1

Filed 3/2/21; Certified for Publication 3/22/21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID HENRY CURRY,

Defendant and Appellant.

C090409

(Super. Ct. No. 17CF03707)

After a jury found him guilty of robbery, and before the trial court sentenced him 

to state prison for 40 years to life and imposed various costs, defendant David Henry 

Curry sought to file a motion for mental health diversion pursuant to Penal Code section 

1001.36.1 The trial court ruled the motion was untimely and did not consider it. On 

appeal, defendant contends: (1) the trial court erred by denying as untimely his request 

for mental health diversion; (2) if the diversion request was untimely, trial counsel 

1 Undesignated statutory references are to the Penal Code.
2

provided ineffective assistance; and (3) the trial court violated due process principles by 

imposing costs without determining defendant’s ability to pay.

We agree with defendant’s first contention and conditionally reverse the judgment 

with instructions for the trial court in considering defendant’s eligibility for mental health 

diversion. Our holding moots defendant’s second contention. Last, we disagree with 

defendant’s due process challenge to costs imposed.

I. BACKGROUND

On June 24, 2016, defendant entered a bank in Chico during business hours, tossed 

a note demanding money at a bank employee, and then pointed a firearm at her. 

Defendant left the bank with money the employee gave to him. 

Law enforcement officers were unable to identify defendant as the culprit of the 

Chico bank robbery until he committed another bank robbery in Tacoma, Washington in 

January 2017. 

In July 2017, a Butte County deputy district attorney filed a criminal complaint, 

charging defendant with second degree robbery and further alleging that defendant 

suffered two or more prior serious or violent felonies for purposes of sections 667 and 

1170.12, subdivision (b). 

On June 5, 2018, the trial court declared a doubt as to defendant’s competence and 

suspended criminal proceedings. 

On June 27, 2018, the statute at issue here (§ 1001.36) became effective, creating a 

pretrial diversion program for certain defendants with mental health disorders. (Stats. 

2018, ch. 34, § 24.)

A July 2018 psychological evaluation report concluded that defendant had the 

mental capacity to assist in his own defense. The “interview” section of the report noted 

that defendant “presented no symptoms of mental illness in the interview.” The 

“diagnosis” section of the report concluded that defendant suffered “mild symptoms of 

situation related anxiety and depression,” which “anxiety did not seem abnormal . . . 
3

given” defendant’s “custody issues” arising out of his belief that his wife illegally took 

his daughter out of the country. The same section noted that defendant’s “[p]ersonality 

was not assessed.” 

After reviewing the report, the trial court found defendant competent and 

reinstated criminal proceedings. 

Later, in July 2018, defendant obtained new counsel. 

In September 2018, the information was filed, containing the robbery charge and 

prior felony allegations. 

In March 2019, a jury found defendant guilty of the robbery, and the trial court 

later found true that defendant suffered three prior serious felony convictions alleged. 

Several months after the jury’s verdict, defendant indicated to his counsel that he 

wished to represent himself, and in June 2019, the trial court granted defendant’s motion 

to do so.2 

At a July 2019 hearing, the trial court denied several post-trial motions that 

defendant filed as a pro per (including a motion for a new trial) that are not germane to 

the issue before us. Also at the hearing, defendant told the trial court that he wanted to 

“file . . . other . . . motions,” including a motion for mental health diversion pursuant to 

section 1001.36. The trial court concluded: “That’s a pretrial motion, so you have to 

request that pretrial. You elected to go to a jury trial, so that’s . . . not timely.” 

Defendant replied that he raised the issue with his trial counsel “well in advance,” 

but “she never even investigated it, you know. My mental health at the time was brought 

up.”

The trial court wondered aloud whether the pretrial diversion law was in effect “at 

the beginning of [defendant’s] case,” and defendant replied that the law was effective in 

2 Pursuant to Faretta v. California (1975) 422 U.S. 806, 819 [45 L.Ed.2d 562].
4

June 2018, before he hired his last attorney. The trial court responded: “Okay. Well, 

I’m going to deny that. So th[e] . . . motion[] [is] not timely, so I’m not going to have 

you file [it].” 

