine 

whether Weith’s car was a deadly weapon. Employing CALCRIM No. 875, the 

court instructed that: “A deadly weapon other than a firearm is any object, 

instrument, or weapon that is inherently deadly or one that is used in such a 

way that it is capable of causing and likely to cause death or great bodily 

injury.” For the weapon enhancement, the court read CALCRIM No. 3145 

and again included the phrase “that is inherently deadly.” The court did not 

include the CALCRIM definition of “inherently dangerous” in either 

CALCRIM Nos. 875 or 915. Weith did not object to these instructions.

Where the instrumentality is a car, it is error to include the phrase 

“that is inherently deadly” in the definition of “a deadly weapon other than a 

firearm.” (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318; Bench 

Notes to CALCRIM No. 875.) A car may be used in a manner that makes it a 
8

deadly weapon, but it is not an inherently deadly weapon as a matter of law. 

(People v. Montes (1994) 74 Cal.App.4th 1050, 1054 [noting that a car is not 

inherently dangerous but can be found to be a deadly weapon].) For the jury 

to properly find that Weith used a deadly weapon under the facts of this case, 

it had to find that Weith “used [the car] in such a way that it is capable of 

causing and likely to cause death or great bodily injury.” (CALCRIM No. 

875.)

When both a correct and an incorrect instruction have been given, to 

decide whether the error requires reversal, we apply People v. Aledamat

(2019) 8 Cal.5th 1, 7–8 (Aledamat). There, the defendant was on trial for 

assault with a deadly weapon (§ 245), and jurors were given both correct and 

incorrect alternative instructions; they were told that a weapon “could be

either inherently deadly or deadly in the way defendant used it.” (Aledamat,

at p. 6.) Because the weapon—a box cutter—was “not an inherently deadly 

weapon as a matter of law” (ibid.), the first part of the instruction was 

erroneous, but the second part was correct. (Id. at p. 7.) Aledamat held: “The 

reviewing court must reverse the conviction unless, after examining the 

entire cause, including the evidence, and considering all relevant 

circumstances, it determines the error was harmless beyond a reasonable 

doubt.” (Id. at p. 13.) In so holding it rejected a more demanding standard of 

review, advocated by the defendant, that would have required the court to 

examine the verdict and the record and to find evidence in the record to 

support a determination, beyond a reasonable doubt, that the jury actually 

relied on the valid, not the invalid, theory. (Id. at p. 9.) The Supreme 

Court held such a course is not required. It is enough if we can say, beyond a 

reasonable doubt, the legally inadequate theory did not contribute to the 

verdict. (Id. at pp. 12–13.)
9

In People v. Thompkins (2020) 50 Cal.App.5th 365, 399, we recently

applied the Aledamat standard of review, explaining “the question is not 

whether we think it clear beyond a reasonable doubt that the defendants 

were actually guilty . . . based on the valid theory, but whether we can say, 

beyond a reasonable doubt, the jury’s actual verdicts were not tainted by the 

inaccurate jury instruction. We focus on the likelihood that the jury relied on 

the [incorrect] instruction in reaching its verdicts, not simply the likelihood of 

defendants’ guilt under a legally correct theory.” 

Under that standard of review, the error was harmless in this case.

Having reviewed the evidence, we are confident the inclusion of the phrase 

“inherently deadly” did not contribute to Weith’s conviction of assault with a 

deadly weapon other than a firearm. Most compelling is the surveillance 

video that graphically depicts the entire incident. At 17:47:35 of the video, 

the orange Camaro speeds into the parking lot, avoiding the entry gate by 

running roughshod over the four upright pylons intended to prevent entry.

