In re M.S.

Filed 4/3/19 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re M.S., a Person Coming Under 2d Juv. No. B280998
the Juvenile Court Law. (Super. Ct. No. 1435502)
(Santa Barbara County)

ORDER MODIFYING OPINION
THE PEOPLE, AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Plaintiff and Respondent,

v.

M.S.,

Defendant and Appellant.

THE COURT*:
It is ordered that the opinion filed herein on March 11, 2019, be
modified as follows:
1. On page 15, lines 1-2, the first sentence is changed to read:
Here the reenactment occurred at M.S.’s apartment with
the knowledge and presence of her parents who were
outside the apartment.
There is no change in judgment.
Appellant’s petition for rehearing is denied.

* Gilbert, P.J., Yegan, J., Tangeman, J.

1
Filed 3/11/19 (unmodified version)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re M.S., a Person Coming Under 2d Juv. No. B280998
the Juvenile Court Law. (Super. Ct. No. 1435502)
(Santa Barbara County)

THE PEOPLE,

Plaintiff and Respondent,

v.

M.S.,

Defendant and Appellant.

M.S. appeals an order of the juvenile court sustaining the
allegations of a Welfare and Institutions Code section 602
petition and declaring her a ward of the court. Among other
conclusions, we decide that sufficient evidence exists that M.S.
committed second degree murder. (Pen. Code, §§ 187, subd. (a),
189, 12022, subd. (b)(1) [personal use of deadly weapon (knife)].)1

All statutory references are to the Penal Code unless
1

stated otherwise.

1
 Is M.S. eligible to be considered for referral to a mental
health diversion program pursuant to the newly enacted sections
1001.35 and 1001.36? No. The new mental health diversion law
does not apply to juveniles. Even if it did, M.S.’s crime, murder,
is excluded. We affirm.
This appeal concerns the tragic death of Baby Boy A.
following his home birth to then 15-year-old M.S. Frightened
that her parents would learn that she had been pregnant and
given birth, M.S. inflicted fatal cuts on A.’s throat, severing his
carotid artery and trachea. M.S. thereafter placed his body in a
plastic bag and concealed the bag in the bathroom vanity.
During police questionings, M.S. initially asserted that the infant
was born stillborn but then stated that she accidentally wounded
him when she cut the umbilical cord. When confronted with the
medical examiner’s findings, however, M.S. finally admitted that
she used a kitchen knife to cut the infant’s throat. On appeal,
M.S. challenges the juvenile court’s finding of malice, as well as
the court’s Fourth and Fifth Amendment evidentiary rulings,
among other issues.
FACTUAL AND PROCEDURAL HISTORY
In the morning of January 17, 2016, 15-year-old M.S., her
parents, and her siblings appeared at the Marian Medical Center
in Santa Maria. M.S. complained of abdominal pain and vaginal
bleeding. An examination by physician’s assistant Ashley
Bridges revealed an umbilical cord protruding from M.S.’s
vagina. M.S. complained that she had been suffering pain and
bleeding since the early morning. When she sat on the toilet, she
felt the urge “to push.” As she did, she felt “a ripping sensation”
and a baby emerged. M.S. stated that the baby was not
breathing and had no heartbeat.

2
 At Bridges’s request, M.S. held a private conversation with
her (M.S.’s) mother. M.S.’s father then returned to the family’s
apartment to retrieve the baby’s body. He returned to the
hospital shortly thereafter with the trash bag from the apartment
bathroom. Hospital personnel examined the contents of the trash
bag but did not find the infant’s body.
M.S. informed Bridges that her brother had taken the
plastic bag containing the infant’s body and disposed of it. In the
presence of his mother, Bridges spoke with M.S.’s brother. He
stated that while M.S. was in the bathroom, she asked him to
retrieve scissors and a bag. He could not locate scissors, however,
and therefore brought her a kitchen knife and a bag. He denied
disposing of the bag thereafter.
Bridges then spoke with M.S. again and asked her
purposes for scissors or a knife. M.S. responded that she used the
knife to cut her clothing. Bridges asked M.S. if she used the knife
to cut the umbilical cord. M.S. denied using the knife for that
purpose and explained that she pulled the cord to detach it.
Bridges continued to question M.S. to determine the whereabouts
of the infant’s body. M.S. replied that she may or may not have
seen the body and may have flushed it in the toilet. M.S. also
denied knowing that she was pregnant. Hospital personnel
summoned police officers.
That afternoon, Santa Maria Police Detectives Andrew
Brice and Michael McGehee were informed that a woman had
given birth and that the infant was missing or dead. After
speaking to the hospital nursing staff, the officers visited M.S.’s
hospital room, the door to which was open. The detectives spoke
with M.S. in a recorded interview; they had “open mind[s]” and
were considering “all possibilities,” including “a medical event.”

