Filed 10/28/19 Black v. Superior Court CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RICK RAMELB BLACK,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

G057329

(Super. Ct. Nos. 17NF0055 & M-17825)

O P I N I O N
Original proceedings; petition for a writ of mandate to challenge orders of the Superior Court of Orange County, Michael A. Leversen and Kimberly Menninger, Judges. Petition granted with directions.

Law Office of C. Matthew Missakian and Matthew Missakian, for Petitioner.

No appearance for Respondent.

Todd Spitzer, District Attorney, and David R. Gallivan, Deputy District Attorney, for Real Party in Interest.

Petitioner Rick Ramelb Black challenges the lower court’s order denying his motion for pretrial mental health diversion pursuant to Penal Code section 1001.36 (unspecified statutory references are to the Penal Code). As we explain below, the court erred in denying the motion because it failed to follow the statutorily mandated procedure for determining whether petitioner met the criteria for such diversion. We therefore issue a writ of mandate directing the court to conduct a new diversion eligibility hearing, and make those statutory findings necessary to comply with section 1001.36 as it read in December 2018.

FACTS

Petitioner is charged in a felony complaint dated January 5, 2017 with: (1) committing a lewd act upon a 14- or 15-year-old child 10 years younger than the defendant (§ 288, subd. (c)(1)); (2) unlawful sexual intercourse (§ 261.5, subd. (d)); (3) oral copulation of a minor under age 16 (§ 288a, subd. (b)(2)); and (4) sexual penetration of a minor under age 16 (§ 289, subd. (i)). The crimes are alleged to have occurred between May and November of 2016, when petitioner was 31 and 32 years old and the alleged victim was 15.

In November 2018, petitioner filed a “motion to declare eligibility for pretrial diversion” pursuant to section 1001.36 (capitalization omitted). Attached to the motion were almost 200 pages of exhibits, all offered to demonstrate petitioner’s statutory eligibility for diversion. The People filed a two-page opposition. In it, they did not challenge petitioner’s exhibits or their contents and did not proffer any evidence in opposition. Instead, the People merely listed the charged crimes and pointed out that under the not-yet-effective amendments to section 1001.36, petitioner would soon be categorically ineligible for its diversion. Petitioner filed a reply, arguing against the retrospective application of the future statute. In December 2018, petitioner’s motion was heard and denied by Judge Leversen. We discuss the details of that denial in our discussion below.

On December 20, 2018, petitioner brought a petition for a writ of mandate before Judge Menninger, challenging the diversion denial, and asking her to either order diversion or order Judge Leversen to do so. On January 14, 2019, Judge Menninger denied the petition. Amended section 1001.36 became operative on January 1, 2019.

Petitioner renewed his petition for writ of mandate in this court, requesting the same relief he sought below. We issued a Palma notice, indicating we were considering a peremptory writ in the first instance, and ordered the People to respond. They did. We then issued an alternative writ ordering the superior court to “set aside and vacate the order entered [by Judge Leversen] on December 7, 2018, denying petitioner’s motion for mental health diversion, and enter a new order granting the motion” “or, in the alternative,” show cause why a peremptory writ of mandate “requiring respondent court to do so should not issue.” At a subsequent hearing before Judge Leversen, and at the People’s request, he chose the second option. The People filed a return, and petitioner filed a reply.

DISCUSSION

1. Statutory Background

Effective June 27, 2018, the Legislature enacted section 1001.36, and authorized pretrial diversion for qualifying defendants with certain mental health disorders. The statute defined “‘pretrial diversion’ [as] 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).)

