Filed 6/13/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078778
Plaintiff and Respondent,
v. (Super. Ct. No. SCD287354)
CRISTINA ROMERO
QUALKINBUSH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego
County, Jeffrey F. Fraser, Judge. Conditionally reversed and remanded with
directions.
William G. Holzer, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, A. Natasha Cortina, Acting Assistant Attorney General,
Alana Cohen Butler and Adrian R. Contreras, Deputy Attorneys General, for
Plaintiff and Respondent.
I.
INTRODUCTION
Cristina Romero Qualkinbush threw a pair of scissors at her 75-year-
old mother and then spat on a police officer who detained her following the
incident. After the trial court denied Qualkinbush’s motion for mental health
diversion under Penal Code 1 section 1001.36, she pled guilty to elder abuse
(§ 368, subd. (b)(1)) and misdemeanor battery on a peace officer (§ 243,
subd. (b)). The trial court placed her on formal probation for three years,
subject to certain conditions, including residential mental health treatment.
Qualkinbush appeals, claiming that the trial court erred in denying her
motion for mental health diversion. She also contends, and the People
concede, that we should order (1) amendment of the probation order to vacate
certain fees or costs pursuant to Assembly Bill No. 1869 (2019–2020 Reg.
Sess.) (AB 1869), which added, amended or repealed various statutes related
to fees imposed by the courts on convicted defendants, and (2) correction of
the probation search condition to accurately reflect the trial court’s oral
pronouncement, i.e., to delete authorization of searches of computers and
recordable media. We requested that the parties submit supplemental briefs
regarding the impact of Assembly Bill No. 1950 (AB 1950) which amended
section 1203.1, effective January 1, 2021, and limited the maximum
probation term that a trial court is authorized to impose for most felony
offenses to two years. (Stats. 2020, ch. 328, § 2; former § 1203.1, subds. (a),
(m).) We have received and considered those submissions. The parties agree
that the offense of conviction falls under an exception to section 1203.1 and
requires a three-year minimum probation term.
1 Undesignated statutory references are to the Penal Code.
2
For the reasons explained below, we conclude that the trial court erred
when it denied Qualkinbush’s motion for mental health diversion. We
remand the matter to the trial court with instruction to reconsider the
diversion motion, taking into consideration the primary purposes of the
mental health diversion statute. If after conducting a hearing on the motion,
the trial court again denies mental health diversion, the order granting
formal probation shall be reinstated, as modified, to vacate the unpaid
portion of the challenged fees and costs, and to correct the probation search
conditions to delete authorization of searches of computers and recordable
media.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Qualkinbush was born in Russia. She was exposed to alcohol in utero
and was raised for the first four years of her life in a dysfunctional family
that “exposed her to extreme forms of torture and physical abuse.” Her
family abandoned her at age four. After she was abandoned, she lived in an
orphanage where staff locked her “in a closet for extended periods of time
or . . . put [her] in the bathroom for not eating.” At age eight, an American
couple adopted her and brought her to the United States. Qualkinbush’s
adoptive father began sexually abusing her shortly after her adoption. She
suffered sexual abuse twice a week for approximately four years until her
adoptive father’s death.
As a juvenile, Qualkinbush exhibited behavioral problems in school
including threatening staff and engaging in self-injurious behaviors, physical
aggression, and altercations with peers. She made friends easily but quickly
lost those friendships due to conflict. Her adoptive mother (mother) described
Qualkinbush’s juvenile history as “extensive”; however, Qualkinbush’s
3
juvenile records are not part of the record on appeal. One juvenile incident
reportedly involved Qualkinbush attempting to strangle her mother. The
mother reported that Qualkinbush “did very well as a juvenile with structure
and services from the system.” But after she turned 18, “she got sick and
stopped taking her medication and stopped attending mental health
services.”
In September 2020, at age 20, Qualkinbush got drunk for the first time
with a friend and returned to the home she shared with her mother. After
getting into an argument with her mother, she held a knife to her own neck,
became aggressive, and began knocking over furniture. Qualkinbush threw a
pair of scissors at her mother, causing a laceration to her mother’s thigh that
required suturing. Qualkinbush struggled with police during her arrest—
yelling, hitting her head against objects, kicking, and spitting at a police
officer.
