People v. Weith CA1/4

Filed 12/14/21 P. v. Weith CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A155950
v.
JAN A. WEITH, (San Francisco County
Super. Ct. No. SCN229297)
Defendant and Appellant.

Frustrated in his efforts to enter his parking garage without his
monthly parking pass, defendant Jan A. Weith drove his car at the parking
attendant, pinning him against the parking booth wall. The jury convicted
Weith of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)),
battery with serious bodily injury (§ 243, subd. (d)) and leaving the scene of
the accident (Veh. Code, § 20001, subd. (a)), but acquitted him of attempted
murder. On appeal, Weith argues the trial court erroneously instructed the
jury on assault with a deadly weapon by including—as applied to a car—in
the deadly weapon definition, the phrase “that is inherently deadly.” We
agree that including the phrase was error but, on this record, find it
harmless. We also reject Weith’s argument that the jury should have been

1 All further undesignated statutory references are to the Penal Code.

1
instructed that assault required a specific intent and an unlawful attempt.
Similarly frivolous is Weith’s claim that the assault law is unconstitutionally
vague.
Weith first requested pretrial mental health diversion (§ 1001.36) at
sentencing and the trial court denied it. Weith asks us to remand for
resentencing. Relying on Second and Fourth appellate district cases, the
Attorney General argues that the diversion request—after the guilty
verdict—was untimely. We agree and affirm the judgment.
PROCEDURAL BACKGROUND
Weith was charged with attempted murder (§§ 664, 187, subd. (a)—
count 1), assault with a deadly weapon (§ 245, subd. (a)(1)—count 2), felony
battery causing serious bodily injury (§ 243, subd. (d)—count 3), and leaving
the scene of an accident (Veh. Code, § 20001, subd. (a)—count 4). With
respect to counts 1 through 3, the information further alleged great bodily
injury and deadly weapon enhancements (§§ 12022.7, subd. (a), 12022, subd.
(b)(1)).
The jury convicted Weith of the assault with a deadly weapon and
battery charges and of leaving the scene of an accident, but acquitted him of
attempted murder. The jury also found true the great bodily injury and
deadly weapon enhancement allegations.
In his sentencing memorandum and at the sentencing hearing, Weith
sought probation or referral to the behavioral health court. In the alternative
Weith asked the court to “allow the defense to vacate Mr. Weith’s conviction
and petition for Mental Health Diversion.” Weith argued that under section
1001.35 “anyone with a diagnosed mental disorder. . . can obtain pre-plea
diversion” and “[e]ven though the statute does state that diversion is not
available after trial, the [Court of Appeal in People v. Frahs (2018)

2
27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220; see People v.
Frahs (2020) 9 Cal.5th 618, 626 (Frahs)] finds that retroactivity principles
require that a defendant who was convicted before diversion took effect but
whose case is not yet final on appeal is entitled to ask that his conviction be
vacated and that he be considered for diversion.” The trial court found Weith
to be “a danger to the community” because “he came within a hair of killing
someone.” “[H]e has been on probation a number of times, in [the] last 20/25
years and has never, apparently, addressed these mental health issues in a
way that prevented or would have prevented this incident.” Absent unusual
circumstances, which the court did not find, Weith was ineligible for
probation (§ 1203, subds. (e)(2), (e)(3)). The court did not conduct a mental
health diversion hearing and sentenced Weith to five years in state prison.
FACTUAL BACKGROUND
On May 5, 2018, Weith purchased a new “Chevrolet Camaro, Super
Sport Hot Wheels” edition at a dealership in San Jose. Unlike his previous
cars, the Camaro had paddle gear shifters on the steering wheel, in addition
to a traditional gear shift. The Camaro, with its 485 horsepower engine, was
twice as fast as any vehicle he had driven. Weith testified that he drove from
San Jose to the San Francisco Hilton parking garage, where he had a
monthly parking pass. As he entered the garage, Weith realized he left his
entry card in San Jose. Rather than taking a parking ticket, he skirted the
entry gate and drove over the center pylons between the entrance and exit
lanes. Once in the garage he changed his mind, made a U-turn, and drove
back over the pylons. Having exited, he decided to reenter and, in doing so
positioned his car across the entry and exit lanes. He accelerated and the
Camaro reversed “rather quickly,” hitting the garage wall. Weith put the car
in drive, using the center console, and prepared to drive forward, but when he

