Filed 12/20/19 P. v. Hook CA4/1

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTINA RITTER HOOK,

Defendant and Appellant.

D074012

(Super. Ct. No. SCN382632)

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant Christine Hook guilty of unlawful driving and withholding/concealing a stolen vehicle. (Veh. Code, § 10851, subd. (a); Pen. Code, § 496d.) Hook admitted an enhancement allegation that she had previously been convicted of a felony vehicle theft. (§ 666.5, subd. (a).)

The court suspended the imposition of sentence for five years and granted formal probation. The court ordered Hook to serve 270 days in jail, with 212 days of presentence custody credit.

Hook appealed, contending the court erred in including electronic devices in her Fourth Amendment waiver probation condition.

In a supplemental brief, Hook requested that we remand the matter to allow the court to consider granting her diversion under the mental health diversion law for defendants diagnosed with qualifying mental health disorders. (§ 1001.36.) This law became effective about six weeks after Hook’s sentencing hearing. (Stats. 2018, ch. 34, § 24.) The Attorney General opposed Hook’s requested relief, arguing the new law does not apply retroactively and, even if it does, that Hook has not made a prima facie showing of eligibility for diversion. In our original majority opinion, we concluded the mental health diversion statutes apply retroactively and that Hook made a showing of potential eligibility sufficient to warrant remand. We also concluded the challenge to the probation condition was moot because the trial court had in the meantime revoked Hook’s probation.

The Attorney General filed a petition for rehearing to address two alleged “mistakes of fact”: (1) “that during the pendency of the appeal, [Hook] completed the entirety of her sentence and has been discharged from custody”; and (2) “all indications in the record” suggest Hook would not “consent to pretrial mental health diversion.” We granted rehearing, and requested and received supplemental submissions from the parties on these issues.

The issue of whether the mental health diversion statutes are generally retroactive is pending before the California Supreme Court. (See, e.g., People v. Frahs (2018) 27 Cal.App.5th 784, 786, 791 (Frahs), review granted Dec. 27, 2018, S252220.) As we will explain, pending further guidance from the high court, we find no principled basis on which to conclude the statutes apply retroactively to a defendant who, like Hook, has “completed the entirety of her sentence and has been discharged from custody.” Moreover, even if we were to conclude the statutes apply retroactively to this case, we would conclude based on Hook’s appellate counsel’s supplemental submissions that Hook has not made a prima facie showing of potential eligibility sufficient to warrant remand for further proceedings.

Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

In 2018, Hook was charged with unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a)), and receiving, concealing, or withholding a stolen vehicle (§ 496d). Each count carried the enhancement allegation that Hook was previously convicted of felony vehicle theft. (§ 666.5, subd. (a).)

At trial, witnesses testified Hook was disoriented, disheveled, mumbling, and spinning before she committed the charged offenses. The responding police officer testified he interviewed Hook and she appeared calm and accepting of police involvement; she did not appear to be under the influence of narcotics or in need of an involuntary hold under Welfare and Institutions Code section 5150.

The jury found Hook guilty on both counts, and she admitted the prior conviction allegation. When scheduling the sentencing hearing, the court suggested that defense counsel “might want to get some kind of psychological evaluation . . . to give to the probation department.” Hook’s attorney did so.

In her probation interview, Hook denied being diagnosed with any type of mental health disorder and claimed she had not been prescribed any medications. She also denied having an alcohol or drug problem, but admitted that she has experimented with drugs. The probation officer recommended the court grant formal probation, noting Hook “has yet to exhaust local rehabilitative resources or be supervised by a Probation Officer.”

At the May 2018 sentencing hearing, defense counsel urged the court to adopt the probation department’s recommendation. Counsel cited the trial testimony regarding Hook’s “less than normal” behavior at the time of the offenses, and the indication in the report on the psychological evaluation that “the nexus for [Hook’s criminal] cases are mental health related . . . .” Counsel emphasized Hook’s mental health status:

“I think it would be premature to send her to prison . . . , especially in light of her mental health issues. . . . [T]he probation department is in receipt of [the psychologist]’s report . . . [and] with her diagnosis and with some insight into her mental health issues, I think a referral to [a] M.I.O. unit would be beneficial to give Ms. Hook the additional types of supervision that would help her remain law-abiding and really address her mental health issues. I do think that if we could resolve those issues or at least manage them, that we’re not going to see Ms. Hook back in our criminal justice system.”

