People v. Frahs

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
ERIC JASON FRAHS,
Defendant and Appellant.

S252220

Fourth Appellate District, Division Three
G054674

Orange County Superior Court
16CF0837

June 18, 2020

Chief Justice Cantil-Sakauye authored the opinion of the Court,
in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger, and
Groban concurred.
 PEOPLE v. FRAHS
S252220

Opinion of the Court by Cantil-Sakauye, C. J.

In June 2018, the Legislature enacted Penal Code1
sections 1001.35 and 1001.36, which created a pretrial diversion
program for certain defendants with mental health disorders.
(Stats. 2018, ch. 34, § 24.) We granted review in this matter to
determine whether the mental health diversion statute applies
retroactively to cases in which the judgment is not yet final, and
whether the Court of Appeal erred when it conditionally
reversed defendant Eric Jason Frahs’s convictions and sentence
and remanded this case for a diversion eligibility hearing.
Here, defendant stole two beverages from a convenience
store and threw rocks at passing cars. At trial, he introduced
evidence that he suffers from a form of schizophrenia. After
defendant was convicted, and while his appeal was pending, the
mental health diversion statute came into effect. The Court of
Appeal concluded that section 1001.36, which contains the
diversion measure’s substantive provisions, applies
retroactively to all cases not yet final on appeal before the
statute became effective, including defendant’s case. It
conditionally reversed defendant’s convictions and sentence,
and remanded the matter to the trial court with instructions to

1
All subsequent statutory citations are to the Penal Code
unless otherwise indicated.

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conduct a diversion eligibility hearing. (People v. Frahs (2018)
27 Cal.App.5th 784 (Frahs).)
In In re Estrada (1965) 63 Cal.2d 740 (Estrada), we held
that an amendatory statute lessening punishment for a crime
was presumptively retroactive and applied to all persons whose
judgments were not yet final at the time the statute took effect.
In People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara),
we applied the Estrada rule to legislation that mitigated the
possible punishment for a class of persons. The statute here is
similar to the scheme we considered in Lara, in that section
1001.36 by design and function provides a possible ameliorating
benefit for a class of persons — namely, certain defendants with
mental disorders — by offering an opportunity for diversion and
ultimately the dismissal of charges. Moreover, neither the text
nor the history of section 1001.36 clearly indicates that the
Legislature intended that the Estrada rule would not apply to
this diversion program. Therefore, consistent with our decision
in Lara, we conclude that Estrada’s inference of retroactivity
applies. We also agree with the Court of Appeal’s determination
that defendant is entitled to a limited remand for the trial court
to decide whether he should receive diversion under section
1001.36. We express no view regarding 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.
I. FACTUAL AND PROCEDURAL BACKGROUND
In March 2016, defendant entered a small market in
Santa Ana. The store owner, remembering that defendant had
tried to steal a pack of cigarettes one week prior, told defendant
to leave. Defendant exited the store, picked up rocks, and threw

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them at passing cars. He struck the windshield of one car,
shattering the glass. Defendant then reentered the store and
grabbed a can of beer and an energy drink. The store owner and
his son stood at the front door to block defendant from leaving.
Defendant rushed toward the door, punched the owner in the
head, and eventually pushed his way through. The store owner
and his son detained defendant in the parking lot and called the
police.
Defendant was charged with two counts of second degree
robbery (Pen. Code, §§ 211, 212.5, subd. (b)) and one felony count
of throwing a substance at a motor vehicle with intent to cause
injury (Veh. Code, § 23110, subd. (b)). For sentencing purposes,
it was alleged that defendant had suffered a prior serious felony
conviction. (Pen. Code, § 667, subd. (a)(1).)
Defendant testified in his own defense. He stated that he
experienced hallucinations and delusions beginning in his early
twenties and had been hospitalized at least eight times. In
2015, a conservator was appointed to care for him for
approximately seven months. Defendant had stopped taking his
prescribed medications four days before the incident at the
Santa Ana market and was experiencing severe hallucinations
and delusions during that time. He testified that he thought an
angel flew by on a horse and talked to him just before he entered
the market.
A clinical and forensic psychologist also testified on
defendant’s behalf. Based on his review of a hospital report
detailing defendant’s confinement and his conversations with
defendant and his parents, the psychologist stated that
defendant had been diagnosed with schizoaffective disorder,
which is “a combination of schizophrenia and bipolar disorder,”

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and was very ill and unstable. He also concluded that defendant
had been suffering from a psychotic episode and was not in touch
with reality in the days preceding the incident at the Santa Ana
market. He testified that defendant’s behavior at the market
was a byproduct of a psychotic episode.
The jury found defendant guilty of two counts of second
degree robbery and of the lesser included misdemeanor offense
of throwing a substance at a motor vehicle without intent to
cause injury. Following a bench trial on the prior serious felony
conviction allegation, which the trial court found to be true,
defendant was sentenced to nine years in prison.
When defendant’s appeal was pending, the Legislature
enacted sections 1001.35 and 1001.36 as part of Assembly Bill
No. 1810 (2017-2018 Reg. Sess.) (Assembly Bill 1810), an
omnibus budget bill. (Stats. 2018, ch. 34, § 24.) Section 1001.36
gives trial courts the discretion to grant pretrial diversion for
individuals suffering from certain mental health disorders.
(§ 1001.36, subd. (a).) As part of the budget bill, the diversion
statute became effective immediately.
The Court of Appeal concluded that section 1001.36
applies retroactively to all nonfinal judgments. It also
determined that defendant is entitled to a limited remand
because his case is not yet final on appeal and the record
demonstrates that he appears to satisfy at least one of the
statute’s threshold eligibility requirements, a diagnosed and
qualifying mental disorder. (§ 1001.36, subd. (b)(1)(A).) On
these grounds, the court conditionally reversed defendant’s
conviction and sentence and remanded the matter to the trial
court to conduct a mental health diversion eligibility hearing
under section 1001.36. (Frahs, supra, 27 Cal.App.5th at p. 792.)