One minute later, driving at the same rate, the Camaro again drives over the 

pylons and exits between the entry and exit gates. Thirty seconds later, 

presumably in response to the Camaro’s extraordinary roundtrip, Delos 

Santos appears from the attendant’s booth, walks in front of the booth, 

looking in the direction of the recently departed car and then walks to the 

middle of the entry lane. Four seconds later, the Camaro speeds into the 

garage, but this time, instead of traveling down the middle as it did moments 

before, the car veers to the right aiming directly at Delos Santos. The Camaro 

crashes into Delos Santos pushing him through the wall and window of the 

attendant’s booth which crumbles under the impact. As soon as the car comes 

to rest—with Delos Santos crushed between it and the remains of the booth—
10

Weith exits, turns toward Delos Santos and then reenters the car. He reaches 

forward and then exits, closes the car door and departs the garage.

Delos Santos described what the video did not depict. After exiting the 

garage, the Camaro was parked “parallel to the street” “literally blocking 

both [the entrance and exit] lanes.” As Delos Santos approached the car, he 

saw Weith “standing outside his car” at the “[d]river’s side.” Delos Santos, 

who knew Weith as a monthly parker, approached him and asked if he 

needed help. Weith, who was about 10 feet away, looked at Delos Santos, 

made eye contact, but did not respond. Instead, within five seconds, Weith 

reentered his car as Delos Santos approached “to see if he needed help.” The 

Camaro backed up and destroyed the arm gate. The car backed into a 

billboard and then went forward smashing into the arm gate.

Delos Santos approached to assess the damage and the car backed up 

again hitting the billboard. Delos Santos testified: “He drove forward, toward 

me. [¶] . . . [¶] All I heard was the tires screech—screeching.” Delos Santos 

tried to get out of the way but, because of the small space, “there’s no way for 

me to kind of like run away or get out of the way.” Pinned between the car’s 

front tire and his office, Delos Santos was “screaming in pain.” He cried for 

help, “yelling at the top of [his] lungs” for “someone [to] back up the car.” 

Delos Santos heard “the sound of screeching tires,” but the car did not move. 

Weith did not assist Delos Santos.

In closing, the prosecutor recapitulated the evidence in support of his 

argument that Weith used the car in a way that is capable of causing and 

likely to cause death or great bodily injury. He did not refer to the Camaro as 

“inherently deadly.” Rather, the prosecutor’s argument focused on how Weith 

used the Camaro as a deadly weapon. As to the section 245, subdivision (a)(1) 

charge, the prosecutor argued “the defendant did an act with a deadly 
11

weapon. The defendant willfully acted. . . . Defendant was aware of facts that 

would lead a reasonable person to conclude that his act, by its very nature,

would directly and probably result in the application of force, and that the 

defendant had the present ability to actually apply force.” 

Instead of focusing on the car, the prosecutor directed the jury to the 

manner in which Weith drove it: “[T]he act we’re talking about is driving the 

car, and by [his] very nature of driving the car, he hits the booth, injures 

Victor Delos Santos. And the defendant testified, I asked him directly, you 

wanted to put the car in drive, . . . you wanted the car to go forward, you put 

your foot on the accelerator, the car went forward, you intended to do all of 

those actions.”

The prosecutor later added: “[A] reasonable person would know that 

when you park in this place for four years, you drive in and out every single 

day, there are people all over the place, it’s downtown San Francisco . . . and 

you’ve actually had contact with the person that works in that office. A 

reasonable person, in those circumstances, would absolutely know that . . . by 

putting your foot on the accelerator when your car’s in drive, you are very 

likely to injure someone.” The prosecutor argued that Weith “knew Mr. Delos 

Santos was there and actually intended to hit Mr. Delos Santos.” The court 

did not define “inherently deadly” and the prosecutor—relying on the video 

and Delos Santos’s testimony—argued that Weith purposely drove the car in 

a manner capable of causing death or great bodily injury. 

With this evidence, and without further definition of inherently deadly, 

the jury could understand that the Camaro was “inherently deadly,” “in the 

colloquial sense of the term—i.e., readily capable of inflicting deadly harm—

and that defendant used it as a weapon.” (Aledamat, supra, 8 Cal.5th at 

p. 15.) On this record “we can say, beyond a reasonable doubt, the jury’s 
12

actual verdicts were not tainted by the inaccurate jury instruction.” (People v. 

