Metropolitan News-Enterprise


Tuesday, June 6, 2023


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California Supreme Court:

Pretrial Diversion Cannot Be Requested After Trial Starts

 Dissenter Evans, Joined by Liu, Says Diversion Based on Mental Illness Is Timely Before Adjudication


By a MetNews Staff Writer


The Court of Appeal got it right in holding that a defendant acted too late in making a request for pretrial diversion based on mental illness after the jury turned in its verdict, the California Supreme Court held yesterday, in a 5-2 decision.

Justice Carol Corrigan wrote for the majority in declaring that Cory Juan Braden Jr.’s conviction for punching a sheriff’s deputy will stand. Justice Kelli Evans dissented and was joined by Justice Goodwin H. Liu.

The majority embraced the view expressed on April 20, 2021, by Court of Appeal Justice Michael J. Raphael of the Fourth District’s Div. Two, who said:

“After a jury convicted him on a charge of resisting an executive officer with force or violence, a defendant requested mental health diversion pursuant to Penal Code section 1001.36….[W]e hold that he was ineligible for that section’s “pretrial diversion” because he did not request diversion before trial began.”

Raphael’s opinion rejects a contrary view expressed by the Third District Court of Appeal on March 2, 2021 in People v. Curry. Justice Jonathan K. Renner said in that decision that “a defendant may ask the trial court for mental health diversion until sentencing and entry of judgment.”

Corrigan’s Opinion

The statute defines “pretrial diversion,” for purpose of the statute, as “the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.” Corrigan said in yesterday’s opinion:

“The statute does not separately define ‘adjudication.’…‘[A]djudication’ can mean (1) the process of resolving the criminal charges by trial or entry of plea or (2) the conclusion of all trial proceedings by an entry of judgment. The holdings of the appellate courts reflect this variance.”

The conclusion she reached was that “to be timely, a request for pretrial diversion must be made before the process of adjudicating the charges begins, i.e., before jeopardy attaches at trial or the defendant enters a plea of guilty or no contest, whichever occurs first.”

She noted:

“The text of section 1001.36 refers eight times to the diversion it provides for as ‘pretrial.’ ”

The jurist remarked:

“Had the Legislature intended mental health diversion to be available up until the time of sentencing, it could easily have said so, as it has in other contexts.”

Corrigan also pointed out that §1001.36 “is positioned in title 6 of part 2 of the Penal Code which is devoted exclusively to “Pleadings and Proceedings Before Trial.”

Evans’s Dissent

Evans argued in her dissent:

“Section 1001.36 allows defendants to request mental health diversion ‘at any point in the judicial process from’ the time they are charged ‘until adjudication.’…The majority opinion holds that the statute’s reference to ‘until adjudication’ requires a defendant to request diversion ‘before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first.’…In so holding, contrary to legislative intent, the majority divests trial courts of the discretion to grant mental health diversion to suitable, mentally ill defendants.”

She maintained that “the more natural reading” of the words “until adjudication” would be “until entry of judgment,” commenting:

“Unlike the definition adopted by the majority opinion, the latter definition does not require any need for elaboration, refinement, or insertion of additional words. It also comports with the commonsense understanding that typically there is no adjudication of a matter until there is some outcome.”

Evans went on to say:

“In focusing on the word ‘pretrial’ in isolation, the majority places undue emphasis on diverting defendants away from trial. Diversion from trial is one purpose of the statute to be sure…. However, the Legislature made clear that the overriding purpose of mental health diversion is to divert people with mental illness into treatment and rehabilitation and away from the normal criminal process—particularly incarceration.”

The dissenter added that “while earlier diversion consideration is better, later is still good.”

The case is People v. Braden, 2023 S.O.S. 1859.


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