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II. DISCUSSION
A. The Mental Health Diversion Statute
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

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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 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).) The
maximum period of diversion is two years. (Id., subd. (c)(3).) If
the defendant is subsequently charged with an additional crime,
or otherwise performs unsatisfactorily in the assigned program,
then the court may reinstate criminal proceedings. (Id., subd.
(d).) “If the defendant has performed satisfactorily in diversion,
at the end of the period of 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.” (Id., subd. (e).)
B. Retroactive Application of Ameliorative
Criminal Laws
Generally, statutes are presumed to apply only
prospectively. (Lara, supra, 4 Cal.5th at p. 307.) However, this
presumption is a canon of statutory interpretation rather than
a constitutional mandate. (Ibid.) Accordingly, “the Legislature
can ordinarily enact laws that apply retroactively, either
explicitly or by implication.” (Ibid.) Courts look to the
Legislature’s intent in order to determine if a law is meant to
apply retroactively. (Ibid.)

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In Estrada, supra, 63 Cal.2d 740, we held that amendatory
statutes that lessen the punishment for criminal conduct are
ordinarily intended to apply retroactively. (Id. at pp. 744-745.)
In endeavoring to ascertain the legislative intent in enacting
such a statute, we found “one consideration of paramount
importance.” (Id. at p. 744.) We explained: “When the
Legislature amends a statute so as to lessen the punishment it
has obviously expressly determined that its former penalty was
too severe and that a lighter punishment is proper as
punishment for the commission of the prohibited act. It is an
inevitable inference that the Legislature must have intended
that the new statute imposing the new lighter penalty now
deemed to be sufficient should apply to every case to which it
constitutionally could apply. The amendatory act imposing the
lighter punishment can be applied constitutionally to acts
committed before its passage provided the judgment convicting
the defendant of the act is not final. This intent seems obvious,
because to hold otherwise would be to conclude that the
Legislature was motivated by a desire for vengeance, a
conclusion not permitted in view of modern theories of
penology.” (Id. at p. 745.)
We reasoned that “ ‘[a] legislative mitigation of the
penalty for a particular crime represents a legislative judgment
that the lesser penalty or the different treatment is sufficient to
meet the legitimate ends of the criminal law. Nothing is to be
gained by imposing the more severe penalty after such a
pronouncement; the excess in punishment can, by hypothesis,
serve no purpose other than to satisfy a desire for vengeance.
As to a mitigation of penalties, then, it is safe to assume, as the
modern rule does, that it was the legislative design that the
lighter penalty should be imposed in all cases that subsequently

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reach the courts.’ ” (Estrada, supra, 63 Cal.2d at pp. 745-746,
quoting People v. Oliver (N.Y. 1956) 134 N.E.2d 197, 202.)
“Estrada stands for the proposition that, ‘where the
amendatory statute mitigates punishment and there is no
saving[s] clause, the rule is that the amendment will operate
retroactively so that the lighter punishment is imposed.’ ”
(People v. Nasalga (1996) 12 Cal.4th 784, 792 (Nasalga); see also
People v. Conley (2016) 63 Cal.4th 646, 657 (Conley) [“The
Estrada rule rests on an inference that, in the absence of
contrary indications, a legislative body ordinarily 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”].) If there is no
express savings clause, the statute must demonstrate contrary
indications of legislative intent “ ‘with sufficient clarity’ ” in
order to rebut the Estrada rule. (Conley, at p. 657; Nasalga, at
p. 793 [Estrada rule not implicated when “the Legislature
clearly signals its intent to make the amendment prospective,
by the inclusion of either an express saving[s] clause or its
equivalent”].)
We have applied Estrada’s inference of retroactivity to
statutes governing penalty enhancements, as well as statutes
governing substantive offenses. (E.g., People v. Wright (2006)
40 Cal.4th 81, 94-95 [newly enacted affirmative defense to
transporting marijuana applies retroactively]; Tapia v. Superior
Court (1991) 53 Cal.3d 282, 301 [statute specifying that certain
death-penalty qualifying special circumstances must be
intentional applies retroactively]; In re Kirk (1965) 63 Cal.2d
761, 762-763 [amendment increasing dollar amount concerning
insufficient funds checks applies retroactively].)

