People v. Higgins CA4/2

Filed 3/6/24 P. v. Higgins CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E081027

Plaintiff and Respondent, (Super. Ct. No. RIF2200540)

v. PUBLIC—REDACTED
VERSION OF OPINION
RILEY KYLE HIGGINS,
Redacts material from sealed
Defendant and Appellant. record.1

APPEAL from the Superior Court of Riverside County. Emma C. Smith, Judge.

Affirmed.

Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and

Appellant.

1 In accordance with California Rules of Court, rules 8.45 and 8.46(f)(4) we have
prepared both public (redacted) and sealed (unredacted) versions of this opinion. We
hereby order the unredacted version of this opinion sealed.

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 Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Senior Assistant Attorney General, A. Natasha Cortina and

Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Defendant and appellant Riley Kyle Higgins appeals the order denying his motion

for mental health diversion (the Motion) on two grounds: (1) that the trial court abused

its discretion by allegedly basing its denial on the monetary cost of the proposed

treatment plan and (2) that this impermissible consideration of monetary cost was an

equal protection violation. The People argue that the trial court did not abuse its

discretion because it based its decision on the following permissible factors: the

insufficiency of the treatment that defendant would have received under diversion, a

finding that defendant posed an unreasonable risk to public safety, and the inadequacy of

the supervision that diversion would have provided. In the alternative, they argue that

any reference to cost was harmless error.

We find that the trial court did not consider, let alone base its denial on, the

monetary cost of the proposed mental health treatment plan. It instead relied on

permissible factors to render its decision. We therefore affirm the trial court’s ruling.

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 FACTUAL AND PROCEDURAL HISTORY

On February 2, 2022, defendant entered the bathroom of a grocery store and

ignited two fires.2 The store’s employees discovered and extinguished the fires before

they caused structural damage or personal injury. Defendant was quickly apprehended,

arrested, and charged with one count of committing arson during a state of emergency

(Pen. Code,3 §§ 451, subd. (c), 454, subd. (a)(2)), an enhancement for a previous arson

conviction (§§ 452, subd. (c), 451.1, subd. (a)(1)), a serious felony enhancement for a

prior robbery conviction (§ 667, subd. (a)(1)), and a strike for said robbery conviction

(§ 667, subd. (e)(1)).

2 In discussing portions of the probation report, we are cognizant of section

1203.05, which limits (but does not entirely preclude) public access to the probation
report 60 days after judgment is pronounced or probation is granted. The Legislature’s
intent in cloaking the report with conditional confidentiality was to restrict access only to
personal information about a defendant (such as details concerning his or her family
background, medical and psychological condition, financial status, military record, and
substance abuse history) not nonpersonal information, such as the factual summary of an
offense and the evaluations, analyses, and recommendations of the probation officer.
(People v. Connor (2004) 115 Cal.App.4th 669, 695-696.) “[I]n a given case, the report
may not contain any personal information; it may contain only personal information that
is readily available in other public documents; and the probation report contains much
nonpersonal information.” (Id. at p. 690.) In apparent recognition of this, appellate
courts sometimes quote from a probation report’s factual summary of the offense (see,
e.g., People v. Salazar-Merino (2001) 89 Cal.App.4th 590, 594-595); People v. Mickens
(1995), 38 Cal.App.4th 1557, 1559-1560). We abide by these limitations in our opinion.

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

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 On April 8, 2022, defendant filed the Motion, in which he argued that he was

eligible and suitable for the mental health diversion program based on his mental health

diagnosis.4 On July 25, 2022, the trial court denied the Motion.

On March 24, 2023, defendant pled guilty to committing arson during a state of

emergency and also admitted to the enhancements and prior strike. The trial court

sentenced him to 10 years in state prison. After the court entered judgment, defendant

obtained a certificate of probable cause and timely appealed. The parties’ briefs were

filed under seal to protect defendant’s medical history.

