People v. Craine CA5

Filed 10/30/20 P. v. Craine CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F074622
Plaintiff and Respondent,
(Super. Ct. No. DF012338A)
v.

TIMOTHY CRAINE, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Robert S.
Tafoya, Judge.
Caitlin M. Plummer, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 Timothy Craine was convicted by jury of indecent exposure. It was his sixth such
conviction, thus making the offense a felony. He was sentenced to seven years in prison.
Craine represented himself at trial. On appeal, he contends the trial court breached
a sua sponte duty to determine his mental competence under Penal Code section 1368 (all
further statutory references are to this code). In a related claim, he argues the trial court
should have assessed his competence to proceed in propria persona under a “heightened
standard” as compared to the one used to determine a defendant’s competence to stand
trial. He further alleges sentencing error based on the trial court’s failure to state its
reasons for imposing the maximum prison term. Lastly, Craine argues for retroactive
application of section 1001.36, which authorizes pretrial diversion in certain cases
involving mentally disordered offenders.
In a prior opinion, we affirmed the judgment in full. The California Supreme
Court has instructed us to to vacate that decision and reconsider the cause in light of
People v. Frahs (2020) 9 Ca1.5th 618 (Frahs). Having done so, we now conditionally
reverse the judgment and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In early 2016, Craine was residing in a special housing unit at the North Kern
State Prison. He had recently been classified as a mentally disordered offender (MDO)
(see § 2960 et seq.) and placed on a “suicide watch,” which entailed continuous
monitoring by a certified nursing assistant (CNA). On or about January 13, 2016, Craine
stripped naked in front of a female CNA and began masturbating. A second CNA
witnessed this behavior, as did a correctional officer who intervened.
Craine was subsequently transferred to a Department of State Hospitals facility in
Atascadero. He was later charged with one count of felonious indecent exposure (§ 314,
subd. 1). For enhancement purposes, he was alleged to have served five prior prison
terms (§ 667.5, subd. (b)).

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 The record does not identify the nature of Craine’s mental disorder, but he
remained in Atascadero until being transferred to the Kern County Jail in connection with
this case. On April 7, 2016, Craine appeared at a preliminary hearing with appointed
counsel. Eleven days later, he was represented by appointed counsel during another court
proceeding. In June 2016, shortly before trial, Craine successfully moved to represent
himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). He
acknowledged his constitutional rights and unequivocally waived the right to counsel,
both orally and in writing.1
A three-day trial commenced on June 15, 2016. Craine presented arguments on
motions in limine, participated in the jury selection process, gave opening and closing
statements, and cross-examined two of the three witnesses who testified. He disputed a
prior prison term allegation concerning a conviction for second degree burglary, and one
such allegation was dismissed at the People’s request.
The jury returned a guilty verdict and found the enhancement allegations to be
true. The trial court imposed the upper term of three years and added four consecutive
one-year enhancements for the prison priors. A handwritten notice of appeal, which was
served upon the district attorney’s office and belatedly received by the trial court, was
deemed to have been timely filed.
DISCUSSION
I. The Faretta Motion Was Properly Granted
The constitutional right to due process prohibits the trial of a mentally incompetent
criminal defendant. (In re R.V. (2015) 61 Cal.4th 181, 188.) Under federal law, the test
for competence is whether the defendant “‘has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding—and whether he has a

1 The record contains a preprinted Faretta form, which Craine filled out and signed. The
form is file stamped June 7, 2016, but it was purportedly executed on June 9, 2016. Craine’s
motion was orally made and ruled upon on the latter date.

