People v. Sapienza CA4/2

Filed 2/18/21 P. v. Sapienza CA4/2
Opinion on rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E070547

v. (Super.Ct.No. SWF1500341)

JEFFREY EDWARD SAPIENZA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge.

Reversed and remanded.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief

Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, and Steve

Oetting, Meredith S. White and Daniel Hilton, Deputy Attorneys General, for Plaintiff

and Respondent.

1
 On August 31, 2015, pursuant to a plea agreement, defendant and appellant Jeffrey

Edward Sapienza pled guilty to criminal threats. (Pen. Code, § 422, count 2.)1 The court

imposed the upper term of three years of imprisonment, but it suspended execution of

sentence and placed defendant on three years of formal probation from which defendant

did not appeal. On January 5, 2018, the trial court found defendant in violation of his

probation. On March 23, 2018, the court imposed the three-year suspended sentence and

awarded defendant 903 days of custody credits.

On appeal, defendant contended the matter should be conditionally reversed and

remanded to the trial court to determine, retroactively, whether he qualified for a pretrial

diversion program for individuals diagnosed with qualifying mental disorders pursuant to

then-recently enacted section 1001.36. (Stats. 2018, ch. 35, § 24.) The People

responded, in part, that even if section 1001.36 could be applied retroactively,

defendant’s judgment was already final and, thus, defendant was ineligible for

consideration for section 1001.36 diversion.

In a published opinion dated August 23, 2019, we affirmed, holding that

defendant’s judgment was final when the time for filing an appeal from the court’s order

imposing but suspending execution of sentence on August 31, 2015, had expired. Thus,

because any purported retroactivity of section 1001.36 would have extended only to

nonfinal judgments, defendant was not entitled to have his matter evaluated for pretrial

diversion.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2
 Since that decision, the court in People v. Frahs (2020) 9 Cal.5th 618 (Frahs),

found that section 1001.36 “applies retroactively to cases in which the judgment is not

yet final . . . .” (Id. at p. 845; see id. at pp. 850-854.) By order dated May 27, 2020, the

California Supreme Court directed us to vacate our opinion and reconsider the cause in

light of People v. McKenzie (2020) 9 Cal.5th 40 (McKenzie). (People v. Sapienza

(May 27, 2020, S258252) ___ Cal.5th ___ [2020 Cal. Lexis 3504].)

In his supplemental briefs on remand, defendant contends that the holding in

McKenzie requires that we remand the matter to the trial court to conduct a mental health

diversion eligibility hearing pursuant to section 1001.36. In their supplemental briefs, the

People maintain the McKenzie decision has no impact upon this case because, unlike this

case, there was no final judgment in McKenzie. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

In January 2015, the victim drove into his mobilehome park, where defendant

waved him down. The victim rolled down his window and asked if he could help

defendant. Defendant said the victim was not a man of his word; defendant said

something about the victim owing defendant $20. The victim assumed defendant was

talking about $20 that defendant’s mother had lent the victim.

The victim exited his car. Defendant yelled: “‘Give me your money or I’m gonna

get it from you.’” Defendant quickly approached the victim and touched his nose to the

victim’s nose and his chest to the victim’s chest. Defendant told the victim to give him

3
the money or he was going to hurt and kill the victim. The victim was afraid of

defendant.

The victim told defendant he had already paid the money back to defendant’s

mother. Defendant pointed out a car nearby and said: “‘You see the [B]lack guy there

inside the car? All I have to do is call him, and he’ll do it for me.’” The victim “really

got very scared.” He interpreted defendant’s words as a threat to have the man kill him.

The victim told defendant he was going to call the mobilehome manager and the

police. Defendant told him: “‘Go ahead.’” The victim got into his car and drove off. He

did not return home because he was afraid of alerting the man with whom defendant had

threatened him with as to the location of his residence. Instead, the victim parked, went

to the manager’s office, and told her what had occurred. The manager then called the

police.

The victim testified that two nights prior to the incident, he found defendant

parked in front of his home at 2:00 a.m. The victim was worried because he had been

burglarized on several occasions. In May 2016, the victim called the police because

defendant contacted him; the victim had a restraining order against defendant.2

The People charged defendant by second amended felony complaint with

attempted robbery (§§ 664, 211, count 1), two counts of criminal threats (§ 422, counts 2

& 4), misdemeanor elder abuse (§ 368, subd. (c), count 3), and failure to appear

2
At this point, the court recessed the preliminary hearing. Upon return from the
recess, defendant entered his plea.

4
(§ 1320.5, count 5). The People additionally alleged defendant had committed the

charged offenses while defendant had been released from custody. (§ 12022.1.)