A felony complaint was filed against Qualkinbush alleging four counts
arising out of the incident: willful cruelty to an elder (§ 368, subd. (b)(1));
assault with a deadly weapon (§§ 245, subd. (a)(1), 1192.7, subd. (c)(23));
vandalism causing $400 or more in damage (§ 594, subds. (a), (b)(1)); and
misdemeanor battery upon a peace officer (§ 243, subd. (b)). The first two
counts also alleged personal use of a deadly weapon (§ 12022, subd. (b)(1)),
and great bodily injury upon a person 70 years of age or older (§ 12022.7,
subd. (c)). Qualkinbush pled not guilty and denied the allegations.
Qualkinbush filed a pretrial motion for mental health diversion that
was supported by a report from a clinical psychologist who diagnosed her as
suffering from posttraumatic stress disorder (PTSD), complex trauma, and
partial fetal alcohol syndrome. The psychologist opined that Qualkinbush’s
PTSD played a significant role in the commission of the charged offenses, her
4
mental health symptoms would respond to mental health treatment, and she
did not pose an unreasonable risk of committing certain violent felonies
known as super strikes. The People opposed the motion, arguing that
Qualkinbush’s mental illness was not a significant factor in the commission
of the charged offenses and that she posed an unreasonable risk of danger to
public safety if treated in the community.
In determining Qualkinbush’s statutory eligibility for diversion, the
trial court found, as conceded by the People, that she suffered from a
qualifying mental health disorder, consented to diversion, waived her right to
a speedy trial, and agreed to comply with treatment. The court assumed that
Qualkinbush’s mental illness was a significant factor in the commission of
the charged offenses and that she did not pose an unreasonable risk of
danger to public safety if treated in the community. Nonetheless, the court
concluded that the charged offenses, though not statutorily disqualifying,
were not suitable for diversion. In reaching this conclusion, the court
commented that the general sentencing objectives in California Rules of
Court, 2 rule 4.410 reflected “the various and sometimes conflicting goals of
our criminal justice system” and stated:
“Although mental health diversion might satisfy the
objectives of encouraging [Qualkinbush] to lead a law-
abiding life and deterring her from future offenses after a
lengthy history of mental health issues and past violence,
three of the charged crimes involve the use of force that
justifies placing the goals of punishment and deterrence of
others by demonstrating the consequences of such criminal
behavior above the needs of [Qualkinbush].”
2 Undesignated rule references are to the California Rules of Court.
5
The court proceeded to deny the diversion motion without prejudice, to
permit renewal of the motion before the trial judge. The parties later reached
a negotiated disposition pursuant to which Qualkinbush withdrew her not
guilty plea and pled guilty to elder abuse and misdemeanor battery on a
peace officer. The trial court granted the People’s motion to dismiss all
remaining counts and allegations. In return for her guilty plea, the
prosecution agreed to a sentence consisting of three years of formal probation
and a residential mental health program. Upon her successful completion of
probation, her felony conviction would be reduced to a misdemeanor. The
court sentenced Qualkinbush to three years of formal probation, imposed 365
days of custody, granted her 309 days of credit for time served, required that
she be released to a residential mental health treatment program, and
imposed certain fines, fees, and costs. Qualkinbush timely appealed and the
trial court approved her request for a certificate of probable cause.
III.
DISCUSSION
A. The Trial Court Abused Its Discretion by Relying on General Objectives of
Sentencing and Failing to Consider the Primary Purposes of the Mental
Health Diversion Statute in Denying Qualkinbush’s Motion for Diversion
1. General Legal Principles
The Legislature created a pretrial mental health diversion program for
defendants with certain diagnosed mental disorders, including PTSD.
(§ 1001.36, subds. (a), (b)(1)(A).) The primary purposes of the legislation are
to keep people with mental disorders from entering and reentering the
criminal justice system while protecting public safety, to give counties
discretion in developing and implementing diversion across a continuum of
care settings, and to provide mental health rehabilitative services.