DISCUSSION

A. STANDARD OF REVIEW

A trial court’s denial of a motion for mental health diversion is appealable upon

timely notice and a certificate of probable cause in the same manner that an order

denying drug diversion is, i.e., “ ‘subject to review on appeal from a judgment in the

criminal proceedings.’ ” (People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888,

quoting Morse v. Municipal Court (1974) 13 Cal.3d 149, 155.)

“A trial court’s ruling on a motion for mental health diversion is reviewed for an

abuse of discretion, and factual findings are reviewed for substantial evidence.” (People

v. Whitmill (2022) 86 Cal.App.5th 1138, 1147 (Whitmill).) “[A] trial court does not

abuse its discretion unless its decision is so irrational or arbitrary that no reasonable

4 Neither his mental health diagnosis nor its role in defendant’s commission of the
offense is at issue in this appeal. Therefore, out of respect for defendant’s privacy, we do
not identify the specific nature of his disorder.

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person could agree with it,” and whether a trial court’s decision was irrational or arbitrary

depends on the applicable “legal principles and policies that should have guided the

court’s actions.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)

It follows that a trial court has abused its discretion when its ruling was based on

“impermissible factors” (People v. Carmony, supra, 33 Cal.4th at p. 378) or an “incorrect

legal standard” (People v. Knoller (2007) 41 Cal.4th 139, 156). Here, defendant argues

that the trial court abused its discretion by basing its denial on an impermissible factor:

the monetary cost of diversion.

B THE STATUTORY FRAMEWORK FOR MENTAL HEALTH

DIVERSION

“A basic canon of statutory interpretation is that statutes do not operate

retrospectively unless the Legislature plainly intended them to do so. [Citations.] A

statute has retrospective effect when it substantially changes the legal consequences of

past events . . . A corollary to these rules is that a statute that merely clarifies, rather than

changes, existing law does not operate retrospectively even if applied to transactions

predating its enactment. We assume the Legislature amends a statute for a purpose, but

that purpose need not necessarily be to change the law. [Citation.] Our consideration of

the surrounding circumstances can indicate that the Legislature made material changes in

statutory language in an effort only to clarify a statute’s true meaning. [Citations.] Such

a legislative act has no retrospective effect because the true meaning of the statute

remains the same.” (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232,

243.)

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 Defendant filed the Motion under section 1001.36, which “authorizes pretrial

mental health diversion for defendants with qualifying mental health disorders.”

(Whitmill, supra, 86 Cal.App.5th at p. 1147.) The purpose of the program is to “mitigate

the individuals’ entry and reentry into the criminal justice system while protecting public

safety,” allow “local discretion and flexibility for counties in the development and

implementation of diversion for individuals with mental disorders,” and “meet[] the

unique mental health treatment and support needs of individuals with mental disorders.”

(§ 1001.35.)

We note that the trial court issued its ruling on July 25, 2022, on which date an

older version of section 1001.36 was effective. The current statute sets forth a two-part

test for ruling on a request for diversion. (§ 1001.36, subd. (a).) However, the earlier

version simply stated, “On an accusatory pleading alleging the commission of a

misdemeanor or felony offense, the court may, after considering the positions of the

defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if

the defendant meets all of the requirements specified in paragraph (1) of subdivision (b).”

(Former Pen. Code, § 1001.36, subd. (a), added by Stats. 2018, c. 34 (A.B.1810), § 24,

eff. Jun. 27, 2018, and amended by Stats. 2022, c. 47 (S.B.184), § 38, eff. June 30,

2022.)5

These requirements were: (1) the court’s satisfaction that the defendant suffers

from a qualifying mental disorder, (2) the court’s satisfaction that the “mental disorder

5 Further citations to “Former section 1001.36” refer exclusively to this version,
i.e., the version that was effective on July 25, 2022.

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was a significant factor in the commission of the charged offense,” (3) a qualified mental

health expert’s opinion that “the defendant’s symptoms of the mental disorder motivating

the criminal behavior would respond to mental health treatment,” (4) the defendant’s

consent to diversion and waiver of his right to a speedy trial, (5) the defendant’s

agreement to comply with treatment as a condition of diversion, and (6) the court’s

satisfaction that “the defendant will not pose an unreasonable risk of danger to public

safety, as defined in Section 1170.18, if treated in the community.” (Former § 1001.36,

subd. (b)(1).)