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Significantly, we have also applied the Estrada rule to
statutes that merely made a reduced punishment possible.
(Lara, supra, 4 Cal.5th at p. 303; People v. Francis (1969)
71 Cal.2d 66, 76 (Francis) [modified treatment of marijuana
possession from straight felony to either felony or
misdemeanor].) In Francis, we inferred that the Legislature
intended retroactive application of an amendment that allowed
a trial court to exercise its sentencing discretion more favorably
for individual defendants. (Francis, at p. 76.) We concluded that
although the statute did not guarantee a lighter sentence — it
instead granted trial courts discretion to impose a county jail
term in lieu of imprisonment for possession of marijuana — the
reasoning of Estrada applied in light of the Legislature’s
determination “that the former penalty provisions may have
been too severe in some cases and that the sentencing judge
should be given wider latitude in tailoring the sentence to fit the
particular circumstances.” (Ibid.)
More recently, in Lara, we determined that the Estrada
rule applied to an amendatory act that “ameliorated the possible
punishment for a class of persons.” (Lara, supra, 4 Cal.5th at
p. 308, italics added.) Lara concerned the retroactivity of
Proposition 57 (Prop. 57, as approved by voters, Gen. Elec.
(Nov. 8, 2016)) (Proposition 57), the relevant provisions of which
prohibit prosecutors from directly filing charges against a minor
in “adult” criminal court and give juvenile courts the sole
discretion to determine, after conducting a transfer hearing,
whether a minor can be prosecuted and sentenced as an adult.
(Lara, at p. 303.) We explained that although Proposition 57 did
not mitigate punishment for any particular crime, the Estrada
inference of retroactivity nevertheless applied because the law
“reduces the possible punishment for a class of persons, namely

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juveniles.” (Lara, at p. 303.) We noted that, given the
significant distinctions between the juvenile justice system and
the criminal justice system, “[t]he possibility of being treated as
a juvenile in juvenile court — where rehabilitation is the goal —
rather than being tried and sentenced as an adult can result in
dramatically different and more lenient treatment.” (Ibid.; see
id. at pp. 306-307.) For example, “ ‘the impact of the decision to
prosecute a minor in criminal court rather than juvenile court
can spell the difference between a 16-year-old minor . . . being
sentenced to prison for 72 years to life, or a discharge from the
[Division of Juvenile Justice’s] custody at a maximum of
23 years of age.’ ” (Id. at p. 308.) We concluded that the
potential ameliorating benefit of remaining in the juvenile court
system was analogous to the potential reduction in a criminal
defendant’s sentence in Estrada and Francis, and therefore the
same inference of retroactivity should apply. (Lara, supra,
4 Cal.5th at pp. 308-309.)
We also determined that nothing in Proposition 57’s text
or ballot materials rebutted Estrada’s inference of retroactivity.
(Lara, supra, 4 Cal.5th at pp. 303-304.) To the contrary, certain
provisions of Proposition 57, including its stated purpose to
“ ‘[s]top the revolving door of crime by emphasizing
rehabilitation, especially for juveniles’ ” and its instruction that
the “ ‘act shall be liberally construed to effectuate its purposes,’ ”
“support[ed] the conclusion that Estrada’s inference of
retroactivity is not rebutted.” (Lara, at p. 309.)
With this background in mind, we now consider whether
section 1001.36 applies retroactively.

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C. The Mental Health Diversion Statute Applies
Retroactively Because It Mitigates the Possible
Punishment for a Class of Persons and There Is
No Clear Contraindication of Legislative Intent
As noted, the Court of Appeal held that Estrada’s
inference of retroactivity applies to section 1001.36. (Frahs,
supra, 27 Cal.App.5th at p. 791.) It reasoned that, similar to the
reforms adopted through Proposition 57, the statute
“unquestionably” offers an “ ‘ameliorating benefit’ ” for a
defendant diagnosed with a mental disorder to have the
opportunity for diversion, and ultimately, a possible dismissal
of the criminal charges. (Ibid.) The Court of Appeal also
concluded that the statute’s express purpose of promoting
“ ‘[i]ncreased diversion of individuals with mental disorders to
mitigate the individuals’ entry and reentry into the criminal
justice system while protecting public safety’ ” indicated “the
Legislature intended the . . . program to apply as broadly as
possible.” (Ibid., quoting § 1001.35, subd. (a), italics in Frahs.)
The Court of Appeal rejected the People’s argument that
the statute’s definition of “ ‘pretrial diversion’ ” as “the
postponement of prosecution . . . at any point in the judicial
process . . . until adjudication” (§ 1001.36, subd. (c))
demonstrated that the Legislature did not intend section
1001.36 to apply retroactively. (Frahs, supra, 27 Cal.App.5th at
p. 791.) The appellate court explained: “The fact that mental
health diversion is available only up until the time that a
defendant’s case is ‘adjudicated’ is simply how this particular
diversion program is ordinarily designed to operate. Indeed, the
fact that a juvenile transfer hearing under Proposition 57
ordinarily occurs prior to the attachment of jeopardy did not
prevent the Supreme Court in Lara from finding that such

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hearing must be made available to all defendants whose
convictions are not yet final on appeal.” (Ibid.)
We agree with the Court of Appeal.2 The parties concur
that section 1001.36, like Proposition 57, offers a potentially
ameliorative benefit for a class of individuals — namely,
criminal defendants who suffer from a qualifying mental
disorder. On its face, the diversion statute states the legislative
purpose “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” (§ 1001.35, subd. (a)), and the procedures instituted by
the enactment carry the potential of substantial reductions in
punishment for the aforementioned parties.
The pertinent circumstances here are like those involved
in Lara, in that the possibility of being granted mental health
diversion rather than being tried and sentenced “can result in
dramatically different and more lenient treatment.” (Lara,
supra, 4 Cal.5th at p. 303.) A defendant who shows that he or