(§ 1001.35.) Diversion can be “viewed as a specialized form of probation, . . .
6
[that] is intended to offer a second chance to offenders who are minimally
involved in crime and maximally motivated to reform, . . . .” (People v.
Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 66.)
The mental health diversion program allows qualifying defendants to
be treated in a community mental health program for up to two years, after
which, if they perform “satisfactorily in 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.” (§ 1001.36, subd. (e).) To be
considered for diversion (1) the defendant must make a prima facie showing
that he or she meets all of the threshold eligibility requirements, 3 (2) the
defendant and the offense are suitable for diversion, and (3) the trial court is
satisfied that the recommended program of mental health treatment will
meet the defendant’s specialized mental health treatment needs. (People v.
Frahs (2020) 9 Cal.5th 618, 627, citing § 1001.36, subds. (a), (b)(3) & (c)(1).)
If these statutory requirements are satisfied “then the court may grant
pretrial diversion.” (Frahs, at p. 627, italics added.)
The trial court’s determinations as to whether a defendant suffers from
a mental disorder under subdivision (b)(1)(A) of section 1001.36 and whether
3 The defendant must make a prima facie showing on the following six
eligibility requirements for diversion: (1) defendant suffers from a mental
disorder identified in the most recent edition of the Diagnostic and Statistical
Manual of Mental Disorders (DSM); (2) defendant’s mental disorder was a
significant factor in committing the charged offense; (3) an opinion from a
qualified mental health expert that defendant’s symptoms would respond to
mental health treatment; (4) defendant consents to diversion and waives the
right to a speedy trial; (5) defendant agrees to comply with treatment as a
condition of diversion; and (6) defendant will not pose an unreasonable risk of
danger to public safety if treated in the community. (§ 1001.36, subd.
(b)(1)(A)–(F).)
7
that disorder played a significant role in the commission of the charged
offense are reviewed for substantial evidence. (People v. Gerson (2022)
74 Cal.App.5th 561, 572–573.) “Ultimately, however, diversion under section
1001.36 is discretionary, not mandatory, even if all the [statutory]
requirements are met” and we “review for abuse of discretion the trial court’s
decision whether to grant a request for mental health diversion.” (Id. at
p. 573.) “ ‘A court abuses its discretion when it makes an arbitrary or
capricious decision by applying the wrong legal standard [citations], or bases
its decision on express or implied factual findings that are not supported by
substantial evidence.’ ” (Ibid.)
2. Analysis
Qualkinbush contends that she met her burden to establish the six
eligibility requirements for diversion and that the trial court abused its
discretion by applying the general sentencing objectives contained in rule
4.410 in determining her suitability for diversion rather than applying the
specific mental health diversion objectives set forth in section 1001.35. The
People assert that Qualkinbush forfeited her claim because the trial court
denied her motion without prejudice and she never renewed it prior to
pleading guilty. Assuming that we reject the forfeiture argument, the People
assert that the trial court properly exercised its discretion to deny
Qualkinbush’s motion based on her unsuitability for diversion.
The record does not support the People’s forfeiture argument. The trial
court noted that case law appears to allow for mental health diversion until
final judgment and that a possibility existed that the trial judge, if “presented
with additional evidence at trial, could conclude that such diversion is
appropriate.” (Italics added.) On this basis, the trial court denied
Qualkinbush’s motion “without prejudice [for renewal] before the trial judge.”
8
However, Qualkinbush pled guilty and never had an opportunity to renew
her motion. On this record, Qualkinbush properly notes that any renewed
motion without additional evidence would have been frivolous.
The trial court’s denial of Qualkinbush’s motion for mental health
diversion is appealable. (See, e.g., Morse v. Municipal Court (1974) 13 Cal.3d
149, 155 [“[a]n order denying [drug] diversion is a preliminary determination
from which no provision is made for interlocutory review but which is subject
to review on appeal from a judgment in the criminal proceedings”]; § 1237.5
[defendant may appeal from a judgment of conviction upon a guilty plea by
obtaining a certificate of probable cause].) Accordingly, Qualkinbush’s timely
appeal and receipt of a certificate of probable cause preserved the matter for
appellate review.