The current enactment is not significantly different. The main difference is that

the current statute divides the inquiry into a two-part test: the court must first determine

if the defendant is “eligible” for diversion, and then find that he is “suitable” for diversion

before it can, “in its discretion, and after considering the positions of the defense and

prosecution, grant pretrial diversion.” (§ 1001.36, subd. (a).) Of the six requirements in

the former version of the statute, the defendant must satisfy the first two in order to be

eligible for diversion and the last four in order to be suitable. Thus, all six of the

elements that were required when the trial court made the ruling before us are still

required to grant mental health diversion today.

Because both versions of the statute require the same elements and the newer

version has merely divided the inquiry into two parts, we do not find the statute

substantially changed. We therefore find no retroactive applicability and shall apply the

statute as it was effective at the time of the lower court’s ruling. We look to the

amendment for clarification of the Legislature’s intent.

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 1. PROCEDURAL HISTORY

As we explained, ante, the earlier version of section 1001.36 did not explicitly set

forth a two-part test, even though all six elements remain the same. Therefore, while a

court today would first determine a defendant’s eligibility and then, if applicable, his

suitability for diversion, this two-step process was not required at the time of the

challenged ruling.

Nevertheless, the statute did permit the trial court to, “[a]t any stage of the

proceedings . . . require the defendant to make a prima facie showing that the defendant

will meet the minimum requirements of eligibility for diversion and that the defendant

and the offense are suitable for diversion. . . . If a prima facie showing is not made, the

court may summarily deny the request for diversion or grant any other relief as may be

deemed appropriate.” (Former § 1001.36, subd. (b)(1).)

On April 22, 2022, the trial court here first conducted a hearing solely on

defendant’s prima facie eligibility for diversion. At this hearing, the People submitted on

their opposition, which did not dispute defendant’s qualifying diagnosis. They argued,

however, that he was ineligible for diversion because he had failed to establish that his

disorder played a significant role in the commission of the offense and that he would not

pose an unreasonable risk of danger to the public. The trial court found that defendant

met the minimum eligibility requirements and set a hearing on the question of suitability.

Then, at the hearing on suitability that occurred on July 25, 2022, the trial court

concluded that defendant was not suitable for diversion and therefore denied the Motion.

It explained, “The Court does not find that [defendant] is a suitable candidate for Mental

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Health Diversion, nor is the treatment plan, as currently proffered, is [sic] suitable for

treatment through Mental Health Diversion. This is an individual, and I understand it’s

nails on a chalkboard to listen to, but I do want to make the record that he’s on probation,

currently for a violation of PC 452, subdivision (c); as well as a vandalism felony, for

which I believe he was granted a Romero in order to be placed on probation for that case.

While these cases were in that status, he was alleged to have committed a new arson.

And a violation of 452, sub (c) was alleged, along with the prior conviction referenced,

the strike priors and the nickel prior. He is someone who requires much more

supervision than what Mental Health Diversion could afford, is designed to afford, and I

believe that he is unsuitable based on that.”

Defendant now contends that this statement from the bench indicates that it

impermissibly based its decision on “the cost of the potential mental health program.”

He argues this was an abuse of discretion.

We agree that the monetary cost of a defendant’s proposed treatment plan should

not be considered when ruling on a motion for mental health diversion. The statute gives

trial courts a wide berth to either grant or deny pretrial diversion once the requisite

findings on eligibility and suitability are made; we therefore do not believe the courts are

limited to the elements in section 1001.36. Still, their analyses must stay within the scope

of their discretionary power.

2. THE SCOPE OF THE COURT’S DISCRETION

We reiterate that the trial court’s discretionary power is bounded by the applicable

legal principles. For example, when it ruled on a defendant’s request for military pretrial

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diversion, the Sixth District wrote, “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 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.) The

Sixth District then evaluated whether the factors that the trial court relied on when it

denied the defendant’s request for military diversion were consistent with the program’s

purpose. (Id. at p. 714.)