The People and defendant apparently came to a resolution which involved the

instant case, four misdemeanor cases, and an admission to a violation of probation. In the

instant case, defendant pled guilty to criminal threats (§ 422, count 2) with the

understanding defendant would be sentenced to jail for 365 days with credit for 121 days.

The People agreed that defendant “could be accepted into an appropriate dual

diagnosis residential treatment program . . . .” Defendant would be required to provide

proof that the program had accepted him; if admitted to a rehabilitation program, the

court would modify the sentence, release defendant to the program, and allow him to

spend the balance of his jail time in the program. The court imposed the upper term of

three years, execution of which the court suspended on the condition that defendant

successfully complete the terms and conditions of three years of formal, felony probation.

At a hearing on September 24, 2015, the parties confirmed that defendant had

been admitted to a rehabilitation program. Upon defendant’s agreement, the court

ordered defendant released from jail the next day to complete the balance of his custody

time in the residential treatment program. The court noted, “I’m going to give you the

opportunity to get clean and sober.”

On April 5, 2016, the People filed a misdemeanor complaint and petition for

revocation of defendant’s probation alleging he had resisted arrest. (§ 148, subd. (a)(1).)

At a hearing on May 24, the court observed: “I . . . have this document he’s in inpatient

5
care at Pacific Grove Hospital.” Defendant’s attorney stated defendant was “on a

psychiatric hold.”3 The court noted that the letter indicated defendant would not be

released from the hospital until June 3; defense counsel confirmed this. The court issued

a bench warrant, but held it until the second week of June, ordering defendant to appear

on June 9.

On June 9, 2016, the People informed the court that they had obtained a letter

reflecting defendant had been admitted to a hospital the day before, with an undetermined

release date. Defense counsel stated the reason for the hospitalization “seems to be

possibly schizophrenia, for all I know.”4 The court continued the matter and held the

warrant until June 21.

On July 13,5 August 8, October 23, November 1, and December 18, 2017, the

court continued the matter. On January 5, 2018, the court held a hearing on the petition

to revoke defendant’s probation.

A police officer testified that on March 31, 2016, he responded to a call regarding

“a male acting strangely and being aggressive and loud at the bank.” When he arrived, he

3 The letter to which the court referred does not reflect that the hospital was a
psychiatric hospital and does not indicate why defendant had been admitted, only that he
had been admitted to the hospital.

4 Again, the letter from the hospital does not reflect that it was a psychiatric
hospital or that defendant was admitted for any psychiatric condition.

5 There is nothing in the record to explain the more than one-year gap between the
last continuance and that issued on July 13, 2017.

6
encountered defendant, who was pacing back and forth in front of the bank yelling.

Defendant did not appear to have mental issues but appeared to be agitated.

The officer obtained defendant’s name and date of birth; he conducted a records

check of defendant. The officer discovered defendant was on formal, felony probation

with search terms and that his driver’s license had expired on October 22, 2012. The

officer found a vehicle associated with defendant and conducted a record check on it.

The vehicle had no license plates and was registered to defendant’s mother.

The officer told defendant he could not drive any vehicle because his license was

expired; defendant acknowledged that he could not drive until he had his license

reinstated. The officer contacted defendant’s mother, who agreed to come drive the

vehicle home. He advised defendant to wait for his mother, which defendant agreed to

do. The officer left.

Five minutes later, the officer received a call advising him that defendant had

driven the vehicle away. The officer drove to defendant’s mother’s home. A few

minutes later, defendant pulled into the mobilehome park in his mother’s vehicle.

The officer ordered defendant to stop and get out of the car. Defendant yelled:

“‘Not this time, Cop.’” Defendant backed away and drove off. The officer quickly found

the vehicle parked at the south end of the mobilehome park, adjacent to a golf course;

defendant was not in the car. The officer saw defendant running down an embankment

onto the golf course. He gave chase and ordered defendant to get on the ground.

