Mental Health Diversion must be requested before attachment of jeopardy at trial or the entry of a guilty or no contest plea

People v. Braden (Cal., June 5, 2023, No. S268925) 2023 WL 3807557

Summary: Braden  was convicted by a jury of resisting an executive officer with force or violence, he then requested mental health diversion. The Superior Court denied his request and he appealed. The Court of Appeal affirmed. The Supreme Court granted review and held that to be timely, a request for diversion for a defendant with qualifying mental disorders must be made before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first.

Pretrial mental health diversion and conflicts in Courts of Appeal

Penal Code  section 1001.36 authorizes pretrial diversion for defendants with qualifying mental disorders. The request must be made before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first.

The appellate court held that Braden was ineligible for pretrial diversion because his request was not made before trial began. It considered the statute’s repeated use of the words “ ‘pretrial’ diversion,” the requirement that a defendant waive speedy trial rights,  and the nature of various other pretrial diversion programs, “which long have had a purpose of reducing the systemic burdens of criminal trials.” court expressly disagreed with People v. Curry (2021) 62 Cal.App.5th 314, review granted July 14, 2021, S267394 (Curry). Curry held that “a defendant may ask the trial court for mental health diversion until sentencing and entry of judgment.” A third appellate court held that a defendant may request pretrial diversion up until the verdicts are returned or the defendant enters a plea of guilty or no contest. (People v. Graham (2021) 64 Cal.App.5th 827, review granted Sept. 1, 2021, S269509 (Graham).)

The Supreme Court granted review to resolve the conflict in the Courts of Appeal.

Pretrial mental health diversion

Enacted in 2018, section 1001.36 authorizes pretrial diversion for defendants with qualifying mental disorders “until adjudication.” (§ 1001.36, subd. (f)) The statute provides: “As used in this chapter … ‘Pretrial diversion’ means 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,” subject to specified conditions.

Statutory Language and Framework

The statute defines “ ‘Pretrial diversion’ ” as “postponement of prosecution … at any point in the judicial process from the point at which the accused is charged until adjudication ….” (§ 1001.36(f)(1).) The statute does not separately define “adjudication.” The basic legal definition of that word refers to either (1) “[t]he legal process of resolving a dispute; the process of judicially deciding a case” or (2) the “judgment.” (Black’s Law Dict. (11th ed. 2019) p. 52, col. 1; “Adjudication” 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 statute’s language and its framework support the conclusion 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. The text of section 1001.36 refers eight times to the diversion it provides for as “pretrial.” As one Court of Appeal observed: “ ‘pretrial diversion’ connotes a diversion away from trial. One cannot divert a river after the point at which it has reached the sea.” (Graham, supra, 64 Cal.App.5th at p. 833.)

 The Legislature could have provided that mental health diversion be available up until the time of sentencing. Instead, the Legislature adopted a definition of “pretrial diversion” that has long been understood as referring to the period before trial begins.

Requiring that a request be made before trial begins means that a grant saves pretrial expenditures, including those attendant on repeated appearances and pretrial custody costs, as well as trial resources. Early mental health treatment can increase the chances for therapeutic success and protect both the public and the defendant from future burdens resulting from treatable mental health conditions.

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