Here, the mental health diversion program’s purpose is “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. [Citation.] The Legislature intended the mental health diversion program to

apply as broadly as possible.” (Whitmill, supra, 86 Cal.App.5th at p. 1149.) When it

developed the statute authorizing the program, the Legislature conveyed that the counties

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would be responsible for developing the program and providing the “clinically

appropriate” services and treatment to the participants in their jurisdiction. (Sen. Rules

Com., Off. Of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1810 (2017-

2018 Reg. Sess.) as amended Jun. 12, 2018, p. 3.)

Based on this background, we do not believe the trial court should consider the

monetary cost of a defendant’s proposed treatment plan when ruling on a motion for

mental health diversion. The plain language of the statute gives the counties “discretion”

to develop and implement the diversion program and provide the proffered services. The

courts, in turn, trust that a proposed treatment plan is financially feasible for the county

since it is recommended by the county itself.

We therefore agree with defendant that if a trial court relies on the “cost” of

diversion as a basis for denial, it has abused its discretion. However, that is not what the

trial court has done here.

a. There is no evidence that the trial court considered the “cost”

of diversion when it denied the Motion.

Defendant repeatedly argues that the court “cit[ed] cost as the primary reason for

its decision” to deny the request for diversion. While he never explicitly divulges what

exactly the trial court said or did to cause him to believe this, he quotes the entirety of the

court’s explanation for its ruling. Upon reading this explanation, we surmise that

defendant’s argument is based on the court’s use of the word “afford.” The trial court

had stated that defendant “is someone who requires much more supervision than what

Mental Health Diversion could afford, is designed to afford, and I believe that he is

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unsuitable based on that.” Defendant seems to imply that, by using the word “afford,”

the court “emphasized the cost of the potential mental health program . . . as the reason it

denied the defense motion for diversion.”

This is an unreasonable interpretation of the trial court’s words. As the People

point out, the court was using the word “afford” as a synonym for “provide.” We know

this due to the surrounding language: The court began by acknowledging that defendant

had committed the arson he was being charged with while on probation for another arson

and for felony vandalism. It then emphasized the level of “supervision” that defendant

“require[d].” We note that the diversion program operates by postponing prosecution “to

allow the defendant to undergo mental health treatment” outside the criminal justice

system, i.e., in the community. (§§ 1001.35, 1001.36, subd. (f).) Based on this context,

when the court stated that defendant was “someone who requires much more supervision

than what Mental Health Diversion could afford, is designed to afford,” it was conveying

its belief that defendant needed more supervision than that which he would have received

from being treated in a community setting; in other words, he needed more supervision

than the diversion program would provide. The court was not referring to the monetary

cost of diversion.

We draw further support for this interpretation from the fact that the trial court was

never made aware of the monetary cost of diversion. [Redacted.]

[Redacted.] It was not an “issue of cost,” as defendant describes it, but rather an

issue of where he could live while undergoing treatment. This particular defendant

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needed financial assistance to secure housing because, as he states in his original motion,

he was a member of the unhoused population.

We therefore conclude that, based on a reasonable interpretation of the record, the

trial court was not relying on, let alone referring to, the monetary cost of diversion when

it denied defendant’s Motion. As this was defendant’s only argument as to the trial

court’s decision-making process, we hold that the court did not abuse its discretion.6

b. The trial court properly considered whether diversion would

meet defendant’s treatment needs and the interests of the

community.

Though unnecessary to our analysis, we note for the parties’ benefit that the trial

court did rely on permissible factors when it denied the diversion request. While the

statute identifies the requisite elements for granting pretrial diversion, “a diversion order

is expressly discretionary with the court, even when all of the criteria are met.” (People

v. Doron (2023) 95 Cal.App.5th 1, 9.) In fact, subdivision (c) of the former section

1001.36, and subdivision (f) of the current section 1001.36, set forth permissible factors

that the court may consider. They both state that pretrial diversion is subject to, inter

alia, the court’s satisfaction that diversion “will meet the specialized mental health

treatment needs of the defendant” and is consistent with “the interests of the community.”