Thompkins, supra, 50 Cal.App.5th at p. 399.)

Accordingly, any error in the court’s instructions defining “deadly 

weapon” was harmless beyond a reasonable doubt. (Chapman v. California 

(1967) 386 U.S. 18, 24.)

B. Omission of “Unlawful Attempt” and “Violent Injury” Language

Weith claims the trial court erred in instructing the jury using

CALCRIM No. 875 (assault with a deadly weapon) and CALCRIM No. 915 

(simple assault) because the instructions “inexplicably” omit section 240’s 

definition: “An assault is an unlawful attempt, coupled with a present ability, 

to commit a violent injury on the person of another.” Both instructions have 

been expressly affirmed by our appellate courts. (See People v. Golde (2008) 

163 Cal.App.4th 101, 122 [CALCRIM No. 875 “was not defective in failing to 

tell the jurors they could consider the absence of injury as reflecting an 

absence of intent to harm”]; People v. Ibarra (2007) 156 Cal.App.4th 1174, 

1193–1195 [upholding CALCRIM No. 915 as correct statement of law].)

In California, the law is settled that assault is a general intent crime. 

(People v. Chance (2008) 44 Cal.4th 1164, 1169 (Chance).) Unlike attempt 

crimes, which require specific intent, the “ ‘unlawful attempt’” term of 

section 240 is different. “Assault requires an act that is closer to the 

accomplishment of injury than is required for other attempts. Other criminal 

attempts, because they require proof of specific intent, may be more remotely 

connected to the attempted crime.” (Id. at p. 1167.) Assault has been 

characterized as “ ‘unlawful conduct immediately antecedent to battery.’ ” 

(Ibid.) 

Additionally, the “terms ‘violence’ and ‘force’ are synonymous when 

used in relation to assault, and include any application of force even though it 
13

entails no pain or bodily harm and leaves no mark.” (People v. Flummerfelt

(1957) 153 Cal.App.2d 104, 106; see People v. Rocha (1971) 3 Cal.3d 893, 899, 

fn. 12 (Rocha); People v. Colantuono (1994) 7 Cal.4th 206, 214, fn. 4 

(Colantuono).) It is settled that “the criminal intent which is required for 

assault with a deadly weapon . . . is the general intent to willfully [sic] 

commit an act the direct, natural and probable consequences of which if 

successfully completed would be the injury to another.” (Rocha, at p. 899.) 

“[B]ut only an ‘injury’ as that term is used with respect to a battery need be 

intended. ‘It has long been established, both in tort and criminal law, that 

“the least touching” may constitute battery.’ ” (Rocha, at p. 899, fn.12.)

Consistent with the forgoing case law, the trial court’s instructions on 

assault with a deadly weapon (CALCRIM No. 875) and simple assault 

(CALCRIM No. 915) correctly informed the jury that the crimes involve an 

act that is naturally and likely to result in the “application of force” to a 

person and that the term “application of force” means “to touch in a harmful 

or offensive manner” and can include the “slightest touching.” (CALCRIM 

Nos. 875, 915.) Accordingly, we reject Weith’s assertions that CALCRIM No. 

875 and CALCRIM No. 915, which have been expressly approved by 

appellate authority, omitted essential elements and lightened the 

prosecution’s burden of proof on the assault charge. 

C. Omission of “Specific Intent” Language 

Again, in the face of established California Supreme Court precedent to 

the contrary, Weith claims that assault is a specific intent crime and the trial 

court erred in instructing the jury that it is a general intent crime. We will 

quickly dispense with this argument; our Supreme Court has held repeatedly

that assault is a general intent crime. (People v. Williams (2001) 26 Cal.4th

779, 782 (Williams) [assault requires only a general criminal intent];
14

accord, In re B.M. (2018) 6 Cal.5th 528, 533 [“Assault is a general intent 

crime; it does not require a specific intent to cause injury.”]; People v. 