3
The detectives wore business suits and, at the time of the
interview, a nurse was present. During the interview, M.S.
recounted “four different versions” of the birth, before stating
that the infant’s body was in a plastic bag in the bathroom
vanity. M.S. stated that the infant was stillborn and she may
have accidentally inflicted injuries on him while cutting the
umbilical cord. The officers requested permission to search the
family’s apartment and M.S. consented.
Criminalist technician Crystal Krausse arrived at the
hospital to take photographs of M.S., including photographs of
her abdomen that revealed two discolored areas. M.S. did not
object to the photographs and cooperated in moving her clothing
aside. The photographs were taken as M.S. lay in bed and she
was not requested to disrobe.
Meanwhile, other Santa Maria police officers had visited
the apartment to see if the infant was alive and, if so, to render
aid. M.S.’s father gave the officers permission to enter the
apartment and signed a consent-to-search form. When an officer
thought he saw the body of a baby inside a clear trash bag in the
bathroom, he “clos[ed] down the scene” to seek a search warrant.
When Detective Brice arrived at the apartment later, he
confirmed with M.S.’s father that he consented to a search of his
apartment. This conversation was recorded.
Lydia Magdaleno, a criminalist technician for the Santa
Maria Crime Lab, visited the apartment in the early evening to
take photographs. She discovered a plastic bag containing bloody
tissues in the bathroom. On a maroon-colored trash can in the
bathroom, Magdaleno saw blood drops and dribbles. She looked
inside the bathroom vanity, behind shoes that were stored there.
She found a plastic bag that appeared to contain an infant’s body.

4
Magdaleno removed the bag, partially opened it to inspect its
contents, and reported her findings to officers.
Meanwhile, Brice returned to the hospital to request
consent from M.S. to search a cellular telephone that he found in
the family’s apartment. M.S. agreed to a search of the telephone
as well as her school laptop computer. She signed a consent-to-
search form after Brice reviewed the form with her. M.S. then
provided her telephone’s password to Brice.
Santa Barbara Sheriff’s Deputy Chad Biedlinger was
dispatched by the coroner’s office to the apartment. He removed
the plastic bag containing the infant’s body and placed it on a
body bag on the bed. Biedlinger briefly examined and took
photographs of the infant’s body. He then placed the body inside
the body bag and took it to the coroner’s office.
Detective McGehee later found a straight-edged broccoli
knife among articles of clothing in the bathroom. Bloodstains
were on the knife handle and blade. A search of the apartment
pursuant to a search warrant revealed luminol-activated blood
drops on the walls and floor of the bathroom.
On January 19, 2016, Doctor Manuel Montez, the Santa
Barbara County forensic pathologist, performed an autopsy on
the infant. Montez estimated that the infant was 34 or 35 weeks
old and viable at the time of his death. The infant had a seven
centimeter cut across his neck that extended four millimeters
into his spine, severing his carotid artery and trachea and
depleting his blood volume. Montez also opined that the infant
had “hesitation marks” across his torso. He concluded that the
fatal neck wound may have been caused by two or three strikes.
Based upon the hemorrhage at the site of injury and the infant’s
aerated lungs, Montez opined that the infant was alive at the