3
took his foot off the brake, the car did not move. So he stepped on the
accelerator; the car lurched forward, “smash[ing] into” the arm gate and
knocking it to the ground. Weith put the car in park, got out, saw “significant
damage” to the front of the car, and “felt terrible” because he had “wrecked”
his new car less than two hours after purchasing it.
The parking garage manager, Victor Delos Santos, who was next to his
office booth and about 10 to 15 feet from the car, asked Weith if he needed
anything. Weith did not respond to Delos Santos. Delos Santos testified that
he made eye contact with Weith for about five seconds, before Weith got back
into his car.
According to Weith, when he took his foot off the brake, the car did not
move. Weith then stepped on the accelerator and “may have used the paddle
shifter” on the steering wheel. As the car lurched forward, Weith “gripped the
steering wheel” and “braced for impact.” Delos Santos tried to move out of the
way, but it “was too late.” In a “split second,” the car crashed into Delos
Santos, impaling him against the office booth causing a “very violent,” “loud”
collision that sounded “like an explosion.” Weith testified that he had not
seen Delos Santos, and he “absolutely” did not intend to back into the wall,
drive into the arm gate, or crash into the booth and Delos Santos.
It sounded to one eyewitness like Weith had “floored” the engine. Video
surveillance footage and eyewitness testimony established that Weith drove
straight into Delos Santos and the office booth. The glass windows of the
booth “exploded” and the concrete buckled.
Delos Santos, who was pinned between the rubble of the booth and the
car, screamed in pain. His broken left shin bone protruded through his skin.2

2 The defense stipulated that Delos Santos suffered great bodily injury.

4
 Joseph Walters, who was across the street from the parking garage,
heard a “loud crash” and saw that a car had “slammed” into the garage. The
car “skirted along the wall” of the garage before it crashed into the arm gate
and into the parking booth. As he approached the Camaro, Walters heard
Delos Santos screaming in pain, yelling, “he tried to kill me,” and saw Weith
in the driver’s seat. With the engine running, Weith exited the car, walked
past Walters and left the garage.
Weith testified that he did not hear anyone crying for help and did not
call the police. “[D]isoriented and on “auto mode,” Weith walked back to his
apartment, where he drank some vodka. He then went to a nearby bar and
drank some whiskey. Weith went to a second bar, but could not remember if
he had a drink there. As Weith was returning to the garage about 15 minutes
after the collision, he was apprehended by the police.
Weith appeared calm, and unaffected when told by an officer that his
car injured someone. Weith told police the Camaro had no mechanical issues,
he was not on any medications and had no physical or mental impairments.
After administering various tests, police concluded Weith was not under the
influence of alcohol.
DISCUSSION
Weith contends his convictions for assault with a deadly weapon and
battery should be reversed due to various instructional errors and on
constitutional grounds. Alternatively, he argues the matter should be
remanded for a mental health diversion hearing. We disagree and affirm.
I. Jury Instructions
Weith claims the trial court prejudicially erred by incorrectly
instructing the jury on assault in several respects.

5
A. Instructions Given
For the assault with a deadly weapon charge, the court used CALCRIM
No. 875, which instructed that the People had to prove the following: “1. The
defendant did an act with a deadly weapon other than a firearm that by its
nature would directly and probably result in the application of force to a
person; [¶] 2. The defendant did the act willfully; [¶] 3. When the defendant
acted, he was aware of facts that would lead a reasonable person to realize
that his act by its very nature would directly and probably result in the
application of force to someone; [¶] AND [¶] 4. When the defendant acted, he
had the present ability to apply force with a deadly weapon other than a
firearm.”
As given, CALCRIM No. 875 defined a “deadly weapon other than a
firearm” as “any object, instrument, or weapon that is inherently deadly or
one that is used in such a way that it is capable of causing and likely to cause
death or great bodily injury.” (CALCRIM No. 875; italics added.) Regarding
the weapon enhancement, the court instructed that “a deadly or dangerous
weapon is any object, instrument, or weapon that is inherently . . . dangerous
or one that is used in such a way that it is capable of causing or likely to
cause death or great bodily injury. [¶] In deciding whether an object is a
deadly weapon, consider all the surrounding circumstances, including when
and where the object was possessed . . . and any other evidence that indicates
whether the object would be used for a dangerous, rather than a harmless,
purpose.” (CALCRIM No. 3145.) The court did not include the CALCRIM
Nos. 875 or 3145 definition of “inherently deadly.”3

3“An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.” (CALCRIM Nos. 875 & 3145.)

6
 For the lesser included offense of simple assault, the court instructed,
using CALCRIM No. 915, that the People had to prove the following: “1. The
defendant did an act that by its nature would directly and probably result in
the application of force to a person; [¶] 2. The defendant did that act willfully;
[¶] 3. When the defendant did the act, he was aware of facts that would lead
a reasonable person to realize that his act by its nature would directly and
probably result in the application of force to someone; [¶] AND [¶] 4. When
the defendant acted, he had the present ability to apply force to a person.”
(CALCRIM No. 915).
B. Inclusion of “Inherently Deadly” Language
Weith contends the trial court prejudicially erred by instructing the
jury that it could find him guilty of using a deadly weapon under the theory
that a car is “inherently deadly.”
In considering the assault with a deadly weapon charge in count 2 and
the deadly weapon enhancement in counts 1 and 3, the jury had to determine
whether Weith’s car was a deadly weapon. Employing CALCRIM No. 875, the
court instructed that: “A deadly weapon other than a firearm is any object,
instrument, or weapon that is inherently deadly or one that is used in such a
way that it is capable of causing and likely to cause death or great bodily
injury.” For the weapon enhancement, the court read CALCRIM No. 3145
and again included the phrase “that is inherently deadly.” The court did not
include the CALCRIM definition of “inherently dangerous” in either
CALCRIM Nos. 875 or 915. Weith did not object to these instructions.
Where the instrumentality is a car, it is error to include the phrase
“that is inherently deadly” in the definition of “a deadly weapon other than a
firearm.” (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318; Bench
Notes to CALCRIM No. 875.) A car may be used in a manner that makes it a

