Filed 2/21/20
                      CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


    THE PEOPLE,                                     H045282
                                                   (Monterey County
          Plaintiff and Respondent,                 Super. Ct. No. SS160402)

          v.

    HARLEY WAYNE LIPSETT,

          Defendant and Appellant.



        Defendant Harley Wayne Lipsett pleaded guilty to battery on a nonprisoner by a
prisoner (Pen. Code, § 4501.5)1 and admitted that he had suffered a prior conviction that
qualified as a strike (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant
to six years in prison. On appeal, defendant contends that the trial court abused its
discretion and violated his constitutional rights when it denied his request to strike the
strike. He also contends that this case should be remanded to determine his eligibility for
mental health diversion pursuant to section 1001.36. We reject defendant’s arguments
and affirm the judgment.




*
        Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part III.A.
1
        Subsequent statutory references are to the Penal Code unless otherwise specified.
                                   I. Statement of Facts2
       On March 23, 2015, an officer at Salinas Valley State Prison was conducting a
security check when defendant “threw liquid fecal matter through the crack of his cell
door, striking the officer in the left arm, left leg, head, hat, and left boot.” Additional
officers responded and found that defendant’s cell smelled of urine and fecal matter.
Defendant “was standing in front of his door yelling, ‘I got him and I got Hep C!’ ”
Defendant had cut himself on his arm and was dripping blood. When asked why he had
thrown the liquid fecal matter, defendant replied, “It doesn’t matter, I’m getting out of
here anyway and there’s nothing you can fucking do!”


                                II. Procedural Background
       Defendant initially pleaded not guilty by reason of insanity, and the parties
stipulated to the appointment of two psychologists to examine defendant. Dr. Carolyn
Murphy found that defendant was capable of distinguishing between right and wrong and
that defendant did know the nature and quality of his actions on the date of the offense.
Dr. Edward Macias could not make a determination of defendant’s mental status “due to
limited records made available for this evaluation.” The parties then stipulated to the
appointment of a third psychologist, Dr. Thomas Reidy, who found that defendant “knew
the nature and quality of his actions” and that he “understood that his behavior was
wrong.” He also agreed with the other examiners that defendant “exhibits severe
personality disorder, substance abuse and dependence, and a Schizophrenia Spectrum
Disorder.” Defendant thereafter withdrew his plea of not guilty by reason of insanity.
       The probation report noted that defendant was 37 years old and had an extensive
criminal history. In 1994, defendant was committed at age 13 to the California Youth



2
       The statement of facts is based on the probation report.

                                               2
Authority (CYA)3 for residential burglary (§ 459). In 1999, at age 19, defendant
committed misdemeanor assault against a peace officer while at a CYA facility, resulting
in a 365-day jail sentence (§ 243, subd. (b)). In 2000, while at a different CYA facility,
defendant committed felony assault by a confined person against a person not confined
(Welf. & Inst. Code, § 1768.8, subd. (b)). He was sentenced to four years in prison. In
2001, defendant was transferred to the Department of Corrections and Rehabilitation.
       In 2002, defendant was convicted of battery on a nonprisoner by a prisoner and
was sentenced to two years in prison (§ 4501.5). Twice in 2004, defendant again
committed battery on a nonprisoner by a prisoner (§ 4501.5). Criminal proceedings
related to both offenses were suspended because defendant was found not competent to
stand trial. After his competency was restored in 2006, defendant was convicted and
sentenced to two consecutive one-year terms. In 2010, while on parole, defendant was
convicted of attempted first degree burglary (§§ 459, 664) and sentenced to two years in
prison. He was also found to have violated the conditions of his parole for the 2004
battery convictions.
       In 2012, defendant committed felony assault (§ 245, subd. (a)(4)). Proceedings
were suspended in 2013 because defendant was found not competent to stand trial.
Defendant was detained at Napa State Hospital pending restoration of his competency.
While detained there, defendant resisted a peace officer and vandalized property (§§ 69,
594, subd. (b)(1)). In 2014, defendant was found mentally competent and discharged
from the hospital. He was thereafter convicted of the hospital-related offenses and
sentenced to three years and four months in prison. In 2015, proceedings resumed in the
2012 assault case, and defendant was convicted and sentenced to four years in prison.
       At the sentencing hearing in the current case, defense counsel requested that the
court strike the strike. Counsel characterized defendant as “a person who never had an