5
time he was fatally wounded. When shown a photograph of the
knife recovered in the bathroom, Montez opined that the infant’s
mortal injuries could have been caused by that knife. Montez
also observed that the umbilical cord had been cleanly cut. Given
the nature of the wound, Montez opined that the crime scene
would have been bloody, possibly with a spray or mist of blood in
the room.
January 20, 2016, Recorded Video Reenactment
At the time police officers served a search warrant for a
search of the family’s apartment, they requested that M.S.
reenact the occurrences that led to the infant’s death. The
request was made in the presence of M.S.’s parents. McGehee
informed M.S. that she was “not in any trouble right now,” was
“free to leave,” and did not have to participate. M.S. agreed to
participate and used a toy doll to reenact the birth. During the
reenactment, she stated that the baby was born stillborn and
“wasn’t moving at all.” M.S. explained that she used a sawing
motion to cut the umbilical cord with a kitchen knife that her
brother provided.
January 27, 2016, Police Interview
On January 27, 2016, McGehee and Brice interviewed M.S.
in a video-recorded interview. At the inception of the interview,
McGehee informed M.S. of her rights pursuant to Miranda v.
Arizona (1966) 384 U.S. 436. M.S.’s parents were present in a
waiting room during the interview. Although her parents were
not fluent in the English language, M.S., a high school student,
spoke English and answered the detectives’ questions.
Initially, M.S. claimed that the baby was born stillborn (“he
hit his head” during birth) and that she used the knife to cut the
umbilical cord. She also admitted that she knew that she was

6
pregnant. With continued questioning, M.S. stated that she felt
the baby’s heartbeat, saw him breathing, but accidentally cut
him. Finally, confronted with the medical examiner’s findings,
M.S. admitted that she cut the baby’s throat but did not intend to
kill him.
January 27, 2016, Psychologist Interview
Immediately following the interview, Doctor James
Tahmisian conducted a mental status interview of M.S. to
determine if she was psychotic. During the interview, he asked
M.S. if she believed the baby might return to life after his
injuries. She replied affirmatively, but then stated that she
wanted the baby to return to life because she regretted her
actions. Tahmisian concluded that M.S. did not display any
psychotic thought processes; she responded to his questions
although she was tearful and obviously upset.
Other Evidence
M.S.’s boyfriend testified that he and M.S. were sexually
active for several years without the use of birth control. On an
earlier occasion, he asked M.S. if she thought she was pregnant.
She replied that she did not think so. In 2015, M.S. discussed
with her friends whether she was pregnant then, but she was
not. In 2015, a friend accompanied M.S. to purchase a pregnancy
test. The test result was negative. M.S. also visited Planned
Parenthood for a pregnancy test, but was unsuccessful in
obtaining a test. She was not pregnant then either.
Several months prior to giving birth, M.S. texted her
boyfriend and informed him that he would become “a baby daddy”
and that she had breast milk. DNA testing of the infant’s body
confirmed that M.S.’s boyfriend was the biological father.

7
 Data downloaded from M.S.’s cellular telephone reflected
Internet searches on possible ways to cause a miscarriage and
the treatment of abdominal pain during pregnancy. Some data
had been sent to M.S.’s telephone from the cellular telephone of
M.S.’s boyfriend.
M.S. presented expert witness testimony that she suffered
from pervasive pregnancy denial, a dissociative disorder, and was
in a dissociative state when she gave birth. She presented
evidence that neither her parents, her friends, nor an examining
physician (on an unrelated matter) knew that she was pregnant.
M.S. also provided evidence that she suffered from childhood
sexual abuse, sometime command hallucinations, and a history of
cutting herself, among other psychological problems.
Jurisdiction Order and Appeal
Following a lengthy and contested jurisdictional hearing,
the juvenile court found that M.S. committed second degree
murder and that she personally used a knife during the offense.
In its written ruling, the court stated that M.S. harbored express
malice but that the prosecutor failed to prove beyond a
reasonable doubt that M.S. acted with the requisite deliberation
necessary for first degree murder. The court also stated that it
considered but rejected the defense argument as unconvincing
that M.S. lacked the required mental state for murder.
Following a contested disposition hearing, the juvenile
court declared M.S. a ward of the court and ordered her
placement at Casa Pacifica.
M.S. appeals and contends that 1) insufficient evidence of
malice supports the jurisdiction finding; 2) police officers violated
her Fourth and Fifth Amendment rights by speaking with her in
the hospital and obtaining consent to search her cellular