7
deadly weapon, but it is not an inherently deadly weapon as a matter of law.
(People v. Montes (1994) 74 Cal.App.4th 1050, 1054 [noting that a car is not
inherently dangerous but can be found to be a deadly weapon].) For the jury
to properly find that Weith used a deadly weapon under the facts of this case,
it had to find that Weith “used [the car] in such a way that it is capable of
causing and likely to cause death or great bodily injury.” (CALCRIM No.
875.)
When both a correct and an incorrect instruction have been given, to
decide whether the error requires reversal, we apply People v. Aledamat
(2019) 8 Cal.5th 1, 7–8 (Aledamat). There, the defendant was on trial for
assault with a deadly weapon (§ 245), and jurors were given both correct and
incorrect alternative instructions; they were told that a weapon “could be
either inherently deadly or deadly in the way defendant used it.” (Aledamat,
at p. 6.) Because the weapon—a box cutter—was “not an inherently deadly
weapon as a matter of law” (ibid.), the first part of the instruction was
erroneous, but the second part was correct. (Id. at p. 7.) Aledamat held: “The
reviewing court must reverse the conviction unless, after examining the
entire cause, including the evidence, and considering all relevant
circumstances, it determines the error was harmless beyond a reasonable
doubt.” (Id. at p. 13.) In so holding it rejected a more demanding standard of
review, advocated by the defendant, that would have required the court to
examine the verdict and the record and to find evidence in the record to
support a determination, beyond a reasonable doubt, that the jury actually
relied on the valid, not the invalid, theory. (Id. at p. 9.) The Supreme
Court held such a course is not required. It is enough if we can say, beyond a
reasonable doubt, the legally inadequate theory did not contribute to the
verdict. (Id. at pp. 12–13.)

8
 In People v. Thompkins (2020) 50 Cal.App.5th 365, 399, we recently
applied the Aledamat standard of review, explaining “the question is not
whether we think it clear beyond a reasonable doubt that the defendants
were actually guilty . . . based on the valid theory, but whether we can say,
beyond a reasonable doubt, the jury’s actual verdicts were not tainted by the
inaccurate jury instruction. We focus on the likelihood that the jury relied on
the [incorrect] instruction in reaching its verdicts, not simply the likelihood of
defendants’ guilt under a legally correct theory.”
Under that standard of review, the error was harmless in this case.
Having reviewed the evidence, we are confident the inclusion of the phrase
“inherently deadly” did not contribute to Weith’s conviction of assault with a
deadly weapon other than a firearm. Most compelling is the surveillance
video that graphically depicts the entire incident. At 17:47:35 of the video,
the orange Camaro speeds into the parking lot, avoiding the entry gate by
running roughshod over the four upright pylons intended to prevent entry.
One minute later, driving at the same rate, the Camaro again drives over the
pylons and exits between the entry and exit gates. Thirty seconds later,
presumably in response to the Camaro’s extraordinary roundtrip, Delos
Santos appears from the attendant’s booth, walks in front of the booth,
looking in the direction of the recently departed car and then walks to the
middle of the entry lane. Four seconds later, the Camaro speeds into the
garage, but this time, instead of traveling down the middle as it did moments
before, the car veers to the right aiming directly at Delos Santos. The Camaro
crashes into Delos Santos pushing him through the wall and window of the
attendant’s booth which crumbles under the impact. As soon as the car comes
to rest—with Delos Santos crushed between it and the remains of the booth—

9
Weith exits, turns toward Delos Santos and then reenters the car. He reaches
forward and then exits, closes the car door and departs the garage.
Delos Santos described what the video did not depict. After exiting the
garage, the Camaro was parked “parallel to the street” “literally blocking
both [the entrance and exit] lanes.” As Delos Santos approached the car, he
saw Weith “standing outside his car” at the “[d]river’s side.” Delos Santos,
who knew Weith as a monthly parker, approached him and asked if he
needed help. Weith, who was about 10 feet away, looked at Delos Santos,
made eye contact, but did not respond. Instead, within five seconds, Weith
reentered his car as Delos Santos approached “to see if he needed help.” The
Camaro backed up and destroyed the arm gate. The car backed into a
billboard and then went forward smashing into the arm gate.
Delos Santos approached to assess the damage and the car backed up
again hitting the billboard. Delos Santos testified: “He drove forward, toward
me. [¶] . . . [¶] All I heard was the tires screech—screeching.” Delos Santos
tried to get out of the way but, because of the small space, “there’s no way for
me to kind of like run away or get out of the way.” Pinned between the car’s
front tire and his office, Delos Santos was “screaming in pain.” He cried for
help, “yelling at the top of [his] lungs” for “someone [to] back up the car.”
Delos Santos heard “the sound of screeching tires,” but the car did not move.
Weith did not assist Delos Santos.
In closing, the prosecutor recapitulated the evidence in support of his
argument that Weith used the car in a way that is capable of causing and
likely to cause death or great bodily injury. He did not refer to the Camaro as
“inherently deadly.” Rather, the prosecutor’s argument focused on how Weith
used the Camaro as a deadly weapon. As to the section 245, subdivision (a)(1)
charge, the prosecutor argued “the defendant did an act with a deadly