With respect to the six statutory eligibility requirements set forth in
section 1001.36, subdivision (b)(1), the trial court found that three of these
requirements were not at issue 4 and assumed a finding in Qualkinbush’s
favor on two additional requirements. 5 The trial court did not address the
last eligibility requirement, i.e., whether Qualkinbush had presented an
opinion from a qualified mental health expert that her symptoms would
respond to mental health treatment. (§ 1001.36, subd. (b)(1)(C).) This
4 The People conceded that Qualkinbush suffered from a qualifying
mental health disorder, Qualkinbush consented to diversion and waived her
right to a speedy trial, and agreed to comply with treatment. (§ 1001.36,
subd. (b)(1)(A), (D), (E).)
5 The trial court assumed a finding that Qualkinbush’s mental illness
played a significant role in the commission of the charged offenses, and that
she does not pose an unreasonable risk of danger to public safety if treated in
the community. (§1001.36, subd. (b)(1)(B), (F).)
9
omission appears to be an oversight because the psychologist who evaluated
Qualkinbush stated in her report that Qualkinbush’s symptoms would
respond to mental health treatment and that available treatments existed—
points that the People did not contest. Accordingly, the evidence supported a
finding in Qualkinbush’s favor on this final eligibility factor. Notably, the
People do not challenge Qualkinbush’s eligibility for diversion on appeal. 6
Even after a defendant makes a prima facie showing that he or she
meets the six threshold eligibility requirements, a trial court may still
exercise its discretion to deny mental health diversion if it finds that the
defendant or the offense are not suitable for diversion. (§ 1001.36, subd.
(b)(3).) The trial court expressly found that Qualkinbush’s offenses were “not
suitable for diversion.” In her briefing on appeal, Qualkinbush appears to
contend that a defendant may be deemed not suitable for diversion under
section 1001.36 subdivision (b)(3) only if the court finds that the defendant
poses an unreasonable risk of danger to public safety. (§ 1001.36, subd.
(b)(1)(F).) We reject this contention.
“ ‘When construing a statute, we must “ascertain the intent of the
Legislature so as to effectuate the purpose of the law.” ’ [Citations.] ‘[W]e
begin with the words of a statute and give these words their ordinary
meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous,
then we need go no further.’ [Citation.] If, however, the language supports
more than one reasonable construction, we may consider ‘a variety of
6 The Legislature has excluded defendants charged with specified
offenses, including murder, from the diversion program. (§ 1001.36, subd.
(b)(2)(A)–(H).) The criminal complaint shows that the People did not charge
Qualkinbush with an offense that precluded her eligibility for diversion.
Nothing in the trial court’s ruling suggests that it misunderstood the types of
offenses that preclude mental health diversion.
10
extrinsic aids, including the ostensible objects to be achieved, the evils to be
remedied, the legislative history, public policy, contemporaneous
administrative construction, and the statutory scheme of which the statute is
a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction
that comports most closely with the apparent intent of the Legislature, with a
view to promoting rather than defeating the general purpose of the statute,
and avoid an interpretation that would lead to absurd consequences.’ ”
(People v. Sinohui (2002) 28 Cal.4th 205, 211–212.) “Where reasonably
possible, we avoid statutory constructions that render particular provisions
superfluous or unnecessary.” (Dix v. Superior Court (1991) 53 Cal.3d 442,
459.)
The language and construction of section 1001.36 do not support
Qualkinbush’s argument that a defendant shall be deemed suitable for
diversion under the statute if the court finds that the defendant does not pose
an unreasonable risk of danger to public safety. The requirement that a
defendant not pose an unreasonable risk of danger to public safety is one of
the six eligibility requirements of section 1001.36, subdivision (b)(1). The
Legislature added the requirement that “the defendant and the offense” be
suitable for diversion in 2019 in new subdivision (b)(3). (Stats. 2018,
ch. 1005, § 1, eff. Jan. 1, 2019.) Construing the new requirement that the
defendant and offense be suitable for diversion as equivalent to a defendant
not posing an unreasonable risk of danger to public safety would render the
new statutory language superfluous. (Williams v. Superior Court (1993)
5 Cal.4th 337, 357 [“An interpretation that renders statutory language a
nullity is obviously to be avoided”].)