It authorized a court to grant pretrial mental health diversion if all the following criteria were satisfied: “the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders,’ . . . [citation]; the defendant’s mental disorder was a significant factor in the commission of the charged offense, based on any relevant and credible evidence [citation]; in the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment [citation]; the defendant consents to diversion and agrees to comply with treatment [citation]; and the defendant will not pose an ‘unreasonable risk of danger to public safety,’ as defined in . . . section 1170.18, if treated in the community, based on the opinions of the district attorney, the defense, or a qualified mental health expert, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate [citation].” (In re J.M. (2019) 35 Cal.App.5th 999, 1005; § 1001.36, subd. (b).) In addition to finding that a defendant meets these threshold requirements, the court must additionally find the recommended inpatient or outpatient mental health treatment program will meet the defendant’s specialized mental health treatment needs. (§ 1001.36, subd. (c)(1)(A).)

If he or she is found eligible, a defendant’s criminal proceedings may be diverted for no longer than two years. (§ 1001.36, subd. (c)(1)(B)(3).) If his or her performance is unsatisfactory, including by committing additional crimes, the court may reinstate criminal proceedings. (Id. subd. (d).) On the other hand, if the defendant performs satisfactorily in the diversion program, at the end of the diversion period the court shall dismiss the criminal charges. (Id. subd. (e).)

Effective January 1, 2019, section 1001.36 was amended in pertinent part to exclude from diversion the defendants charged with certain specified crimes, including “[a]n offense for which a person, if convicted, would be required to register pursuant to Section 290. . . .” (New § 1001.36, subd. (b)(1)(F)(2)(B).) Petitioner acknowledges he is currently charged with now-disqualifying offenses, but argues the 2019 amendment cannot be retroactively applied to him because he requested diversion before the effective date of the amendment.

The People do not argue for retrospective application of the amended statute because, as they explain, the denial of petitioner’s diversion request—the subject matter of this writ petition—also occurred before the effective date of the amendment. We shall therefore assume, without deciding, that the amended statute does not retroactively apply to petitioner.

As such, the only question before us is whether the lower court properly denied petitioner’s section 1001.36 diversion request, any subsequent amendments notwithstanding. Because the lower court here made no findings as to petitioner’s statutory eligibility, its effectively summary denial was improper.

2. The Court Failed to Assess Petitioner’s Eligibility for Diversion Under the Statutorily Required Criteria

At the diversion hearing below, no evidentiary hearing was held and the court did not make any of the required statutory findings regarding petitioner’s eligibility under the six criteria listed above. The People argue the court implicitly found petitioner statutorily eligible, but then further found him “unsuitable.” We are not persuaded.

As noted, in support of his motion for diversion petitioner’s counsel had submitted almost 200 pages of documents, declarations, letters, and exhibits to show his eligibility, and the People made no objections to those materials. The court stated it had read “the massive information submitted on behalf of [petitioner], which basically is his medical history and probation report from whenever he started until now.”

Instead of addressing the petitioner’s proffered evidence, or his then current statutory eligibility, the People’s written opposition only argued that the pending amendments to section 1001.36 should retroactively apply and thereby summarily disqualify petitioner from diversion. The prosecutor said, “I’m not going to argue that [petitioner’s] medical history doesn’t support that type of candidate that would qualify, but based on the nature of the charges, I think public safety is at risk here, and the Legislature amending to add the enumerated charges . . . it clearly shows that these are the types of charges that affect public safety.”

However, under the 2018 statute then in effect, to meet the “public safety” criterion for eligibility, the court must be “satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community” (§ 1001.36, subd. (b)(6), italics added). Under section 1170.18, an “‘unreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new violent felony” described in section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c), italics added.) “These violent felonies are known as ‘super strikes’ and include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment.” (People v. Jefferson (2016) 1 Cal.App.5th 235, 242; People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310 [§ 667, subd. (e)(2)(C)(iv) “enumerates a narrow list of super-strike offenses”].)

Petitioner is not currently charged with such a “violent felony,” has never been charged or convicted of one, and nothing was presented by the People to suggest there was a risk petitioner would be likely to commit such an offense in the future. Thus, petitioner’s current charges are not “the types of charges that affect public safety” under the applicable 2018 statutory definition, and the People’s contention to the contrary was not well-taken.