8
telephone; 3) police officers violated her Fifth Amendment rights
by not advising her pursuant to Miranda prior to the video
reenactment; 4) her waiver of Miranda rights was not voluntary;
and 5) her statements to Tahmisian were not voluntary. By
supplemental briefing, M.S. asserts that we must reverse her
conviction and remand the matter for consideration of the mental
health diversion program of newly enacted section 1001.36.
(People v. Frahs (2018) 27 Cal.App.5th 784, 791, review granted
Dec. 27, 2018, S252220.) We requested and received
supplemental briefing regarding application of the mental health
diversion program to juvenile delinquency proceedings and to
M.S. specifically.
DISCUSSION
I.
M.S. argues that there is insufficient evidence that she
possessed the express intent to kill to support the malice element
of second degree murder. Preferring a finding of involuntary
manslaughter, she asserts that she accidentally cut the infant’s
neck when she cut the umbilical cord. M.S. contends that the
evidence obtained from her cellular telephone and the
interrogations was obtained in violation of her Fourth and Fifth
Amendment rights and therefore must be disregarded.
In reviewing the sufficiency of evidence to support a
conviction, we examine the entire record and draw all reasonable
inferences therefrom in favor of the judgment to determine
whether there is reasonable and credible evidence from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57; People
v. Johnson (2015) 60 Cal.4th 966, 988.) Our review is the same
in a prosecution primarily resting upon circumstantial evidence

9
or in reviews of juvenile justice proceedings. (Johnson, at p. 988;
In re V.V. (2011) 51 Cal.4th 1020, 1026.) We do not redetermine
the weight of the evidence or the credibility of witnesses. (People
v. Albillar (2010) 51 Cal.4th 47, 60; People v. Young (2005) 34
Cal.4th 1149, 1181 [“Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact”].) We
must accept logical inferences that the trier of fact might have
drawn from the evidence although we would have concluded
otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241.) “If the
circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a
contrary finding.” (Albillar, at p. 60.) Moreover, the testimony of
a single witness is sufficient to prove a fact. (People v.
Richardson (2008) 43 Cal.4th 959, 1030-1031.)
Second degree murder is an unlawful killing of a human
being with malice aforethought. (§§ 187, subd. (a), 188; People v.
Chiu (2014) 59 Cal.4th 155, 166.) Express malice is an intent to
unlawfully kill. (People v. Smith (2005) 37 Cal.4th 733, 739
[express malice requires evidence that the actor either desired
that death result or knew to a substantial certainty that death
would occur].) Evidence of intent to kill may be satisfied by proof
of a single stab wound that penetrates a vital organ. (People v.
Bolden (2002) 29 Cal.4th 515, 561.) “In plunging the knife so
deeply into such a vital area of the body of an apparently
unsuspecting and defenseless victim, defendant could have had
no other intent than to kill.” (Ibid. [stab wound five inches long
and five inches deep].)
Sufficient evidence exists apart from any of M.S.’s
admissions that she intended to kill her infant. The autopsy

10
findings indicated that the infant died from a sharp wound to his
neck that severed his carotid artery and trachea and extended
into his spine, exposing the spinal cord. The wound was seven
centimeters long, from side to side. The nature of the wound’s
edges suggested that there had been two or three strikes, if not
more. Also, the umbilical cord had a clean cut and the cord was
not stretched or torn. The medical examiner concluded that the
infant was alive when his throat was slashed and that blood
likely sprayed the surrounding area in the bathroom. Blood
droplets in the bathroom were seen and confirmed by luminol
testing. The examiner concluded that the cause of death was
homicide.
Moreover, the false statements that M.S. gave to hospital
personnel allow an inference of her consciousness of guilt. M.S.
at times stated that her baby had been born stillborn, that she
may have flushed it in the toilet, and that she detached the
umbilical cord by pulling it. The juvenile court properly
considered her various and inconsistent explanations to
determine guilt. (1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay,
§ 111, p. 938.)
II.
M.S. argues that the police officers violated her Fourth and
Fifth Amendment rights by speaking to her in her hospital room,
obtaining her consent to search her cellular telephone, and
photographing parts of her body. She asserts that she had a
reasonable expectation of privacy in her hospital room and thus a
search warrant was required to enter the room, question her,
obtain her consent to search her telephone, and intrusively
photograph her.