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rational as well as factual understanding of the proceedings against him.’” (Dusky v.
United States (1960) 362 U.S. 402 (Dusky).) In California, section 1367 codifies a nearly
identical standard. “A defendant is mentally incompetent … if, as a result of mental
disorder or developmental disability, the defendant is unable to understand the nature of
the criminal proceedings or to assist counsel in the conduct of a defense in a rational
manner.” (Id., subd. (a).)
In Faretta, the United States Supreme Court recognized a constitutional right to
self-representation. (Faretta, supra, 422 U.S. at p. 832.) A Faretta motion must be
granted if the defendant’s waiver of the right to counsel is timely, competent, knowing,
and voluntary. (Id. at p. 835; Godinez v. Moran (1993) 509 U.S. 389, 399–400
(Godinez).) “The focus of a competency inquiry is the defendant’s mental capacity; the
question is whether he has the ability to understand the proceedings. [Citation.] The
purpose of the ‘knowing and voluntary’ inquiry, by contrast, is to determine whether the
defendant actually does understand the significance and consequences of a particular
decision and whether the decision is uncoerced.” (Godinez, supra, at p. 401, fn. 12.)
As held in Indiana v. Edwards (2008) 554 U.S. 164 (Edwards), state courts may,
but need not, deny self-representation to defendants who are competent to stand trial
under the Dusky standard but nevertheless lack the mental health or capacity to forgo the
assistance of counsel. (Edwards, supra, at p. 174; People v. Johnson (2012) 53 Cal.4th
519, 523 (Johnson).) The Edwards opinion refers to such individuals as “gray-area
defendants.” (Edwards, supra, at pp. 172–174.) In Johnson, the California Supreme
Court concluded trial judges “should have discretion to deny self-representation to gray-
area defendants.” (Johnson, supra, at p. 528.) However, “[b]ecause the Edwards rule is
permissive, not mandatory, … Edwards ‘does not support a claim of federal
constitutional error in a case like the present one, in which [the] defendant’s request to
represent himself was granted.’” (Id. at p. 527, quoting People v. Taylor (2009) 47
Cal.4th 850, 878.)

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 The Johnson opinion goes on to discuss “the standard for trial courts to employ
when deciding whether to deny self-representation under Edwards .…” (Johnson, supra,
53 Cal.4th at p. 529.) “Edwards described competence to represent oneself at trial as the
ability ‘to carry out the basic tasks needed to present [one’s] own defense without the
help of counsel.’ (Edwards, supra, 554 U.S. at pp. 175–176.) It also said the states may
deny self-representation to those competent to stand trial but who ‘suffer from severe
mental illness to the point where they are not competent to conduct trial proceedings by
themselves.’” (Johnson, supra, at p. 530.) The California Supreme Court declined to
adopt a more specific standard. (Ibid.)
Craine alleges the trial court erred by granting his Faretta motion without first
ordering an assessment of his mental competence. In making this argument, he asks us to
formulate a new rule under which trial courts “must apply the heightened Edwards
standard whenever a defendant seeks to represent himself.” We decline the request. On
the question of error, we are constrained by case law.
A defendant is presumed to be competent. (§ 1369, subd. (f); People v. Medina
(1990) 51 Cal.3d 870, 881.) “A trial court need not routinely inquire into the mental
competence of a defendant seeking self-representation. It needs to do so only if it is
considering denying self-representation due to doubts about the defendant’s mental
competence.” (Johnson, supra, 53 Cal.4th at p. 530, italics added.) Craine acknowledges
the quoted language and essentially argues it should be disregarded. Elsewhere in his
briefing, he suggests the high court did not mean what it said. We are unpersuaded,
especially considering the same point was reiterated in People v. Espinoza (2016) 1
Cal.5th 61, 80 and People v. Mickel (2016) 2 Cal.5th 181, 208 (Mickel).
Craine’s Faretta motion was heard and ruled upon by the Honorable Marcos A.
Camacho, whose role in the case was otherwise limited to presiding over the preliminary
hearing. Appointed counsel informed Judge Camacho of Craine’s desire to proceed in
propria persona during a trial confirmation hearing. Counsel did not voice any concerns