A probation officer’s August 2019 presentencing report noted that defendant: (a) 

indicated that he was diagnosed with severe depressive disorder in “ ‘early 2000,’ ” and 

(b) “disclosed that his daughter was abducted by her mother . . . the day prior to” the 

Chico robbery. The report continued: “[Defendant] spoke of his heartbreak over his 

daughter being transported [out of the country], without his knowledge or permission, 

and not being in contact with her.” 

Attached to the report was a written statement and supporting documents that 

defendant submitted to the probation officer. Included in defendant’s submission was a 

copy of a letter from the Office of Children’s Issues at United States Department of State, 

referencing the “case that was opened on July 7, 2016, on behalf of [defendant’s] child.” 

At the August 2019 sentencing hearing, the trial court said: “I am very familiar 

with [defendant’s] . . . situation and what [he was] going through in relation to [his] 

daughter . . . . I can only imagine what a horrific situation that is.” 

Later at the hearing, defendant told the trial court that, when his daughter “was 

taken from [him],” he “had nervous breakdowns every single day and, at the time of th[e] 

crime, [he] lost touch with reality.” 

Ultimately, the trial court sentenced defendant to an indeterminate term of 25 

years to life for the robbery (pursuant to the three strikes law, section 667, subdivision

(e)(2)), consecutive to a determinate term of 15 years (five-year enhancements for each of 

the three prior serious felonies, pursuant to section 667, subdivision (a)).

Regarding costs, in addition to victim restitution, the trial court imposed a $300 

restitution fine (§ 1202.4), a suspended $300 parole revocation fine (§ 1202.45), a $40 

court operations fee (§ 1465.8), a $30 conviction assessment fee (Gov. Code, § 70373), 

and $39 in additional fines, fees, and assessments, for a total of $409. 
5

Defendant timely appealed. 

II. DISCUSSION

Defendant contends the trial court erred by denying as untimely his request for 

mental health diversion. Specifically, defendant argues diversion under section 1001.36 

is available “at any time prior to sentencing,” as “[n]othing in the plain language of 

section 1001.36 precludes” diversion before sentencing, and permitting a trial court to 

grant mental health diversion until sentencing is “fully consistent with the Legislature’s 

intent.” 

The People do not take a position on the timeliness of defendant’s request. They 

argue we need not decide the issue, because a “summary denial of [defendant’s] request 

was entirely appropriate on this record.” The People insist we must reject defendant’s 

claim because he “failed to meet his burden to show an error that resulted in a 

miscarriage of justice on this record.” 

Because we conclude section 1001.36 contemplates mental health diversion until 

entry of the judgment of conviction, we conclude the trial court erred by refusing to 

consider defendant’s request for diversion. Further, we conclude that because the record 

affirmatively discloses that defendant appears to suffer from a qualifying mental disorder,

a conditional limited remand is appropriate.

A. “Until Adjudication” Means Until the Judgment of Conviction

In construing a statute, our goal is to ascertain the Legislature’s intent in order to 

effectuate the purpose of the law. First, we examine the language of the statute, giving 

the words their usual, ordinary meaning. If the language is clear and unambiguous, we 

follow the plain meaning of the measure. (People v. Canty (2004) 32 Cal.4th 1266, 

1276.)

But if an examination of the plain meaning of the statutory language “fail[s] to 

resolve the dispute, we next consider the context in which the[] words appear, attempting 
6

to harmonize the words of the statute within the overall statutory scheme.” (People v. 

Valladoli (1996) 13 Cal.4th 590, 599 (Valladoli).)

“Section 1001.36 authorizes a pretrial diversion program for defendants with 

qualifying mental disorders. The statute 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. (c).) 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).)

“As originally enacted, section 1001.36 provided that a trial court may grant 

pretrial diversion if it finds all of the following: (1) the defendant suffers from a 

qualifying mental disorder; (2) the disorder played a significant role in the commission of 

the charged offense; (3) the defendant’s symptoms will respond to mental health 

treatment; (4) the defendant consents to diversion and waives his or her speedy trial right; 

(5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an 

unreasonable risk of danger to public safety if treated in the community. (Former 

§ 1001.36, subd. (b)(1)-(6).) Section 1001.36 was subsequently amended by Senate Bill 

No. 215 (2017-2018 Reg. Sess.) (Senate Bill 215) to specify that defendants charged with 

certain crimes, such as murder and rape, are ineligible for diversion. (§ 1001.36, subd. 

