Filed 12/12/19 P. v. Patton CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA PATTON,

Defendant and Appellant.

D074528

(Super. Ct. No. SCN379703)

APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Kearney, Judge. Affirmed.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Joshua Patton guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), willful cruelty to an elderly adult (§ 368, subd. (b)(1)), and assault with a deadly weapon (§ 245, subd. (a)(1)), along with making true findings on a weapon enhancement (§ 12022, subd. (b)(1)) and a great bodily injury enhancement (§ 12022.7, subd. (a)). The trial court sentenced Patton to a 13-year prison term.

Patton contends this matter should be remanded for the trial court to decide whether to grant pretrial mental health diversion under section 1001.36, which went into effect before Patton’s trial, but which was not raised in the trial court. We conclude that Patton forfeited his ability to seek a remand for the purposes of having the trial court consider whether to grant pretrial diversion, as he did not raise the issue below. We accordingly affirm the judgment.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Patton was staying at the apartment of M. for a few days. On the evening of November 2, 2017, Patton stabbed M. with a kitchen knife approximately four times while M. was asleep on a sofa. The stab wounds were to M.’s torso and neck. Patton fled the apartment after the stabbing and was arrested two days later after he knocked on a stranger’s door in a nearby apartment complex, asking to use the stranger’s phone to call for medical aid because he was in pain and having bad thoughts and “didn’t want to do anything risky.”

An amended information charged Patton with attempted murder (§§ 664, 187, subd. (a)), willful cruelty to an elderly adult (§ 368, subd. (b)(1)), and assault with a deadly weapon (§ 245, subd. (a)(1)), along with a weapon enhancement (§ 12022, subd. (b)(1)) and a great bodily injury enhancement (§ 12022.7, subd. (a)).

On November 21, 2017, shortly after the complaint was filed in this action, defense counsel declared a doubt as to Patton’s mental competency to stand trial. The trial court suspended the proceedings and ordered a mental competency examination pursuant to section 1368. In a report filed January 31, 2018, a psychiatrist concluded that Patton had a rational and factual understanding of the charges and was able to rationally assist his attorney. The psychiatrist also noted that Patton had a history of psychiatric problems, including psychiatric hospital admissions, and set forth a diagnostic impression, including “Bipolar, Not Otherwise Specified.” The trial court found Patton competent to stand trial on February 2, 2018.

Trial commenced on July 9, 2018. On July 13, 2018, the jury returned a verdict of guilty on all counts and made true findings on the enhancements. On August 10, 2018, the trial court sentenced Patton to a 13-year prison term.

II.

DISCUSSION

Patton’s sole contention on appeal is that this matter should be remanded for the trial court to decide whether to grant pretrial mental health diversion under section 1001.36.

Section 1001.36, which took effect on June 27, 2018, authorizes pretrial diversion for defendants with mental disorders. (Stats. 2018, ch. 34, § 24.) ” ‘[P]retrial 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, to allow the defendant to undergo mental health treatment . . . .” (§ 1001.36, subd. (c).) A court may grant pretrial diversion under section 1001.36 if the court finds: (1) the defendant suffers from an identified mental disorder; (2) the mental disorder played a significant role in the commission of the charged offense; (3) the defendant’s symptoms will respond to treatment; (4) the defendant consents to diversion and the defendant waives the defendant’s speedy trial rights; (5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if the defendant is treated in the community. (§ 1001.36, subd. (b).) The defendant bears the burden of making a prima facie showing that he will meet the minimum eligibility requirements for diversion. (§ 1001.36, subd. (b)(3).)

In this case, a complaint was originally filed against Patton on November 8, 2017. An amended information was filed on July 9, 2018, and trial was conducted between July 9 and July 13, 2018. Patton was sentenced on August 10, 2018.

Because section 1001.36 took effect on June 27, 2018 (Stats. 2018, ch. 34, § 24), that law was already in effect 12 days before the beginning of Patton’s trial on July 9, 2018. This case proceeded to trial and then to sentencing without defense counsel raising any issue as to whether Patton should be considered for pretrial diversion under the newly enacted statute.

For the first time on appeal, Patton contends that he should be considered for pretrial diversion, and that we should remand this matter to the trial court with directions that it consider the issue. Patton relies on case law holding that for cases on appeal that are not yet final, section 1001.36 applies retroactively, and an appellate court may remand a matter for the trial court to consider whether the defendant should be granted pretrial diversion. (See, e.g., People v. Frahs (2018) 27 Cal.App.5th 784, 791, review granted December 27, 2018, S252220.) We note that courts disagree on the issue of retroactivity (see, e.g., People v. Craine (2019) 35 Cal.App.5th 744, review granted September 11, 2019, S256671), and the issue is currently pending before our Supreme Court in Frahs. We need not address whether section 1001.36 is retroactive in order to resolve Patton’s appeal because, as we will explain, Patton forfeited the issue by failing to raise it in the trial court, despite having a meaningful opportunity to do so.

Section 1001.36 went into effect 12 days prior to the beginning of Patton’s trial. At the time of sentencing in mid-August 2018, section 1001.36 had been in effect for approximately one and a half months. Section 1001.36 provides for a consideration by the trial court of whether the defendant has made a prima facie showing of eligibility for pretrial diversion “[a]t any stage of the proceedings.” (§ 1001.36, subd. (b)(3).) Further pretrial diversion is available “at any point in the judicial process from the point at which the accused is charged until adjudication.” (§ 1001.36, subd. (c).) Therefore, there was sufficient time for defense counsel to attempt to make a prima facie case of Patton’s eligibility for pretrial diversion before the case was adjudicated.

The rule of forfeiture applies when a defendant has the opportunity to request that the trial court grant discretionary relief but does not raise the issue until appeal. (Cf. People v. Carmony (2004) 33 Cal.4th 367, 375-376 [“any failure on the part of a defendant to invite the court to dismiss [a strike] under section 1385 following Romero waives or forfeits his or her right to raise the issue on appeal”]; People v. Scott (1994) 9 Cal.4th 331, 353 [failure to object to discretionary sentencing choices forfeits challenges on appeal].) As of June 27, 2018, when the pretrial diversion law took effect, Patton could have requested pretrial diversion “at any point . . . until adjudication,” (§ 1001.36, subd. (c)), but he did not do so. Patton has accordingly forfeited his right to raise the issue of pretrial diversion for the first time on appeal.

 

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

DATO, J.