People v. Schweitzer, C086895

CourtCalifornia Court of Appeals
Writing for the CourtButz, J.
Docket NumberC086895
PartiesTHE PEOPLE, Plaintiff and Respondent, v. SCOTT ALLEN SCHWEITZER, Defendant and Appellant.
Decision Date29 January 2020

THE PEOPLE, Plaintiff and Respondent,
SCOTT ALLEN SCHWEITZER, Defendant and Appellant.



January 29, 2020


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. Nos. SCCR-CRF-2016-1304 & SCCR-CRF-2017-1251)

In a plea proceeding, defendant Scott Allen Schweitzer pleaded no contest or guilty to assault with a deadly weapon with a great bodily injury enhancement (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a)),1 and two counts of brandishing a deadly weapon (§ 417, subd. (a)(1)). In a subsequent plea proceeding, he pleaded guilty to two counts of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), possession of a controlled substance in jail (§ 4573.6), two counts of possession of

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alcohol in jail (§ 4573.8), felony failure to appear (§ 1320, subd. (b)), five counts of resisting an officer (§ 148, subd. (a)(1)), battery (§ 242), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), misdemeanor failure to appear (§ 1320, subd. (a)), and admitted great bodily injury and strike allegations (§§ 12022.7, subd. (a), 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). He was sentenced to 15 years in state prison.

His sole contention on appeal is that his conviction should be conditionally reversed and the matter remanded to allow proceedings under the recently enacted section 1001.36 pretrial mental health diversion program. Finding section 1001.36 does not apply retroactively to nonfinal convictions, we shall affirm.


We dispense with the facts of defendant's crimes as they are unnecessary to resolve this appeal. We summarize the relevant procedural facts as follows.

Defendant's first plea, the assault with a deadly weapon and two brandishing counts in case No. SCCR-CRF-2016-1304, was entered on November 17, 2016. The plea included a Cruz2 waiver. Defendant subsequently violated the Cruz waiver by failing to appear for sentencing, which led to new charges being filed. Defendant admitted the Cruz violation on January 31, 2017.

On February 14, 2017, defense counsel expressed doubts about defendant's competency to stand trial. The trial court referred defendant for a psychological evaluation pursuant to section 1369. According to the psychologists' reports, defendant had suffered brain damage, posttraumatic stress disorder (PTSD), and memory loss from an earlier gunshot wound to the head, which was compounded by early onset

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polysubstance abuse, but he was nonetheless competent to stand trial. The trial court found defendant competent to stand trial and reinstated proceedings on March 14, 2017.

Defendant's second plea was entered on January 25, 2018. He was sentenced on March 1, 2018.


Defendant's sole contention on appeal is that he is entitled to seek pretrial diversion under section 1001.36 because that provision applies retroactively to convictions not final on appeal, such as his.

We conclude, in agreement with a recent opinion of the Court of Appeal, Fifth Appellate District (People v. Craine (2019) 35 Cal.App.5th 744, review granted Sept. 11, 2019, S256671 (Craine))3 and other decisions, that the statute does not have retroactive effect as to cases, like this one, that had already reached the stage of conviction before the statute's effective date.

Section 1001.36, effective June 27, 2018, provides that a trial court, "[o]n an accusatory pleading alleging the commission of a misdemeanor or felony offense" (with exclusions not relevant here), may grant "pretrial diversion" to a defendant who meets all of the requirements specified in the statute. (§ 1001.36, subd. (a).) These include, among others, "a mental disorder . . . including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or [PTSD]," as established by "a recent diagnosis by a qualified mental health expert" (§ 1001.36, subd. (b)(1)(A)), and proof to the court's satisfaction that the mental disorder "was a significant factor in the commission of the charged offense" or "substantially contributed to the defendant's involvement in the commission of the offense." (§ 1001.36, subd. (b)(1)(B).)

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" '[P]retrial diversion' " as used in the statute 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).)