2
Several published appellate decisions are in accord.
(People v. Burns (2019) 38 Cal.App.5th 776, review granted
Oct. 30, 2019, S257738 [§ 1001.36 applies retroactively]; People
v. Hughes (2019) 39 Cal.App.5th 886, review granted Nov. 26,
2019, S258541 [same]; People v. Weaver (2019) 36 Cal.App.5th
1103, review granted Oct. 9, 2019, S257049 [same]; People v.
Weir (2019) 33 Cal.App.5th 868, review granted June 26, 2019,
S255212 [same].) Other Courts of Appeal have reached a
different conclusion. (People v. Lipsett (2020) 45 Cal.App.5th
569, review granted May 13, 2020, S261323 [§ 1001.36 does not
apply retroactively]; People v. Khan (2019) 41 Cal.App.5th 460,
review granted June 26, 2019, S255212 [same]; People v. Craine
(2019) 35 Cal.App.5th 744, review granted Sept. 11, 2019,
S256671 [same].) As explained below (see pt. III, post), we will
disapprove these contrary decisions.

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she is eligible and suitable for diversion may be referred to a
mental health treatment program designed to meet the
defendant’s specialized needs for up to two years. (§ 1001.36,
subd. (c)(1).) If a defendant successfully completes diversion,
the trial court “shall” dismiss the criminal charges and the
“arrest upon which the diversion was based shall be deemed
never to have occurred.” (Id., subd. (e).) Accordingly, the impact
of a trial court’s decision to grant diversion can spell the
difference between, on the one hand, a defendant receiving
specialized mental health treatment, possibly avoiding criminal
prosecution altogether, and even maintaining a clean record,
and on the other, a defendant serving a lengthy prison sentence.
(See Lara, supra, 4 Cal.5th at p. 308.) Indeed, the People
concede in their briefing that “mental health diversion has a
potentially ameliorative effect: defendants who successfully
complete the program would be able to have criminal charges
wiped clean.” Thus, the ameliorative nature of the diversion
program places it squarely within the spirit of the Estrada rule.
Because it is undisputed that the diversion statute
provides a possible benefit to a class of criminal defendants and
the statute does not contain an express savings clause that
limits the program to prospective-only application, the specific
question before us boils down to whether the Legislature
“clearly signal[ed] its intent” to overcome the Estrada inference
that section 1001.36 applies retroactively to all cases not yet
final on appeal. (Nasalga, supra, 12 Cal.4th at p. 793.)
We conclude that the text of the statute does not clearly
signal such an intent. At the outset, we note that the statute
contains language that could be read as supporting the
expansive application of its provisions. The Court of Appeal
reasonably regarded the statement of legislative purpose found

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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.” (Frahs, supra,
27 Cal.App.5th at p. 791.) The breadth of the statute’s
statement of purpose — aimed to “[i]ncrease[] diversion of
individuals with mental disorders to mitigate the individuals’
entry and reentry into the criminal justice system” (§ 1001.35,
subd. (a), italics added) — is consistent with the retroactive
application of the diversion scheme. This statement of purpose
further “support[s] the conclusion that the Estrada inference of
retroactivity is not rebutted” — that is, that the Legislature
intended to apply the provisions of section 1001.36 to every case
to which it constitutionally could apply. (Lara, supra, 4 Cal.5th
at p. 309.) But even if this statement of purpose is disregarded,
the statute does not plainly communicate an intent that its
provisions would apply only prospectively.
On this subject, the People renew their argument that the
statute’s definition of “ ‘pretrial diversion’ ” as “the
postponement of prosecution . . . at any point in the judicial
process . . . until adjudication” (§ 1001.36, subd. (c))
demonstrates that the Legislature intended to limit its
application to cases that had not yet been adjudicated at the
time of enactment, dispelling Estrada’s inference of
retroactivity. The People acknowledge that “the language of
section 1001.36 does not necessarily demonstrate an intent to
foreclose diversion to all those who committed a crime prior to
the effective date of the Act,” but 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.”

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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 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.3
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.
So understood, we conclude that the “until adjudication”
language included in section 1001.36, subdivision (c) is not a
clear expression of the Legislature’s intent to make the statute

3
As suggested by the text, we 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.

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solely prospective. (Conley, supra, 63 Cal.4th at pp. 656-657.)4
Here, it is helpful to contrast this language in the diversion
statute with the language in Proposition 47 (§ 1170.18, subd. (a),
approved by voters, Gen. Elec. (Nov. 4, 2014) and amended by
Stats. 2016, ch. 767, § 1, p. 5313) and the Three Strikes Reform
Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6,
2012)). Both of these measures included specific resentencing
provisions applicable to persons who had already been
sentenced (§§ 1170.18, subd. (a), 1170.126, subd. (b)), and
therefore overcame the inference of ameliorative retroactivity.
(People v. DeHoyos (2018) 4 Cal.5th 594, 603; Conley, at p. 657.)
Unlike these other measures, the “until adjudication” language
within section 1001.36 does not “ ‘clearly signal[]’ ” the
Legislature’s intent to rebut the Estrada inference. (Nasalga,
supra, 12 Cal.4th at p. 793.)
The People point to additional language in section 1001.36
that also supposedly indicates a legislative intent to apply the
diversion statute prospectively only. They assert that the
statutory provision permitting a trial court to “grant pretrial
diversion to a defendant” (§ 1001.36, subd. (a), italics added)
means that diversion is not available after trial. They similarly
maintain that the threshold eligibility factor requiring a