(b)(2), as amended by Stats. 2018, ch. 1005, § 1.)

“If the defendant makes a prima facie showing that he or she meets all of the 

threshold eligibility requirements and the defendant and the offense are suitable for 
7

diversion, and the trial court is satisfied that the recommended program of mental health 

treatment will meet the specialized mental health treatment needs of the defendant, then 

the court may grant pretrial diversion. (§ 1001.36, subds. (a), (b)(3) & (c)(1).)” (People 

v. Frahs (2020) 9 Cal.5th 618, 626-627 (Frahs), italics added.)

In Frahs, our Supreme Court ruled that the “inference of retroactivity” articulated 

in In re Estrada (1965) 63 Cal.2d 740 (Estrada) applies to the mental health diversion 

program, such that a defendant whose case is not yet final on appeal is “entitled to a 

limited remand for the trial court to decide whether he should receive diversion under 

section 1001.36,” (Frahs, supra, 9 Cal.5th at pp. 624, 625) “when . . . 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 (§ 1001.36, subd. (b)(1)(A))” (id. at p. 640).

While the procedural posture of this case is different, our high court’s discussion 

of the mental health diversion statute is pertinent. (See People v. Rios (2013) 

222 Cal.App.4th 542, 563 [“Supreme Court dicta generally should be followed, 

particularly where the comments reflect the court’s considered reasoning”].)

Explaining why it found unpersuasive the People’s argument that the definition of 

“pretrial diversion” in section 1001.36, subdivision (c) “dispell[ed] Estrada’s inference of 

retroactivity,” (Frahs, supra, 9 Cal.5th at p. 632) the Frahs court said: “The People . . . 

maintain that the phrase ‘until adjudication’ expressly limits retroactive application of the 

statute to defendants whose cases had not yet been, in the People’s words, ‘resolved by a 

trier of fact.’ [¶] We are not persuaded. Like the Court of Appeal, we view the 

definition of ‘pretrial diversion’ as simply reflecting the Legislature’s intent regarding 

how the statute will generally operate when a case comes before the trial court after 

section 1001.36’s enactment. In the ordinary course of procedure, a trial court 

determines whether a defendant is eligible for pretrial diversion before judgment is 

entered, and the defendant cannot be heard to seek such diversion afterward. Broadly 
8

consistent with this common feature of pretrial diversion, the statute before us provides 

that diversion is available ‘until adjudication’ (§ 1001.36, subd. (c)), which the People 

construe as until the charge or charges against a defendant are resolved. But that 

expectation regarding how the statute normally will apply going forward is quite different 

from the specific retroactivity question presented here, to which the Estrada inference 

applies.” (Id. at pp. 632-633, italics added, fn. omitted.)

In a footnote that appears in the midst of the text quoted above, the court said: 

“[W]e have no occasion here to precisely define ‘until adjudication,’ as used in section 

1001.36, subdivision (c), and our analysis should not be read as tacitly adopting the 

People’s interpretation of this language.” (Frahs, supra, 9 Cal.5th at p. 633, fn. 3.)

Later in the opinion, when rejecting the People’s arguments that (a) the word 

“pretrial” in the phrase “pretrial diversion” and (b) the “eligibility factor requiring a 

defendant to waive his or her right to a speedy trial” together “ma[de] clear that the 

Legislature did not intend for diversion to be available to defendants whose trials had 

concluded,” our high court said, “this language simply explains how the mental health 

diversion program will ordinarily function: In the normal course of operations, a trial 

court would determine before trial whether a defendant is eligible for pretrial diversion.” 

(Frahs, supra, 9 Cal.5th at p. 633.)

And later still, when rejecting the People’s argument that retroactive application of 

the mental health diversion statute “would risk potentially ‘undermining the legitimacy’

of a jury’s verdict,” because “defendants suffering from mental illness will frequently 

pursue a mental health defense, which a jury must necessarily reject by reaching a guilty 

verdict,” the Frahs court observed that “[t]he Legislature could well have intended to 

allow judges to decide under the statute whether a defendant’s mental disorder was a 

‘significant factor in the commission of the charged offense’ [citation] even after a 

verdict in which a mental health defense had been presented but rejected by the trier of 

fact.” (Frahs, supra, 9 Cal.5th at p. 636, italics added.)
9

Given the above, while 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,” we think the weight of 

considered reasoning in the case suggests that the phrase “until adjudication” should be 

interpreted to mean “until the judgment of conviction”—which does not occur until 

sentencing. (See People v. McKenzie (2020) 9 Cal.5th 40, 46 [“In criminal actions, the 

terms ‘judgment’ and ‘ “sentence” ’ are generally considered ‘synonymous’ [citation], 

and there is no ‘judgment of conviction’ without a sentence”].)