The prosecutor responded by arguing that Hook was not a suitable candidate for probation. She emphasized that no evidence of a mental health condition was presented at trial; the evidence showed Hook acted in a “conscious” state when she committed the crime and harbored the requisite mental state; and she was convicted for the same crime less than one year earlier and was on probation when she committed the current crime. The prosecutor thus urged the court to impose a two-year prison sentence.

After considering these arguments and reviewing the relevant reports, the court concluded probation was the appropriate disposition. The court reasoned that Hook had suffered “some significant traumatic events” that “clearly [have] taken a toll on her mental health” and “it’s clear . . . Ms. Hook needs some assistance if she can get it [and] [a] sentence in state prison at this time doesn’t accomplish that end.”

The court suspended the imposition of sentence, and imposed formal probation for five years “with the ability to reduce it to three if the defendant demonstrates successful compliance with probation.” The court also imposed numerous probation conditions, including a requirement that Hook participate in the behavioral health supervision unit and that Hook waive her Fourth Amendment search and seizure rights, including searches of her electronic devices.

DISCUSSION

I. Electronics Search Waiver Condition

Hook contends the court erred in imposing the electronics-search probation condition because it is unconstitutionally overbroad.

The contention is moot because Hook’s probation was revoked in November 2018. We grant the Attorney General’s unopposed motion to augment the record to include the probation revocation and sentencing order. The order shows that on November 5, 2018, the court revoked Hook’s probation and sentenced Hook to a total of two years with a credit of 389 days.

A probation condition becomes moot when the condition is no longer in effect because of the occurrence of some event. (See In re Sheena K. (2007) 40 Cal.4th 875, 879; People v. Carbajal (1995) 10 Cal.4th 1114, 1120, fn. 5; In re R.V. (2009) 171 Cal.App.4th 239, 245-246.) This mootness principle applies to a probation condition challenge after probation was revoked. (See In re R.V., at pp. 245-246.) Hook has not identified any applicable exceptions to this rule.

II. Mental Health Diversion

As noted, after we filed our original opinion, the Attorney General filed a petition for rehearing. We granted rehearing, requested supplemental briefing, and directed Hook’s appellate counsel to file “a letter confirming he has communicated with [Hook] and that she wishes to proceed with this appeal even though she has served and completed her sentence.”

On the final day for doing so, Hook’s counsel filed a letter stating, “As of today’s date, I have not been able to contact [Hook], who is currently homeless.” Counsel further stated Hook’s mother had advised that Hook visits her “every few weeks or so,” and the mother would contact counsel during Hook’s next visit. Hook’s counsel “request[ed] additional time of 30 days,” which we granted.

Thirty days later, Hook’s counsel filed a letter stating:

“As of today’s date, I still have not directly spoken with [Hook]. I was informed by [Hook]’s mother that she saw [Hook] [about two weeks ago]. According to the mother, [Hook] did not want to call me during their visit. [Hook] promised her mother that she would call me the next day. According to my phone log, it does not appear that [Hook] has ever tried to call me.

“The mother did give [Hook] the most recent letter I had written explaining the circumstances and requesting a decision as to whether or not she would like to proceed with her appeal. The mother informed me that [Hook] read the letter in her presence but did not indicate to her any decision. The mother states she does not know what [Hook] wants to do. I cannot, therefore, confirm that [Hook] wishes to proceed with her appeal.”

