Filed 10/1/20 P. v. Colbert CA2/3

Opinion on transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DEBORAH COLBERT,

Defendant and Appellant.

B291207

(Los Angeles County

Super. Ct. No. BA456180)

APPEAL from judgment of the Superior Court of Los 

Angeles County, Karla D. Kerlin, Judge. Conditionally reversed 

and remanded with instructions.

Stephanie L. Gunther, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Assistant 

Attorney General, Zee Rodriguez and Noah P. Hill, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

_________________________

Following a jury conviction for vandalism, defendant and 

appellant Deborah Colbert was placed on probation and ordered 

to pay a $400 restitution fine and other court assessments. On 

appeal, defendant argued that her case should be remanded so 

the trial court could retroactively determine her eligibility for a 

pretrial mental health diversion program under Penal Code 

section 1001.36.1

In a December 2019 unpublished opinion, we affirmed the 

trial court’s orders, concluding that section 1001.36 did not 

retroactively apply to defendant’s case, which had been

“adjudicated” before the statute's enactment. 

Our Supreme Court granted review, pending its decision in 

People v. Frahs (2020) 9 Cal.5th 618 (Frahs). There, the Supreme 

Court held that section 1001.36 applies retroactively to 

defendants whose cases were not yet final when the Legislature 

enacted section 1001.36. Following Frahs, the court transferred 

the matter back to us with directions to vacate our decision and 

reconsider it in light of Frahs.

Consistent with our Supreme Court’s decision in Frahs, 

and as both parties agree in their supplemental briefs, we vacate 

our prior decision, conditionally reverse the judgment, and 

remand for the trial court to determine defendant’s eligibility for 

mental health diversion under section 1001.36. Defendant also 

challenged the imposition of the restitution fine and assessments. 

We conclude defendant has forfeited the issue. 

1 Further unspecified statutory citations are to the Penal 

Code.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. Charge and Mental Competence

In the early morning of April 5, 2017, Juan Salazar 

witnessed defendant repeatedly slamming a brick against his

parked car. The windshield and window were broken, and there 

were dents and scratches to the body. The total damage to the 

car was $4,455.

On May 4, 2017, the Los Angeles County District 

Attorney’s Office charged defendant with vandalism resulting in 

more than $400 in damage (§ 594).

On June 26, 2017, defense counsel declared a doubt 

regarding defendant’s mental competence. A forensic 

psychiatrist diagnosed defendant with “Unspecified 

Schizophrenia Spectrum and Other Psychotic Disorder.”2 The 

trial court found defendant incompetent and suspended criminal 

proceedings. On December 18, 2017, the trial court reinstated 

proceedings after finding that defendant had been restored to 

competence.

B. Trial and Sentencing

A jury convicted defendant of the charged offense on April 

5, 2018.

On May 30, 2018, the trial court suspended the imposition 

of sentence and placed defendant on three years of probation 

through the Office of Diversion and Reentry. The court ordered 

defendant to serve 736 days in jail as a condition of probation, 

2 The psychiatrist’s July 2017 report also contained limited 

information about defendant’s financial condition. Defendant

stated “she receives SSI benefits.” Although defendant’s

daughter stated her mother was homeless, defendant denied this.
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and awarded her a total of 736 days of presentence credit. The 

court also ordered that she pay $4,500 in victim restitution, a 

$400 restitution fine (§ 1202.4), a $30 court facilities assessment 

(Gov. Code, § 70373), a $40 court operations assessment 

(§ 1465.8), the cost of probation services, a $10 crime prevention 

fine, and “any other mandatory fines and fees.” Defendant was 

advised of her right to an ability to pay hearing.

C. Enactment of Section 1001.36 and Appeal

On June 27, 2018, the Legislature enacted section 1001.36, 

which created a pretrial diversion program for certain defendants 

with qualifying mental disorders. (§ 1001.36, subd. (a); Stats. 

2018, ch. 34, § 24.)

Defendant timely appealed the May 30, 2018 order. She

argued that her conviction should be conditionally reversed and 

the matter remanded for the trial court to determine, 

retroactively, whether she qualified for a pretrial diversion 

program for defendants with qualifying mental disorders under 

section 1001.36. Relying on In Re Estrada (1965) 63 Cal.2d 740 

and People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 

defendant argued section 1001.36 should apply retroactively 

because it confers an ameliorative benefit to defendants whose 

judgments are not yet final. 