The next question that we must address is the intended meaning of the
new term. We have reviewed the legislative history of the 2019 amendment
11
that added subdivision (b)(3) to section 1001.36 and obtained no insight into
the intended meaning of the new suitability requirement. As the People note,
and our independent research has confirmed, no case law exists interpreting
this term. The only interpretation of the new term appears in a legal treatise
that commented:
“Accordingly, it seems clear the court can grant
diversion if the minimum standards are met, and,
correspondingly, can refuse to grant diversion even though
the defendant meets the technical requirements of the
program.
“There may be times, because of the defendant’s
circumstances, where the interests of justice do not support
diversion of the case. The defendant’s criminal or mental
health history may reflect a substantial risk the defendant
will commit dangerous crimes beyond the ‘super strikes’
identified in section 1001.36, subdivision (b)(6). It may be
that because of the defendant’s level of disability there is no
reasonably available and suitable treatment program for
the defendant. The defendant’s treatment history may
indicate the prospect of successfully completing a program
is quite poor. Conduct in prior diversion programs may
indicate the defendant is now unsuitable. (See § 1001.36,
subd. (h) [the court may consider past performance on
diversion in determining suitability].) The court may
consider whether the defendant and the community will be
better served by the regimen of mental health court. (See
§ 1001.36, subd. (c)(1)(B) [the court may consider interests
of the community in selecting a program].) Clearly the
court is not limited to excluding persons only because of the
risk of committing a ‘super strike’—the right to exclude
because of dangerousness goes well beyond that limited
list. In short, the court may consider any factor relevant to
whether the defendant is suitable for diversion.” (Couzens
et al., Sentencing California Crimes (The Rutter Group,
Sept. 2021 update) § 7:21, pp. 7-29–7-30.)
12
In examining the suitability of Qualkinbush and the charged offenses
for mental health diversion, the trial court relied on the general sentencing
objectives of the criminal justice system as articulated in rule 4.410. 7
Qualkinbush asserts that the trial court erred in relying on rule 4.410 and
that doing so amounted to an abuse of discretion because the court should
have relied instead on the remedial purpose of the legislation as articulated
in section 1001.35. 8
Another appellate court addressed an analogous argument in the
context of the military diversion statute (§ 1001.80), stating that “[a] trial
court lacking specific, statutory criteria to guide its suitability determination
is not operating in a vacuum; that the statute imposes no restrictions on
what the court may consider does not alter the court’s fundamental duty to
exercise discretion consistent with the principles and purpose of the
7 Rule 4.410(a) lists the general objectives of sentencing as:
“(1) Protecting society; (2) Punishing the defendant; (3) Encouraging the
defendant to lead a law-abiding life in the future and deterring him or her
from future offenses; (4) Deterring others from criminal conduct by
demonstrating its consequences; (5) Preventing the defendant from
committing new crimes by isolating him or her for the period of incarceration;
(6) Securing restitution for the victims of crime; (7) Achieving uniformity in
sentencing; and (8) Increasing public safety by reducing recidivism through
community-based corrections programs and evidence-based practices.”
8 Section 1001.35 states that “[t]he purpose of this chapter 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.”
13
governing law. [Citation.] But neither do we view lawful limits on the
exercise of discretion as a basis for limiting the court’s consideration of
factors or criteria that it deems relevant, so long as that assessment does not
reveal an erroneous understanding of or ‘ “transgress[ ] the confines of the
applicable principles of law” ’ [citation]. The discretion to consider a
defendant’s suitability for pretrial military diversion necessarily requires
discretionary judgments about which criteria or factors best determine
suitability, and both operations of discretion must be informed by the legal
principles and purpose of the statute guiding the court’s actions.” (Wade v.