11
 M.S. has forfeited her Fifth Amendment argument because
she did not raise it in the trial court. Her suppression motion
regarding the hospital interviews and consent to search her
telephone rested on Fourth Amendment grounds only, not the
Fifth Amendment. (People v. Linton (2013) 56 Cal.4th 1146, 1170
[failure to raise Miranda argument in trial court deprives court of
opportunity to resolve factual disputes].) Whether M.S. was then
in custody, among other issues, was not litigated and the juvenile
court made no factual finding on this issue.
Moreover, the officers’ entry into M.S.’s hospital room did
not violate her reasonable expectation of privacy. (People v.
Brown (1979) 88 Cal.App.3d 283, 290-292.) Detectives Brice and
McGehee were dressed in plain clothes, the hospital room door
was open, a nurse was present at some point, and the detectives
knocked and announced their presence. Under the
circumstances, the hospital room was within the joint dominion
of the hospital and M.S. (Id. at p. 291.) “[N]o Fourth
Amendment violation occurs when a nurse permits an officer to
enter a sentient patient’s hospital room for purposes unrelated to
a search, [and] the patient does not object to the visit.” (Id. at
p. 292.) At the time the officers entered M.S.’s hospital room,
they were attempting to determine whether “a medical event”
[still birth] or a crime had occurred. M.S. also did not object to
the officers’ presence.
In addition, it was objectively reasonable for Brice “to
believe that the person giving consent [for the telephone search]
had authority to do so, and to believe that the scope of the
consent given encompassed the item searched.” (People v.
Jenkins (2000) 22 Cal.4th 900, 974.) Regarding this issue, we
defer to the juvenile court’s express and implied findings of fact

12
that are supported by substantial evidence. (Id. at p. 973.) Brice
returned to the hospital after the infant’s body was found, asked
M.S. for permission to search her telephone, and read and
reviewed a consent-to-search form with her. The form broadly
permitted any investigation of M.S.’s telephone that could result
in potential evidence, and informed M.S. that she could refuse
consent. M.S. signed the consent form and provided Brice her
passcode for the telephone. The juvenile court concluded that
M.S.’s consent was freely and voluntarily given, impliedly
considering her obvious chronological age and medical condition.
Sufficient evidence supports the express finding of consent.
We need not discuss whether the photographs taken of
M.S.’s stomach and groin required the issuance of a search
warrant. The photographs taken from a cooperative M.S.
established nothing of significance to the prosecution; that she
had recently given birth was not contested and was established
by overwhelming evidence. Assuming it was error to admit
evidence of the photographs, any error was harmless beyond a
reasonable doubt and could not have contributed to the
jurisdiction finding.
III.
M.S. asserts that she was in custody when she participated
in the video reenactment of the birth and that the officers’ failure
to administer Miranda rights violated her Fifth Amendment
rights.
When officers searched the family’s apartment pursuant to
a search warrant, they served M.S.’s parents with the search
warrant and advised that they would like to speak with M.S.
Detective McGehee asked M.S. to demonstrate in a video-
recording what occurred with her infant. He informed her that

13
she was “not in any trouble,” “free to leave,” and did not “have to
do this.” M.S.’s mother, through an interpreter, stated that M.S.
does want to “show . . . what happened.” McGehee stated that
they would “take it slow,” and asked if M.S. was “doing okay,”
and if she would “be able to do” a reenactment. M.S. responded
affirmatively. At one point, McGehee asked if M.S. would like a
respite from the reenactment; the parties then stopped and
resumed after a while.
In ruling on M.S.’s suppression motion, the juvenile court
noted that the contact occurred in M.S.’s home and the police
were aware of her obvious age. M.S. and her parents consented
to the reenactment after being informed that M.S. did not have to
participate. The court found that the officers “took great care to
make sure this was not a coercive environment [and were]
sensitive to [M.S.’s] physical condition.” The court then denied
the suppression motion because it concluded that M.S. was not in
police custody at the time.
In our independent review, the juvenile court’s ruling was
proper and supported by substantial evidence. (People v.
Davidson (2013) 221 Cal.App.4th 966, 970 [standard of review].)
It is well settled that Miranda advisements are required only
during custodial interrogations. (Ibid.) Whether a person is in
custody is an objective test, i.e., whether there was a formal
arrest or restraint on freedom of movement to the degree
associated with a formal arrest. (Id. at pp. 971-972.) Factors to
consider include whether there has been a formal arrest, the
location of the detention, the ratio of officers to the individual,
and the demeanor of the officer or officers, among other factors.
(Id. at p. 972.)

