More case law whether Mental Health Diversion is retroactive: People v. Burns

Posted by on August 26, 2019 in #DUIdata, Blog | 0 comments

More case law whether Mental Health Diversion is retroactive: People v. Burns

I’ve been tracking our new Mental Health Diversion law, per California Penal Code 1001.36…and whether this new law applies retroactively or not.

Well, we have another case in favor of the law applying retroactively: People v. Burns, filed August 14, 2019 (as of August 26, 2019, it’s cited as 2019 WL 3811976).

We have another case in favor of the law applying retroactively: People v. Burns, filed August 14, 2019 (2019 WL 3811976). Although California Courts remain divided on this issue.

So far, the score cards are:

In favor of retroactivity:

  1. People v. Frahs (2018) 27 Cal.App.5th 784: Jury convicted and 1001.36 became law while Defendant’s case was on appeal. The Court held in favor of retroactivity.
  2. People v. Weaver (July 1, 2019) 36 Cal.App.5th 1103: Jury convicted and the Court sentenced him in 2017. 1001.36 became law after that. The Court held in favor of retroactivity.

Against retroactivity:

  1. People v. Craine (2019) 35 Cal.App.5th 744: Jury convicted in 2016, Defendant was sentenced, and then 1001.36 became law. Craine held 1001.36 does not apply retroactively to defendants whose cases have progressed beyond trial, adjudication of guilt, and sentencing.

The facts in Burns:

In May 2018, Defendant went to trial and the Jurors convicted across all charges (well, on one charge the Jurors convicted on a lesser included offense, but that has no real effect on what the Court is deciding here). Defendant was sentenced on this case.

Then, June 27, 2018 California enacted the new Mental Health Diversion law per California Penal Code 1001.36. In this new diversion law, a trial court has discretion to grant pretrial diversion if it finds all of the following:

  1. Defendant has been diagnosed with a qualifying mental disorder;
  2. The disorder was a significant factor in the commission of the charged offense;
  3. Defendant’s symptoms will respond to treatment;
  4. Defendant consents to diversion and waives his or her speedy trial rights;
  5. Defendant agrees to comply with treatment, and
  6. Defendant will not pose an unreasonable risk of danger to public safety as defined in section 1170.18 if treated in the community.

The law in Burns:

Here, the People argue Mental Health Diversion does not apply retroactively because the case was final upon sentencing. Defendant “argues section 1001.36 applies retroactively to all nonfinal judgments, relying on the rule of retroactivity in In re Estrada (1965) 63 Cal.2d 740.

First, “[a]s a general rule, statutes are presumed to apply only prospectively.” However, under the Estrada rule, “[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act.” “Estrada applies not only to statutes that lessen punishment for a particular crime, but also to legislation that ameliorates the possible punishment for a class of persons.”

The Court here finds that 1001.36 Mental Health Diversion can apply retroactively, although it understands the California Courts are divided on this issue (see People v. Frahs (2018) 27 Cal.App.5th 784, People v. Weaver (2019) 36 Cal.App.5th 1103; with People v. Craine (2019) 35 Cal.App.5th 744).

The Court here sends the case back to the Trial Court to allow that Court to decide if Defendant should be admitted into Mental Health Diversion.


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    Eric Ganci

    Eric Ganci practices in DUI defense, with a focus on science and trial work. He was awarded the “Lawyer-Scientist” designation by the American Chemical Society, Chemistry and the Law Section. Eric teaches with the Trial Lawyers College and is a founding member of the DUI Defense Lawyers Association.

    He earned his JD from Thomas Jefferson School of Law and his BA in Music Education from Northern Illinois University.
    Eric Ganci