Superior Court (2019) 33 Cal.App.5th 694, 710 (Wade).)
In Wade, supra, 33 Cal.App.5th 694, the appellate court concluded that
the trial court did not err in considering an information sheet of factors
derived from the felony sentencing guidelines set forth in various California
Rules of Court in deciding the defendant’s suitability for military diversion.
(Id. at pp. 714–715.) Nonetheless, the reviewing court found that the trial
court had abused its discretion in denying military diversion because “its
explanation for denying pretrial diversion gave no indication that it was
informed by the rehabilitative principles that define the military diversion
statute” and “nothing in the record . . . demonstrate[d], ‘either explicitly or by
inference, that the trial court based its discretion with the proper primary
objective in mind.’ ” (Id. at p. 716.)
The trial court in this case committed a similar error. Relying on the
general sentencing objectives articulated in rule 4.410, the trial court found
Qualkinbush unsuitable for mental health diversion, and further found that
punishment was appropriate, based on her lengthy history of mental health
issues, her use of force in the commission of the charged crimes, and her
history of violence. There is no indication in the trial court’s comments that
14
the court considered the primary purposes of the mental health diversion
statute, as set forth in in section 1001.35, in imposing sentence. In
particular, there is no indication that the court considered the goals of
promoting increased diversion of individuals with mental disorders to
mitigate their entry and reentry into the criminal justice system while
protecting public safety, 9 and providing diversion that meets the unique
mental health treatment and support needs of individuals with mental
disorders. (Wade, supra, 33 Cal.App.5th at p. 716.) 10
The appropriate remedy is to remand the matter to the trial court to
reconsider Qualkinbush’s motion for mental health diversion, bearing in
mind the statutory principles and purpose of the mental health diversion
statute. (Wade, supra, 33 Cal.App.5th at p. 718.) We express no opinion as
to how the court should exercise its discretion on remand. 11
9 As noted, ante, in addressing the six eligibility factors, the court did not
find that Qualkinbush would pose an unreasonable risk of danger to public
safety if treated in the community. The fact that the court granted probation
and imposed a condition that Qualkinbush be released to a residential
treatment program suggests that the court implicitly found that Qualkinbush
in fact would not pose a danger to the community if released from custody.
10 The instant offenses are Qualkinbush’s first as an adult despite her
lengthy history of mental health issues and the fact that she stopped
attending mental health services and discontinued taking her medications
when she turned 18. Additionally, the record does not suggest that
Qualkinbush is particularly violent or prone to using force.
11 We question the discussion in Wade, supra, 33 Cal.App.5th 694, to the
extent it suggests that a trial court may properly consider general sentencing
objectives in determining a pretrial mental health diversion motion. (Id. at
pp. 714–715.) For purposes of evaluating the defendant’s eligibility and/or
suitability for pretrial mental health diversion, the court must treat the
matter as if the charges against the defendant have not yet been adjudicated;
the court is not sentencing the defendant. Thus, the general sentencing
15
B. AB 1869 Requires Modification of Qualkinbush’s Financial Obligations
At sentencing, the trial court imposed certain costs and a fee, including
a criminal justice administration fee of $154 (Gov. Code, § 29550),
presentencing investigation costs of $1,433 (§ 1203.1b), probation supervision
costs of $176 per month (§ 1203.1b), and attorney services costs of $570
(§ 987.8). Qualkinbush contends that AB 1869 requires that these financial
obligations be vacated. The People agree that we should vacate the unpaid
balance of these financial obligations and order the superior court to amend
the abstract of judgment to reflect that vacatur. We concur.
The Legislature enacted AB 1869, effective July 1, 2021, which
repealed the provision under which the trial court ordered Qualkinbush to
pay the $154 criminal justice administration fee. (Assem. Bill No. 1869
(2019–2020 Reg. Sess.) § 11.) This bill also added section 1465.9, subdivision
(a) (id. at § 62) which provides that “[t]he balance of any court-imposed costs
pursuant to . . . Sections 987.8, . . . [and] 1203.1b, . . . as those sections read
on June 30, 2021, shall be unenforceable and uncollectible and any portion of
a judgment imposing those costs shall be vacated.” (§ 1465.9, subd. (a).) The
plain language of the newly-enacted statute mandates that any unpaid
balances of these financial obligations automatically became unenforceable
and uncollectible beginning on July 1, 2021, and requires that they be
vacated. (People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953.)