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regarding Craine’s competence, and Craine’s behavior in front of Judge Camacho
demonstrated full cognizance of his actions and the nature of the proceedings.
Craine referenced “Faretta” while making his request to “waive my right to have
an attorney counsel me.” He later provided an articulate synopsis of his educational
background and work history, expressed familiarity with the concept of discovery, and
acknowledged the disadvantages of self-representation. He also asked for, and received,
an explanation of the charges against him and his maximum sentencing exposure. Judge
Camacho expressed no doubts about Craine’s competence to stand trial. On the record
before us, we cannot say the trial court erred by granting the Faretta motion without
further inquiry into Craine’s mental health.
II. Section 1368 Proceedings Were Not Required
“‘Even when a defendant is competent at the commencement of his trial, a trial
court must always be alert to circumstances suggesting a change that would render the
accused unable to meet the standards of competence to stand trial.’ [Citation.] State
constitutional authority is to the same effect.” (People v. Lightsey (2012) 54 Cal.4th 668,
690–691.) Accordingly, Craine alleges the trial court had a sua sponte duty to order an
evaluation of his mental competence. The claim is governed by section 1368.
Under section 1368, if “a doubt arises in the mind of the judge as to the mental
competence of the defendant, he or she shall state that doubt in the record and inquire of
[defense counsel] whether, in the opinion of the attorney, the defendant is mentally
competent. If the defendant is not represented by counsel, the court shall appoint
counsel. At the request of the defendant or [defense counsel] or upon its own motion, the
court shall recess the proceedings for as long as may be reasonably necessary to permit
counsel to confer with the defendant and to form an opinion as to the mental competence
of the defendant at that point in time.” (Id., subd. (a).) If counsel or the trial court
believes the defendant is or may be mentally incompetent, a hearing to determine the

6.
question of competence should be conducted pursuant to sections 1368.1 and 1369.
(§ 1368, subd. (b).)
Although section 1368 is phrased in terms of whether a doubt exists “in the mind
of the judge,” case law holds that substantial evidence of incompetence triggers the right
to a competency hearing as a matter of law. (People v. Stankewitz (1982) 32 Cal.3d 80,
91–92; People v. Pennington (1967) 66 Cal.2d 508, 518.) The sua sponte duty to conduct
a competency hearing may arise at any time prior to judgment. (People v. Rogers (2006)
39 Cal.4th 826, 847 (Rogers).) If evidence of the defendant’s incompetence is less than
substantial (and the court has not expressed a doubt as to his competence), the decision to
conduct such a hearing is a matter of discretion. (Pennington, supra, at p. 518.) “A trial
court’s decision whether or not to hold a competence hearing is entitled to deference,
because the court has the opportunity to observe the defendant during trial.” (Rogers,
supra, at p. 847.)
Substantial evidence of incompetence is evidence “that raises a reasonable or bona
fide doubt concerning the defendant’s competence to stand trial.” (Rogers, supra, 39
Cal.4th at p. 847.) Such evidence may come from any source, and the trial court “must
consider all of the relevant circumstances.” (People v. Howard (1992) 1 Cal.4th 1132,
1164.) “If a defendant presents merely ‘a litany of facts, none of which actually related
to his competence … to understand the nature of [the] proceeding[s] …,’ the evidence
will be inadequate to support holding a competency hearing. [Citation.] In other words,
a defendant must exhibit more than bizarre, paranoid behavior, strange words, or a
preexisting psychiatric condition that has little bearing on the question of [his competence
to stand trial].” (People v. Ramos (2004) 34 Cal.4th 494, 508.)
The threshold for competence is low. “Requiring that a criminal defendant be
competent has a modest aim: It seeks to ensure that he has the capacity to understand the
proceedings and to assist counsel.” (Godinez, supra, 509 U.S. at p. 402.) Even under the
heightened Edwards standard, a self-represented defendant is competent if he or she is