But even though the balance of dicta in Frahs might favor such a conclusion, we 

cannot say that the plain meaning of “until adjudication” is clear and unambiguous. (See 

People v. Weaver (2019) 36 Cal.App.5th 1103, 1120 [“ ‘adjudication’ is a ‘shorthand for 

the adjudication of guilt or acquittal’ [citation] and ‘[a]t most . . . could be synonymous 

with the rendition or pronouncement of judgment, which occurs at the time of 

sentencing’ ”].)

Accordingly, we consider the context in which the words appear, to harmonize the 

words of the statute within the overall statutory scheme.

Frahs is helpful on this question too, as our Supreme Court said the appellate 

court (whose decision was on review) “reasonably regarded the statement of legislative 

purpose found in section 1001.35, subdivision (a) as bolstering the conclusion ‘that the 

Legislature intended the mental health diversion program to apply as broadly as 

possible.’ ”3 (Frahs, supra, 9 Cal.5th at p. 632, italics added.)

3 In full, section 1001.35, provides: “The purpose of this chapter 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.”
10

A legislative intent that the mental health diversion program apply as broadly as 

possible leads to the conclusion we should interpret the phrase “until adjudication” to 

mean “until the judgment of conviction” (of which sentencing is a necessary component)

rather than “until adjudication of guilt,” as the former interpretation potentially includes 

more cases.

Such a conclusion would be consistent with the notion—woven throughout section 

1001.36—that the trial court, being in the best position to decide the matter, has broad 

discretion to determine whether a given defendant is a good candidate for mental health 

diversion.

One eligibility requirement a defendant must meet—that his mental disorder was a 

“significant factor in the commission of the charged offense”—contemplates a trial 

court’s “review[] [of] any relevant and credible evidence, including, but not limited to,

police reports, preliminary hearing transcripts, witness statements . . . or evidence that the 

defendant displayed symptoms consistent with the relevant mental disorder at or near the 

time of the offense.” (§ 1001.36, subd. (b)(1)(B).)

Another eligibility requirement—that the trial court be “satisfied that the 

defendant will not pose an unreasonable risk of danger to public safety, as defined in 

[s]ection 1170.18, if treated in the community”—permits a trial court to “consider the 

opinions of the district attorney, the defense, or a qualified mental health expert, and . . . 

the defendant’s violence and criminal history, the current charged offense, and any other 

factors that the court deems appropriate.” (§ 1001.36, subd. (b)(1)(F).)

Another part of the statute says a trial court “may require the defendant to make a 

prima facie showing” of eligibility for diversion and suitability for diversion “[a]t any 

stage of the proceedings.” (§ 1001.36, subd. (b)(3).) “If a prima facie showing is not 

made, the court may summarily deny the request for diversion or grant any other relief as 

may be deemed appropriate.” (Ibid.)
11

These provisions of the statute create an overall statutory scheme that empowers 

the trial court’s with broad discretion regarding when to decide if a given defendant is 

eligible and suitable for diversion, what evidence is relevant to the decision, and which 

factors are appropriate (in deciding whether defendant will pose an unreasonable risk of 

danger to the public if treated in the community).

Our conclusion—simply that a defendant may ask the trial court for mental health 

diversion until sentencing and entry of judgment—harmonizes with that overall statutory 

scheme.4 (See Valladoli, supra, 13 Cal.4th at p. 599.)