10
weapon. The defendant willfully acted. . . . Defendant was aware of facts that
would lead a reasonable person to conclude that his act, by its very nature,
would directly and probably result in the application of force, and that the
defendant had the present ability to actually apply force.”
Instead of focusing on the car, the prosecutor directed the jury to the
manner in which Weith drove it: “[T]he act we’re talking about is driving the
car, and by [his] very nature of driving the car, he hits the booth, injures
Victor Delos Santos. And the defendant testified, I asked him directly, you
wanted to put the car in drive, . . . you wanted the car to go forward, you put
your foot on the accelerator, the car went forward, you intended to do all of
those actions.”
The prosecutor later added: “[A] reasonable person would know that
when you park in this place for four years, you drive in and out every single
day, there are people all over the place, it’s downtown San Francisco . . . and
you’ve actually had contact with the person that works in that office. A
reasonable person, in those circumstances, would absolutely know that . . . by
putting your foot on the accelerator when your car’s in drive, you are very
likely to injure someone.” The prosecutor argued that Weith “knew Mr. Delos
Santos was there and actually intended to hit Mr. Delos Santos.” The court
did not define “inherently deadly” and the prosecutor—relying on the video
and Delos Santos’s testimony—argued that Weith purposely drove the car in
a manner capable of causing death or great bodily injury.
With this evidence, and without further definition of inherently deadly,
the jury could understand that the Camaro was “inherently deadly,” “in the
colloquial sense of the term—i.e., readily capable of inflicting deadly harm—
and that defendant used it as a weapon.” (Aledamat, supra, 8 Cal.5th at
p. 15.) On this record “we can say, beyond a reasonable doubt, the jury’s

11
actual verdicts were not tainted by the inaccurate jury instruction.” (People v.
Thompkins, supra, 50 Cal.App.5th at p. 399.)
Accordingly, any error in the court’s instructions defining “deadly
weapon” was harmless beyond a reasonable doubt. (Chapman v. California
(1967) 386 U.S. 18, 24.)
B. Omission of “Unlawful Attempt” and “Violent Injury” Language
Weith claims the trial court erred in instructing the jury using
CALCRIM No. 875 (assault with a deadly weapon) and CALCRIM No. 915
(simple assault) because the instructions “inexplicably” omit section 240’s
definition: “An assault is an unlawful attempt, coupled with a present ability,
to commit a violent injury on the person of another.” Both instructions have
been expressly affirmed by our appellate courts. (See People v. Golde (2008)
163 Cal.App.4th 101, 122 [CALCRIM No. 875 “was not defective in failing to
tell the jurors they could consider the absence of injury as reflecting an
absence of intent to harm”]; People v. Ibarra (2007) 156 Cal.App.4th 1174,
1193–1195 [upholding CALCRIM No. 915 as correct statement of law].)
In California, the law is settled that assault is a general intent crime.
(People v. Chance (2008) 44 Cal.4th 1164, 1169 (Chance).) Unlike attempt
crimes, which require specific intent, the “ ‘unlawful attempt’ ” term of
section 240 is different. “Assault requires an act that is closer to the
accomplishment of injury than is required for other attempts. Other criminal
attempts, because they require proof of specific intent, may be more remotely
connected to the attempted crime.” (Id. at p. 1167.) Assault has been
characterized as “ ‘unlawful conduct immediately antecedent to battery.’ ”
(Ibid.)
Additionally, the “terms ‘violence’ and ‘force’ are synonymous when
used in relation to assault, and include any application of force even though it