4
The People also emphasize that the assertedly limiting
language in section 1001.36 comports with provisions found in
other, similar diversion statutes. But this observation adds
little to the People’s argument regarding the intent behind
section 1001.36. These other statutes simply define what
pretrial diversion is and how it is generally supposed to operate:
For example, “pretrial diversion refers to the procedure of
postponing prosecution of an offense . . . at any point in the
judicial process from the point at which the accused is charged
until adjudication.” (§ 1001.1; see also, e.g., § 1001.70, subd. (b).)

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defendant to waive his or her right to a speedy trial (id., subd.
(b)(1)(D)) makes clear that the Legislature did not intend for
diversion to be available to defendants whose trials had
concluded. Again, we disagree. As with the “until adjudication”
phrasing, 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. This phrasing does
not demonstrate a legislative intent to “modify, limit, or entirely
forbid the retroactive application of ameliorative criminal-law
amendments” (Conley, supra, 63 Cal.4th at p. 656) “with
sufficient clarity that a reviewing court can discern and
effectuate it” (In re Pedro T. (1993) 8 Cal.4th 1041, 1049).
Overall, on the question of retroactivity we regard the
provisions of section 1001.36 as comparable to the statutory
language involved in Lara, in which we concluded that the
electorate intended Proposition 57 to apply retroactively to all
cases not yet final on appeal. (Lara, supra, 4 Cal.5th at p. 304.)
Like section 1001.36, Proposition 57 contains language
regarding matters of timing and procedure, including a
requirement that the prosecutor file a transfer motion “prior to
the attachment of jeopardy.” (Welf. & Ins. Code, former § 707,
subd. (a), added by Prop. 57.) Notwithstanding these provisions,
we determined that “nothing in Proposition 57’s text or ballot
materials rebuts th[e] inference” of retroactivity. (Lara, at
pp. 303-304; see id. at pp. 308-309.) Here too, we do not divine
from section 1001.36’s “until adjudication” language, or the
other provisions cited by the People, a clear indication of
legislative intent to apply the statute prospectively only. Like
Proposition 57, in providing instructions regarding how its

17
 PEOPLE v. FRAHS
Opinion of the Court by Cantil-Sakauye, C. J.

provisions are meant to operate generally, section 1001.36 does
not rebut the Estrada inference of ameliorative retroactivity.
Our conclusion finds additional support in Francis. There,
the People maintained that “ ‘the very nature’ of the amendment
[giving trial courts discretion to impose only local jail time for
possession of marijuana] leads to the conclusion that it was only
intended to apply to cases where sentencing occurred after the
effective date of the amendment.” (Francis, supra, 71 Cal.2d at
p. 77.) In rejecting this argument, we emphasized that we had
previously declined to interpret statutory amendments vesting
discretion in the trial court as an indication that they were
intended to be limited to prospective application. (Id. at p. 78,
citing In re Corcoran (1966) 64 Cal.2d 447 and In re Ring (1966)
64 Cal.2d 450.)
Moreover, we are mindful that the Legislature “is deemed
to be aware of existing laws and judicial constructions in effect
at the time legislation is enacted.” (People v. Weidert (1985)
39 Cal.3d 836, 844.) Four months before the Legislature
enacted section 1001.36, we decided in Lara that a statute that
reduced the possible punishment for a class of persons applied
retroactively. Our prior decisions have also made clear that in
order to rebut Estrada’s inference of retroactivity concerning
ameliorative statutes, the Legislature must “demonstrate its
intention with sufficient clarity that a reviewing court can
discern and effectuate it.” (In re Pedro T., supra, 8 Cal.4th at
p. 1049; see also Conley, supra, 63 Cal.4th at pp. 656-657;
Nasalga, supra, 12 Cal.4th at p. 793.) Thus, when the
Legislature enacted section 1001.36, it was aware that if it did
not want the statute to apply retroactively to nonfinal
judgments, it needed to clearly and directly indicate such intent
in order to rebut Estrada’s inference of retroactivity. The text

