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Court of Appeal:
Mental Health Diversion May Be Granted While Awaiting Competency Decision
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has held that that a trial court has jurisdiction to grant mental health diversion—the postponement of prosecution, either temporarily or permanently, to allow for psychological treatment—in a criminal case after the proceedings have been suspended due to a pending competency hearing and before a determination on capacity is made.
The question arose in a criminal matter against Gerardo Velador, whose competency to stand trial for misdemeanor charges of battery on a peace officer, resisting arrest, and reckless driving was under review when he filed a motion for mental health diversion.
Riverside Superior Court Judge Otis Sterling granted the motion and ordered that the criminal proceedings remain suspended. The prosecution filed an appeal with the Appellate Division of the Superior Court.
Before the Appellate Division heard the case, Velador was found competent to stand trial on June 27, 2022. The prosecution requested that the Appellate Division decide the issue despite the competency decision rendering the appeal moot, as the matter was of public interest and likely to recur.
Riverside Superior Court Judges Chad W. Firetag, Jacqueline C. Jackson, and Matthew C. Perantoni exercised their discretion to decide the matter and concluded that the trial court retained jurisdiction to grant diversion despite the criminal proceedings being suspended and did not need to wait for the competency determination.
The appellate court ordered the matter transferred to it in order to settle the question of law.
Justice Douglas P. Miller wrote the opinion, filed Thursday, affirming the opinion by the Appellate Division. He wrote:
“This matter has been transferred to this court from the appellate division of the Riverside County Superior Court to settle an important question of law: whether the trial court has jurisdiction to grant mental health diversion under Penal Code section 1001.36 after a doubt has been declared with respect to the defendant’s competency to stand trial, but before the issue of competency has been decided. After reviewing both the diversion and competency statutes together, we affirm the finding of the appellate division of the Riverside County Superior Court.”
Presiding Justice Manuel A. Ramirez and Justice Michael J. Raphael joined in the opinion.
Penal Code §1368(e) provides that “when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.”
Sec. 1001.36, enacted in 2018, authorizes pretrial diversion for defendants with qualifying mental health disorders. Under the statute, the defendant must have been diagnosed with a mental health disorder which was “a significant factor in the commission of the charged offense.”
Based on the interplay of these two statutes, Miller said that “we conclude a determination of competency was not required in order for the trial court to consider diversion.”
Miller noted that “[s]ection 1001.36…specifically provides that a defendant found incompetent to proceed to trial can nonetheless be considered for diversion” and pointed to language in subsection (c) permitting a grant of diversion in lieu of commitment following a determination of incompetency. He reasoned: “Based on the foregoing, the trial court had the same options for granting mental health diversion whether defendant was found competent or incompetent to stand trial. Nothing in the statutory language requires a finding on competence prior to granting diversion. The trial court in considering whether to grant diversion looks to the defendant’s mental state during the commission of the crime….The statutes on competency and section 1001.36 support the trial court’s decision to grant diversion prior to a finding as to defendant’s competence to stand trial as that finding had no bearing on the decision to grant diversion.”
Legislative Intent
The jurist turned to the legislative intent behind §1001.36, which was to address the unique treatment of mentally ill offenders and to mitigate their entry into the criminal justice system.
He opined that “[g]ranting diversion at the earliest time pretrial, rather than waiting for a competency determination, promotes each of these factors” and said that “[t]he earlier in the process that the trial court considers diversion helps reduce unnecessary court costs.”
He concluded:
“The appellate division properly determined that a finding of competency was not required in order for the trial court to grant diversion. Diversion is based on the defendant’s mental state during the commission of the crime and can be determined at any time prior to jeopardy attaching or a plea. Diversion may be granted to both those defendants who are found competent to stand trial and those who are found incompetent. There is no reason to restrict the trial court’s ability to consider diversion only after a determination on competency.”
Suspension of Proceedings
As to the matter of jurisdiction, the justice pointed to the 1991 California Supreme Court case in People v. Superior Court (Marks). The Marks court, in an opinion by Justice Armand M. Arabian (now deceased), addressed a trial court’s failure to conduct a competency hearing after suspending the proceedings.
The Marks court concluded that the court retains jurisdiction when a case is suspended pursuant to §1368 and only suffers an inability to give certain kinds of relief. Looking to Marks, Miller said:
“The trial court had not lost jurisdiction of the case by suspending the proceeding pursuant to section 1368. As found in Marks, the trial court still had subject matter jurisdiction over the matter.”
He added:
“[T]he plain language of section 1368, subdivision (c) provides all ‘proceedings in the criminal prosecution shall be suspended.’ This only suspends proceedings on the ‘criminal prosecution’ and does not necessarily exclude diversion, which would resolve the case without prosecution just as a demur or motion under section 1538.5 would resolve the case.”
Miller declared that “the trial court did not lack jurisdiction to consider diversion while the proceedings on criminal prosecution were suspended under section 1368.”
The case is People v. Velador, 2024 S.O.S. 2368.
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