People v. Braden, E073204

CourtCalifornia Court of Appeals
Writing for the CourtRAPHAEL, J.
Citation63 Cal.App.5th 330,277 Cal.Rptr.3d 563
Parties The PEOPLE, Plaintiff and Respondent, v. Cory Juan BRADEN, Jr., Defendant and Appellant.
Decision Date20 April 2021
Docket NumberE073204

63 Cal.App.5th 330
277 Cal.Rptr.3d 563

The PEOPLE, Plaintiff and Respondent,
v.
Cory Juan BRADEN, Jr., Defendant and Appellant.

E073204

Court of Appeal, Fourth District, Division 2, California.

Filed April 20, 2021


Certified for Partial Publication.*

Cindy G. Brines, Verdugo, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAPHAEL, J.

63 Cal.App.5th 332

After a jury convicted him on a charge of resisting an executive officer with force

277 Cal.Rptr.3d 565

or violence, a defendant requested mental health diversion pursuant to Penal Code section 1001.36. In the published portion of this opinion, we hold that he was ineligible for that section's "pretrial diversion" because he did not request diversion before trial began. We disagree with People v. Curry (2021) 62 Cal.App.5th 314, 276 Cal.Rptr.3d 406, which held that such a request can be made until entry of judgment. We therefore conclude that the trial court properly denied his request to be considered for diversion, and we affirm.1

I. FACTUAL AND PROCEDURAL HISTORY

One morning in Victorville in 2018, defendant and appellant Cory Juan Braden Jr.'s sister called 911 after a confrontation with Braden. According to Braden's mother, his sister was "messing with [Braden] so bad that he got up to beat her behind." At one point, Braden's sister went to her room, Braden tried to follow her, but Braden's mother stood in his way, causing Braden to kick his mother in the groin and choke her.

Deputy Alexander Harvey responded to the domestic disturbance call. He had learned from a dispatcher that Braden was schizophrenic with a history of violence. Braden's sister flagged down Harvey outside of the home. Harvey approached Braden outside the front door and announced himself as a San Bernardino County Sheriff's Deputy. Braden's sister and mother were present. Braden requested to call 911 and contact a supervisor. Harvey replied that Braden could contact a supervisor, but Harvey first needed to ensure the scene was safe and conduct a cursory pat down on Braden. Harvey viewed Braden as "passively resistant" and "more focused on calling 911 than putting [his] phone down and listening to [Harvey's] commands."

Harvey took hold of Braden's left wrist. Braden then placed a phone in his right hand on the hood of a nearby vehicle. Braden held his hands up, and Harvey told him to put them behind his back instead. Braden then turned

63 Cal.App.5th 333

around and punched Harvey in the face. Harvey backed up, and when Braden approached Harvey with his hands gripped as fists, Harvey threw two ineffective punches toward Braden. Braden threw about three more punches at Harvey. Harvey then tackled Braden, got on his back, and punched him twice on his left side. Harvey ordered Braden to put his hands behind his back, but Braden did not comply. Two additional deputies arrived on the scene, and the trio was able to physically restrain Braden. Braden's mother later stated that Braden had "charged" Harvey.

Braden represented himself during his jury trial. The jury viewed much of the encounter between Braden and Harvey, as Braden's sister captured it on video with her phone. She captured the moments leading up to the fight, but she pointed the camera away from Braden and Harvey during most of the fight, and she apparently stopped recording before the other deputies arrived.

The jury convicted Braden on one felony count of resisting a police officer pursuant to section 69 and found true two strike priors under the Three Strikes Law ( §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d) ).

After his conviction but before his sentencing, Braden requested and was given appointed counsel. Counsel requested that Braden be considered for mental health

277 Cal.Rptr.3d 566

diversion pursuant to section 1001.36. The trial court ruled that Braden was "ineligible for relief under [ section 1001.36 ]. I'm ruling that it's untimely. I'm ruling that it's moot. And if it weren't, I would deny it in any event because it would still be discretionary." The court then sentenced Braden to four years in prison, which consisted of the midterm of two years, doubled under the Three Strikes Law.