18
 PEOPLE v. FRAHS
Opinion of the Court by Cantil-Sakauye, C. J.

relied upon by the People does not establish a contrary
legislative intent.
Nor do we perceive in the legislative history a clear
indication that the Legislature did not intend for the statute to
apply retroactively. Citing an Assembly report, the People
suggest that the Legislature was motivated by potential cost
savings in enacting section 1001.36, a motivation assertedly
inconsistent with retroactive application. (Assem. Conc. Sen.
Amends. to Assem. Bill No. 1810 (2017-2018 Reg. Sess.) as
amended June 12, 2018, pp. 7-8.) Yet even if one accepts for
sake of argument the premise that retroactive application of the
statute would not be cost effective (but see the discussion post),
the People offer no reason to think the Legislature sought to cut
costs at the expense of accomplishing the statute’s other aims.
The report’s reference to cost savings tells us little, if anything,
about whether the Legislature intended the statute to apply
retroactively. Therefore, we do not regard the mention of cost
savings in a legislative report as a clear indication of contrary
legislative intent.
And in any event, it is not clear that a cost savings
motivation would be inconsistent with retroactive application of
the mental health diversion statute. According to an analysis of
Senate Bill 215, which amended section 1001.36 just a few
months after it was enacted, community-based treatment for a
mentally ill individual costs much less than jailing the same
individual, and greatly reduces recidivism. (Sen. Rules Com.,
Off. Of Sen. Floor Analysis, Unfinished Business Analysis of
Sen. Bill 215 (2017-2018 Reg. Sess.) as amended Aug. 23, 2018,
p. 2 [community-based treatment for a mentally ill defendant
costs roughly $20,000 per year; jailing the same defendant costs
more than $75,000].) Thus, for an individual like defendant,

19
 PEOPLE v. FRAHS
Opinion of the Court by Cantil-Sakauye, C. J.

who is currently serving a nine-year prison sentence,
participation in a mental health diversion program rather than
serving the remainder of his sentence could potentially result in
substantial cost savings to the state.
The People also contend that the timing of Senate Bill
215’s amendments to section 1001.36 supports their position.
“Had the Legislature believed that the original enactment was
retroactive for all cases not yet final on appeal,” the People
argue, “presumably it would have taken urgent action in order
to avoid allowing convicted murders and rapists with non-final
judgments to avoid conviction in the interim.” Instead, the
People observe, the amendments to section 1001.36 that were
implemented through Senate Bill 215 were approved by the
Legislature in September 2018 and became effective only in
January 2019.
This is not a persuasive argument. The Legislature’s
decision not to enact subsequent amendments with urgency
does not clearly indicate an intent to rebut the Estrada inference
of retroactivity, particularly in light of the statute’s express
purpose to increase diversion. (§ 1001.35, subd. (a).) Moreover,
under the statutory scheme as originally enacted through
Assembly Bill 1810, the diversion authorized by section 1001.36
hinged on the satisfaction of criteria, including a finding by the
court “that the defendant will not pose an unreasonable risk of
danger to public safety.” (Former § 1001.36, subd. (b)(6).) In
adopting Senate Bill 215, the Legislature could have regarded
the preexisting criteria as adequate to protect public safety, at
least until the new law took effect.
The People further argue that applying Estrada’s
inference of retroactivity to cases after adjudication would risk

20
 PEOPLE v. FRAHS
Opinion of the Court by Cantil-Sakauye, C. J.

potentially “undermining the legitimacy” of a jury’s verdict. The
People maintain that defendants suffering from mental illness
will frequently pursue a mental health defense, which a jury
must necessarily reject by reaching a guilty verdict. Meanwhile,
to find a defendant eligible for diversion under the statute, the
court must be satisfied that the defendant suffers from a mental
disorder (§ 1001.36, subd. (b)(1)(A)), and that the “disorder was
a significant factor in the commission of the charged offense”
(id., subd. (b)(1)(B)). The People identify an overlap in this
scenario between the issues that were before a jury and, later,
to be decided by the court considering eligibility for diversion.
They reason therefrom that it “would risk potentially
undermining the integrity of [a] jury’s findings” if a trial court
subsequently held a diversion eligibility hearing. But even if we
were to assume some such overlap in a subset of the cases to
which the diversion statute may apply (the statute does not
define the term “significant factor,” and we have no occasion
here to do so), the more fundamental fact is that it would not
provide a clear indication that the statute was not intended to
apply retroactively. The 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” (ibid.) even after a verdict in
which a mental health defense had been presented but rejected
by the trier of fact.
Finally, the People assert that section 1001.36 should not
be given retroactive effect because it would be awkward to apply
the scheme after adjudication. They emphasize that some of the
statute’s eligibility requirements, such as waiver of a
defendant’s right to a speedy trial (§ 1001.36, subd. (b)(1)(D)),
would no longer be pertinent, and language in the statute

21
 PEOPLE v. FRAHS
Opinion of the Court by Cantil-Sakauye, C. J.

providing that diversion be made “pretrial” would have to be
ignored. The potential logistical problems identified by the
People in providing defendants with a diversion eligibility
hearing after conviction, however, do not provide a sufficient
basis to deny defendants the benefit of a hearing altogether.
(See Lara, supra, 4 Cal.5th at pp. 312-313.) Although applying
section 1001.36 retroactively may be somewhat challenging, we
remain optimistic that “the courts involved can implement [it]
without undue difficulty.” (Lara, at p. 313.)
D. Defendant Is Entitled to a Pretrial Diversion
Hearing
Having found that section 1001.36 applies retroactively,
we must now consider the remedy. In Lara, we endorsed a
limited remand procedure described by the Court of Appeal in
People v. Vela (2018) 11 Cal.App.5th 68 (judg. vacated and cause
remanded (2018) 411 P.3d 526, reaffd. (2018) 21 Cal.App.5th
1099) to allow the juvenile court to conduct a transfer hearing
under Proposition 57. (Lara, supra, 4 Cal.5th at pp. 309-310,
citing Vela, at p. 81 [now 21 Cal.App.5th at p. 1113].) Noting its
authority to “ ‘remand the cause to the trial court for such
further proceedings as may be just under the circumstances’ ”
pursuant to section 1260, the Vela court conditionally reversed
the defendant’s conviction and sentence and ordered a limited
remand to the juvenile court with instructions to conduct a
juvenile transfer hearing, treating the matter as though the
prosecutor had originally filed a juvenile petition in juvenile
court and had then moved to transfer the defendant’s case to a
court of criminal jurisdiction. (Vela, at p. 81 [now
21 Cal.App.5th at p. 1113], citing § 1260; see Lara, at p. 310.)
Here, the Court of Appeal concluded that remand is
warranted because defendant’s case is not yet final on appeal