The People argued section 1001.36 was not retroactive, 

focusing on the express language of the statute which provides 

that pretrial mental health diversion is only available “until 

adjudication.” According to the People, defendant’s claim had

already been “adjudicated” by the time of the statute’s 

enactment.

In our December 2019 unpublished opinion, we agreed with 

the People and affirmed the trial court’s judgment. (See People v. 
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Colbert, Dec. 27, 2019, B291207 [nonpub. opn.], review granted 

Mar. 11, 2020, review dismissed and remanded Aug. 19, 2020, 

S260015.) 

Our Supreme Court granted review, and transferred the

matter back to us with directions to vacate our prior decision and 

reconsider the matter in light of Frahs.

DISCUSSION

I. Conditional Reversal of Judgment Is Required 

Under Frahs to Determine Defendant’s Eligibility for 

Diversion Under Section 1001.36. 

A. Section 1001.36 

Effective June 27, 2018, section 1001.36 authorizes pretrial 

diversion in lieu of criminal prosecution for defendants with 

qualifying mental disorders: “ ‘[P]retrial diversion’ means 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).) 

A trial court may grant pretrial diversion under section 

1001.36 if it finds: (1) the defendant suffers from an identified 

mental disorder;3 (2) the mental disorder was a significant factor 

in the commission of the charged offense; (3) the defendant’s 

3 A “qualifying mental disorder” is any “mental disorder . . .

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, but excluding antisocial

personality disorder, borderline personality disorder, and

pedophilia. Evidence of the defendant’s mental disorder shall be

provided by the defense and shall include a recent diagnosis by a

qualified mental health expert.” (§ 1001.36, subd. (b)(1)(A).)
6

symptoms will respond to treatment; (4) the defendant consents 

to diversion and waives his or her speedy trial rights; (5) the 

defendant agrees to comply with the treatment; and (6) the 

defendant will not pose an unreasonable risk of danger to public 

safety if treated in the community. (§ 1001.36, subd. (b).) 

If the trial court grants diversion, the defendant will 

undergo mental health treatment by an approved mental health 

program that will provide regular reports of the defendant’s 

progress. Criminal proceedings may be diverted for “no longer 

than two years.” (§ 1001.36, subds. (c)(1)(B) & (c)(2)―(3).) If the 

defendant performs satisfactorily in diversion, “the court shall 

dismiss the defendant’s criminal charges that were the subject of 

the criminal proceedings at the time of the initial diversion” and 

“the arrest upon which the diversion was based shall be deemed 

never to have occurred.” (§ 1001.36, subd. (e).) Under certain 

circumstances, if the defendant commits additional crimes or 

performs unsatisfactorily in diversion, the court may reinstate 

criminal proceedings. (§ 1001.36, subd. (d).) 

B. Defendant Is Entitled to Conditional Reversal of 

Judgment Under Section 1001.36, Which Applies Retroactively.

The Courts of Appeal were divided on the question of 

whether section 1001.36 applies retroactively to persons who 

were tried, convicted, and sentenced before section 1001.36 went 

into effect, but as to whom judgment is not yet final. In June 

2020, our Supreme Court resolved the issue in Frahs. The 

Supreme Court held that because section 1001.36 provides a 

possible ameliorating benefit for a class of persons, namely, 

certain defendants with qualifying mental disorders, and neither 

the statute’s text nor its legislative history clearly signals the 

Legislature’s intent to overcome Estrada’s inference of 
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retroactivity, section 1001.36 applies retroactively to cases where

the judgment is not yet final. (Frahs, supra, 9 Cal.5th at p. 624.) 

In Frahs, our Supreme court also rejected the People’s 

argument that the defendant was not entitled to remand because 

he failed to demonstrate that he satisfied all six threshold 

eligibility requirements for diversion. (Frahs, supra, 9 Cal.5th at 

pp. 637–638; see § 1001.36, subd. (b).) The Court concluded “a 

conditional limited remand for the trial court to conduct a mental 

health diversion eligibility hearing is warranted when, as here, 

the record affirmatively discloses that the defendant appears to 

meet at least the first threshold eligibility requirement for 

mental health diversion—the defendant suffers from a qualifying 

mental disorder.” (Frahs, at p. 640.)