14
 Here the reenactment occurred at M.S.’s apartment with
the knowledge and presence of her parents. McGehee informed
M.S. that she did not have to participate and was free to leave.
He was not confrontational or aggressive and was sensitive to her
physical condition. The reenactment lasted for approximately 30
minutes, during which time M.S. demonstrated that she
accidentally cut the infant’s neck while cutting the umbilical cord
– an explanation she had given previously to police officers.
Sufficient evidence supports the juvenile court’s express finding
that M.S. was not in custody when she participated in the video
reenactment.
IV.
M.S. contends that she did not validly waive her Miranda
rights during the January 27, 2016, formal police interview. She
asserts that she was physically exhausted from giving birth 10
days prior and suffered from posttraumatic stress disorder. She
argues that the detectives used coercive tactics and points out
that she had no prior experience with law enforcement.
To establish a valid waiver of Miranda rights, the
prosecution must show by a preponderance of the evidence that
the waiver was knowing, intelligent, and voluntary. (People v.
Nelson (2012) 53 Cal.4th 367, 374-375 [interrogation of 15-year-
old charged with murder and burglary].) Determining the
validity of a Miranda rights waiver requires an evaluation of the
defendant’s state of mind and an inquiry into the circumstances
of the interrogation. (Id. at p. 375.) When a juvenile’s waiver is
at issue, consideration must be given to factors such as the
juvenile’s age, experience, education, background and
intelligence, and whether he or she has the capacity to
understand the Miranda warnings, the nature of their Fifth

15
Amendment rights, and the consequences of waiving those rights.
(Fare v. Michael C. (1979) 442 U.S. 707, 725; Nelson, at p. 375
[totality of circumstances test applies in determining whether a
minor’s waiver is valid].) On review, we defer to the trial court’s
factual findings that are supported by sufficient evidence, but
independently review whether the waiver was voluntary. (People
v. Holloway (2004) 33 Cal.4th 96, 114.)
The juvenile court determined that M.S. made a knowing,
intelligent, and voluntary waiver of her Miranda rights. The
record supports this determination. At the outset of the
interview, McGehee asked how M.S. was feeling and if she had a
counseling appointment that day. Following her statement that
she felt okay, McGehee read her Miranda rights. M.S. responded
affirmatively that she understood her rights and wanted to speak
with the detectives. The detectives invited M.S. to call them by
their first names and, as the juvenile court concluded, the
interview was friendly and conducted by detectives with whom
M.S. was now familiar. The detectives offered no promises of
leniency in exchange for M.S.’s testimony nor did they threaten to
prosecute her for a greater offense if she did not speak with them.
We reject M.S.’s contention that McGehee’s offer to obtain
counseling for M.S. (who already was in counseling) was an offer
of leniency. M.S. was 15 years old and a sophomore in high
school. She spoke rationally in the English language during the
interview and never indicated that she wanted to stop the
questioning or see her parents. The prosecution met its burden of
establishing that M.S.’s waiver was knowing, intelligent, and
voluntary.

16
 V.
M.S. argues that the juvenile court erred by admitting
evidence of her interview with Doctor Tahmisian. She contends
that her statements to him were not knowing and voluntary.
At the outset of Tahmisian’s interview with M.S., he
informed her of her Miranda rights and that her statements to
him would not be kept confidential. In permitting evidence of
this interview, the juvenile court concluded it was a continuation
of the prior interview. The court added that M.S.’s statements
may not be of significance at the jurisdiction hearing.
Assuming for purpose of argument that M.S.’s statements
were inadmissible, any error is harmless beyond a reasonable
doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The
evidence establishes that M.S. cut her infant’s throat with two or
three strikes, severing his carotid artery and trachea. The
juvenile court rejected M.S.’s theory of an accidental cutting. It
also rejected the evidence that she did not have the requisite
mental state to commit second degree murder.
VI.
M.S. contends that she is entitled to remand to allow the
juvenile court to make an eligibility determination regarding
mental health pretrial diversion according to newly enacted
sections 1001.35 and 1001.36. She points out that she presented
evidence that she suffered from pervasive pregnancy denial, a
dissociative disorder, and posttraumatic stress disorder at the
time of her crime. M.S. argues that the statute applies
retroactively, relying upon People v. Frahs, supra, 27 Cal.App.5th
784, 791, review granted.
Effective June 27, 2018, the Legislature enacted a mental
health diversion program for defendants with diagnosed and