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 PEOPLE v. FRAHS
Opinion of the Court by Cantil-Sakauye, C. J.

and the record affirmatively discloses that he appears to meet
at least one of the threshold requirements: a diagnosed mental
disorder. (Frahs, supra, 27 Cal.App.5th at p. 791.) The court
conditionally reversed defendant’s convictions and sentence and
directed the trial court on remand to make an eligibility
determination regarding diversion under section 1001.36.
(Frahs, at p. 791.) It “instruct[ed] the trial court — as nearly as
possible — to retroactively apply the provisions of section
1001.36, as though the statute existed at the time [defendant]
was initially charged.” (Ibid.) It further provided: “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 his convictions and
sentence shall be reinstated.” (Id. at p. 792.)
The People argue that remand is inappropriate because
defendant has not made an adequate showing of eligibility.
They assert 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.
We conclude that imposing such a high bar in the posture
of proceedings such as these would be unduly onerous and
impractical. When, as here, a defendant was tried and convicted
before section 1001.36 became effective, the record on appeal is
unlikely to include information pertaining to several eligibility

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 PEOPLE v. FRAHS
Opinion of the Court by Cantil-Sakauye, C. J.

factors, such as whether the defendant consents to diversion
(§ 1001.36, subd. (b)(1)(D)), agrees to comply with treatment as
a condition of diversion (id., subd. (b)(1)(E)), or has provided the
opinion of a qualified mental health expert that the defendant’s
symptoms would respond to mental health treatment (id., subd.
(b)(1)(C)). Moreover, the People elsewhere acknowledge that
“some of the eligibility requirements no longer apply” to
defendants whose cases were adjudicated before the diversion
statute was enacted. Accordingly, it makes little sense to
require defendants to demonstrate on appeal that they would
have waived their rights to a speedy trial. Furthermore,
requiring defendants to show they would meet all threshold
eligibility requirements before the appellate court may remand
the case to the trial court — which decides in the first instance
whether a defendant is eligible for diversion — would be
inconsistent with any sensible retroactive application of the
statute. That, in turn, would run counter to our usual inference
that the Legislature intends ameliorative statutes like this one
to apply as broadly as possible within the constraints of finality
— an inference that has not been rebutted here.5 (See Lara,
supra, 4 Cal.5th at p. 308, quoting Conley, supra, 63 Cal.4th a
p. 657.)

5
Our conclusion that the Estrada rule applies here also
leads us to reject the People’s suggestion that an individual in
defendant’s position must first file a petition for a writ of habeas
corpus demonstrating his or her eligibility. The statute has
direct retroactive application, with a remand allowing the trial
court to ascertain defendant’s eligibility for diversion, so habeas
corpus procedures are not implicated here. (Cf. In re Kirchner
(2017) 2 Cal.5th 1040, 1052.)

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 PEOPLE v. FRAHS
Opinion of the Court by Cantil-Sakauye, C. J.

The People next claim that a remand would be pointless
because the trial court has already made findings that cast
defendant as unsuitable for diversion. The People emphasize
the trial court’s determination in the proceedings below that
there were no “significant mitigating factors” that weighed in
favor of striking defendant’s prior enhancement. (See §§ 25,
subd. (c), 1385, subd. (a); Cal. Rules of Court, rules 4.409,
4.423(a)(7), (b)(2), 4.428(b)(1); People v. Williams (1998)
17 Cal.4th 148, 161.) Thus, the argument goes, the trial court
has already concluded that defendant knew his actions were
illegal (Cal. Rules of Court, rule 4.423(a)(7)) and was not
“suffering from a mental condition that significantly reduced
culpability for” his crimes (id., rule 4.423(b)(2)) — and therefore
would find defendant ineligible for diversion on remand. But we
agree with defendant that these findings do not conclusively
establish that a remand would be futile. Section 1001.36,
subdivision (b)(1) provides that pretrial diversion may be
granted if, among other requirements, the court is satisfied that
“the defendant suffers from a mental disorder” (id., subd.
(b)(1)(A)) and “the defendant’s mental disorder was a significant
factor in the commission of the charged offense” (id., subd.
(b)(1)(B)). As defendant argues, the trial court could find that
these criteria for diversion are satisfied even if that court
believed defendant’s mental disorder did not significantly
reduce his culpability for the crimes.
The People further contend that defendant’s ineligibility
for probation disqualifies him from mental health diversion
because “diversion is similar in many respects to probation.”
They maintain that by being ineligible for probation, defendant
would also be ineligible for diversion because he would pose an
unreasonable risk of danger to public safety if treated in the