12
entails no pain or bodily harm and leaves no mark.” (People v. Flummerfelt
(1957) 153 Cal.App.2d 104, 106; see People v. Rocha (1971) 3 Cal.3d 893, 899,
fn. 12 (Rocha); People v. Colantuono (1994) 7 Cal.4th 206, 214, fn. 4
(Colantuono).) It is settled that “the criminal intent which is required for
assault with a deadly weapon . . . is the general intent to willfully [sic]
commit an act the direct, natural and probable consequences of which if
successfully completed would be the injury to another.” (Rocha, at p. 899.)
“[B]ut only an ‘injury’ as that term is used with respect to a battery need be
intended. ‘It has long been established, both in tort and criminal law, that
“the least touching” may constitute battery.’ ” (Rocha, at p. 899, fn.12.)
Consistent with the forgoing case law, the trial court’s instructions on
assault with a deadly weapon (CALCRIM No. 875) and simple assault
(CALCRIM No. 915) correctly informed the jury that the crimes involve an
act that is naturally and likely to result in the “application of force” to a
person and that the term “application of force” means “to touch in a harmful
or offensive manner” and can include the “slightest touching.” (CALCRIM
Nos. 875, 915.) Accordingly, we reject Weith’s assertions that CALCRIM No.
875 and CALCRIM No. 915, which have been expressly approved by
appellate authority, omitted essential elements and lightened the
prosecution’s burden of proof on the assault charge.
C. Omission of “Specific Intent” Language
Again, in the face of established California Supreme Court precedent to
the contrary, Weith claims that assault is a specific intent crime and the trial
court erred in instructing the jury that it is a general intent crime. We will
quickly dispense with this argument; our Supreme Court has held repeatedly
that assault is a general intent crime. (People v. Williams (2001) 26 Cal.4th
779, 782 (Williams) [assault requires only a general criminal intent];

13
accord, In re B.M. (2018) 6 Cal.5th 528, 533 [“Assault is a general intent
crime; it does not require a specific intent to cause injury.”]; People v.
Perez (2018) 4 Cal.5th 1055, 1066 [“assault with a deadly weapon is a general
intent crime”]; Chance, supra, 44 Cal.4th at p. 1170 [“ ‘specific intent to injure
is not an element of assault because the assaultive act, by its nature,
subsumes such an intent’ ”].)
II. Constitutional Claim
Weith contends his convictions for assault with a deadly weapon and
battery causing serious bodily injury should be reversed because the assault
statute (§ 240) is unconstitutionally vague because it fails to define assault
with sufficient notice of the prohibited conduct. The Attorney General
responds that Weith lacks standing to raise a vagueness challenge because
his conduct is clearly encompassed by the assault statutes (§§ 240, 245). We
do not address the standing issue because Weith’s vagueness claim fails on
the merits.
A. Applicable Law
“Statutes are presumed valid and must be upheld unless their
unconstitutionality is positively and unmistakably demonstrated. With
regard to vagueness, the question is whether the statute provides a person of
ordinary intelligence a reasonable opportunity to know what is prohibited
and provides police and prosecutors with sufficiently definite guidelines to
prevent arbitrary and discriminatory enforcement.” (People v. Basuta (2001)
94 Cal.App.4th 370, 397.)
“It is impossible, given the complexities of our language and the
variability of human conduct, to achieve perfect clarity in criminal statutes.
Reasonable specificity exists if the statutory language ‘conveys sufficiently
definite warning as to the proscribed conduct when measured by common

14
understandings and practices.’ (United States v. Petrillo (1947) 332 U.S. 1, 8;
see also People v. Deskin (1992) 10 Cal.App.4th 1397, 1400.) Given these
practical difficulties, one commentary has stated: ‘In practice,
unconstitutional vagueness is a concept that only works on the extreme end
of the vagueness continuum . . . . Arguments that a statute appears vague in
the ordinary sense will not suffice to bring relief from the courts.’ (2 Antieau
& Rich, Modern Constitutional Law (2d ed. 1997) § 38.00, p. 429.)” (People v.
Basuta, supra, 94 Cal.App.4th at p. 397.)
B. Analysis
Section 240 defines assault as “an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of another.” The
language of the assault statute is “derive[d] from identical language of
section 49 of the Crimes and Punishment Act of 1850. (Stats. 1850, ch. 99,
§ 49, p. 234.)” (People v. Wright (2002) 100 Cal.App.4th 703, 714.) Although
Weith engages in an extended analysis tracing the evolution of the assault
law, discussing cases ranging as far back as 1856, the assault statute has
remained unchanged since its inception. (See Williams, supra, 26 Cal.4th at
p. 782.) Its long history “virtually precludes us from finding it impermissibly
vague at this late date.” (People v. Kelly (1992) 1 Cal.4th 495, 534; People v.
Bamba (1997) 58 Cal.App.4th 1113, 1122.)
That the assault law has required continued clarification does not
make it unconstitutionally vague. “Many, probably most, statutes are
ambiguous in some respects and instances invariably arise under which the
application of statutory language may be unclear.” (Evangelatos v. Superior
Court (1988) 44 Cal.3d 1188, 1201.) It is the traditional role of the judiciary to
interpret ambiguous language and fill in the gaps. (Id. at p. 1202.) Assault
has been consistently construed as a general intent crime requiring a willful

