Pretrial Request for Mental Health Diversion

Facts of the Case

On April 25, 2018, Cory Braden Jr. was involved in a physical altercation with his mother. His sister called 911 and a uniformed sheriff’s deputy responded. The deputy was told by dispatch that Mr. Braden had a diagnosis of schizophrenia and a history of violence. During a pat-down search, Mr. Braden turned and punched the deputy several times. Mr. Braden “charged” at the deputy, and they exchanged punches. He resisted the deputy until additional deputies arrived and were able to restrain him. Mr. Braden was subsequently charged with resisting an executive officer with force or violence and having two prior qualifying felony convictions under the “Three Strikes” law.

Mr. Braden represented himself at trial, and the jury convicted him on one felony count of resisting a police officer. Before sentencing, Mr. Braden requested and received appointed counsel who moved to have him considered for mental health diversion under CPC § 1001.36. This 2018 statute authorizes pretrial diversion for defendants with qualifying mental health disorders. The prosecution opposed the motion, and the trial court denied it, finding the motion both “untimely and moot.” The court sentenced Mr. Braden to four years in state prison.

The appellate court affirmed, holding that Mr. Braden was ineligible for pretrial diversion because his request was not made before trial began. In making this decision, the appellate court explicitly disagreed with two previous appellate court holdings. In People v. Curry, 276 Cal. Rptr. 3d 406 (Cal. Ct. App. 2021), the appeals court held that “a defendant may ask the trial court for mental health diversion until sentencing and entry of judgment” (Braden, p 1119, citing Curry p 414). In People v. Graham, 279 Cal. Rptr. 3d 255 (Cal. Ct. App. 2021), another appeals court held that “a defendant may request pretrial diversion up until the verdicts are returned or the defendant enters a plea of guilty or no contest” (Braden, p 1119).

The California Supreme Court granted review to resolve the conflict in the Courts of Appeal.

Ruling and Reasoning

The Supreme Court of California affirmed the judgment of the appellate court, ruling that the request for mental health diversion under CPC § 1001.36 must be made before the commencement of trial or entry of a plea of guilt or no contest; thus, upholding the denial of Mr. Braden’s request for diversion after the jury had returned its verdict. The court referenced a previous case, People v. Frahs, 466 P.3d 844 (Cal. 2020), which interpreted the language of CPC § 1001.36 to indicate diversion could be applied “at any point in the judicial process … until adjudication.” In Frahs, the California Supreme Court held that pretrial diversion could be applied retroactively to cases in which judgment was not yet final on appeal when the statute went into effect, but the court did not have occasion to interpret the phrase “until adjudication” for future proceedings.

The court reasoned that holdings of the appellate courts may reflect a variance in interpretation of the phrase “until adjudication.” Therefore, the court offered until adjudication to mean either “(1) the process of resolving criminal charges by trial or entry of plea or (2) the conclusion of all trial proceedings by an entry of judgment” (Braden, p 1121). Then, the court reasoned both the precise meaning and framework for the phrase.

First, the court noted that CPC § 1001.36 refers to the diversion it provides as “pretrial” eight times. The court observed that the statute uses a definition of pretrial diversion that has been consistent since 1977, “the procedure of postponing prosecution…” (Braden, p 1122, quoting former CPC § 1001.1), and understood by appellate courts as “contemplating a request for diversion before trial begins.” Next, the court said that if the legislature had intended mental health diversion to be available until the attachment of judgment, then it could have stated so explicitly, as it has in using the phrase “prior to judgment” for inquiries into the defendant’s mental health competence under CPC § 1368(a). The court additionally commented that the statute makes no mention of a diversion grant following “conviction,” nor any mention of setting aside a plea or trial result, suggesting that this diversion was not intended to be granted after adjudication of guilt by trial or plea.

The court remarked that CPC § 1001.36(c)(2) requires that the competent defendant “consents to diversion and waives the defendant’s right to a speedy trial…” in a manner similar to a prior case Morse v. Municipal Court, 529 P.2d 46 (Cal. 1974). Further, the California Supreme Court considered that the statute sets forth no procedure for granting a mistrial or waiving jeopardy. The court ascertained this “lack of any elaboration of the rules” indicated that the legislature did not mean to authorize a procedure (Braden, p 1124).

Because both Mr. Braden and the dissent pointed to the legislature’s amending CPC § 1370 to authorize trial courts to find a mentally incompetent defendant appropriate for diversion up until sentencing, the court reviewed CPC § 1001.36 and statues governing incompetence to stand trial. The court agreed that incompetent defendants cannot stand trial, and further emphasized the diversion statute only supported competent individuals who are “capable of, and required to, request diversion, consent to it, demonstrate their eligibility, waive the right to a speedy trial, and agree to comply with treatment” (Braden, p 1128, quoting CPC § 1001.36(c)(2) & (3)).

The court agreed with Mr. Braden and the dissent that “it would be unusual for defense counsel to become aware only during trial that the defendant has a mental health disorder that factored significantly in the commission of the offense” (Braden, p 1131). The court concluded their holding did not limit or change who is eligible for diversion, but instead resolved when qualifying defendants must request diversion. Accordingly, the court indicated that the legislature intended to incentivize pretrial mental health diversion as a means to expedite intervention and at the most “burdensome” point of the criminal process.

Dissent

The dissent focused on a plain interpretation of the statute’s language. Rather than to “[inject] an unnecessary timing requirement for requesting diversion” (Braden, p 1144), the dissent advocated that the legislature enacted CPC § 1001.36 to provide trial courts a means to broadly divert qualifying people away from recidivism and toward necessary mental health treatment. According to the dissent, the majority lacks insight into how competent, qualified, defendants may still be less capable of making a timely request for diversion. The dissent pointed to Mr. Braden’s own midtrial request and denied diversion as an example of the program being underutilized. The dissent concluded, “while earlier diversion consideration is better, later is still good” (Braden, p 1144).

Discussion

The legislature enacted CPC § 1001.36 in 2018 to serve the many defendants with mental illness who cycle through the criminal justice system. The purpose for the statute was to encourage qualifying people to petition the court to divert adjudication of their criminal case and to enter a regimented treatment program, as ordered by the court. Pretrial diversion programs serve many purposes, including allowing defendants who are mentally ill to undergo treatment and avoid court costs and potential incarceration. More broadly, diversion can help to lower court costs, advance public safety, and potentially decrease recidivism.

In the Frahs decision, the court concluded that “‘the Legislature intended the mental health diversion program to apply as broadly as possible’ so that defendants like [Mr.] Frahs, whose cases were not final on appeal, could take advantage of the new enactment” (Braden, p 1130, quoting Frahs, p 851). By limiting the eligibility of mental health diversion to the pretrial period, the decision in Braden contributes to the ongoing underutilization of the mental health diversion by effectively limiting the number of people who could benefit from diversion programs.

With lack of insight being a core symptom for mental illnesses such as schizophrenia, pretrial requests are not always realistic. Allowing mental health diversion after commencement of trial would still potentially allow for decreased incarceration costs, decreased court costs, lower recidivism rates, and more timely rehabilitative interventions.

Despite the stated goals in CPC § 1001.36, Mr. Braden, a man with an established diagnosis of schizophrenia, was ultimately sentenced to a prison term rather than given a chance to enter a mental health diversion program because of the timeliness of his diversion request. The Braden decision highlights the intricacies of interpreting CPC § 1001.36 and sets important implications for upcoming cases involving mental health diversion. It is important for forensic psychiatrists to be aware of ongoing interpretations of this statute to help advocate for patients with severe mental illnesses, both in individual cases, as well on a systemic level.