Defendant eventually complied. Defendant physically resisted while the officer

7
attempted to handcuff him. The officer and his partner had to drive their patrol car onto

the golf course because defendant refused to walk.

Defendant’s counsel argued defendant was suffering from mental health issues

and, therefore, should be returned to probation. The People noted, “there has been no

evidence of any kind of mental health issues that he suffers from.” The court also

observed there “really was no evidence during the violation hearing” of mental health

issues. The court found defendant had violated the terms of his probation.6 The court

then indicated a tentative decision to impose the suspended sentence but observed “there

is some history of some type of either mental or substance abuse disorder[s].” The court

continued the matter for sentencing.

On March 23, 2018, defense counsel filed a mitigation letter alleging defendant

suffered physical disabilities, including a frontal lobe injury, and posttraumatic stress

disorder. Defense counsel attached to the mitigation letter an unsigned letter alleging

defendant had been admitted to a hospital on June 18, 2016, “on an involuntary basis for

treatment of profound levels of depression with [an] active suicidal plan and intent [sic]

with the patient also reporting onset of auditory hallucinations.” At the hearing on the

same date, the court imposed the suspended sentence of three years of imprisonment and

awarded defendant 903 days of total custody credits.

6 On the same day, defendant entered a plea to the court in another misdemeanor
case and admitted a violation of probation in yet another case.

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 II. DISCUSSION

Defendant contends the matter should be conditionally reversed and remanded to

the trial court to determine, retroactively, whether defendant qualifies for a pretrial

diversion program for individuals diagnosed with qualifying mental disorders pursuant to

section 1001.36. The People contend that because section 1001.36 applies only to

nonfinal judgments, defendant is not entitled to an evaluation for a pretrial diversion

program because his judgment became final after he failed to file a timely appeal from

the court’s imposition of sentence on August 31, 2015. We agree with defendant.

“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 . . . .’” (Frahs, supra, 9 Cal.5th

at p. 626.)

“[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.” (Frahs, supra, 9 Cal.5th at pp. 626-627.)

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 “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. [Citation.] The maximum period of diversion is

two years. [Citation.] 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. [Citation.] ‘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.’” (Frahs, supra, 9 Cal.5th at p. 627.)

Frahs found “that section 1001.36 applies retroactively to all cases not yet final

on appeal.” (Frahs, supra, 9 Cal.5th at p. 632.) Because the mental health diversion

statute came into effect while the defendant’s appeal from his conviction was pending,

the court concluded “that a conditional limited remand for the trial court to conduct a

mental health diversion eligibility hearing is warranted when . . . the record affirmatively

discloses that the defendant appears to meet at least the first threshold eligibility

requirement for mental health diversion—the defendant suffers from a qualifying mental

disorder.” (Id. at p. 640.)

10
 In McKenzie, supra, 9 Cal.5th at page 43, in November 2014, the defendant pled

guilty in three different cases, in all of which “the trial court suspended imposition of

sentence, granted [the] defendant five years’ probation, and ordered him to attend drug

court.” In June 2016, the trial court revoked the defendant’s probation and sentenced him

to prison. (Ibid.) The defendant appealed and the Court of Appeal filed an opinion

modifying, but otherwise affirming the judgment. (Ibid.)

The defendant petitioned the California Supreme Court for review, which that

court granted, and the court remanded the case to the Court of Appeal with directions.

On remand, the Court of Appeal “held that [the] defendant could take advantage of the

revisions to section 11370.2 that rendered the statute’s sentence enhancements

inapplicable to his prior drug-related convictions, and the court ordered those four

enhancements stricken.” (McKenzie, supra, 9 Cal.5th at p. 44.) The Supreme Court

granted review in the “case to decide whether a convicted defendant who is placed on

probation after imposition of sentence is suspended, and who does not timely appeal from

the order granting probation, may take advantage of ameliorative statutory amendments

that take effect during a later appeal from a judgment revoking probation and imposing

sentence.” (Id. at p. 43, italics added.)

In a discussion regarding what constitutes a final judgment, the court noted that “a

criminal proceeding ends only once probation ends if no judgment has issued in the

case.” (McKenzie, supra, 9 Cal.5th p. 47.) “[W]hen a court suspends imposition of

sentence and grants probation, the defendant’s failure to appeal from the order granting

11
probation generally ‘estops’ the defendant ‘from claiming error with respect to matters

occurring before that order,’ but not as to ‘proceedings in connection with the revocation

of probation and sentencing.’” (Id. at p. 50.)

