Does mental diversion (Penal Code 1001.36) apply retroactively?
We’re starting to get case law decisions from Appellate Courts about the Mental Health Diversion Law (California Penal Code 1001.36, from AB 1810) Governor Brown inked this bill late June 2018 and it became effective June 27, 2018. You can see my blog about that law, although there seem to be some amendments being made to it.
One question frequently asked is whether this law will apply only going forward? Or will it apply to older cases.
From this September 28, 2018 decision People v. Frahs*, the rule is this mental health diversion law applies retroactively.
[update: August 26, 2019: we now have several cases holding whether Mental Health Diversion is retroactive…and the Courts are in disagreement with each other. I blogged about the updated cases here]
In Frahs, the People charged him in 2016 for robbery. At trial, “Frahs put on evidence that he suffers from a form of schizophrenia” but the jurors convicted him anyway. The Court also found a prior strike to be true and sentenced him to 9 years prison.
Let’s step through this:
First, how does retroactively work?
Taking language straight from Frahs, “[i]n general, statutes are presumed to apply prospectively unless they state otherwise. However, the presumption against retroactivity does not apply when the Legislature reduces the punishment for criminal conduct.”
The legal reasoning from the Supreme Court “is that when a statute reduces or ameliorates the punishment, it is presumed that the Legislature has determined the offense no longer merits the greater punishment, and this rationale applies even if the defendant was convicted and sentenced before the statute became effective.”
How does it apply to the mental health diversion laws in California?
Frahs holds this diversion “does not lessen the punishment for a particular crime. However, for a defendant with a diagnosed mental disorder, it is unquestionably an ‘ameliorating benefit’ to have the opportunity for diversion—and ultimately a possible dismissal—under section 1001.36.”
This is also important language in this opinion about how broadly the Court interprets applying this new diversion law:
“Further, it appears that the Legislature intended the mental health diversion program to apply as broadly as possible: ‘The purpose of this chapter is to promote (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.'”
So what happens for Frahs?
The Court reverses the conviction and sentence, and remands the case for 1001.36 diversion evaluation. Although the Court says “he appears to meet at least one of the threshold requirements (a diagnosed mental disorder).”
*Cited as 27 Cal.App.5th 784 (2018)