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capable of performing “basic trial tasks,” e.g., making motions, presenting arguments,
participating in voir dire, questioning witnesses, and addressing the judge and jury.
(Mickel, supra, 2 Cal.5th at pp. 208–209.)
Craine emphasizes his MDO classification, the fact he was on a suicide watch
when the charged offense occurred, and his transfer to a Department of State Hospitals
facility a few months before trial. These are relevant facts, but they are not dispositive.
“[E]ven a history of serious mental illness does not necessarily constitute substantial
evidence of incompetence that would require a court to declare a doubt concerning a
defendant’s competence and to conduct a hearing on that issue.” (People v. Blair (2005)
36 Cal.4th 686, 714.) The same is true of suicidal ideations. (Rogers, supra, 39 Cal.4th
at p. 848.) “By definition, every mentally disordered offender has previously been
deemed competent to stand trial, and the premise of the MDO statute is that severe
mental disorders are ‘treatable.’” (People v. Blackburn (2015) 61 Cal.4th 1113, 1129.)
“The potentially transitory and treatable nature of mental illness and the potentially
limited areas of functioning impaired by such illness preclude any categorical inference
that an MDO defendant [is incompetent].” (Ibid. [discussing competency to waive the
right to a jury trial in a civil commitment proceeding].)
Craine argues he “often had substantial difficulty with communication” during
trial, “appeared confused about which matters were being discussed, failed to present a
coherent defense, and engaged in several rants that were both legally irrelevant and
otherwise largely incoherent.” We address each contention in turn.
What Craine describes as “difficulty with communication” primarily refers to his
tendency to use words and expressions that were beyond the scope of his vocabulary. For
example, he often misused the term “in lieu” and frequently, yet ineffectively, attempted
to incorporate legalese into his statements.
Craine also downplays his performance of trial tasks such as lodging objections
and cross-examining witnesses. His objections were made in proper form, e.g.,

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“Objection, your Honor, foundation,” “Objection, your Honor, this is speculative,”
“Objection, your Honor, leading the witness,” “Objection, your Honor, assuming facts
not in evidence.” His cross-examinations addressed topics such as the witnesses’ vantage
points and ability to see the alleged crime, as well as the date and location of the incident.
Craine was very much engaged in the process, at one point mocking a witness for asking
him to “refrain” a question: he said, “I won’t refrain that question, but I’ll rephrase it.”
Despite claiming to have “appeared confused” during trial, Craine’s opening brief
cites only one remark he made during motions in limine: “If I pick up any of these
papers, are these discovery that can be eliminated through a motion process?” He then
pivots to a discussion about his ignorance of various legal concepts and failure to present
“a coherent theory of the case to the jury, other than generalities that were embedded in
otherwise improper arguments.” In his reply brief, Craine notes his confusion regarding
“the distinction between a document being used to refresh a witness’s recollection and
one being admitted in evidence.” These arguments concern the inapposite question of his
ability to effectively represent himself.
“The focus of the inquiry is the defendant’s mental capacity to understand the
nature and purpose of the proceedings against him or her. [Citations.] The defendant’s
‘“technical legal knowledge”’ is irrelevant.” (People v. Blair, supra, 36 Cal.4th at
p. 711.) For example, in People v. Woodruff (2018) 5 Cal.5th 697, neither the
defendant’s low IQ, nor his confusion about certain legal concepts, “nor his inability to
understand the court’s discussion of case law” amounted to substantial evidence of
incompetence. (Id. at pp. 722–723.) Higher courts “have accepted that the cost of
recognizing a criminal defendant’s right to self-representation may result ‘“in detriment
to the defendant, if not outright unfairness.”’” (Mickel, supra, 2 Cal.5th at p. 206; see
Godinez, supra, 509 U.S. at p. 399 [rejecting the argument that a self-represented
defendant “‘“must have greater powers of comprehension, judgment, and reason than
would be necessary to stand trial with the aid of an attorney.”’”].)