C. The Probation Order Search Term Requires Correction
Qualkinbush contends, and the People agree, that the probation order
erroneously imposed an electronics search term that conflicts with the trial
objectives of the criminal justice system as articulated in rule 4.410 had no
application to Qualkinbush and do not provide a proper basis for denying her
motion for diversion.
16
court’s oral pronouncement of sentence deleting this term. The parties are
correct.
The probation department recommended that Qualkinbush’s probation
include a search condition as part of her probation requiring that she
“[s]ubmit person, vehicle, residence, property, personal effects, computers,
and recordable media including electronic devices to search at any time . . . .”
During sentencing, defense counsel asked the court not to impose that term
to the extent that it would allow searches of “electronic devices, recordable
media, and computers,” and the court said, “Go ahead and delete that.”
The probation order originally authorized searches of Qualkinbush’s
“personal effects, computers, and recordable media including electronic
devices” as suggested by the probation department. The court clerk crossed
out the phrase “including electronic devices” and wrote the word “deleted”
above it. The probation order conflicts with the trial court’s oral
pronouncement which also deleted searches of Qualkinbush’s recordable
media and computers. Where, as here, a discrepancy exists between the
court’s “oral pronouncement of judgment and the minute order or the abstract
of judgment, the oral pronouncement controls.” (People v. Zackery (2007)
147 Cal.App.4th 380, 385.)
D. AB 1950 Does Not Impact Qualkinbush’s Probation Term
Effective January 1, 2021, AB 1950 amended section 1203.1 (Stats.
2020, ch. 328, § 2) to limit the maximum probation term that a trial court is
authorized to impose for most felony offenses to two years. (Former § 1203.1,
subd. (a).) 12 Subdivision (l) of section 1203.1 lists certain exceptions to the
12 The Legislature subsequently amended and then replaced section
1203.1. (Stats. 2021, ch. 257, §§ 21, 22 [Assembly Bill No. 177 (2021–2022
Reg. Sess.)].) As relevant here, former section 1203.1, subdivision (m), was
17
two-year probation limit in subdivision (a), including any offense that
“includes specific probation lengths within its provisions.” (§ 1203.1,
subd. (l).) If an exception applies, then probation “may continue for a period
of time not exceeding the maximum possible term of the sentence . . . .”
(§ 1203.1, subd. (l).) 13
The People contend that Qualkinbush waived any challenge to a
stipulated sentence and thus may not contest the length of her probation
under AB 1950 because she accepted that term of probation as part of her
plea bargain. The written plea agreement states: “NOLT; Releasable to
program pending PHS. No contact order remains with the continued
exception that Ms. Qualkinbush can have telephonic contact with protected
party. 17(b) upon SCOP with no violations.” 14 Qualkinbush initialed the box
next to the advisement that the maximum punishment resulting from the
change of plea would be five years in prison, and if “not sentenced to
imprisonment, I may be granted probation for a period up to 5 years or the
maximum term of imprisonment, whichever is greater.” She also initialed
the box giving up her right to appeal “any sentence stipulated herein.”
redesignated as section 1203.1, subdivision (l). Hereafter, this opinion will
cite to the current version of the statute.
13 Qualkinbush pleaded guilty to count 1 and another offense
approximately one month after AB 1950 went into effect on January 1, 2022.
14 “ ‘NOLT’ is an acronym meaning that the district attorney will not
oppose local time.” (People v. Patton (2019) 41 Cal.App.5th 934, 942
(Patton).) The reference to section 17 indicates the parties’ agreement, as
discussed at the change of plea hearing, that Qualkinbush’s felony conviction
for elder abuse would be reduced to a misdemeanor upon her successful
completion of probation.