II. DISCUSSION

A. Mental Health Diversion

" Section 1001.36 authorizes a pretrial diversion program for defendants with qualifying mental disorders." ( People v. Frahs (2020) 9 Cal.5th 618, 626, 264 Cal.Rptr.3d 292, 466 P.3d 844 ( Frahs ).) Braden contends that he should have been considered for pretrial mental health diversion pursuant to section 1001.36. He sought diversion, however, only after he was convicted at his jury trial. For three reasons, we conclude that a defendant is ineligible for diversion under section 1001.36 after his trial begins, so the trial court properly denied his request.

The first reason why we so conclude is that the Legislature five times in the text of section 1001.36 referred to the mental health diversion program as "pretrial" diversion. ( § 1001.36, subds. (a), (b)(1), (c), (d)(1), (d)(2).)

63 Cal.App.5th 334

Regardless of the precise moment that defines the beginning of trial, a case is no longer "pretrial" once a trial has started. A case certainly is not pretrial where, as here, a jury has convicted the defendant.

Second, even apart from the Legislature's use of the adjective "pretrial" in describing section 1001.36's diversion program, our Supreme Court's precedent would require us to construe the section as authorizing only pretrial diversion.

Morse v. Municipal Court for the San Jose-Milpitas Judicial Dist. (1974) 13 Cal.3d 149, 118 Cal.Rptr. 14, 529 P.2d 46 ( Morse ) held that when a statute makes diversion contingent upon a speedy trial waiver, it requires a pretrial request. Morse addressed California's first statutorily mandated diversion program, enacted by a 1972 statute intended to benefit first time drug offenders. ( Id. at p. 153, 118 Cal.Rptr. 14, 529 P.2d 46.) Morse concerned a petitioner who litigated a pretrial motion to suppress evidence, lost, and only then sought diversion. ( Id. at p. 154, 118 Cal.Rptr. 14, 529 P.2d 46.) The trial court denied diversion on the view that the petitioner "had elected to be prosecuted in the criminal courts" when he filed his suppression motion. ( Ibid. )

Our Supreme Court instead held that the request was timely because it was made pretrial, reasoning that law's speedy trial waiver requirement demonstrated that the request must be made before trial:

"[The diversion law] expressly states that ‘[if] the defendant consents and waives his right to a speedy trial the district attorney shall refer the case to the probation department’ (italics added). These words unequivocally make a defendant's consent to consideration for diversion contingent upon a simultaneous waiver of speedy trial rights. In using such language the Legislature was surely aware of precedent decisions [citations] which recognize that the right to speedy trial is one which must be asserted prior to the actual commencement of trial, usually by means of a motion to dismiss made at the time the trial date is set or at the time the case is called for trial. Accordingly, the plain meaning of the waiver of speedy trial language of [the diversion law] is that the defendant's consent to referral of his case to the probation department should be tendered

277 Cal.Rptr.3d 567

to the district attorney prior to the commencement of trial." ( Morse, supra , 13 Cal.3d at p. 156, 118 Cal.Rptr. 14, 529 P.2d 46.) Thus, the Court stated, "the clear wording of the diversion provisions ... precludes a defendant from initiating diversion proceedings by tendering a consent after commencement of trial." ( Id. at p. 157, 118 Cal.Rptr. 14, 529 P.2d 46 ; see also People v. Wilson (1963) 60 Cal.2d 139, 146, 32 Cal.Rptr. 44, 383 P.2d 452 ["The right to a speedy trial must ... be asserted, if at all, in the court where the prosecution is pending, and prior to the commencement of trial."]; People v. Weaver (2019) 36 Cal.App.5th 1103, 1120, 249 Cal.Rptr.3d 223.)