9.
 Regardless of his ineptitude, there is no question Craine understood he was being
prosecuted for indecent exposure and would be sentenced to prison if convicted. On the
first day of trial, he rejected a four-year plea deal. In acknowledging the terms of the
offer, he correctly observed that the proposed fixed term translated to “two years with
half time.” During opening statements, he noted a witness claimed to have “seen me
gratifying and exposing my genitalia” and concluded his remarks by saying, “there is no
proof beyond a reasonable doubt that these things happened.”
In closing argument, Craine said, “They tried to illicitly make me sound like I was
gratifying myself in a public place. This is not true.… [¶] … [¶] There was no willful
exposure.” These statements are significant because section 314, subdivision 1, requires
that a person “willfully and lewdly” expose himself “in any public place, or in any place
where there are present other persons to be offended or annoyed thereby.” In other
words, Craine showed a general understanding of the charge and the prosecution’s
evidentiary burden.
After the jury returned its guilty verdict, Craine asked the trial court for “grace” in
light of the expense his confinement would impose upon the taxpayers of Kern County.
The argument quickly devolved into nonsense: “That’s $1,500 in revenue for every $5
that it’s paid for every person that is an inmate regarding of gender, let alone all the
things that are going to happen when there’s going to be a huge earthquake.… It’s going
to be bad. And I’m trying to help health and safety. [¶] And I’m trying to ask you[—
]like the more that this goes [on] with all that’s being paid in for, it’s costing me $50 that
I can’t even make five remarks to tell you that I can’t get this off the record.” Later, as
Craine describes in his briefing, he launched into “another bizarre and untimely request
for a lenient sentenc[e].”
Craine’s misguided and sometimes unintelligible remarks do not establish a
reasonable doubt about his competence to stand trial. During and after the bizarre
comments, he presented arguments regarding his anticipated sentence and the admission

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of evidence concerning his prior prison terms. “Even supposing [the] defendant is correct
that the various examples of his rambling, marginally relevant speeches cited in his
briefing may constitute evidence of some form of mental illness, the record simply does
not show that he lacked an understanding of the nature of the proceedings or the ability to
assist in his defense.” (People v. Koontz (2002) 27 Cal.4th 1041, 1064.) As stated in In
re Sims (2018) 27 Cal.App.5th 195, “evidence of mental illness alone is insufficient to
raise a doubt as to competency. [Citation.] Bizarre statements or actions, taken in
isolation, do not require a court to hold a competency hearing.” (Id. at p. 209.)
In People v. Halvorsen (2007) 42 Cal.4th 379, the California Supreme Court
determined a trial court did not err by failing to conduct proceedings under section 1368
even though (1) a psychiatrist had testified the defendant was psychotic and (2) the
defendant’s trial testimony was “‘filled with tangential responses to the questions of
counsel and strange, irrelevant statements, often marked by a seemingly psychosis-
induced preoccupation with a newly embraced religion and an obsession with his own
and society’s unworthiness.’” (People v. Halvorsen, supra, at p. 402.) In People v.
Welch (1999) 20 Cal.4th 701, substantial evidence was lacking despite the defendant’s
disruptive behavior, history of making “nonsensical motions,” and stated belief that the
trial court, prosecutor, and his own counsel were “‘acting in collusion with each other.’”
(Id. at pp. 730–731 & fn. 3.) “[T]he trial court could have ordered a hearing on
competence to stand trial,” but it was not required to do so as a matter of law.” (Id. at
p. 742.)
Based on the foregoing analysis, we conclude the evidence of Craine’s alleged
incompetence was less than substantial. Therefore, the trial court did not have a legal
duty to conduct the proceedings described in section 1368. Its failure to declare a doubt
regarding Craine’s competence to stand trial was a matter of discretion, and no abuse of
discretion has been shown.