McKenzie is distinguishable from the instant case in that it involved a grant of

probation after the suspension of imposition of sentence, whereas this case involves a

grant of probation after the suspension of execution of a sentence was already imposed.

As we noted in our previous opinion, there is longstanding recognition of the “important

distinction, in probation cases, between orders suspending imposition of sentence and

orders suspending execution of previously imposed sentences.” (People v. Howard

(1997) 16 Cal.4th 1081, 1087 (Howard).) “When the trial court suspends imposition of

sentence, no judgment is then pending against the probationer, who is subject only to the

terms and conditions of the probation.” (Ibid.) However, “Unlike the situation in which

sentencing itself has been deferred, where a sentence has actually been imposed but its

execution suspended, ‘The revocation of the suspension of execution of the judgment

brings the former judgment into full force and effect . . . .’” (Ibid.; see People v. Kelly

(2013) 215 Cal.App.4th 297, 302 [“[W]hen a court imposes sentence but suspends its

execution during a period of probation, there is a judgment, and revocation of the order

granting probation requires execution of the existing sentence, exactly as imposed.”].)

Where a defendant fails to challenge “the validity of the sentence the court

imposed when granting probation[,] [n]o good reason exists for allowing [him] to do so

once the court revoke[s] [his] probation.” (Howard, supra, 16 Cal.4th at p. 1095; accord,

12
People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1318, 1326 (Rodas) [to

hold otherwise would have the “absurd effect of encouraging defendants to violate the

terms of their probation in the hopes of extending the probation term to take advantage of

any beneficial changes in the law during the probationary period”]; see People v. Scott

(2014) 58 Cal.4th 1415, 1419 [realignment act not applicable to defendants whose

sentences were imposed and suspended prior to its enactment].)

Nevertheless, McKenzie relied on the court’s decision in People v. Chavez (2018)

4 Cal.5th 771 (Chavez), in which the court noted, “Going as far back as Stephens v.

Toomey (1959) 51 Cal.2d 864 . . . , we have explained that neither form of probation—

suspension of the imposition of sentence or suspension of the execution of sentence—

results in a final judgment. In a case where a court suspends imposition of sentence, it

pronounces no judgment at all, and a defendant is placed on probation with ‘no judgment

pending against [him].’ [Citation.] In the case where the court suspends execution of

sentence, the sentence constitutes ‘a judgment provisional or conditional in

nature.’” (Chavez, at p. 781.) Of course, Chavez’s statement regarding the finality of

judgment in a situation in which the court had imposed but suspended execution of

sentence is dictum because in Chavez, the court suspended imposition of sentence, placed

the defendant on probation, the defendant completed his probation, and only years later

sought to have the action dismissed pursuant to section 1385. (Chavez, at pp. 776-777.)

Three published appellate court cases have directly addressed whether a

defendant’s judgment is final, for retroactive ameliorative purposes, once the court

13
imposes but suspends execution of sentence. In People v. Barboza (2018)

21 Cal.App.5th 1315, “the trial court imposed a six-year prison sentence, suspended

execution of that sentence, and placed defendant on formal probation for five years on

various terms and conditions. Defendant did not appeal.” (Id. at p. 1318.) After the time

for filing an appeal from the imposition of sentence had expired, the defendant filed a

motion seeking relief under Proposition 57 (as approved by voters, Gen. Elec. (Nov. 8,

2016)). (Barboza, at p. 1318.) The court, relying heavily on Howard, held that the

defendant was not entitled to the retroactive ameliorative benefits of Proposition 57

because his judgment was final when he failed to appeal the order imposing sentence.

(Barboza, at pp. 1318-1319.)

In People v. Lopez (2020) 57 Cal.App.5th 409, the court revoked the defendant’s

probation, imposed sentence, but suspended execution of sentence; the court then placed

him on mandatory supervision. (Id. at p. 412.) The defendant thereafter violated the

terms of his mandatory supervision. (Ibid.) The defendant moved to vacate his

conviction pursuant to the amendments to Health and Safety Code section 11352, which

would have reduced his conviction to a misdemeanor. (Lopez, at pp. 412-413.) The

court denied the defendant’s motion but placed him back on mandatory supervision. (Id.

at p. 413.)