15
act which by its nature would probably and directly result in the application
of physical force to another (see, e.g., Rocha, supra, 3 Cal.3d at pp. 898–899;
Colantuono, supra, 7 Cal.4th at pp. 214–216) committed with the actual
knowledge of those facts sufficient to establish that the act by its nature will
probably and directly result in the application of force to another—i.e. a
battery (see, e.g., Williams, supra, 26 Cal.4th at pp. 782, 790). Additionally,
“when a defendant equips and positions himself to carry out a battery, he has
the ‘present ability’ required . . . if he is capable of inflicting injury on the
given occasion, even if some steps remain to be taken, and even if the victim
or the surrounding circumstances thwart the infliction of injury.” (Chance,
supra, 44 Cal.4th at p. 1172.)
This consistent interpretation of the assault law provides sufficient
notice of the prohibited conduct. Accordingly, Weith’s vagueness challenge
fails.
III. Diversion of Individuals with Mental Disorders
A. The parties’ positions
Weith argues the court abused its discretion in denying his request for
a pretrial mental health diversion hearing pursuant to section 1001.36. The
Attorney General replies that Weith forfeited this claim by only briefly
raising the issue at the time of sentencing, and that on the merits we should
affirm, and not remand for sentencing, because the trial court found Weith
unsuitable for mental health diversion.
Preliminarily, we reject the Attorney General’s argument that Weith
“forfeited” his request for diversion under section 1001.36. The record clearly
reflects that Weith raised the issue, albeit succinctly, in the trial court.
Nevertheless, as we explain, Weith’s request was untimely.

16
B. Section 1001.36
Diversion of Individuals with Mental Disorders (§ 1001.35 et seq.),
effective a little over two months before Weith’s trial, “authorizes a pretrial
diversion program for defendants with qualifying mental disorders.” (Frahs,
supra, 9 Cal.5th at p. 626.) 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).)
Section 1001.36 defines “pretrial diversion” to “mean[] 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), italics added.)
The statute does not define the phrase “until adjudication.” At the time
of the November 2, 2018 sentencing hearing, there was no appellate guidance
regarding the meaning of “until adjudication.” Since then case law has
offered three different dates by which pretrial diversion must be requested:
before trial commences; before conviction, be it by guilty plea or verdict; or
before sentencing. The first and most lenient court to address the issue held
“adjudication” does not occur until sentencing and entry of judgment. (People
v. Curry (2021) 62 Cal.App.5th 314, 321, review granted July 14, 2021,
S267394 (Curry) [“section 1001.36 contemplates mental health diversion

17
until entry of the judgment of conviction”].) At the other end of the spectrum,
the Fourth Appellate District found the right to seek mental health diversion
is lost when the jury is sworn. (People v. Braden (2021) 63 Cal.App.5th 330,
333, review granted July 14, 2021, S268925 (Braden) [“a defendant is
ineligible for diversion under section 1001.36 after his trial begins”].)
Between these extremes—and the outcome we adopt—“adjudication” occurs
when guilt is established either by plea or jury verdict. (People v. Rodriguez
(2021) 68 Cal.App.5th 584, 591, review granted Nov. 10, 2021, S270895
(Rodriguez) [request for pretrial diversion under section 1001.36 “untimely
. . . if presented after the defendant’s conviction by guilty plea”]; People v.
Graham (2021) 64 Cal.App.5th 827, 832–833, review granted Sept. 1, 2021,
S269509 (Graham) [“a request for ‘pretrial diversion’ under section 1001.36 is
timely only if it is made prior to the jury’s guilty verdict”].)
C. Standard of Review and Rules of Statutory Interpretation
Weith’s claim presents an issue of statutory interpretation, which we
review de novo. (People v. Simmons (2012) 210 Cal.App.4th 778, 790.)
“ ‘ “Our role in construing a statute is to ascertain the Legislature’s
intent so as to effectuate the purpose of the law. [Citation.]” ’ [Citations.] [¶]
Our first task is to examine the language of the statute . . ., giving the words
their usual, ordinary meaning. [Citations.] If the language is clear and
unambiguous, we follow the plain meaning of the measure. [Citations.] . . . [¶]
The language is construed in the context of the statute as a whole and the
overall statutory scheme, and we give ‘significance to every word, phrase,
sentence, and part of an act in pursuance of the legislative purpose.’ ” (People
v. Canty (2004) 32 Cal.4th 1266, 1276 (Canty).)
Where the language of the statute permits more than one reasonable
interpretation, we “apply the principles that pertain where statutory

18
ambiguity exists, adopting the interpretation that leads to a more reasonable
result. [Citation.] It is appropriate to consider evidence of the intent of the
enacting body in addition to the words of the measure, and to examine the
history and background of the provision, in an attempt to ascertain the most
reasonable interpretation.” (Canty, supra, 32 Cal.4th at p. 1277.)
“We also consider that, under the traditional ‘rule of lenity,’ language
in a penal statute that truly is susceptible of more than one reasonable
construction in meaning or application ordinarily is construed in the manner
that is more favorable to the defendant. [Citation.] Nonetheless, ‘ “the rule of
lenity applies only if the court can do no more than guess what the legislative
body intended; there must be an egregious ambiguity and uncertainty to
justify invoking the rule.” ’ ” (Canty, supra, 32 Cal.4th at p. 1277.) “ ‘ “The
rule of statutory interpretation that ambiguous penal statutes are construed
in favor of defendants is inapplicable unless two reasonable interpretations of
the same provision stand in relative equipoise, i.e., that resolution of the
statute’s ambiguities in a convincing manner is impracticable.” [¶] Thus,
although true ambiguities are resolved in a defendant’s favor, an appellate
court should not strain to interpret a penal statute in defendant’s favor if it
can fairly discern a contrary legislative intent.’ ” (Canty, at pp. 1276–1277.)
D. Analysis
We agree with Graham, that the statute’s “plain language” and the
“purpose” of mental health diversion compel the conclusion that “a request for
‘pretrial diversion’ under section 1001.36 is timely only if it is made prior to
the jury’s guilty verdict.” (Graham, supra, 64 Cal.App.5th at p. 833.) “Section
1001.36 explicitly defines ‘pretrial diversion’ as the ‘the postponement of
prosecution . . .at any point in the judicial process from the point at which the