17
qualifying mental disorders, including bipolar disorder,
schizophrenia, or posttraumatic stress disorder. (§ 1001.36,
subds. (a) & (b).) A stated purpose of the legislation is to promote
“[i]ncreased diversion of individuals with mental disorders . . .
while protecting public safety.” (§ 1001.35, subd. (a).) Section
1001.36, subdivisions (a) and (b)(1) provide that the court may
grant pretrial diversion if a defendant meets these six
requirements: 1) the court is satisfied that the defendant suffers
from a qualifying mental disorder, as defined by the statute; 2)
the court is satisfied that the defendant’s mental disorder played
a significant role in the commission of the charged offense; 3) a
qualified mental health expert opines that the defendant’s
symptoms motivating the criminal behavior would respond to
mental health treatment; 4) the defendant consents to diversion
and waives his or her right to a speedy trial; 5) the defendant
agrees to comply with treatment as a condition of diversion; and
6) the court is satisfied that the defendant will not pose an
unreasonable risk of danger to public safety if treated in the
community. (Id., subd. (b)(1)(A)-(F).) The Legislature enacted
the diversion statutes to ameliorate possible punishment for a
class of individuals with qualifying mental health disorders by
increasing diversion “to mitigate the individuals’ entry and
reentry into the criminal justice system while protecting public
safety.” (§ 1001.35, subd. (a).)
If the trial court grants pretrial diversion, the defendant
“may be referred to a program of mental health treatment
utilizing existing inpatient or outpatient mental health
resources” (§ 1001.36, subd. (c)(1)(B)) for “no longer than two
years” (id., subd. (c)(3)). If the defendant performs “satisfactorily
in diversion, at the end of the period of diversion, the court shall

18
dismiss the defendant’s criminal charges that were the subject of
the criminal proceedings at the time of the initial diversion.” (Id.,
subd. (e).)
People v. Frahs, supra, 27 Cal.App.5th 784, 791, review
granted, held that the mental health diversion law applies
retroactively to those defendants whose appeals are pending at
the time of the statute’s enactment. “[T]he Legislature ‘must
have intended’ that the potential ‘ameliorating benefits’ of mental
health diversion . . . ‘apply to every case to which it
constitutionally could apply.’” (Ibid.) Frahs relied upon our
Supreme Court’s holding in People v. Superior Court (Lara)
(2018) 4 Cal.5th 299, holding that a juvenile transfer hearing
must be made available to all defendants whose convictions are
not yet final on appeal. (Frahs, at p. 791.)
Effective January 1, 2019, section 1001.36 was amended,
however, to eliminate application of the diversion program to
certain enumerated violent crimes. Section 1001.36, subdivision
(b)(2)(A) exempts murder or voluntary manslaughter from the
diversion program, along with other serious sexual or violent
crimes. “‘[I]n the absence of contrary indications, a legislative
body ordinary intends for ameliorative changes to the criminal
law to extend as broadly as possible, distinguishing only as
necessary between sentences that are final and sentences that
are not.’” (People v. Superior Court (Lara), supra, 4 Cal.5th 299,
308.) The corrective legislation here expresses the legislative
intent with sufficient clarity that we can discern and must
effectuate. (In re Pedro T. (1994) 8 Cal.4th 1041, 1049.) M.S.’s
appeal of her second degree murder conviction was pending on
and after the effective date of the corrective amendment. As
such, the pretrial mental health diversion procedure does not

19
apply to her pursuant to the exclusion of section 1001.36,
subdivision (b)(2)(A).
More importantly, however, distinctions between adult
criminal prosecutions and juvenile delinquency proceedings
preclude application of the mental health diversion law to
juvenile cases. Indeed, Welfare and Institutions Code section 203
states: “An order adjudging a minor to be a ward of the juvenile
court shall not be deemed a conviction of a crime for any purpose,
nor shall a proceeding in the juvenile court be deemed a criminal
proceeding.”2
People v. Vela (2018) 21 Cal.App.5th 1099, 1104-1105,
summarizes the distinctions between the processes and purposes
of the juvenile adjudication system versus adult criminal
prosecutions:
“Generally, any person under the age of 18 who is charged
with violating a law is considered a ‘minor.’ (See § 602.) A
‘juvenile court’ is a separate, civil division of the superior court.
(§ 246.) A prosecutor charges a minor with an offense by filing a
juvenile petition, rather than a criminal complaint. (See
§§ 653.7, 655.) Minors ‘admit’ or ‘deny’ an offense, rather than
plead ‘guilty’ or ‘not guilty.’ (§ 702.3.) There are no ‘trials,’ per
se, in juvenile court, rather there is a ‘jurisdictional hearing’
presided over by a juvenile court judge. (§ 602.) The
jurisdictional hearing is equivalent to a ‘bench trial’ in a criminal
court. (See Cal. Rules of Court, rule 5.780.) Although a juvenile
court judge adjudicates alleged law violations, there are no
‘conviction[s]’ in juvenile court. (§ 203.) Rather, the juvenile
court determines–under the familiar beyond the reasonable doubt