The Lopez court, citing McKenzie, Chavez. and Rodas, reversed the court’s order,

holding that an order imposing sentence but suspending execution thereof results in “only

a provisional or conditional judgment, the finality of which depends on the outcome of

14
the probationary period.” (Lopez, supra, 57 Cal.App.5th at p. 414.) Thus, the defendant

was entitled to retroactive application of Health and Safety Code section 11352’s

ameliorative effects because any judgment in his case was not final for that purpose.

(Lopez, at pp. 414-415.) Nonetheless, the Lopez court was careful to observe that any

judgment in its case was not final, at least in part, because the statute authorizing

mandatory supervision provided that the court could, at any time, “‘revoke, modify, or

change the conditions of the court’s order suspending the execution of the concluding

portion of the supervised person’s term.’” (Id. at p. 414.) Thus, the flexibility “expressly

contemplated in the statutes that created mandatory supervision” were “inconsistent with

the proposition that there was a final judgment, which could not be altered.” (Ibid.)

Lopez is distinguishable from the instant case because it involved mandatory supervision

rather than probation.

In People v. Contreraz (2020) 53 Cal.App.5th 965, 971-972 (Contreraz), review

granted November 10, 2020, S264638, the court sentenced the defendant, suspended

execution of the sentence, and placed the defendant on probation; the defendant did not

appeal the order. (Id. at pp. 968-969.) The court later found defendant in violation of his

probation and executed the previously suspended sentence. (Id. at p. 969.) On appeal,

the defendant contended he was entitled to the retroactive benefits of Senate Bill No. 620

(Reg. Sess. 2017-2018), which the court rejected. (Id. at pp. 967, 969.)

Like in this case, the California Supreme Court granted review and transferred the

matter back to the court to reconsider in light of McKenzie. (Contreraz, supra,

15
53 Cal.App.5th at pp. 967-968.) On reconsideration, the court held that the defendant

was entitled to have the trial court exercise its discretion as to whether to apply the

ameliorative benefits of Senate Bill 620. (Contreraz, at p. 968.) The court, citing

McKenzie, Chavez, and Stephens v. Toomey (1959) 51 Cal.2d 864 (Toomey), reasoned

“that for retroactivity purposes, suspending execution of [the defendant’s] sentence and

placing him on probation ‘constitute[d] “a judgment provisional or conditional in

nature,”’ rather than a final judgment, given the court’s ongoing authority to revoke,

modify, or terminate [the defendant’s] probation during the supervision term.”

(Contreraz, at pp. 971-972.)

In Toomey, the petitioner had been convicted of robbery, and the court sentenced

him to prison. The petitioner applied for probation, which the court granted. The court

placed him on five years’ probation, the term of which had yet to expired. The petitioner

sought to compel the registrar of voters to register him as an elector despite his

conviction. (Toomey, supra, 51 Cal.2d at pp. 868-869.)

On petition for writ of mandate, the court discussed finality of judgment as

follows: “The word conviction, used in this connection, must mean a final judgment of

conviction. A judgment is not final if there still remains some legal means of setting it

aside. There may be ways to avoid its execution, such as a general pardon, but a

judgment in an ordinary criminal case, such as we have here, becomes final when all

available means to avoid its effect have been exhausted. Certain means to that end have

been made available to an accused. The traditional method was by appeal. The

16
probation laws then intervened. Since the enactment of those laws in 1903, the offender

has been brought before the court for judgment on a plea or verdict of guilty under

differing and varying circumstances affecting the powers of the court and the rights of the

accused.” (Toomey, supra, 51 Cal.2d at p. 869.)

The Toomey court noted there were three classes of persons in which probation

related to the finality of judgment; the second class, which included the petitioner,

included, “Those as to whom the court may pronounce judgment, sentence the defendant,

suspend the execution of the sentence, and entertain an application for probation.”

