People v. Curry
| Decision Date | 02 March 2021 |
| Docket Number | C090409 |
| Citation | 62 Cal.App.5th 314,276 Cal.Rptr.3d 406 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. David Henry CURRY, Defendant and Appellant. |
The Law Offices of Aaron J. Schechter and Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
After a jury found him guilty of robbery, and before the trial court sentenced him to state prison for 40 years to life and imposed various costs, defendant David Henry Curry sought to file a motion for mental health diversion pursuant to Penal Code section 1001.36.1 The trial court ruled the motion was untimely and did not consider it. On appeal, defendant contends:
(1) the trial court erred by denying as untimely his request for mental health diversion; (2) if the diversion request was untimely, trial counsel provided ineffective assistance; and (3) the trial court violated due process principles by imposing costs without determining defendant's ability to pay.
We agree with defendant's first contention and conditionally reverse the judgment with instructions for the trial court in considering defendant's eligibility for mental health diversion. Our holding moots defendant's second contention. Last, we disagree with defendant's due process challenge to costs imposed.
On June 24, 2016, defendant entered a bank in Chico during business hours, tossed a note demanding money at a bank employee, and then pointed a firearm at her. Defendant left the bank with money the employee gave to him.
Law enforcement officers were unable to identify defendant as the culprit of the Chico bank robbery until he committed another bank robbery in Tacoma, Washington in January 2017.
In July 2017, a Butte County deputy district attorney filed a criminal complaint, charging defendant with second degree robbery and further alleging that defendant suffered two or more prior serious or violent felonies for purposes of sections 667 and 1170.12, subdivision (b).
On June 5, 2018, the trial court declared a doubt as to defendant's competence and suspended criminal proceedings.
On June 27, 2018, the statute at issue here ( § 1001.36 ) became effective, creating a pretrial diversion program for certain defendants with mental health disorders. (Stats. 2018, ch. 34, § 24.)
A July 2018 psychological evaluation report concluded that defendant had the mental capacity to assist in his own defense. The "interview" section of the report noted that defendant "presented no symptoms of mental illness in the interview." The "diagnosis" section of the report concluded that defendant suffered "mild symptoms of situation related anxiety and depression," which "anxiety did not seem abnormal ... given" defendant's "custody issues" arising out of his belief that his wife illegally took his daughter out of the country. The same section noted that defendant's "[p]ersonality was not assessed."
After reviewing the report, the trial court found defendant competent and reinstated criminal proceedings.
Later, in July 2018, defendant obtained new counsel.
In September 2018, the information was filed, containing the robbery charge and prior felony allegations.
In March 2019, a jury found defendant guilty of the robbery, and the trial court later found true that defendant suffered three prior serious felony convictions alleged.
Several months after the jury's verdict, defendant indicated to his counsel that he wished to represent himself, and in June 2019, the trial court granted defendant's motion to do so.2
At a July 2019 hearing, the trial court denied several post-trial motions that defendant filed as a pro per (including a motion for a new trial) that are not germane to the issue before us. Also at the hearing, defendant told the trial court that he wanted to "file ... other ... motions," including a motion for mental health diversion pursuant to section 1001.36. The trial court concluded:
Defendant replied that he raised the issue with his trial counsel "well in advance," but
The trial court wondered aloud whether the pretrial diversion law was in effect "at the beginning of [defendant's] case," and defendant replied that the law was effective in June 2018, before he hired his last attorney. The trial court responded:
A probation officer's August 2019 presentencing report noted that defendant: (a) indicated that he was diagnosed with severe depressive disorder
in " ‘early 2000,’ " and (b) "disclosed that his daughter was abducted by her mother ... the day prior to" the Chico robbery. The report continued: "[Defendant] spoke of his heartbreak over his daughter being transported [out of the country], without his knowledge or permission, and not being in contact with her."
Attached to the report was a written statement and supporting documents that defendant submitted to the probation officer. Included in defendant's submission was a copy of a letter from the Office of Children's Issues at United States Department of State, referencing the
At the August 2019 sentencing hearing, the trial court said:
Later at the hearing, defendant told the trial court that, when his daughter "was taken from [him]," he "had nervous breakdowns every single day and, at the time of th[e] crime, [he] lost touch with reality."
Ultimately, the trial court sentenced defendant to an indeterminate term of 25 years to life for the robbery (pursuant to the three strikes law, section 667, subdivision (e)(2) ), consecutive to a determinate term of 15 years (five-year enhancements for each of the three prior serious felonies, pursuant to section 667, subdivision (a) ).
Regarding costs, in addition to victim restitution, the trial court imposed a $300 restitution fine ( § 1202.4 ), a suspended $300 parole revocation fine ( § 1202.45 ), a $40 court operations fee ( § 1465.8 ), a $30 conviction assessment fee ( Gov. Code, § 70373 ), and $39 in additional fines, fees, and assessments, for a total of $409.
Defendant timely appealed.
Defendant contends the trial court erred by denying as untimely his request for mental health diversion. Specifically, defendant argues diversion under section 1001.36 is available "at any time prior to sentencing," as "[n]othing in the plain language of section 1001.36 precludes" diversion before sentencing, and permitting a trial court to grant mental health diversion until sentencing is "fully consistent with the Legislature's intent."
The People do not take a position on the timeliness of defendant's request. They argue we need not decide the issue, because a "summary denial of [defendant's] request was entirely appropriate on this record." The People insist we must reject defendant's claim because he "failed to meet his burden to show an error that resulted in a miscarriage of justice on this record."
Because we conclude section 1001.36 contemplates mental health diversion until entry of the judgment of conviction, we conclude the trial court erred by refusing to consider defendant's request for diversion. Further, we conclude that because the record affirmatively discloses that defendant appears to suffer from a qualifying mental disorder, a conditional limited remand is appropriate.
In construing a statute, our goal is to ascertain the Legislature's intent in order to effectuate the purpose of the law. First, we examine the language of the statute, giving the words their usual, ordinary meaning. If the language is clear and unambiguous, we follow the plain meaning of the measure. ( People v. Canty (2004) 32 Cal.4th 1266, 1276, 14 Cal.Rptr.3d 1, 90 P.3d 1168.)
But if an examination of the plain meaning of the statutory language "fail[s] to resolve the dispute, we next consider the context in which the[ ] words appear, attempting to harmonize the words of the statute within the overall statutory scheme." ( People v. Valladoli (1996) 13 Cal.4th 590, 599, 54 Cal.Rptr.2d 695, 918 P.2d 999 ( Valladoli ).)
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