People v. Frahs

• Citation: 27 Cal.App.5th 784,238 Cal.Rptr.3d 483
• Decision Date: 28 September 2018
• Docket Number: G054674
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eric Jason FRAHS, Defendant and Appellant.

27 Cal.App.5th 784

238 Cal.Rptr.3d 483

The PEOPLE, Plaintiff and Respondent,

v.Eric Jason FRAHS, Defendant and Appellant.

G054674

Court of Appeal, Fourth District, Division 3, California.

Filed September 28, 2018

Susan L. Ferguson, North Hollywood, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Sacramento, Gerald A. Engler, Chief Assistant Attorney General, San Francisco, Julie L. Garland, Assistant Attorney General, Matthew Mulford, Marilyn George, San Diego and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOORE, ACTING P. J.

Defendant Eric Jason Frahs tried to steal a can of beer and an energy drink from a small store. As he was leaving, Frahs got into a physical confrontation with the store owner and his son. At a jury trial on two robbery charges, Frahs put on evidence that he suffers from a form of schizophrenia

. The jury found defendant guilty. In a subsequent bench trial, the court found that Frahs had suffered a prior "strike" conviction (an assault with a deadly weapon) and imposed a nine-year prison sentence.

While Frahs' case was pending on appeal in this court, the Legislature enacted Penal Code section 1001.36, which created a pretrial diversion program for defendants with mental disorders.¹ Frahs argues that the mental health diversion program should apply retroactively. We agree and conditionally reverse Frahs' convictions and sentence. On remand, the trial court may consider granting Frahs mental health diversion as we will discuss more fully in this opinion. However, we reject Frahs' remaining claim that his prior assault conviction does not qualify as a strike.

IFACTS AND PROCEDURAL BACKGROUND

On March 31, 2016, at about 8:00 a.m., Frahs entered a small market in Santa Ana. J. Kim, the store's owner, refused to sell Frahs a beer; a week earlier Frahs had tried to steal a pack of cigarettes. Frahs went outside of the store and began picking up rocks and throwing them at cars that were passing by. Frahs then reentered the store and walked towards the cooler. Frahs grabbed a can of beer and a can of Red Bull. Kim and his son stood at the front door in order to block Frahs from leaving. Frahs rushed towards the door and tried to push his way through. During the ensuing confrontation, Kim was hit in the head and fell down. Frahs eventually got out of the store, but Kim and his son were able to detain Frahs in the parking lot and call the police.

Court Proceedings

In June 2016, the prosecution filed an information alleging that Frahs had committed two counts of second degree robbery and one felony count of throwing substances (rocks) at a motor vehicle. ( §§ 211, 212.5 ; Veh. Code, § 23110, subd. (b).) The information further alleged that Frahs had previously been convicted of a "strike," an assault with a deadly weapon offense in 2015. ( § 245, subd. (a)(1).)

Frahs testified in his own defense. Frahs said that in his early 20s he began hallucinating and experiencing delusions (he was 30 years old at the time of the trial). Frahs said that he thought his computer hard drive and birds were talking to him. Frahs testified that he has been hospitalized about eight times. Frahs said that he had been homeless for about two years, and every time he has been in trouble with the law it was due to his mental health issues. Frahs testified that just before entering the market, he thought an angel had flown by on a horse and talked to him.

Dr. Richard Lettieri, a clinical and forensic psychologist, testified that he had reviewed a report from a hospital where Frahs had been confined. Lettieri said that most psychiatric patients are temporarily confined for only three to 14 days to stabilize them on medication; however, Frahs had been confined for about four months, which indicates that Frahs had been very ill and very unstable. Lettieri testified that Frahs had been diagnosed with schizoaffective disorder

, which is "a combination of schizophrenia and bipolar disorder." Lettieri said that Frahs had been prescribed various medications over the years to include "antidepressants, mood stabilizers, and antipsychotics."

The jury found Frahs guilty of the two second degree felony robbery counts and a lesser-included misdemeanor charge. After the jury trial, the court conducted a bench trial on the prior serious felony assault "strike" allegation, which the court found to be true. The court imposed a prison sentence of nine years, which included a sentence enhancement (low term doubled) for the alleged prior strike conviction.