4 Recognizing that one implication of our ruling is that, in theory, a defendant might be 

tempted to utilize tactics that would implicate “gamesmanship” concerns and frustrate the 

People’s due process rights (People v. Ault (2004) 33 Cal.4th 1250, 1269), we observe 

that the combination of (a) the likelihood that, in the typical case, the trial court that 

presides over the trial will be the same trial court to consider the post-trial request for 

mental health diversion, and (b) the trial court’s broad discretion, should deter such 

questionable defense tactics. (See Valladoli, supra, 13 Cal.4th at pp. 594, 607 [“Section 

969a expressly gives discretion to our trial judges to permit or deny the amendment” of a 

charging document to include prior felony conviction enhancement allegations after a 

jury verdict on the substantive crimes but before the jury is discharged, “and we rely in 

such matters on the prudent exercise of that discretion to ensure the due process rights of 

criminal defendants are adequately protected,” which consideration includes trial court 

“scrutin[y]” of “the reason for the late amendment,” and “whether the prosecution’s 

initial failure to allege the prior convictions affected the defendant’s decisions during plea 

bargaining, if any”]; cf. Packer v. Superior Court (2014) 60 Cal.4th 695, 714 [“[w]e have 

no doubt that a trial court would have discretion to deny a motion to recuse a district 

attorney that was proffered on behalf of a criminal defendant whose counsel engaged in 

improper gamesmanship,” but because defense counsel “maintained that there were 

legitimate reasons” for his tactics, an evidentiary hearing was needed]; People v. Fudge

(1994) 7 Cal.4th 1075, 1105-1107 [ruling the trial court’s denial of a midtrial continuance 

was not an abuse of discretion where the trial court perceived subtle actions by defense 

counsel as delay tactics, which the trial court labeled “gamesmanship”].)
12

Given our construction of section 1001.36, subdivision (c), the trial court erred by 

refusing to consider—as untimely—defendant’s mental health diversion request, made 

after trial but before sentencing.5

B. The Remedy

“The California Constitution prohibits a court from setting aside a judgment unless 

the error has resulted in a ‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.) We have 

interpreted that language as permitting reversal only if the reviewing court finds it 

reasonably probable the result would have been more favorable to the appealing party but 

for the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)” (In re Celine R. (2003) 

31 Cal.4th 45, 59-60.)

The People v. Watson harmless error analysis “is by definition a case-by-case 

analysis. Particularized analysis is critical.” (In re J.P. (2017) 15 Cal.App.5th 789, 799.)

In Frahs, the court ruled “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 (§ 1001.36, subd. (b)(1)(A)).” (Frahs, supra, 9 Cal.5th at 

p. 640.) In reaching that conclusion, our Supreme Court rejected the People’s argument 

“that a defendant must demonstrate that he or she satisfies all six threshold eligibility 

requirements before an appellate court may remand the case to the trial court for a 

diversion eligibility hearing,” noting the likely difficulty of analyzing a record on appeal 

that does not “include information pertaining to several eligibility factors.” (Id. at 

pp. 637-638.)

5 This conclusion moots defendant’s claim of ineffective assistance of counsel in failing 

to request mental health diversion, which we will not discuss further.
13

Here, though no hearing was held regarding defendant’s possible eligibility for 

mental health diversion, the psychologist who evaluated defendant’s competency for trial 

diagnosed “mild symptoms” of “anxiety and depression,” and did not conduct a 

personality assessment; defendant told the probation officer who prepared the 

presentencing report that he had been diagnosed with “severe depressive disorder”; and at 

the sentencing hearing, before he was sentenced, defendant told the trial court that, 

around the time of the bank robbery, he “had nervous breakdowns” and “lost touch with 

reality.” This record affirmatively discloses that defendant appears to suffer from one or 

more qualifying mental disorders (depressive disorder).6

Though Frahs had a different procedural posture, we think apt the opinion’s 

considered analysis of the difficulty of analyzing an appellate record where no diversion 

eligibility hearing was held. Accordingly, we will not adjudicate in the first instance the 

parties’ competing claims regarding defendant’s eligibility for mental health diversion. 

We will conditionally reverse the judgment with directions for the trial court to 

consider defendant’s eligibility for mental health diversion under section 1001.36. 

Consistent with the procedure outlined in Frahs, supra, 9 Cal.5th at pp. 640-641, we 

provide the following instructions for the trial court in considering defendant’s eligibility 

for diversion under section 1001.36: If the trial court finds that defendant meets the six 

statutory criteria, then the court may grant diversion. If defendant successfully completes 

diversion, then the court shall dismiss the charges. But, if the trial court determines that 

6 See People v. Sheek (2004) 122 Cal.App.4th 1606, 1608-1611 (discussing a parolee’s 

diagnosis of depressive disorder in considering a dispute whether the Board of Prison 

Terms correctly concluded the parolee had to be committed for treatment as a condition 

of parole under the Mentally Disordered Offender Act).