18
Although the written plea agreement does not show that the parties
agreed to a stipulated term of three years of formal probation, all other
portions of the record reflect this understanding, including the probation
report, and the transcripts of the change of plea hearing and the sentencing
hearing. Additionally, both appellate counsel concur in their briefing in this
court that the parties’ agreed to a three-year probation term. Under these
circumstances, it appears that the written plea agreement does not
accurately state the terms of the parties’ agreement and we defer to the
parties’ and court’s statements in the reporter’s transcripts, which indicate
that the parties agreed to a three-year term of probation. (People v. Harrison
(2005) 35 Cal.4th 208, 226 [the prevailing portion of the record “will depend
on the circumstances of each particular case”].) Accordingly, it appears that
Qualkinbush waived any challenge under AB 1950 to the stipulated three-
year probation term. (People v. Hester (2000) 22 Cal.4th 290, 295.)
In any event, the parties agree that Qualkinbush is not entitled to
relief under AB 1950 based on the nature of her conviction. Section 1203.097
sets forth specific probation lengths and requires a “minimum period of
probation of 36 months” for “a crime in which the victim is a person defined
in [s]ection 6211 of the Family Code.” (§ 1203.097, subd. (a)(1).) “Section
1203.097 applies to any person placed on probation for a crime if the
underlying facts of the case involve domestic violence, even if the statute
defining the crime does not specifically refer to domestic violence.” (People v.
Cates (2009) 170 Cal.App.4th 545, 548.)
Family Code section 6211 defines “ ‘[d]omestic violence’ ” as “abuse
perpetrated” against a “person related by consanguinity or affinity within the
second degree.” (Fam. Code, § 6211, subd. (f).) Qualkinbush is the victim’s
adopted daughter. A parent and child are related in the first degree of
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consanguinity (Prob. Code, § 13, subd. (b)), and an adopted child is considered
to be the child of an adoptive parent. (In re Darling’s Estate (1916) 173 Cal.
221, 223; cf. rule 5.502(1) [defining affinity as the connection between one
spouse and the other spouse’s blood or adoptive relatives].)
We interpret the phrase, “an offense that includes specific probation
lengths in its provisions” in subdivision (l)(1) of section 1203.1 to refer not
only to the statute defining the elements of the crime, but also to any
statutory provisions to which the court must look to determine the proper
term of probation. Qualkinbush’s offense of conviction (§ 368, subd. (b)(1))
does not, itself, include a specific probation length. However, in order to
determine the proper term of probation for a defendant convicted of this
crime, the trial court must refer to section 1203.097 and, under the
circumstances of this case, to Family Code section 6211, because the victim in
this case is a person defined in Family Code section 6211. Thus, the two-year
probation limit in section 1203.1, subdivision (a), does not apply to
Qualkinbush.
IV.
DISPOSITION
Qualkinbush’s guilty plea is conditionally vacated and the order granting
formal probation is conditionally reversed. The matter is remanded to the
superior court to conduct another mental health diversion eligibility hearing
under section 1001.36, no later than 90 days from the filing of the remittitur,
and exercise its discretion in conformity with the principles articulated herein.
Specifically, in determining whether Qualkinbush and/or her offense are
suitable for mental health diversion, the court is to consider the goals of
promoting increased diversion of individuals with mental disorders to mitigate
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their entry and reentry into the criminal justice system while at the same time,
protecting public safety.
If the trial court again denies pretrial mental health diversion, or if the
court places Qualkinbush on diversion but she fails to successfully complete
diversion, Qualkinbush’s guilty plea and the order granting formal probation
shall be reinstated as modified to (1) vacate the portion of the criminal justice
administration fee (Gov. Code, § 29550), presentencing investigation costs
(§ 1203.1b), probation supervision costs (§ 1203.1b), and attorney services costs
(§ 987.8) that remained unpaid as of July 1, 2021, and (2) correct the order to
strike the terms “computers, and recordable media” from condition 6n. The
order granting formal probation is otherwise affirmed.
AARON, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
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