Perez (2018) 4 Cal.5th 1055, 1066 [“assault with a deadly weapon is a general 

intent crime”]; Chance, supra, 44 Cal.4th at p. 1170 [“ ‘specific intent to injure 

is not an element of assault because the assaultive act, by its nature, 

subsumes such an intent’ ”].)

II. Constitutional Claim

Weith contends his convictions for assault with a deadly weapon and 

battery causing serious bodily injury should be reversed because the assault 

statute (§ 240) is unconstitutionally vague because it fails to define assault 

with sufficient notice of the prohibited conduct. The Attorney General

responds that Weith lacks standing to raise a vagueness challenge because 

his conduct is clearly encompassed by the assault statutes (§§ 240, 245). We 

do not address the standing issue because Weith’s vagueness claim fails on 

the merits.

A. Applicable Law

“Statutes are presumed valid and must be upheld unless their 

unconstitutionality is positively and unmistakably demonstrated. With 

regard to vagueness, the question is whether the statute provides a person of 

ordinary intelligence a reasonable opportunity to know what is prohibited 

and provides police and prosecutors with sufficiently definite guidelines to 

prevent arbitrary and discriminatory enforcement.” (People v. Basuta (2001) 

94 Cal.App.4th 370, 397.)

“It is impossible, given the complexities of our language and the 

variability of human conduct, to achieve perfect clarity in criminal statutes. 

Reasonable specificity exists if the statutory language ‘conveys sufficiently 

definite warning as to the proscribed conduct when measured by common 
15

understandings and practices.’ (United States v. Petrillo (1947) 332 U.S. 1, 8; 

see also People v. Deskin (1992) 10 Cal.App.4th 1397, 1400.) Given these 

practical difficulties, one commentary has stated: ‘In practice, 

unconstitutional vagueness is a concept that only works on the extreme end 

of the vagueness continuum . . . . Arguments that a statute appears vague in 

the ordinary sense will not suffice to bring relief from the courts.’ (2 Antieau

& Rich, Modern Constitutional Law (2d ed. 1997) § 38.00, p. 429.)” (People v. 

Basuta, supra, 94 Cal.App.4th at p. 397.)

B. Analysis 

Section 240 defines assault as “an unlawful attempt, coupled with a 

present ability, to commit a violent injury on the person of another.” The 

language of the assault statute is “derive[d] from identical language of 

section 49 of the Crimes and Punishment Act of 1850. (Stats. 1850, ch. 99, 

§ 49, p. 234.)” (People v. Wright (2002) 100 Cal.App.4th 703, 714.) Although 

Weith engages in an extended analysis tracing the evolution of the assault 

law, discussing cases ranging as far back as 1856, the assault statute has 

remained unchanged since its inception. (See Williams, supra, 26 Cal.4th at 

p. 782.) Its long history “virtually precludes us from finding it impermissibly 

vague at this late date.” (People v. Kelly (1992) 1 Cal.4th 495, 534; People v. 

Bamba (1997) 58 Cal.App.4th 1113, 1122.)

That the assault law has required continued clarification does not 

make it unconstitutionally vague. “Many, probably most, statutes are 

ambiguous in some respects and instances invariably arise under which the 

application of statutory language may be unclear.” (Evangelatos v. Superior 

Court (1988) 44 Cal.3d 1188, 1201.) It is the traditional role of the judiciary to 

interpret ambiguous language and fill in the gaps. (Id. at p. 1202.) Assault 

has been consistently construed as a general intent crime requiring a willful 
16

act which by its nature would probably and directly result in the application 

of physical force to another (see, e.g., Rocha, supra, 3 Cal.3d at pp. 898–899; 

Colantuono, supra, 7 Cal.4th at pp. 214–216) committed with the actual 

knowledge of those facts sufficient to establish that the act by its nature will 

probably and directly result in the application of force to another—i.e. a 

battery (see, e.g., Williams, supra, 26 Cal.4th at pp. 782, 790). Additionally, 

“when a defendant equips and positions himself to carry out a battery, he has 

the ‘present ability’ required . . . if he is capable of inflicting injury on the 

given occasion, even if some steps remain to be taken, and even if the victim 

or the surrounding circumstances thwart the infliction of injury.” (Chance, 

supra, 44 Cal.4th at p. 1172.)