 Section 1001.36, subdivision (b)(1)(A) explicitly excludes several mental disorders, but 

not depressive disorder, from eligibility for mental health diversion consideration.
14

defendant does not meet the criteria under section 1001.36, or if defendant does not 

successfully complete diversion, then his conviction and sentence shall be reinstated.

C. Costs Imposed

Defendant contends the trial court’s imposition of costs without first determining 

his ability to pay violated due process principles, as articulated in People v. Dueñas

(2019) 30 Cal.App.5th 1157 (Dueñas). Anticipating the People’s argument that he 

forfeited this claim by failing to raise it before the trial court, defendant insists the issue is 

not forfeited, because: his claim implicates “fundamental rights”; the imposition of costs 

via a due process violation “amounted to an unauthorized sentence”; and “the 

fundamental constitutional rights at issue here are not subject to traditional forfeiture 

doctrines.” 

In addition to their argument defendant forfeited this claim by failing to raise it in 

the trial court, the People argue we should affirm the imposition of costs. 

Because the forfeiture question and the merits of the issue rise or fall together, we 

conclude defendant’s claim is both forfeited on appeal and lacks merit. (People v. 

Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 465-466 [concluding an appellate 

claim was forfeited, and “[e]ven if not forfeited, the claim fails”].)

Defendant’s due process claim—and by implication, his argument that the claim is 

not forfeited7—hinges on the analysis in Dueñas, finding an ability to pay hearing is 

required before imposing fines and fees, and we are not persuaded that this analysis is 

correct. Our Supreme Court is now poised to resolve this question, having granted 

review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, 

S257844, which agreed with the court’s conclusion in Dueñas that due process requires 

7 Because defendant’s August 2019 sentencing hearing occurred seven months after 

Dueñas was published, under general principles law, defendant has forfeited the issue on 

appeal. (See People v. Scott (1994) 9 Cal.4th 331, 351.)
15

the trial court to conduct an ability to pay hearing and ascertain a defendant’s ability to 

pay before it imposes court facilities and court operations assessments under section 

1465.8 and Government Code section 70373, but not restitution fines under section 

1202.4. (Kopp, supra, at pp. 95-96.)

In the meantime, we join several other courts in concluding that the principles of 

due process do not require determination of a defendant’s present ability to pay before 

imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. 

Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 

272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, rev. granted Nov. 26, 2019, 

S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 

39 Cal.App.5th 917, 928.)

Thus, defendant’s due process claim pursuant to Dueñas lacks merit. And, 

because the due process claim lacks merit, defendant’s arguments why the claim is not 

forfeited also lack merit.
16

III. DISPOSITION

The imposition of costs is affirmed, but the judgment is conditionally reversed. 

The matter is remanded to the trial court with directions (outlined above) to hold a 

diversion eligibility hearing under section 1001.36. We express no view whether 

defendant will be able to show eligibility on remand or whether the trial court should 

exercise its discretion to grant diversion if it finds him eligible.

/S/

 

RENNER, J.

We concur:

/S/

 

HULL, Acting P. J.

/S/

 

DUARTE, J.
1

Filed 3/22/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID HENRY CURRY,

Defendant and Appellant.

C090409

(Super. Ct. No. 17CF03707)

ORDER CERTIFYING 

OPINION FOR 

PUBLICATION

APPEAL from a judgment of the Superior Court of Butte County, Kimberly 

Merrifield, Judge. Affirmed in part and reversed in part with instructions.

The Law Offices of Aaron J. Schechter and Aaron J. Schechter, under 

appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, Melissa 

Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
2

THE COURT:

The opinion in the above-entitled matter filed March 2, 2021, was not certified for 

publication in the Official Reports. For good cause it appears now that the opinion 

should be published in the Official Reports and it is so ordered. 

FOR THE COURT:

 

/S/

_________________________

HULL, Acting P. J.

/S/

________________________

DUARTE, J.

/S/

 

RENNER, J.