Moreover, while nominally appealing to “public safety,” the prosecutor did not point to any specific facts applicable to petitioner or his case other than the charges he faced. Nothing was said about the circumstances of the case, any prior criminal history, antisocial behavior, instability, or any problems petitioner had experienced since he was originally charged. In other words, the People offered nothing suggesting petitioner individually posed a current or future danger to public safety within the meaning of the statute.

Rather, the prosecutor’s “public safety” argument was based upon her perception of the legislative intent behind the as-yet-inapplicable statutory amendment, and the “types of charges.” Thus, under the prosecutor’s somewhat circular reasoning, anyone charged with a sex registration crime should be considered a “public safety risk” under the 2018 statute, regardless of the specifics of their mental disorder, life circumstances, or alleged crimes. Because petitioner was charged with certain offenses, the other criteria became nugatory. In essence, the People’s position was that the court must retroactively apply the pending statutory amendment to summarily deny diversion to those defendants charged with certain crimes who requested diversion between June 28 and December 31, 2018.

Here, the People maintain they are not making such a retroactivity argument. Perhaps not explicitly so, but in effect this is exactly what they are asking us to accept.

The lower court stated, “Well, don’t you think the Legislature thought about what kind of case was appropriate when they added these sections that come into effect in January [2019] that says [section] 290 registrants are not the proper people to come into this program? [¶] Even if he’s eligible, which I’m not doubting that because of his mental diagnosis, that might make him eligible, but that doesn’t make him suitable, and this is not the type of case that I find to be a suitable case for diversion. [¶] So your motion for [diversion] is denied.” As a result, the court did not find petitioner eligible, it assumed he was—“[e]ven if he’s eligible,” and he “might” be eligible.

Here, the People again imply the court’s denial of diversion was actually predicated on an unarticulated finding that, based on the charges, petitioner posed a threat to public safety. The record does not support such an inference. As noted, it is inconsistent with the definition of “public safety” found in section 1170.18, subdivision (c). Moreover, it is neither appropriate nor reasonable for us to equate a certain “type of case” with a threat to “public safety” when the Legislature did not do so; particularly when it so narrowly defined what it meant by that phrase.

It is worth noting that the original version of the 2018 section 1001.36 statute required the consent of the prosecution before diversion could be ordered if certain crimes were charged, including any “felony” (with the exception of certain Health & Safety Code & Vehicle Code offenses), 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.” (See People v. Weaver (2019) 36 Cal.App.5th 1103, 1121, fn. 17 (Weaver), petn. for review granted Oct. 9, 2019, S257049, briefing deferred pursuant to Cal. Rules of Court, rule 8.512(d)(2).) However, “[t]his prosecutorial-consent requirement and [the] statutory exceptions to diversion were not included in the final version of the statute. . . .” (Weaver, at p. 1121, fn. 17.) Thus, restrictions on particular charged offenses were originally included, but later omitted, from the final version of the statute. Consequently, the 2019 amendment’s limitations cannot be seen as reflecting an effort to cure legislative oversight.

Our role as a reviewing court is to apply the law as written, not to speculate why the Legislature decided later to change it, and then rewrite it to fit with such speculation. If the Legislature had meant to apply its subsequent modifications to the diversion statute retrospectively, it could have said so. It did not.

Whether or not the record before the court below supports the notion that petitioner poses a threat to public safety as defined by section 1170.18, subdivision (c) is not before us because the lower court never addressed that issue. Rather, it simply concluded that no potential sex registrant could ever be among the “proper people to come into this program,” because the Legislature had subsequently amended the statute to exclude that “type of case.” Put another way, the lower court never actually deemed petitioner ineligible for diversion. Rather, assuming he was eligible, it found “this is not the type of case that I find to be a suitable case for diversion.”

The court’s basis for what is or is not a “suitable case” was not explained, nor is such a determination envisioned by the 2018 statute or its six requisite criteria. The People’s characterization of the court’s ruling as a “suitability” determination and not an “eligibility” determination does not change the substance of what happened: the court simply did not assess whether petitioner met the statutory criteria for diversion. Instead, the court denied diversion solely because the current charges would require section 290 registration and, in a few weeks, petitioner would have been statutorily disqualified from seeking section 1001.36 diversion anyway.