This consistent interpretation of the assault law provides sufficient 

notice of the prohibited conduct. Accordingly, Weith’s vagueness challenge 

fails. 

III. Diversion of Individuals with Mental Disorders

A. The parties’ positions

Weith argues the court abused its discretion in denying his request for 

a pretrial mental health diversion hearing pursuant to section 1001.36. The 

Attorney General replies that Weith forfeited this claim by only briefly 

raising the issue at the time of sentencing, and that on the merits we should 

affirm, and not remand for sentencing, because the trial court found Weith 

unsuitable for mental health diversion. 

Preliminarily, we reject the Attorney General’s argument that Weith 

“forfeited” his request for diversion under section 1001.36. The record clearly 

reflects that Weith raised the issue, albeit succinctly, in the trial court. 

Nevertheless, as we explain, Weith’s request was untimely.
17

B. Section 1001.36

Diversion of Individuals with Mental Disorders (§ 1001.35 et seq.),

effective a little over two months before Weith’s trial, “authorizes a pretrial 

diversion program for defendants with qualifying mental disorders.” (Frahs, 

supra, 9 Cal.5th at p. 626.) 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 that meets the unique mental health 

treatment and support needs of individuals with mental disorders.” 

(§ 1001.35, subds. (a)-(c).)

Section 1001.36 defines “pretrial diversion” to “mean[] 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. (c), italics added.)

The statute does not define the phrase “until adjudication.” At the time 

of the November 2, 2018 sentencing hearing, there was no appellate guidance 

regarding the meaning of “until adjudication.” Since then case law has 

offered three different dates by which pretrial diversion must be requested: 

before trial commences; before conviction, be it by guilty plea or verdict; or 

before sentencing. The first and most lenient court to address the issue held 

“adjudication” does not occur until sentencing and entry of judgment. (People 

v. Curry (2021) 62 Cal.App.5th 314, 321, review granted July 14, 2021, 

S267394 (Curry) [“section 1001.36 contemplates mental health diversion 
18

until entry of the judgment of conviction”].) At the other end of the spectrum, 

the Fourth Appellate District found the right to seek mental health diversion 

is lost when the jury is sworn. (People v. Braden (2021) 63 Cal.App.5th 330, 

333, review granted July 14, 2021, S268925 (Braden) [“a defendant is 

ineligible for diversion under section 1001.36 after his trial begins”].)

Between these extremes—and the outcome we adopt—“adjudication” occurs 

when guilt is established either by plea or jury verdict. (People v. Rodriguez 

(2021) 68 Cal.App.5th 584, 591, review granted Nov. 10, 2021, S270895

(Rodriguez) [request for pretrial diversion under section 1001.36 “untimely 

. . . if presented after the defendant’s conviction by guilty plea”]; People v. 

Graham (2021) 64 Cal.App.5th 827, 832–833, review granted Sept. 1, 2021, 

S269509 (Graham) [“a request for ‘pretrial diversion’ under section 1001.36 is 

timely only if it is made prior to the jury’s guilty verdict”].) 

C. Standard of Review and Rules of Statutory Interpretation

Weith’s claim presents an issue of statutory interpretation, which we 

review de novo. (People v. Simmons (2012) 210 Cal.App.4th 778, 790.)