2 All further statutory references are to the Welfare and
Institutions Code unless otherwise stated.

20
standard and under the ordinary rules of evidence–whether the
allegations are ‘true’ and if the minor comes within its
jurisdiction. (See § 602 et seq.)
“There is no ‘sentence,’ per se, in juvenile court. Rather a
judge can impose a wide variety of rehabilitation alternatives
after conducting a ‘dispositional hearing,’ which is equivalent to a
sentencing hearing in a criminal court. (§ 725.5; In re Devin J.
(1984) 155 Cal.App.3d 1096, 1100 [202 Cal.Rptr. 543].) In the
more serious cases, a juvenile court can ‘commit’ a minor to
juvenile hall or to the Division of Juvenile Justice (DJJ), formerly
known as the California Youth Authority (CYA). In order to
commit a minor to the DJJ, the record must show that less
restrictive alternatives would be ineffective or inappropriate. (In
re Teofilio A. (1989) 210 Cal.App.3d 571, 576 [258 Cal.Rptr. 540].)
The DJJ, rather than the court, sets a parole consideration date.
DJJ commitments can range from one year or less for nonserious
offenses, and up to seven years for the most serious offenses,
including murder. (See Cal. Code Regs., tit. 15, §§ 4951-4957.) A
minor committed to DJJ must generally be discharged no later
than 23 years of age. (§ 607, subd. (f).)”
The purpose of the mental health diversion statute is to
promote “[i]ncreased diversion of individuals with mental
disorders to mitigate the individuals’ entry and reentry into the
criminal justice system while protecting public safety.” (Pen.
Code, § 1001.35, subd. (a).) “Pretrial 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 . . . .” (Id., § 1001.36, subd. (c).)
Thus, the primary purpose of the diversion statutes is to treat the

21
mentally ill adult outside the criminal justice system rather than
to punish them inside the system. The juvenile justice system,
however, is already separate and distinct from the criminal
justice system–there is not accusatory pleading, no possibility of
conviction, and no punishment.
Here the juvenile court imposed a rehabilitation program
for M.S. consistent with the purposes of the juvenile law. (§ 202,
subd. (b) [“Minors under the jurisdiction of the juvenile court who
are in need of protective services shall receive care, treatment,
and guidance consistent with their best interest and the best
interest of the public”].) At the disposition hearing, the court
discussed M.S.’s psychological needs, her risk of self-harm, and
her need for continued counseling. After discussing the purposes
of juvenile delinquency proceedings, the court placed M.S. in the
highest level of a group home. The court’s rehabilitation program
itself distinguishes the adult criminal system from the juvenile
justice system.
The juvenile court’s order is affirmed.
CERTIFIED FOR PUBLICATION.

GILBERT, P. J.
We concur:

YEGAN, J.

TANGEMAN, J.

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YEGAN, J., Concurring:
I have signed and I concur with the majority opinion.
There is no need to reach the constitutionality of the newly
enacted mental health diversion statute. (See Loeffler v. Target
Corp. (2014) 58 Cal.4th 1081, 1102.) My concurrence should not
be considered an opinion that the subject statute is
constitutional.
CERTIFIED FOR PUBLICATION.

YEGAN, J.

1
TANGEMAN, J., Concurring:
I have signed and I concur with the majority opinion. For
those reasons expressed therein, there is no need to reach the
issue of the applicability of the newly enacted mental health
diversion statute to juvenile proceedings. I therefore express no
opinion on that subject in accordance with the “‘cardinal principle
of judicial restraint—if it is not necessary to decide more, it is
necessary not to decide more.’ [Citation.]” (People v. Contreras
(2018) 4 Cal.5th 349, 381.)
CERTIFIED FOR PUBLICATION.

TANGEMAN, J.

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 Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Arielle Bases, 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, Senior Assistant
Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy
Attorney General, David F. Glassman, Deputy Attorney General,
for Plaintiff and Respondent.

1