19
accused is charged until adjudication.’ (§ 1001.36, subd. (c), italics added.)”
(Graham, at p. 833.)
“The definition says that diversion must occur before ‘adjudication,’ and
‘adjudication’ typically refers to an adjudication of guilt—whether by plea or
by jury verdict.’ [Citations.] The plain text of section 1001.36 is controlling.
“The tripartite purposes of section 1001.36 are to (1) ‘[i]ncrease[]
diversion of individuals with mental disorders to mitigate the individuals’
entry and reentry into the criminal justice system while protecting public
safety,’ (2) ‘[a]llow[] local discretion and flexibility for counties in the
development and implementation of diversion for individuals with mental
disorders across a continuum of care settings,’ and (3) ‘[p]rovid[e] diversion
that meets the unique mental health treatment and support needs of
individuals with mental disorders.’ (§ 1001.35.) These purposes are fully
served by allowing a defendant to seek mental health pretrial diversion prior
to adjudication of their guilt.” (Graham, supra, 64 Cal.App.5th at p. 833.)4
Graham further observed that permitting a defendant to seek pretrial
diversion through entry of judgment would invite “the inefficient use of finite
judicial resources” and would potentially turn trial into a “ ‘read through’ ”
that could be rendered “retroactively moot should pretrial diversion be

4 Courts considering the legislative intent for other pretrial diversion
programs (e.g., § 1000 et seq.) have consistently reached the same conclusion:
To achieve the legislative purposes, pretrial diversion must necessarily be
requested before conviction. (See People v. Reed (1975) 46 Cal.App.3d 625,
629-630 [court’s order for section 1000 drug diversion after trial reversed];
People v. Wright (1975) 47 Cal.App.3d 490, 494 [defendant ineligible for
section 1000 diversion after trial]; People v. Alonzo (1989) 210 Cal.App.3d
466, 468, 470 [trial court acted in excess of its jurisdiction by granting section
1000 drug diversion after trial].)

20
requested following a guilty verdict.” (Graham, supra, 64 Cal.App.5th at
p. 834.)5
Rodriguez agreed with Graham to conclude that adjudication by guilty
plea, like guilty verdict, precludes mental health diversion. (Rodriguez,
supra, 68 Cal.App.5th at p. 591.) Finding “ ‘ “no distinction between an
adjudication of guilt based on a plea of guilt and that predicated on a trial on
the merits,” ’ ” Rodriguez concluded that a request for mental health
diversion is untimely under section 1001.36, subdivision (c), if presented after
the defendant’s conviction by guilty plea. (Ibid.)
Weith urges us to rely on Curry, supra, 62 Cal.App.5th 314, which held
that “a defendant may ask the trial court for mental health diversion until
sentencing and entry of judgment.” (Id. at p. 325.) 6 Absent clear direction
from the Supreme Court, the Curry court relied primarily on language in
Frahs, supra, 9 Cal.5th 618. (Curry, at pp. 322–325.) However, Frahs
expressly refrained from defining “until adjudication,” and differentiated the
retroactive availability of mental health diversion under In re Estrada (1965)

5 Braden reviewed the history of California’s diversion programs “found
in sections 1000 through 1001.97” and observed: “We are not aware of any
cases indicating that, in the normal course, a defendant can be (or has been)
admitted to any such [diversion] programs after conviction at trial. Rather,
the purpose of diversion and deferred entry of judgment programs “is
precisely to avoid the necessity of a trial. [Citations.] (People v. Alonzo[,
supra,] 210 Cal.App.3d 468, 470 [trial court acted in excess of its jurisdiction
by granting diversion after trial.] Our view of section 1001.36 fits comfortably
into the norm for our Legislature’s diversion programs.” (Braden, supra,
63 Cal.App.5th at p. 335; see Gresher v. Anderson (2005) 127 Cal.App.4th 88,
111 [“The purpose of those programs is precisely to avoid the necessity of a
trial”].)
6In Curry, unlike in our case, “[t]he People [did] not take a position on
the timeliness of defendant’s [mental health diversion] request. (Curry,
supra, 62 Cal.App.5th at p. 320.)