“ ‘ “Our role in construing a statute is to ascertain the Legislature’s

intent so as to effectuate the purpose of the law. [Citation.]” ’ [Citations.] [¶]

Our first task is to examine the language of the statute . . ., giving the words 

their usual, ordinary meaning. [Citations.] If the language is clear and 

unambiguous, we follow the plain meaning of the measure. [Citations.] . . . [¶]

The language is construed in the context of the statute as a whole and the

overall statutory scheme, and we give ‘significance to every word, phrase,

sentence, and part of an act in pursuance of the legislative purpose.’ ” (People

v. Canty (2004) 32 Cal.4th 1266, 1276 (Canty).)

Where the language of the statute permits more than one reasonable 

interpretation, we “apply the principles that pertain where statutory 
19

ambiguity exists, adopting the interpretation that leads to a more reasonable 

result. [Citation.] It is appropriate to consider evidence of the intent of the 

enacting body in addition to the words of the measure, and to examine the 

history and background of the provision, in an attempt to ascertain the most 

reasonable interpretation.”(Canty, supra, 32 Cal.4th at p. 1277.)

“We also consider that, under the traditional ‘rule of lenity,’ language 

in a penal statute that truly is susceptible of more than one reasonable 

construction in meaning or application ordinarily is construed in the manner 

that is more favorable to the defendant. [Citation.] Nonetheless, ‘ “the rule of 

lenity 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.” ’ ” (Canty, supra, 32 Cal.4th at p. 1277.) “ ‘ “The

rule of statutory interpretation that ambiguous penal statutes are construed

in favor of defendants is inapplicable unless two reasonable interpretations of

the same provision stand in relative equipoise, i.e., that resolution of the

statute’s ambiguities in a convincing manner is impracticable.” [¶] Thus,

although true ambiguities are resolved in a defendant’s favor, an appellate

court should not strain to interpret a penal statute in defendant’s favor if it

can fairly discern a contrary legislative intent.’ ” (Canty, at pp. 1276–1277.)

D. Analysis

We agree with Graham,that the statute’s “plain language” and the 

“purpose” of mental health diversion compel the conclusion that “a request for 

‘pretrial diversion’ under section 1001.36 is timely only if it is made prior to 

the jury’s guilty verdict.” (Graham, supra, 64 Cal.App.5th at p. 833.) “Section 

1001.36 explicitly defines ‘pretrial diversion’ as the ‘the postponement of 

prosecution . . .at any point in the judicial process from the point at which the 
20

accused is charged until adjudication.’ (§ 1001.36, subd. (c), italics added.)” 

(Graham, at p. 833.)

“The definition says that diversion must occur before ‘adjudication,’ and

‘adjudication’ typically refers to an adjudication of guilt—whether by plea or 

by jury verdict.’[Citations.] The plain text of section 1001.36 is controlling.

“The tripartite purposes of section 1001.36 are to (1) ‘[i]ncrease[]

diversion of individuals with mental disorders to mitigate the individuals’

entry and reentry into the criminal justice system while protecting public

safety,’ (2) ‘[a]llow[] 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 (3) ‘[p]rovid[e] diversion

that meets the unique mental health treatment and support needs of

individuals with mental disorders.’ (§ 1001.35.) These purposes are fully

served by allowing a defendant to seek mental health pretrial diversion prior

to adjudication of their guilt.” (Graham, supra, 64 Cal.App.5th at p. 833.)

4

Graham further observed that permitting a defendant to seek pretrial 

diversion through entry of judgment would invite “the inefficient use of finite 

judicial resources” and would potentially turn trial into a “ ‘read through’ ” 

that could be rendered “retroactively moot should pretrial diversion be 

4 Courts considering the legislative intent for other pretrial diversion 

programs (e.g., § 1000 et seq.) have consistently reached the same conclusion:

To achieve the legislative purposes, pretrial diversion must necessarily be 

requested before conviction. (See People v. Reed (1975) 46 Cal.App.3d 625, 

629-630 [court’s order for section 1000 drug diversion after trial reversed]; 