Since defendant entered his pleas and was sentenced before the effective date of the statute, he is entitled to its benefits only if section 1001.36 applies retroactively to him. In support of his retroactivity claim, defendant relies primarily on People v. Frahs (2018) 27 Cal.App.5th 784, review granted December 27, 2018, S252220 (Frahs). Although review was granted in Frahs after defendant filed his brief, as noted, we may still consider it as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1).) However, for the reasons given in Craine, supra, 35 Cal.App.5th 744 (, we conclude Frahs was wrongly decided and the statute does not apply retroactively to persons, like defendant, "who have already been found guilty of the crimes for which they were charged." (Craine, at p. 754.)

The Frahs court decided whether section 1001.36 is retroactive by applying the standard retroactivity rules of In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara). In Estrada, the court held that when the Legislature amends a criminal statute so as to lessen the punishment for the offense, it must be inferred that the Legislature's intent was to apply the lighter penalty to all cases not yet final. (Estrada, at pp. 745, 748.) In Lara, the court extended this rule to situations in which new legislation, though not lessening punishment, provides an " ' "ameliorating benefit" ' " for accused persons or constitutes an " 'ameliorative change[] to the criminal law.' " (Lara, at pp. 308, 309.) Taking these rules together, Frahs found that section 1001.36 confers an " 'ameliorating benefit' " on a class of

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accused persons and therefore must be understood to work retroactively. (Frahs, supra, 27 Cal.App.5th at p. 791,

The Frahs court rejected the Attorney General's argument that by expressly restricting its scope to the "postponement of prosecution . . . at any point in the judicial process from the point at which the accused is charged until adjudication" (§ 1001.36, subd. (c)), the statute set a temporal limit on its retroactive effect. (Frahs, supra, 27 Cal.App.5th at p. 791, The court reasoned: "The fact that mental health diversion is available only up until the time that a defendant's case is 'adjudicated' is simply how this particular diversion program is ordinarily designed to operate." (Ibid.)5 Concluding the issue could be resolved by applying Estrada and Lara to the plain language of the statute, the Frahs court denied the Attorney General's request for judicial notice of the statute's legislative history. (Frahs, at p. 789, fn. 2.)

In Craine, however, the court held that the Frahs analysis was flawed because it did not pay sufficient attention to how section 1001.36, subdivision (c) defines the timing

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of the "ameliorative benefit" it confers. In other words, Frahs did not properly consider either the phrase "postponement of prosecution" or the phrase "until adjudication," instead relying only on a mechanical application of the Estrada and Lara rules.6 (Craine, supra, 35 Cal.App.5th at pp. 754-756,

As to the phrase "until adjudication" (§ 1001.36, subd. (c)), Craine pointed out that " '[t]he purpose of [diversion] programs [in the criminal process] is precisely to avoid the necessity of a trial.' [Citation.]" (Craine, supra, 35 Cal.App.5th at p. 755, In other words, absent clear statutory language showing otherwise, it makes no sense to say that a defendant can be given the benefit of "pretrial diversion" after a case has already gone through trial to conviction (or its equivalent, a guilty or no contest plea). (Ibid.)

By the same token, the meaning of the phrase "the postponement of prosecution" (§ 1001.36, subd. (c)) depends on the normal usage of "prosecution" in the criminal process. As the Craine court found, "[P]rosecution is synonymous with 'criminal action,' and it means ' "[t]he proceeding by which a party charged with a public offense is accused and brought to trial and punishment." ' " (Craine, supra, 35 Cal.App.5th at pp. 755-756, "A prosecution 'commences when the indictment or information is filed in the superior court and normally continues until . . . the accused is "brought to trial and punishment" or is acquitted.' " (Id. at p. 756.)

Therefore, "[p]ursuant to the Legislature's own terminology, pretrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced. Upon reaching this point of 'adjudication,' the 'prosecution' is over and there is nothing left to postpone." (Craine, supra, 35 Cal.App.5th at p. 756,

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According to Craine, Lara is distinguishable because the ameliorative benefit discussed there (the initial processing of accused juveniles in juvenile court, and trial in adult court only upon transfer) did not create a temporal bar to retroactive relief, as does section 1001.36. (Craine, supra, 35 Cal.App.5th at pp. 756-757,

Craine also examines the legislative history of section 1001.36 (which Frahs refused to consider) and finds that it points to the same conclusion. The history makes clear that the statute was...

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