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III. The Claim of Sentencing Error Was Forfeited
The trial court did not specify its reasons for imposing the upper term for the
indecent exposure conviction. At most, it attempted to incorporate by reference the
aggravating circumstances cited in the probation report, i.e., Craine’s five prior
convictions for the same offense and history of unsatisfactory performance on probation
and parole. Craine alleges error and requests a new sentencing hearing. (§ 1170,
subd. (b); see People v. Fernandez (1990) 226 Cal.App.3d 669, 679 [“merely
incorporating the probation report by reference violates the spirit of the sentencing laws
and fails to properly explain the basis for any sentencing choice”].)
Claims of discretionary sentencing error, including those based on a trial court
“merely incorporating by reference the aggravating and mitigating circumstances in the
probation report,” are subject to forfeiture. (People v. Scott (2015) 61 Cal.4th 363, 406.)
“‘A party in a criminal case may not, on appeal, raise “claims involving the trial court’s
failure to properly make or articulate its discretionary sentencing choices” if the party did
not object to the sentence at trial.’” (Ibid.) Craine made no objections at the time of
sentencing.
The forfeiture rule does not apply “if the trial court fails to give the parties any
meaningful opportunity to object” to the sentence. (People v. Gonzalez (2003) 31 Cal.4th
745, 752 (Gonzalez).) For example, in People v. Superior Court (Dorsey) (1996) 50
Cal.App.4th 1216, the trial court placed the defendant on probation and “immediately
declared a recess without hearing from either party.” (Gonzalez, supra, at p. 752, citing
Dorsey, supra, at p. 1224.) The defendant was presumptively ineligible for probation,
but “the prosecutor had no opportunity, meaningful or otherwise, to object.” (Dorsey,
supra, at p. 1224.) Therefore, an appeal of the sentence was permissible despite the lack
of any objections. (Ibid.)
Here, the trial court announced its intention to “follow the recommendation of
probation.” The sentence was pronounced immediately thereafter, with the judge pausing

12.
to confer with the prosecutor about whether the upper term was three or four years.
Before concluding the hearing, the trial court said, “Is there anything else that we need to
take up at this time? Hearing none .…” The People construe these statements as
providing a meaningful opportunity for the parties to object. Craine disagrees.
Craine submits that a meaningful opportunity to object must precede the
pronouncement of sentence. He relies on the following quote from Gonzalez, supra, 31
Cal.4th at page 752: “The parties are given an adequate opportunity to seek such
clarifications or changes if, at any time during the sentencing hearing, the trial court
describes the sentence it intends to impose and the reasons for the sentence, and the court
thereafter considers the objections of the parties before the actual sentencing.” Craine’s
argument, while cogent, is difficult to reconcile with People v. Boyce (2014) 59 Cal.4th
672 (Boyce), which was decided nearly 11 years after Gonzalez. In Boyce, the California
Supreme Court applied the forfeiture rule under circumstances wherein the trial court,
after the pronouncement of sentence, had (1) “entertained a prosecution request for
clarification about the certification of the record,” (2) “allowed defense counsel to
enumerate his objections to the probation report,” and (3) “adjourned after asking counsel
if there was anything else to discuss.” (Boyce, supra, at p. 731.)
In People v. Sperling (2017) 12 Cal.App.5th 1094, 1101–1102 (Sperling),
Division Six of the Second District Court of Appeal interpreted Boyce to mean the
requisite opportunity to object can occur at any time during the sentencing hearing. The
issue arose as follows. “After pronouncing sentence, the court asked, ‘Is there any other
record either of you would like me to make?’ The prosecutor replied[,] ‘No.’ [Defense]
counsel remained silent.” (Sperling, supra, at pp. 1101–1102.) Consequently, the
defendant was found to have “forfeited his sentencing claims because he did not object at
the time of sentencing.” (Id. at p. 1100.)
In his reply brief, Craine argues that “Sperling appears to be in direct conflict with
the language of Gonzalez.” However, he does not discuss or even cite the Boyce opinion.

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We are not persuaded by his criticism of Sperling. In light of Boyce and Sperling, we
conclude the claim of sentencing error was forfeited.
IV. Section 1001.36
Section 1001.36 was enacted approximately two years after Craine was sentenced,
while his appeal was pending. (Stats. 2018, ch. 34, § 24, pp. 34–37 [eff. June 27, 2018].)
The statute authorizes, in lieu of criminal prosecution, a “pretrial diversion” procedure
involving the placement of defendants into mental health treatment programs. (Frahs,
supra, 9 Cal.5th at p. 624.) The California Supreme Court has ruled that section 1001.36
applies retroactively to cases in which the judgment was not final when the law took
effect. (Frahs, supra, at pp. 624–625, 637.) Diversion is unavailable in certain types of
cases, but none of those exceptions apply here. (See § 1001.36, subd. (b)(2).)
A trial court may grant pretrial diversion if it finds all of the following: (1) the
defendant suffers from a mental disorder identified in the most recent edition of the
Diagnostic and Statistical Manual of Mental Disorders; (2) the disorder was a significant
factor in the commission of the charged offense; (3) a medical expert has opined the
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 the prescribed treatment; and (6) the defendant
will not pose an unreasonable risk of danger to public safety if treated in the community.
(§ 1001.36, subd. (b)(1)(A)–(F).)
“The maximum period of diversion is two years. ([§ 1001.36], 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