63 Cal.App.5th 335

As in Morse , eligibility for mental health diversion under section 1001.36 "unequivocally make[s] a defendant's consent to consideration for diversion contingent upon a simultaneous waiver of speedy trial rights." ( Morse, supra , 13 Cal.3d at p. 156, 118 Cal.Rptr. 14, 529 P.2d 46.) Among the "threshold eligibility requirements" in section 1001.36 is that, unless the defendant has been found to be mentally incompetent, he or she must consent to diversion and waive his or her right to a speedy trial. ( Frahs, supra , 9 Cal.5th at p. 627, 264 Cal.Rptr.3d 292, 466 P.3d 844 ; § 1001.36, subd. (b)(1)(D).)

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20 practice notes
  • People v. Graham, B300167
    • United States
    • California Court of Appeals
    • 27 d4 Maio d4 2021
    ...People v. Curry (2021) 62 Cal.App.5th 314, 276 Cal.Rptr.3d 406 ( Curry )), but have no occasion to go as far as People v. Braden (2021) 63 Cal.App.5th 330, 333, 277 Cal.Rptr.3d 563 ( Braden ) [diversion may not be sought once trial begins]).We conclude that her conviction should not be dist......
  • People v. Lindstrom, C088699
    • United States
    • California Court of Appeals
    • 16 d4 Setembro d4 2021
    ...supra, 9 Cal.5th 618.) Under the second, the time of adjudication is the time a jury is impaneled and sworn. (People v. Braden (2021) 63 Cal.App.5th 330, 333 (Braden) [“a defendant is ineligible for diversion under section 1001.36 after his trial begins”], review granted July 14, 2021, S268......
  • People v. Burns, F078505
    • United States
    • California Court of Appeals
    • 29 d3 Setembro d3 2021
    ...pretrial diversion. Because defendant failed to request pretrial diversion, we do not address the issue. (See People v. Braden (2021) 63 Cal.App.5th 330, review granted July 14, 2021, S268925 [request for pretrial diversion timely if made before trial begins]; People v. Curry (2021) 62 Cal.......
  • People v. Burns, F078505
    • United States
    • California Court of Appeals
    • 29 d3 Setembro d3 2021
    ...pretrial diversion. Because defendant failed to request pretrial diversion, we do not address the issue. (See People v. Braden (2021) 63 Cal.App.5th 330, review granted July 14, 2021, S268925 [request for pretrial diversion timely if made before trial begins]; People v. Curry (2021) 62 Cal.......
  • Request a trial to view additional results
20 cases
  • People v. Graham, B300167
    • United States
    • California Court of Appeals
    • 27 d4 Maio d4 2021
    ...People v. Curry (2021) 62 Cal.App.5th 314, 276 Cal.Rptr.3d 406 ( Curry )), but have no occasion to go as far as People v. Braden (2021) 63 Cal.App.5th 330, 333, 277 Cal.Rptr.3d 563 ( Braden ) [diversion may not be sought once trial begins]).We conclude that her conviction should not be dist......
  • People v. Lindstrom, C088699
    • United States
    • California Court of Appeals
    • 16 d4 Setembro d4 2021
    ...supra, 9 Cal.5th 618.) Under the second, the time of adjudication is the time a jury is impaneled and sworn. (People v. Braden (2021) 63 Cal.App.5th 330, 333 (Braden) [“a defendant is ineligible for diversion under section 1001.36 after his trial begins”], review granted July 14, 2021, S268......
  • People v. Burns, F078505
    • United States
    • California Court of Appeals
    • 29 d3 Setembro d3 2021
    ...pretrial diversion. Because defendant failed to request pretrial diversion, we do not address the issue. (See People v. Braden (2021) 63 Cal.App.5th 330, review granted July 14, 2021, S268925 [request for pretrial diversion timely if made before trial begins]; People v. Curry (2021) 62 Cal.......
  • People v. Burns, F078505
    • United States
    • California Court of Appeals
    • 29 d3 Setembro d3 2021
    ...pretrial diversion. Because defendant failed to request pretrial diversion, we do not address the issue. (See People v. Braden (2021) 63 Cal.App.5th 330, review granted July 14, 2021, S268925 [request for pretrial diversion timely if made before trial begins]; People v. Curry (2021) 62 Cal.......
  • Request a trial to view additional results

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