25
 PEOPLE v. FRAHS
Opinion of the Court by Cantil-Sakauye, C. J.

community. (§ 1001.36, subd. (b)(1)(F).) Yet again, we are not
convinced. As a preliminary matter, the Legislature left it to
trial courts to make fact-specific evaluations of risk under
section 1001.36, subdivision (b)(1)(F). If the Legislature had
intended to make all defendants who are ineligible for probation
also ineligible for diversion, it could have easily said so, just as
the amendments enacted by Senate Bill 215 specified that
defendants charged with certain crimes were categorically
disqualified. Moreover, a defendant may be ineligible for
probation for numerous reasons other than being found to be an
unreasonable risk of danger of public safety. (E.g., § 1210.1,
subd. (b).) Here, defendant admitted he was ineligible for
probation under section 1203, subdivision (k) [probation shall
not be granted to any person who is convicted of a violent or
serious felony and who was on probation for a felony offense at
the time of the commission of the new felony offense]. The trial
court made no finding regarding whether defendant would pose
an unreasonable risk of danger to public safety if treated in the
community, and we decline to interpret its ruling in such a
manner.
The People also assert that defendant, having already
been sentenced, is disqualified from diversion because the Penal
Code prohibits a defendant who is ineligible for probation or who
has a prior strike from receiving a suspended sentence. (§§ 667,
subd. (c)(2), 1203, subd. (k).) The People reason that if diversion
is granted, “the trial court would necessarily be required to
suspend imposition of sentence while [defendant] pursued
diversion,” contravening this rule. But by conditionally
reversing defendant’s convictions and sentence for an eligibility
hearing under section 1001.36, the case would be restored to its
procedural posture before the jury verdict for purposes of

26
 PEOPLE v. FRAHS
Opinion of the Court by Cantil-Sakauye, C. J.

evaluating defendant’s eligibility for pretrial mental health
diversion. (Burns, supra, 38 Cal.App.5th at p. 789.) At that
point, defendant faced a mere allegation of a prior serious felony
conviction, which is not enough to prohibit a suspended sentence
or diversion.
Last, the People maintain that defendant is procedurally
barred from obtaining relief because his case has already been
adjudicated. This argument is unconvincing. As previously
explained, the statute’s definition of “ ‘pretrial diversion’ ” as the
postponement of prosecution at any point of the judicial process
“until adjudication” (§ 1001.36, subd. (c)) does not prevent the
statute from applying retroactively. By definition, a statute
applies “retroactively” to cases already past the procedural point
at which the new law ordinarily applies — here, cases that have
already been adjudicated but are not yet final on appeal. At the
time section 1001.36 became effective, defendant’s case was
adjudicated but the judgment was not yet final. Accordingly, he
is entitled to the benefits of the statute’s retroactive application.
To summarize and apply the foregoing, we conclude that 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)). Because this case does not present such an issue, we
do not address the question of whether an appellate court may
also decline a defendant’s remand request when the record
clearly indicates the trial court would have found the defendant
“pose[s] an unreasonable risk of danger to public safety” (id.,
subd. (b)(1)(F)) and is therefore ineligible for diversion. Nor are

27
 PEOPLE v. FRAHS
Opinion of the Court by Cantil-Sakauye, C. J.

we here addressing the separate question of whether the 2019
amendments, which rendered defendants charged with certain
crimes categorically ineligible for diversion, apply retroactively.
(Id., subd. (b)(2), added by Stats. 2018, ch. 1005, § 1.)
There is evidence in the record that appears to support the
first of the statute’s threshold eligibility requirements, and one
other besides. A clinical and forensic psychologist testified that
defendant suffers from a qualifying mental disorder (§ 1001.36,
subd. (b)(1)(A)), and opined that his behavior at the Santa Ana
market was a consequence of this disorder (id., subd. (b)(1)(B)).
This evidence suffices to make a conditional limited remand
appropriate here.
III. DISPOSITION
We affirm the judgment of the Court of Appeal, which
conditionally reversed defendant’s convictions and sentence
with 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] 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 his
convictions and sentence shall be reinstated.” (Frahs, supra,
27 Cal.App.5th at p. 792.) We agree that the trial court should
adopt these procedures, and therefore we remand the matter to
the Court of Appeal with directions for it to remand the cause to

28
 PEOPLE v. FRAHS
Opinion of the Court by Cantil-Sakauye, C. J.

the trial court for further proceedings in accordance with these
instructions. We express no view concerning 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.
We also disapprove the opinions in People v. Lipsett,
supra, 45 Cal.App.5th 569, review granted May 13, 2020,
S261323; People v. Khan, supra, 41 Cal.App.5th 460, review
granted Jan. 29, 2020, S259498; and People v. Craine, supra,
35 Cal.App.5th 744, review granted Sept. 11, 2019, S256671, to
the extent they are inconsistent with this opinion.
CANTIL-SAKAUYE, C. J.

We Concur:
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.

29
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Frahs
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XX 27 Cal.App.5th 784
Rehearing Granted

__________________________________________________________________________________

Opinion No. S252220
Date Filed: June 18, 2020
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Glenn R. Salter

__________________________________________________________________________________

Counsel:

Arthur Martin and Susan L. Ferguson, under appointments by the Supreme Court, for Defendant and
Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Matthew Mulford, Marilyn George, Meredith White, Daniel Hilton and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Steve Oetting
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92186-5266
(619) 738-9207

Arthur Martin
Appellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101
(619) 696-0282