Further, the People’s attempt to distinguish petitioner’s statutory eligibility for diversion from his suitability is not persuasive. They provide no reasoned factual or statutory basis upon which to draw such a distinction. Similarly, just as they did below, here the People do not address—let alone analyze—the actual 2018 statutory criteria for diversion and whether or not petitioner meets them.

We note that the word “suitable” does not appear in the 2018 statute, and makes its first and only appearance in the 2019 statute in newly enacted section 1001.36, subdivision (b)(1)(3): “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. The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If 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.” (New § 1001.36, subd. (b)(1)(3), italics added.) In contrast, as originally enacted, the Legislature made no distinction between “the minimum requirements of eligibility” and a defendant’s “suitability.”

Consequently, in determining petitioner’s request for diversion, the court was obligated to assess only his statutory eligibility, and make its findings accordingly. That determination should have been based only on the enumerated criteria and the evidence proffered by petitioner, and not on speculation for why the Legislature may have later amended the statute to apply differently in the future.

Petitioner contends that because the court found that he was otherwise eligible but for the nature of the charges he faced, we should simply order the court to grant his request for diversion. However, the court never made the requisite statutory findings, let alone a formal determination regarding petitioner’s eligibility for diversion. We are not the forum in which such factual findings are made in the first instance. Put simply, this is not a case where the lower court abused its statutory discretion in denying diversion; it is one where it failed to exercise it’s discretion in the first place.

On mandate our role is to ensure the lower court properly exercises its discretion, not to tell it how it should do so. (See Schweiger v. Superior Court (1970) 3 Cal.3d 507, 518 [“‘Mandamus is to be used to compel a court to give a full hearing to the case before it, not as to how it should rule with respect to the merits’”].) This is particularly true when the lower court has not yet exercised its discretion or, as here, made any of the requisite findings on the relevant statutory criteria.

Because the court did not indicate it was finding petitioner eligible or ineligible for mental health diversion, this factual determination should be made by that court in the first instance. (See People v. Burns (2019) 38 Cal.App.5th 776, 789-790, petn. for review pending, petn. filed Sept. 16, 2019, S257738; compare People v. Jefferson (2019) 38 Cal.App.5th 399, 407-408, petn. for review pending, petn. filed Aug. 30, 2019, S257749 [lower court’s comments clearly indicated it would not find defendant eligible for mental health diversion].)

On the record before us, petitioner has made a prima facie showing he is entitled to a full hearing on his eligibility for section 1001.36 diversion. (See People v. Frahs (2018) 27 Cal.App.5th 784, 791-792, review granted Dec. 27, 2018, S252220 [remand proper when record showed the defendant met at least one of the statute’s threshold requirements].) Consequently, we remand the matter with directions for the court to make an eligibility determination based upon the criteria specified in the 2018 version of section 1000.36. (See Weaver, supra, 36 Cal.App.5th at p. 1122.) If they choose to do so, the People should be afforded an opportunity to contest the merits of petitioner’s eligibility under those same criteria. We express no view as to whether petitioner will be able to show his eligibility on remand.

 

DISPOSITION

Let a writ of mandate issue directing the superior court to conduct a full diversion eligibility hearing pursuant to the 2018 version of section 1001.36 within 60 days from the issuance of the remittitur. If the court determines petitioner meets the 2018 statutory eligibility criteria for diversion, the court shall grant diversion and, if petitioner successfully completes diversion, his criminal charges shall be dismissed. If, however, the court concludes that petitioner is not statutorily eligible for diversion, or he fails to satisfactorily complete diversion, criminal proceedings shall resume and proceed accordingly.

THOMPSON, J.

WE CONCUR:

ARONSON, ACTING P.J.

FYBEL, J.