People v. Craine

• Decision Date: 23 May 2019
• Docket Number: F074622
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Timothy CRAINE, Defendant and Appellant.

35 Cal.App.5th 744

247 Cal.Rptr.3d 564

The PEOPLE, Plaintiff and Respondent,

v.Timothy CRAINE, Defendant and Appellant.

F074622

Court of Appeal, Fifth District, California.

Filed May 23, 2019

Certified for Partial Publication.^*

Caitlin M. Plummer, Auburn, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.

MEEHAN, J.

Timothy Craine was convicted by jury of indecent exposure. It was his sixth such conviction, thus making the offense a felony. He was sentenced to seven years in prison.

Craine represented himself at trial. On appeal, he contends the trial court breached a sua sponte duty to determine his mental competence under Penal Code section 1368 (all further statutory references are to this code). In a related claim, he argues the trial court should have assessed his competence to proceed in propria persona under a "heightened standard" as compared to the one used to determine a defendant's competence to stand trial. He further alleges sentencing error based on the trial court's failure to state its reasons for imposing the maximum prison term.

In supplemental briefing, Craine argues for retroactive application of section 1001.36, which authorizes "pretrial diversion" in certain cases involving mentally disordered offenders. In the published portion of our opinion, we conclude the Legislature did not intend for section 1001.36 to apply retroactively to defendants whose cases have already progressed beyond the stage of trial, adjudication of guilt, and sentencing. The judgment will be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In early 2016, Craine was residing in a special housing unit at the North Kern State Prison. He had recently been classified as a mentally disordered offender (MDO) (see § 2960 et seq.) and placed on a "suicide watch," which entailed continuous monitoring by a certified nursing assistant (CNA). On or about January 13, 2016, Craine stripped naked in front of a female CNA and began masturbating. A second CNA witnessed this behavior, as did a correctional officer who intervened.

Craine was subsequently transferred to a Department of State Hospitals facility in Atascadero. He was later charged with one count of felonious indecent exposure (§ 314, subd. (1)). For enhancement purposes, he was alleged to have served five prior prison terms (§ 667.5, subd. (b)).

The record does not identify the nature of Craine's mental disorder, but he remained in Atascadero until being transferred to the Kern County Jail in connection with this case. On April 7, 2016, Craine appeared at a preliminary hearing with appointed counsel. Eleven days later, he was represented by appointed counsel during another court proceeding. In June 2016, shortly before trial, Craine successfully moved to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 ( Faretta ).

He acknowledged his constitutional rights and unequivocally waived the right to counsel, both orally and in writing.¹

A three-day trial commenced on June 15, 2016. Craine presented arguments on motions in limine, participated in the jury selection process, gave opening and closing statements, and cross-examined two of the three witnesses who testified. He disputed a prior prison term allegation concerning a conviction for second degree burglary, and one such allegation was dismissed at the People's request.

The jury returned a guilty verdict and found the enhancement allegations to be true. The trial court imposed the upper term of three years and added four consecutive one-year enhancements for the prison priors. A handwritten notice of appeal, which was served upon the district attorney's office and belatedly received by the trial court, was deemed to have been timely filed.

DISCUSSION

I.–III.^**

IV. Section 1001.36 Does Not Apply Retroactively To Convicted Defendants

Section 1001.36 was enacted during the pendency of this appeal. It authorizes, in lieu of criminal prosecution, the placement of certain alleged offenders into mental health treatment programs. The statute expressly contemplates a "pretrial diversion" procedure (id. , subd. (a)), but Craine contends he is still a "potential candidate for diversion," assuming the law applies retroactively. The issue of retroactivity is currently under review by the California Supreme Court. (See People v. Frahs (2018) 27 Cal.App.5th 784, 238 Cal.Rptr.3d 483, review granted Dec. 27, 2018, S252220 ( Frahs ).)

We conclude the text of section 1001.36 and its legislative history contraindicate a retroactive intent with regard to defendants, like Craine, who have already been found guilty of the crimes for which they were charged. The statute potentially mitigates punishment for a specific class of persons, i.e., mentally disordered alleged offenders whose charges have not yet been adjudicated (id. , subds. (a), (c)), and Craine is not a member of the class. The primary legislative goal of diverting mentally ill defendants from the criminal justice system through preadjudicative intervention programs cannot be achieved once the defendant has been tried, adjudged guilty, and sentenced.

Secondary goals of judicial economy and fiscal savings would actually be thwarted by attempting to apply the statute to defendants who have begun serving their sentences. In many instances, such individuals will have been released from confinement by the time their cases are remanded to determine their fitness for any supposed diversionary relief. Furthermore, although section 1001.36 provides for the dismissal of charges and expungement of a defendant's record of arrest, there is no mention of similar relief for a record of conviction. As we will discuss, there are distinctions between a preconviction and postconviction dismissal of charges, and the Legislature's failure to address those differences also weighs against any inference of retroactive intent.

A. Statutory Overview

California has an expanding number of diversion programs, "which generally authorize trial courts to divert eligible persons charged with qualifying offenses from the normal criminal process into treatment and rehabilitation." ( Wade v. Superior Court (2019) 33 Cal.App.5th 694, 707, 245 Cal.Rptr.3d 435.) "Although it is unclear when California courts first began employing pretrial diversion, the first California statute authorizing such diversion was enacted in 1972." ( People v. Weatherill (1989) 215 Cal.App.3d 1569, 1575, 264 Cal.Rptr. 298.) Incidentally, of all the diversion statutes enacted in the past several decades, it appears section 1001.36 is the first to generate controversy over the question of retroactivity.²

Section 1001.36 created a diversion program for defendants who suffer from medically recognized mental disorders, "including, but not limited to, bipolar disorder

, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder...." (§ 1001.36, subd. (b)(1)(A).) Enacted as part of Assembly Bill No. 1810 (2017–2018 Reg. Sess.) (Assembly Bill 1810), which was a budget trailer bill, the law took effect on June 27, 2018. (Stats. 2018, ch. 34, §§ 24, 37). Three months later, the statute was amended to prohibit its use in cases involving murder, voluntary manslaughter, rape and other sex crimes, the use of a weapon of mass destruction, and any offense "for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314[, i.e., indecent exposure]." (§ 1001.36, subd. (b)(2)(A)–(H); Stats. 2018, ch. 1005, § 1.)

Subject to numerous caveats and restrictions, trial courts may now "grant pretrial diversion" when a mentally disordered individual is charged with a misdemeanor or felony offense (other than those previously mentioned). (§ 1001.36, subd. (a).) The defendant must first produce evidence of a mental disorder, which requires "a recent diagnosis by a qualified mental health expert." (Id. , subd. (b)(1)(A).) Among other requirements, the trial court must be "satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense," and a mental health expert must also conclude "the defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment." (Id. , subd. (b)(1)(B), (C).)

The purpose of the new law "is to promote all of the following: [¶] (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. [¶] (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. [¶] (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders." (§ 1001.35.)

In this context, diversion is generally understood to mean "the suspension of criminal proceedings for a prescribed period of time with certain conditions." (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 215 (2017-2018 Reg. Sess.) Jan. 9, 2018, p. 6; see People v. Ormiston (2003) 105 Cal.App.4th 676, 690, 129 Cal.Rptr.2d 567 [describing the legal effect of diversion in drug cases (§ 1000 et seq.) ].) However, when the Legislature uses the phrase "pretrial diversion" in a statute, the term is often precisely defined. (See, e.g., §§ 1001.1, 1001.70, subd. (b), 1001.80, subd. (k)(1).) As used in section 1001.36, 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,...