(Toomey, supra, 51 Cal.2d at p. 870.) “If the conditions of probation are fulfilled the plea

or verdict of guilty may be changed to not guilty, the proceedings be expunged from the

record and the case dismissed. [Citation.] When such an order has been entered there is

no further criminal prosecution pending against the defendant. He has then, without any

further showing of rehabilitation on his part, received a statutory rehabilitation and a

reinstatement to his former status in society insofar as the state by legislation is able to do

so, with one exception, namely, that under section 1203.4 of the Penal Code the record in

the criminal case may be used against him for limited purposes in any criminal

proceeding thereafter brought against him. The judgment in this class is not a final

judgment such as to render the prohibitive measure of the Constitution effective. It is a

judgment provisional or conditional in nature. It is in the process of becoming final in

that its finality depends on the outcome of the probationary proceeding.” (Id. at pp. 870-

871)

17
 The Toomey court noted, “There is a vast difference between the final judgment

and the execution of the judgment.” (Toomey, supra, 51 Cal.2d at p. 873.) In petitioner’s

case, “there ha[d] been neither a final judgment nor the execution of any

judgment.” (Ibid.) “Judgment was pronounced against him and he was sentenced to

prison. Execution of sentence was suspended and he was placed on probation for five

years which have not yet expired. The criminal proceeding is still outstanding against

him. The judgment may or may not become final depending upon the outcome of the

probation proceedings under . . . section 1203.4. If probation be revoked the judgment

may be ordered in full force and effect.” (Id. at p. 875.) The court thus denied his

petition because it was premature. (Ibid.)

We, like the court in Contreraz, distill from Toomey, Chavez, and McKenzie, the

rule that an order imposing sentence, suspending execution of that sentence, and granting

a defendant probation is not a final judgment for purposes of the application of

retroactive ameliorative effects in the law made after the date of such an order. Only

upon the finality of the probationary proceedings, whether probation is revoked and the

previously imposed but suspended sentence is actually executed, or the defendant

successfully completes probation, does the order become a final judgment barring a

defendant from obtaining retroactive relief from subsequent changes in the law. Thus, in

the instant case, because the order revoking defendant’s probation and imposing the

previously suspended sentence had yet to become final when defendant sought the

18
benefits of section 1001.36, he is not procedurally barred from seeking relief from that

statute.

Nonetheless, the court in Frahs noted that a remand for retroactive application of

section 1001.36 was warranted only when the record affirmatively disclosed that the

defendant appeared to meet at least “the first threshold eligibility requirement for mental

health diversion—the defendant suffers from a qualifying mental disorder.” (Frahs,

supra, 9 Cal.5th at p. 640.) In Frahs, the court found the record did “support the first of

the statute’s threshold eligibility requirements . . . .” (Ibid.) That showing consisted of a

clinical and forensic psychologist’s testimony that defendant suffered from a qualifying

mental disorder and that the behavior resulting in his conviction was a consequence of

that disorder. (Ibid.)

We recognize that the quantum of “evidence” for a qualifying mental health

disorder in the instant case falls far short of that adduced in Frahs. Nonetheless, the

record does contain “evidence” that defendant suffered one or more mental health issues

which should at least entitle defendant to a hearing at which he may have the burden of

proving entitlement to section 1001.36 relief. We note that had defense counsel been

aware of and acting prospectively to demonstrate defendant’s qualification for section

1001.36 relief, he may very well have been able to adduce admissible evidence of a

qualifying mental health disorder.

Indeed, at the hearing on May 24, 2016, defendant’s attorney stated that defendant

had been admitted to a hospital on a “on a psychiatric hold.” At the hearing on June 9,

19
2016, defense counsel stated that defendant had been admitted to a hospital for “possibly

schizophrenia, for all I know.” At the hearing on January 5, 2018, defense counsel

argued defendant was suffering from mental health issues and, therefore, should be

returned to probation. On March 23, 2018, defense counsel filed a mitigation letter

alleging defendant suffered physical disabilities, including a frontal lobe injury and

posttraumatic stress disorder. Defense counsel attached to the mitigation letter an

unsigned letter alleging defendant had been admitted to a hospital on June 18, 2016, “on

an involuntary basis for treatment of profound levels of depression with [an] active

suicidal plan and intent [sic] with the patient also reporting onset of auditory

hallucinations.” “This evidence suffices to make a conditional limited remand

appropriate here.” (Frahs, supra, 9 Cal.5th at p. 640.)

III. DISPOSITION

The judgment is conditionally reversed and the matter remanded “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

20
his convictions and sentence shall be reinstated.’” (Frahs, supra, 9 Cal.5th at pp. 640-

641.) “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.” (Id. at p. 641.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:

FIELDS
J.

RAPHAEL
J.

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