Pursuant to our Supreme Court’s decision in Frahs, the 

People concede and we now conclude defendant is entitled to

conditional reversal of judgment and remand to the trial court for 

a determination of her eligibility for mental health diversion 

under section 1001.36. (See Frahs, supra, 9 Cal.5th at pp. 639–

641.) Here, the record affirmatively discloses that a forensic 

psychiatrist diagnosed defendant with “Unspecified 

Schizophrenia Spectrum and Other Psychotic Disorder,” a

qualifying mental disorder “as identified in the most recent 

edition of the Diagnostic and Statistical Manual of Mental 

Disorders.” (See § 1001.36, subd. (b)(1)(A); American Psychiatric 

Assn., Diagnostic and Statistical Manual of Mental Disorders 

(5th ed. 2013), p. 122.) Accordingly, defendant “appears to meet 

at least the first threshold eligibility requirement for mental 

health diversion.” (Frahs, at p. 640.) Pursuant to Frahs and 

based on the record before us, we conclude a conditional reversal 

of judgment and remand is appropriate for the trial court to 
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conduct a mental health diversion eligibility hearing. (See id., at 

p. 640; § 1001.36, subd. (b)(3).) We express no opinion on 

whether defendant will be able to demonstrate eligibility for 

mental health diversion under section 1001.36, or whether the 

trial court should exercise its discretion to grant diversion if it 

finds defendant eligible. 

II. Defendant Has Forfeited Any Challenge to the 

Restitution Fine and Court Assessments.

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 

(Dueñas), defendant argues the court violated her due process 

rights by imposing the $400 restitution fine and various court 

assessments without making a finding as to her ability to pay. 

We conclude the issue was forfeited. 

Section 1202.4, subdivision (d) allows a court to consider a 

defendant’s inability to pay a restitution fine if the fine is more 

than the minimum fine of $300. (§ 1202.4, subd. (d); People v. 

Avila (2009) 46 Cal.4th 680, 729 (Avila).) The statute provides 

that a defendant who is unable to pay more than the minimum 

fine must raise a challenge in the trial court: “A defendant shall 

bear the burden of demonstrating his or her inability to pay.” 

(§ 1202.4, subd. (d).) Thus, to preserve the issue on appeal,

defendant was required to object to the amount of the fine and 

demonstrate her inability to pay more than the $300 minimum. 

(See Avila, at p. 729.)

Dueñas is distinguishable because the court imposed the 

minimum restitution fine under section 1202.4, subdivision (b), 

and the defendant clearly advised the court of her inability to 

pay. (Dueñas, supra, 30 Cal.App.5th at pp. 1162, 1169.) Here, 

the trial court did not impose the minimum restitution fine, and 

defendant did not object to the fine and assessments or indicate 
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an inability to pay, as statutorily required, even after the trial 

court advised her of the right to an ability to pay hearing.

Defendant concedes her trial counsel failed to object to the 

fine and assessments, but argues there was no forfeiture because: 

(1) she presents a pure question of law based on undisputed facts 

that can be raised for the first time on appeal; and (2) it would 

have been futile to object before the trial court. We do not agree. 

By claiming indigence, defendant requests a factual 

determination of her inability to pay based on facts the People

dispute and which the record does not conclusively establish.

Further, an objection based on her inability to pay would not 

have been futile, especially in light of the court’s advisement and 

under governing law which clearly contemplates such an 

objection. (§ 1202.4, subd. (d); see also Avila, supra, 46 Cal.4th at 

p. 729.) Having failed to object in the trial court based on her 

inability to pay, defendant has forfeited this issue. (See People v. 

Scott (1994) 9 Cal.4th 331, 352―353.) 
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DISPOSITION

We vacate our previous decision, conditionally reverse the 

judgment, and remand the matter to the trial court for an 

eligibility determination under section 1001.36. “ ‘If the trial 

court finds that [defendant] suffers from a mental disorder, does 

not pose an unreasonable risk of danger to public safety, and 

otherwise meets the six statutory criteria (as nearly as possible 

given the postconviction procedural posture of this case), then the 

court may grant diversion. If [defendant] successfully completes 

diversion, then the court shall dismiss the charges. However, if 

the court determines that [defendant] does not meet the criteria 

under section 1001.36, or if [defendant] does not successfully 

complete diversion, then [her] conviction[ ] and sentence shall be 

reinstated.’ ” (Frahs, supra, 9 Cal.5th at p. 641.) 

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

DHANIDINA, J.