People v. Wright (1975) 47 Cal.App.3d 490, 494 [defendant ineligible for 

section 1000 diversion after trial]; People v. Alonzo (1989) 210 Cal.App.3d 

466, 468, 470 [trial court acted in excess of its jurisdiction by granting section 

1000 drug diversion after trial].)
21

requested following a guilty verdict.” (Graham, supra, 64 Cal.App.5th at 

p. 834.)5

Rodriguez agreed with Graham to conclude that adjudication by guilty 

plea, like guilty verdict, precludes mental health diversion. (Rodriguez, 

supra, 68 Cal.App.5th at p. 591.) Finding “ ‘ “no distinction between an 

adjudication of guilt based on a plea of guilt and that predicated on a trial on 

the merits,” ’ ” Rodriguez concluded that a request for mental health 

diversion is untimely under section 1001.36, subdivision (c), if presented after 

the defendant’s conviction by guilty plea. (Ibid.)

Weith urges us to rely on Curry, supra, 62 Cal.App.5th 314, which held 

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

sentencing and entry of judgment.” (Id. at p. 325.) 6 Absent clear direction 

from the Supreme Court, the Curry court relied primarily on language in 

Frahs, supra, 9 Cal.5th 618. (Curry, at pp. 322–325.) However, Frahs

expressly refrained from defining “until adjudication,” and differentiated the 

retroactive availability of mental health diversion under In re Estrada (1965) 

5 Braden reviewed the history of California’s diversion programs “found 

in sections 1000 through 1001.97” and observed: “We are not aware of any 

cases indicating that, in the normal course, a defendant can be (or has been) 

admitted to any such [diversion] programs after conviction at trial. Rather, 

the purpose of diversion and deferred entry of judgment programs “is 

precisely to avoid the necessity of a trial. [Citations.] (People v. Alonzo[,

supra,] 210 Cal.App.3d 468, 470 [trial court acted in excess of its jurisdiction 

by granting diversion after trial.] Our view of section 1001.36 fits comfortably 

into the norm for our Legislature’s diversion programs.”(Braden, supra, 

63 Cal.App.5th at p. 335; see Gresher v. Anderson (2005) 127 Cal.App.4th 88, 

111 [“The purpose of those programs is precisely to avoid the necessity of a 

trial”].)

6 In Curry, unlike in our case, “[t]he People [did] not take a position on 

the timeliness of defendant’s [mental health diversion] request. (Curry, 

supra, 62 Cal.App.5th at p. 320.)
22

63 Cal.2d 740 from “how the statute will generally operate when a case comes 

before the trial court after section 1001.36’s enactment.” (Frahs, supra, 

9 Cal.5th at pp. 632, 633, fn. 3.) Although acknowledging the dicta in Frahs 

was equivocal, the Curry court nevertheless concluded the “balance of dicta” 

favored its conclusion. (Curry, at pp. 323–324.) The court also reasoned that 

the “overall statutory scheme” of section 1001.36, which it viewed as 

investing trial courts with “broad discretion” in deciding when and whether 

to grant diversion, supported an expansive interpretation of section 1001.36. 

(Curry, at pp. 324–325.)

We disagree and join Rodriguez and Graham in concluding that the 

broad statutory scheme observed in Curry was not, of itself, sufficient to 

“ ‘countermand . . . the otherwise clear intent of the Legislature to require 

pretrial diversion to be sought before a verdict.’ ” (Rodriguez, supra,

68 Cal.App.5th at p. 592; Graham, supra, 64 Cal.App.5th at p. 835.) While 

acknowledging the Supreme Court’s explicit statement—“ ‘[W]e have no 

occasion here to precisely define “until adjudication,” as used in section 

1001.36, subdivision (c) (Frahs, supra, 9 Cal.5th at p. 633, fn. 3)”— the Curry 

court sought to divine meaning from that which the Supreme Court expressly 

declined to decide. (Curry, supra, 62 Cal.App.5th at pp. 323–324.) Unlike 

Rodriguez and Graham, which interpreted “adjudication” in its context in the 

statute, Curry recognizes “there is some language in Frahs that reasonably 

might be cited in support of the argument that the phrase ‘until adjudication’ 