21
63 Cal.2d 740 from “how the statute will generally operate when a case comes
before the trial court after section 1001.36’s enactment.” (Frahs, supra,
9 Cal.5th at pp. 632, 633, fn. 3.) Although acknowledging the dicta in Frahs
was equivocal, the Curry court nevertheless concluded the “balance of dicta”
favored its conclusion. (Curry, at pp. 323–324.) The court also reasoned that
the “overall statutory scheme” of section 1001.36, which it viewed as
investing trial courts with “broad discretion” in deciding when and whether
to grant diversion, supported an expansive interpretation of section 1001.36.
(Curry, at pp. 324–325.)
We disagree and join Rodriguez and Graham in concluding that the
broad statutory scheme observed in Curry was not, of itself, sufficient to
“ ‘countermand . . . the otherwise clear intent of the Legislature to require
pretrial diversion to be sought before a verdict.’ ” (Rodriguez, supra,
68 Cal.App.5th at p. 592; Graham, supra, 64 Cal.App.5th at p. 835.) While
acknowledging the Supreme Court’s explicit statement—“ ‘[W]e have no
occasion here to precisely define “until adjudication,” as used in section
1001.36, subdivision (c) (Frahs, supra, 9 Cal.5th at p. 633, fn. 3)”— the Curry
court sought to divine meaning from that which the Supreme Court expressly
declined to decide. (Curry, supra, 62 Cal.App.5th at pp. 323–324.) Unlike
Rodriguez and Graham, which interpreted “adjudication” in its context in the
statute, Curry recognizes “there is some language in Frahs that reasonably
might be cited in support of the argument that the phrase ‘until adjudication’
in section 1001.36 should be interpreted to mean ‘until adjudication of guilt,’ ”
but nevertheless concludes, based on “the weight of considered reasoning in
the case” that “the phrase ‘until adjudication’ should be interpreted to mean
‘until the judgment of conviction’—which does not occur until sentencing.”
(Curry, at p. 323.) We considered the “usual, ordinary meaning” of

22
“adjudication” in “the context in which the word[] appear[s]” in the statute
and find no support for Curry’s conclusion. (See Curry, at pp. 321–323.)
Rodriguez, Graham, and Braden reject Curry’s conjecture about phrases in
Frahs, and so do we. (See Rodriguez, supra, 68 Cal.App.5th at p. 591;
Graham, supra, 64 Cal.App.5th at p. 834; Braden, supra, 63 Cal.App.5th at
p. 341.)
We find further support for the Rodriguez and Graham holdings by
considering pretrial mental health diversion (§ 1001.35, et seq.) in the context
of the panoply of pretrial diversion schemes. The Legislature enacted five
diversion programs that employ the same time frame for pretrial eligibility:
from “any point in the judicial process from the point at which the accused is
charged until adjudication.” (§ 1001.36, subd. (c), italics added [“diversion of
individuals with mental disorders”]; § 1001.1 [“misdemeanor diversion”]; §
1001.50, subd. (c) [“diversion of misdemeanor offenders”]; § 1001.70, subd. (b)
[“parental diversion”]; § 1001.80, subd. (k)(1) [“military diversion program”].
Unlike these regimes, a sixth pretrial program, diversion of defendants with
cognitive developmental disabilities (§ 1001.20 et seq.), does not limit its
availability “until adjudication.” Section 1001.21, subdivision (a) applies
“whenever a case is before any court upon an accusatory pleading at any
stage of the criminal proceedings” (italics added.) Had the Legislature
intended for pretrial mental health diversion to similarly apply regardless of
the procedural posture of the case, it would presumably have said so as it did
in section 1001.21. (See, e.g., California Ins. Guarantee Assn. v. Argonaut Ins.
Co. (1991) 227 Cal.App.3d 624, 633–634 [“Insurance Code section 1063.1
shows that the Legislature knew how to make an exception for workers’
compensation benefits when it so intended”].) It did not.

23
 Even were we to conclude that “until adjudication” is “susceptible of
more than one reasonable . . . meaning,” we do not have to “ ‘ “guess what the
legislative body intended” ’ ” and therefore do not apply the rule of lenity.
(Canty, supra, 32 Cal.4th at p. 1277.) To “construe[] [the words] in the
manner that is more favorable to [Weith]” would require us to “strain to
interpret a penal statute in defendant’s favor” where we “ ‘can fairly discern a
contrary legislative intent.’ ” (Canty, at pp. 1276–1277.) For the reasons
stated in Graham and Rodriguez and above, we conclude that “until
adjudication” means until conviction: ascertainment of guilt, whether by a
jury (as in Graham) or by a guilty plea (as in Rodriguez).7
Because Weith’s postconviction diversion request was untimely, we do
not reach the merits of his claim.
DISPOSITION
The judgment is affirmed.

7 At oral argument, Weith contended for the first time that, because the
attempted murder charge precluded pretrial mental health diversion, he
should have been allowed to request it after acquittal on that charge. The
contention is forfeited by Weith’s failure to raise it in his opening brief. (Doe
v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115.)

24
 _________________________
Ross, J.*

WE CONCUR:

_________________________
Pollak, P.J.

_________________________
Brown, J.

A155950 People v. Weith

*Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

25