14.
diversion’ and ‘the arrest upon which the diversion was based shall be deemed never to
have occurred.’ (Id., subd. (e).)” (Frahs, supra, 9 Cal.5th at p. 627.)
To obtain relief on appeal, a defendant need only make a prima facie showing of
the first eligibility requirement, i.e., the record must indicate he or she suffers from a
qualifying mental disorder. (Frahs, supra, 9 Cal.5th at p. 640.) If the record
affirmatively discloses such information, it is appropriate to conditionally reverse the
judgment and order a “limited remand for the trial court to conduct a mental health
diversion eligibility hearing .…” (Ibid.)
As noted, Craine had recently been classified as an MDO and was being
monitored for suicidal behavior at the time of his offense. The conditions imposed under
the MDO statutes apply to individuals who have “a severe mental health disorder that is
not in remission or that cannot be kept in remission without treatment.” (§ 2962,
subd. (a)(1).) “Before a prisoner may be classified as an MDO under section 2962, both
the person in charge of treating the prisoner and a practicing psychiatrist or psychologist
from the State Department of Mental Health must evaluate the prisoner, and a chief
psychiatrist of the Department of Corrections must then certify to the Board of Prison
Terms that the prisoner meets the statutory criteria .…” (People v. Fernandez (1999) 70
Cal.App.4th 117, 125.) Although the exact nature of Craine’s condition is unclear from
the record, his MDO classification is prima facie evidence of a qualifying mental disorder
for purposes of section 1001.36, subdivision (b)(1)(A). Therefore, a conditional reversal
and remand is warranted.
On remand, it will be Craine’s burden to establish eligibility under all applicable
provisions of section 1001.36. If the trial court finds the prerequisites are met, it may
grant relief as authorized by the statute. If the trial court finds Craine ineligible and/or
unsuitable for diversion, his conditionally reversed convictions and sentence shall be
reinstated. (Frahs, supra, 9 Cal.5th at pp. 640–641.)

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V. Prior Prison Term Enhancements
Our earlier decision in this case was issued on May 23, 2019. In the interest of
fairness, we note, sua sponte, that on October 8, 2019, Senate Bill No. 136 (2019-2020
Reg. Sess.) was signed into law. (Stats. 2019, ch. 590, § 1, pp. 1–4.) As a result,
effective January 1, 2020, the one-year enhancement provided for in section 667.5,
subdivision (b) is inapplicable to all prior prison terms except those served for a sexually
violent offense within the meaning of Welfare and Institutions Code section 6600,
subdivision (b). Although neither side raised the issue on appeal, the parties and/or the
trial court may address it in the proceedings on remand.
DISPOSITION
The judgment is conditionally reversed and the matter is remanded for further
proceedings. On remand, the trial court shall conduct a mental health diversion eligibility
hearing pursuant to section 1001.36 and Frahs, supra, 9 Cal.5th 618.
If the trial court finds appellant meets the eligibility requirements of
section 1001.36, the court may grant relief as provided in the statute. In the event
appellant is found eligible and successfully completes a diversion program, the court
shall dismiss the charges. However, if the court finds appellant does not meet the
requirements of section 1001.36, or if he does not successfully complete the diversion
program, then his convictions and sentence shall be reinstated. We express no views

16.
about whether appellant 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.

MEEHAN, J.
WE CONCUR:

LEVY, Acting P.J.

PEÑA, J.

17.