(§ 1001.36, subd. (f)(1)(A); former § 1001.36, subd. (c).)

6 Because we hold that the trial court did not consider the monetary cost of
diversion when it rendered its decision, we do not reach defendant’s alternative argument
that a denial based on the cost of diversion is a violation of equal protection.

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 Here, the trial court properly based its denial on its conclusion that diversion

would provide inadequate supervision for this defendant. We infer from this reasoning

the trial court’s determination that defendant needed a higher level of supervision to

succeed with his treatment or refrain from reoffending. Both are acceptable

considerations.

c. We make no ruling on the sufficiency of the evidence

supporting the court’s factual findings.

Because the trial court’s denial of the Motion was based on permissible factors, we

decline to reach a holding on the People’s argument that the court “impliedly” found that

defendant “posed an unreasonable risk of danger to public safety” 7 within the meaning of

former section 1001.36, subdivision (b)(1)(F), and current section 1001.36, subdivision

(c)(4).

We note, however, that the standard for whether a defendant would pose an

unreasonable risk of danger to public safety is based on the definition contained in

section 1170.18. (§ 1001.36, subd. (c).) According to section 1170.18, an “unreasonable

risk of danger to public safety” is “an unreasonable risk that the petitioner will commit a

new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph

7 The Second District Court of Appeal held in People v. Pacheco (2022) 75
Cal.App.5th 207 that a defendant’s likelihood of committing arson could constitute “an
unreasonable risk of danger to public safety,” even though arson is not one of the
offenses specified in the statutory definition of violent felonies. (Id. at p. 213.) It did so
by concluding that this list of felonies is not exclusive for the purpose of determining
whether a defendant is suitable for diversion. (Ibid.) At this time, we decline to state our
opinion of this interpretation because we instead hold that the likelihood of reoffending is
relevant to the “interests of the community” factor.

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(2) of subdivision (e) of Section 667.” (§ 1170.18, subd. (c).) These “violent felonies”

consist of “sexually violent” offenses, sexual assault of a minor, homicide or attempted

homicide, solicitation to commit murder, assault with a machine gun on a peace officer or

firefighter, possession of a weapon of mass destruction, and any serious violent felony

that is “punishable in California by life imprisonment or death.” (§ 667, subd.

(e)(2)(C)(iv).)

When determining whether the defendant will pose an unreasonable risk of danger

to public safety, “[t]he court may consider the opinions of the district attorney, the

defense, or a qualified mental health expert, and may consider the defendant’s treatment

plan, the defendant’s violence and criminal history, the current charged offense, and any

other factors that the court deems appropriate.” (§ 1001.36, subd. (c)(4).) “[T]he risk of

danger is narrowly confined to the likelihood the defendant will commit a limited subset

of violent felonies,” and is, therefore, a “high standard.” (People v. Moine (2021) 62

Cal.App.5th 440, 450-451.)

Neither the parties nor the trial court refer to this definition in their analyses; but

regardless, such a finding, while relevant, is not required to deny a motion for diversion.

We similarly acknowledge that defendant mentioned, in passing, that the court

abused its discretion because it “made no findings as to why” he was unsuitable for

diversion. As we explained, the trial court found that defendant required more

supervision that the diversion program could offer him. This was a permissible basis for

denying the Motion. Defendant contends that the trial court “made no findings,” but only

to support his argument that the denial was based on cost. Having failed to recognize the

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court’s factual findings, defendant at no point argues that the evidence was insufficient to

support them. Therefore, we express no opinion on the sufficiency of the evidence.

C. CONCLUSION

Defendant’s sole argument on appeal is that the trial court abused its discretion by

basing its denial of his request for diversion on the monetary cost of his participation.

But the record reflects that the trial court did not consider, let alone center its ruling on

monetary cost. Therefore, we find no abuse of discretion.

DISPOSITION

The trial court’s order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

McKINSTER
Acting P. J.

RAPHAEL
J.

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