A. General Description of Mental Health Diversion Statutes

Six weeks after Hook’s sentencing hearing, on June 27, 2018, the Legislature added statutes authorizing trial courts to grant “pretrial diversion” to defendants diagnosed with qualifying mental disorders. (§§ 1001.35, 1001.36; see Stats. 2018, ch. 34, § 24.) “Section 1001.36 gives trial courts the discretion to grant pretrial diversion if the court finds: (1) a qualified mental health expert has recently diagnosed the defendant with a qualifying mental disorder; (2) the mental disorder was a significant factor in the commission of the charged offense; (3) the defendant’s symptoms will respond to treatment; (4) the defendant consents to diversion and waives his or her 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 if treated in the community.” (People v. Cawkwell (2019) 34 Cal.App.5th 1048, 1053 (Cawkwell), review granted Aug. 14, 2019, S256113; § 1001.36, subd. (b)(1)(A)-(F).)

If the court grants pretrial diversion, “[t]he defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources” for “no longer than two years.” (§ 1001.36, subd. (c)(1)(B) & (3).) 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 at the time of the initial diversion.” (§ 1001.36, subd. (e).)

Three months after section 1001.36 was enacted, in September 2018, the Legislature amended the statute to (1) eliminate diversion eligibility for defendants charged with certain violent offenses (not applicable here); and (2) set forth procedural rules, including that the trial court “[a]t any stage of the proceedings” 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.” (Stats. 2018, ch. 1005 (Sen. Bill No. 215), § 1, eff. Jan. 1, 2019.)

B. Retroactivity

Several Courts of Appeal—including various panels of our own—have held that the mental health diversion statutes generally apply retroactively because they are ameliorative and do not indicate that they apply only prospectively. (See, e.g., Frahs, supra, 27 Cal.App.5th at pp. 786, 791, review granted Dec. 27, 2018, S252220; People v. Hughes (2019) 39 Cal.App.5th 886, 896, review granted Nov. 26, 2019, S258541; People v. Weaver (2019) 36 Cal.App.5th 1103, 1122, review granted Oct. 9, 2019; People v. Aguayo (2019) 31 Cal.App.5th 758, 760, review granted May 1, 2019, S254554; People v. Burns (2019) 38 Cal.App.5th 776, 787, review granted Oct. 30, 2019, S257738.) Notably, however, none of these decisions arose in the context of a defendant who had already served his or her complete sentence and was no longer in custody or subject to supervision. (See Frahs, at p. 788 [defendant serving nine-year sentence]; Hughes, at p. 892 [defendant serving life with the possibility of parole and 28-year determinate sentence]; Weaver, at p. 1109 [defendant serving four-year sentence]; Aguayo, at pp. 761-762 [defendant granted three years’ probation]; Burns, at p. 780 [defendant serving 19-year eight-month sentence].)

Other Courts of Appeal have found that the Legislature’s establishment of pretrial mental health diversion indicates the statutes do not apply retroactively. (See, e.g., People v. Craine (2019) 35 Cal.App.5th 744, 760, review granted Sept. 11, 2019, S256671; People v. Torres (2019) 39 Cal.App.5th 849, 856; People v. Khan (2019) 41 Cal.App.5th 460, 493-494.)

The retroactivity issue is pending in the California Supreme Court.

Pending further guidance from our high court on retroactivity, we find no principled basis on which to conclude the mental health diversion statutes apply retroactively to a defendant, like Hook, who has served her complete sentence and is no longer in custody or subject to supervision.

C. No Prima Face Showing of Eligibility

Even if we were to conclude the mental health statutes apply retroactively to Hook, we would conclude she has not made a prima facie showing of eligibility.

As noted, to be eligible for diversion, a defendant must “consent[] to diversion” and “agree[] to comply with treatment as a condition of diversion.” (§ 1001.36, subd. (b)(1)(D), (E).) Based on the appellate record at the time we filed our initial opinion, we found these (and the other) criteria satisfied. However, in light of the changed circumstances identified in the Attorney General’s petition for rehearing, we asked Hook to confirm she still desires mental health diversion “even though she has served and completed her sentence.” Hook’s appellate counsel has advised us that Hook is aware she must notify us of her intentions in this respect, yet she has failed to do so. This failure leads us to find she does not “consent[] to diversion” or “agree[] to comply with treatment as a condition of diversion.” (§ 1001.36, subd. (b)(1)(D), (E).)

Accordingly, Hook has not made a prima facie showing of potential eligibility for diversion sufficient to warrant remand for further proceedings.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

GUERRERO, J.