in section 1001.36 should be interpreted to mean ‘until adjudication of guilt,’ ”

but nevertheless concludes, based on “the weight of considered reasoning in 

the case” that “the phrase ‘until adjudication’ should be interpreted to mean 

‘until the judgment of conviction’—which does not occur until sentencing.” 

(Curry, at p. 323.) We considered the “usual, ordinary meaning” of 
23

“adjudication” in “the context in which the word[] appear[s]” in the statute 

and find no support for Curry’s conclusion. (See Curry, at pp. 321–323.) 

Rodriguez, Graham, and Braden reject Curry’s conjecture about phrases in

Frahs, and so do we. (See Rodriguez, supra, 68 Cal.App.5th at p. 591; 

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

p. 341.) 

We find further support for the Rodriguez and Graham holdings by 

considering pretrial mental health diversion (§ 1001.35, et seq.) in the context 

of the panoply of pretrial diversion schemes. The Legislature enacted five

diversion programs that employ the same time frame for pretrial eligibility:

from “any point in the judicial process from the point at which the accused is 

charged until adjudication.” (§ 1001.36, subd. (c), italics added [“diversion of 

individuals with mental disorders”]; § 1001.1 [“misdemeanor diversion”]; §

1001.50, subd. (c) [“diversion of misdemeanor offenders”]; § 1001.70, subd. (b) 

[“parental diversion”]; § 1001.80, subd. (k)(1) [“military diversion program”]. 

Unlike these regimes, a sixth pretrial program, diversion of defendants with 

cognitive developmental disabilities (§ 1001.20 et seq.), does not limit its 

availability “until adjudication.” Section 1001.21, subdivision (a) applies 

“whenever a case is before any court upon an accusatory pleading at any 

stage of the criminal proceedings” (italics added.) Had the Legislature 

intended for pretrial mental health diversion to similarly apply regardless of 

the procedural posture of the case, it would presumably have said so as it did 

in section 1001.21. (See, e.g., California Ins. Guarantee Assn. v. Argonaut Ins. 

Co. (1991) 227 Cal.App.3d 624, 633–634 [“Insurance Code section 1063.1 

shows that the Legislature knew how to make an exception for workers’

compensation benefits when it so intended”].) It did not.
24

Even were we to conclude that “until adjudication” is “susceptible of

more than one reasonable . . . meaning,” we do not have to “ ‘ “guess what the 

legislative body intended” ’ ” and therefore do not apply the rule of lenity.

(Canty, supra, 32 Cal.4th at p. 1277.) To “construe[] [the words] in the 

manner that is more favorable to [Weith]” would require us to “strain to 

interpret a penal statute in defendant’s favor” where we “ ‘can fairly discern a 

contrary legislative intent.’ ” (Canty, at pp. 1276–1277.) For the reasons 

stated in Graham and Rodriguez and above, we conclude that “until 

adjudication” means until conviction: ascertainment of guilt, whether by a 

jury (as in Graham) or by a guilty plea (as in Rodriguez).7

Because Weith’s postconviction diversion request was untimely, we do 

not reach the merits of his claim.

DISPOSITION

The judgment is affirmed.

7 At oral argument, Weith contended for the first time that, because the 

attempted murder charge precluded pretrial mental health diversion, he 

should have been allowed to request it after acquittal on that charge. The 

contention is forfeited by Weith’s failure to raise it in his opening brief. (Doe 

v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115.)
25

_________________________

Ross, J.*

WE CONCUR:

_________________________

Pollak, P.J.

_________________________

Brown, J.

A155950 People v. Weith

* Judge of the San Francisco Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.