IIDISCUSSION

Frahs contends that the recently enacted section 1001.36, which now allows for the diversion of defendants with mental disorders, applies retroactively. Frahs also contends that his prior conviction for an assault with a deadly weapon was not a strike because a broken beer bottle is not an "inherently" deadly weapon.

We shall address each contention in turn.

A. Retroactivity of section 1001.36

Generally, pretrial diversion is the suspension of criminal proceedings for a prescribed time period, subject to certain conditions. (See, e.g., §§ 1000.1 [diversion for specified drug offenses], 1001.60 [bad check diversion], 1001.70 [parental diversion], 1001.80 [military diversion].) Ordinarily, when a defendant successfully completes a diversion program, the criminal charges are dismissed and the defendant may legally answer that he or she has never been arrested for—or charged with—the diverted offense, subject to certain exceptions. (See also, e.g., §§ 1001.9, 1001.33, 1001.55.)

1. Mental Health Diversion

Effective June 27, 2018, the Legislature created a diversion program for defendants with diagnosed and qualifying mental disorders such as schizophrenia

, bipolar disorder, and posttraumatic stress disorder. ( § 1001.36, subd. (a).) One of the stated purposes of the legislation was to promote "[i]ncreased diversion of individuals with mental disorders ... while protecting public safety." (§ 1001.35, subd. (a).)² "As used in this chapter, ‘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...." ( § 1001.36, subd. (c).)

"On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion ... if the defendant meets all of the requirements...." ( § 1001.36, subd. (b).) There are six requirements. First, the court must be "satisfied that the defendant suffers from a mental disorder" listed in the statute. ( § 1001.36, subd. (b)(1).) Second, the court must also be "satisfied that the defendant's mental disorder played a significant role in the commission of the charged offense." ( § 1001.36, subd. (b)(2).) Third, "a qualified mental health expert" must opine that "the defendant's symptoms motivating the criminal behavior would respond to mental health treatment." ( § 1001.36, subd. (b)(3).) Fourth, subject to certain exceptions, the defendant must consent to diversion and waive his or her right to a speedy trial. ( § 1001.36, subd. (b)(4).) Fifth, the defendant must agree "to comply with the treatment as a condition of diversion." ( § 1001.36, subd. (b)(5).) And finally, the court must be "satisfied that the defendant will not pose an unreasonable risk of danger to public safety ... if treated in the community." ( § 1001.36, subd. (b)(6).)

If a trial court determines that a defendant meets the six requirements, then the court also must also determine whether "the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant." ( § 1001.36, subd. (c)(1)(A).) The court may then grant diversion and refer the defendant to an approved treatment program. ( § 1001.36, subd. (c)(1)(B).) Thereafter, the provider "shall provide regular reports to the court, the defense, and the prosecutor on the defendant's progress in treatment." ( § 1001.36, subd. (c)(2).) "The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years." ( § 1001.36, subd. (c)(3).)

If the defendant commits additional crimes, or otherwise performs unsatisfactorily in diversion, then the court may reinstate criminal proceedings. ( § 1001.36, subd. (d).) However, if the defendant performs "satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings." ( § 1001.36, subd. (e).)

2. The Rules Regarding Retroactivity

In general, statutes are presumed to apply prospectively unless they state otherwise. (See § 3.) However, the presumption against retroactivity does not apply when the Legislature reduces the punishment for criminal conduct. ( In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ).) The Supreme Court's reasoning in Estrada 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. ( Id . at pp. 744-745, 748, 48 Cal.Rptr. 172, 408 P.2d 948 ["where the amendatory statute mitigates punishment and there is no savings clause, the rule is that the amendment will operate retroactively"].)

The scope of the Estrada rule was recently considered in People v. Superior Court (Lara ) (2018) 4 Cal.5th 299, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ). In Lara , the prosecution initially filed charges in "adult" criminal court against defendant Lara, who was 14 and 15 years old at the time of the alleged sex offenses. ( Id. at p. 303, 228 Cal.Rptr.3d 394, 410 P.3d 22.) But as a consequence of the intervening passage of ...