People v. Mork
| Decision Date | 24 December 2019 |
| Docket Number | A155605 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSEPH WAYNE MORK, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Mendocino County Super. Ct. No. SCUKCRCR1893988)
Joseph Wayne Mork pleaded no contest to multiple misdemeanor offenses and, on the basis of his pleas, was found to have violated mandatory supervision in two prior felony cases. He was granted probation on the misdemeanors, with a jail term to be served consecutive to the balance of the previously imposed sentence for which he had been on mandatory supervision. On this appeal, he seeks a conditional reversal of his convictions and remand for the trial court to hold a hearing to determine whether he is entitled to pretrial mental health diversion pursuant to Penal Code section 1001.36, which became effective after he entered his pleas in the present case. He further contends that the fines, assessments, and fees imposed in both the current case and the prior two cases must be stricken because the trial court did not find he had the ability to pay them. We agree that remand for a mental health diversion eligibility hearing is appropriate, and therefore we will conditionally reverse the judgment. We further conclude that in the event the judgment is reinstated—if appellant is found ineligible for diversion or is granted diversion but fails to successfully complete it—appellant may be entitled to a hearing on his ability to pay the fees, fines, and assessments imposed by the trial court in the present case if he so requests.
The present case involves charges originally brought in four separate cases. The facts underlying the alleged offenses are not directly relevant to the issues on appeal.
In May 2016, in case No. 15-83736, appellant pled no contest to two counts of burglary and one count of grand theft as part of a plea agreement under which the prosecution agreed to a promise of no state prison sentence and charges of attempted grand theft, possession of a controlled substance and exhibition of a deadly weapon were dismissed, as were two misdemeanor cases. On June 10, 2016, the court suspended imposition of sentence and placed appellant on formal probation for 36 months, with 240 days in county jail, plus a concurrent 30 days on a probation violation. The court imposed various fines, assessments and fees.
On March 23, 2017, in case No. 17-88626, appellant pled no contest to one count of felony vandalism in exchange for a promise of no state prison, a three-year commitment with 16 months served in custody and the balance on mandatory supervision, a concurrent sentence on his probation violation, dismissal of charges of another count of vandalism, grand theft, conspiracy to commit vandalism, and conspiracy to commit petty theft, and an agreement that charges would not be filed on certain other offenses. On April 19, 2017, the court revoked probation in case No. 15-83736, imposed concurrent sentences of three years on each of the three convictions, to be served 16 months in custody and 20 months on mandatory supervision, and imposed fines and fees. In case No. 17-88626, the court imposed a three-year term to be served concurrently with the sentence in case No. 15-83736, and imposed fines, assessments, and fees.
On June 21, 2018, in case No. 18-93547, appellant entered pleas of no contest to 17 misdemeanor counts of shoplifting (13 counts) and vandalism (4 counts) involving vending machines at various locations, as alleged in an amended complaint consolidating previously filed complaints in case Nos. 18-93547 and 18-93988. The court found appellant's pleas sufficient to find him in violation of mandatory supervision in caseNos. 15-83736 and 17-88626, and terminated the mandatory supervision as unsuccessful. The court placed appellant on probation for 36 months with 720 days to be served in county jail, imposed fines and fees, and reserved jurisdiction to determine the amount of victim restitution, calculate appellant's custody credits and decide whether the 720 days would be consecutive to the sentence in the prior cases.
On August 24, 2018, the parties stipulated to $3,000 victim restitution, custody credits were calculated, and the court determined that the sentence in case No. 18-93547 would run consecutively to the sentence in the prior cases.
Appellant obtained a certificate of probable cause from the trial court, and this appeal followed.
Appellant seeks a conditional reversal of his convictions and remand for the trial court to determine his eligibility for pretrial diversion pursuant to Penal Code section 1001.36.1 This statute became effective after appellant entered his pleas in case No. 18-93547 and before he was sentenced.2
Section 1001.36 creates a "pretrial diversion" program for certain defendants who suffer from a diagnosed and qualifying mental disorder. (§ 1001.36, subd. (b)(1)(A).)3 " '[P]retrial diversion' " is defined as "the postponement of prosecution, eithertemporarily 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," subject to a number of requirements. (§ 1001.36, subd. (c).) The stated purpose of section 1001.36 (§ 1001.35.)
Pursuant to section 1001.36, a trial court may grant pretrial diversion to a defendant who meets all of the six requirements specified in subdivision (b)(1) of the statute. (§ 1001.36, subd. (a).) "At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion" and "[i]f a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate." (§ 1001.36, subd. (b)(3).)
The maximum period of pretrial diversion is two years. (§ 1001.36, subd. (c)(3).) If the defendant commits additional crimes or otherwise performs unsatisfactorily in the diversion program, the trial court may reinstate the criminal proceedings. (§ 1001.36, subd. (d).) "If the defendant has performed 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 at the time of the initial diversion." (§ 1001.36, subd. (e).) If the court dismisses the charges upon successful completion of diversion, "the arrest upon which the diversion was based shall be deemed never to have occurred." (§ 1001.36, subd. (e).)
The Courts of Appeal have reached differing conclusions as to whether section 1001.36 applies retroactively, and the issue is currently pending before the CaliforniaSupreme Court in People v. Frahs (2018) 27 Cal.App.5th 784 (Frahs) (review granted Dec. 27, 2018, S252220). Frahs, applying the rule of In re Estrada (1965) 63 Cal.2d 740 (Estrada) as applied in People v. Superior Court (Lara) (2018) 4 Cal.5th 299, held that section 1001.36 applied retroactively to a case not yet final on appeal because it the statute confers a potential " 'ameliorating benefit' " that the Legislature intended "to apply as broadly as possible."3 (Frahs, at p. 791.) People v. Weaver (2019) 36 Cal.App.5th 1103, 1117-1121 (Weaver) (review granted Oct. 9, 2019, S257049), reached the same conclusion, as did People v. Burns (2019) 38 Cal.App.5th 776 (Burns) (review granted Oct. 30, 2019, S257738). People v. Craine (2019) 35 Cal.App.5th 744 (Craine) (review granted Sept. 11, 2019, S256911), by contrast, held that "section 1001.36 does not apply retroactively to defendants whose cases have progressed beyond trial, adjudication of guilt, and sentencing." (Id. at p. 760.) While recognizing that section 1001.36 "confers a potentially ameliorative benefit to a specified class of persons" (id. at p. 754), the Craine court concluded that "the text of section 1001.36 and its legislative history contraindicate a retroactive intent with regard to defendants . . . who have already been found guilty of the crimes for which they were charged." (Id. at p. 749; see also People v. Torres (2019) 39 Cal.App.5th 849, review den. Dec. 11, 2019.)
We agree with the reasoning of the Frahs, Weaver, and Burns courts and join them in concluding section 1001.36 applies retroactively to cases that are not yet final, even if the defendants have already been tried, convicted and sentenced. As the issue is already pending in the California Supreme Court, no useful purpose would be served by reiterating the careful analyses set forth in those cases.
Unlike Frahs, Weaver, and Burns, however, appellant was convicted on pleas of no contest. Respondent maintains that appellant is not entitled to the benefit of section 1001.36 because he entered a negotiated plea for a specific sentence and cannot now "better his bargain" by obtaining pretrial diversion in place of the sentence to which he agreed. Respondent argues that the plea ...
To continue reading
Request your trial