3
       The former CYA is now known as the Division of Juvenile Justice.

                                             3
opportunity to live to his full potential, to any potential, really.” Describing defendant’s
upbringing, counsel noted: “What is described in the probation report is somebody who
was put under the influence of drugs at the age starting at five, and that is -- that is not
volitional on his part, at all.” Counsel further noted that defendant “entered the juvenile
justice system at age 11 and went to CYA at age 14.” Defendant had not, counsel
asserted, been able to “function in a way that allows him to be free from these
institutions.”
       Defense counsel argued that defendant’s case was one that did not fall “within the
spirit of the Three Strikes Law.” He explained: “He has engaged in zero assaultive
behavior, except for those -- against those people who are exercises [sic] complete
dominion over his ability to function. He has not engaged in assaultive behavior outside
of the prison context, with the exception of one counselor who he did assault, in a parole
context. So he is somebody, from the age of five, who has been involved in social --
substance abuse, and traumatic, excessive abuse upon him: Sexual abuse, physical abuse,
upon his person. And then, he was placed, from that situation, into the Department of
Corrections, CYA. And from there, he goes to the Department of Corrections at -- and in
and out of the state hospitals and the Department of Corrections. Totally unable to
function.” Counsel asserted that defendant’s conduct was the result of “his mental
illness,” which was the result of “things that were not volitional on his part, at all.”
Counsel concluded that while defendant’s behavior was “very serious,” it was “not the
type of recidivist behavior that the Three Strikes Law was meant to -- correct and
punish.”
       Defendant also addressed the court. He explained that on “the day all this
happened, [he] was actually in the middle of changing from one type of med to another.”
He continued: “I know I have a mental illness, and before I came to county jail, I was in
state hospital, and they -- I learned a lot more in state hospital than I ever did in prison.


                                               4
I’ve been in prison more than state hospital, so I’m just asking for a chance to get some
help and better my life.” He also reiterated that he had “antisocial personality disorder”
and that he “was sexually abused” as a child. He also described how he had started
“smoking weed . . . at five years old” and first tried “meth at eight, for the first time on
[his] eighth birthday.”
       The prosecutor opposed defendant’s request that the prior strike be stricken. He
acknowledged that defendant “was presented with some pretty tough situations growing
up.” But, the prosecutor noted, defendant had “committed multiple assaults, and I think
for the safety of [the] public, and so that, perhaps, [defendant] can accept the gravity of
what happened on that day, that the Court [should] not strike the strike . . . .”
Considering defendant’s circumstances, the prosecutor believed that a low or midterm
sentence, doubled, would be appropriate.
       The court refused to strike the strike. The court imposed a six-year prison term,
double the midterm for the battery offense.


                                       III. Discussion
                                       A. Prior Strike
       Defendant contends that the trial court abused its discretion by declining to strike
his prior strike. He argues that he suffers from mental illness, the instant battery offense
and his past offenses resulted from his mental illness, and the intent of the “Three
Strikes” law was not to incapacitate or punish people with mental illness. Defendant also
contends that the circumstances of his background supported striking the strike.
       Section 1385 permits a trial court to “strike or vacate an allegation or finding
under the Three Strikes law that a defendant has previously been convicted of a serious
and/or violent felony, on its own motion, ‘in furtherance of justice’. . . . ” (People v.
Williams (1998) 17 Cal.4th 148, 158 (Williams); People v. Carmony (2004) 33 Cal.4th


                                               5
367, 373 (Carmony).) “[T]he court in question must consider whether, in light of the
nature and circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.” (Williams, at p. 161.)
       “[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation
under section 1385 is subject to review for abuse of discretion.” (Carmony, supra, 33
Cal.4th at p. 375.) The party attacking the sentence bears the burden “ ‘ “to clearly show
that the sentencing decision was irrational or arbitrary.” ’ ” (Id. at p. 376.) Reversal is not
required “ ‘ “merely because reasonable people might disagree.” ’ ” (Id. at p. 377.) “Taken
together, these precepts establish that a trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.” (Ibid.)
       In this case, defendant was convicted of battery on a nonprisoner by a prisoner, his
fourth conviction for such an offense. Defendant attempts to assert that the instant
offense was “relatively minor . . . .” We disagree. Far from minor, after defendant struck
the prison officer with liquid fecal matter, defendant declared that he “got him” and
suggested the officer was in danger of contracting Hepatitis C. Regarding his prior
offenses, after serving his sentences for the 2004 battery offenses, defendant very quickly
reoffended by attempting to commit a burglary and was returned to custody. Thereafter,
he committed and was convicted of resisting a peace officer, vandalizing property, and
felony assault. The character and nature of defendant’s current and prior offenses were
distinctly violent, and even assuming some part of defendant’s conduct was attributable
to mental illness, he nevertheless was found criminally culpable in each case.
       Defendant undoubtedly has a long history of criminal conduct, drug addiction, and
mental illness. However, it was not unreasonable for the court to conclude that defendant


                                               6
was a recidivist who fell within the spirit of the Three Strikes law. Although many of
defendant’s offenses occurred inside the prison system, the court could still reasonably
conclude that he exhibited a persistent inability to conform his conduct to the bounds of
the law. The bulk of defendant’s arguments on appeal were made in the trial court, and
thus considered by the trial court and rejected. The trial court was not required to place
greater weight on mental illness than on other relevant factors, and the record reflects that
the court gave due consideration to defendant’s arguments. We cannot substitute our
judgment for that of the trial court. Because the trial court’s determination was not “so
irrational or arbitrary that no reasonable person could agree with it” (Carmony, supra, 33
Cal.4th at p. 377), we find no abuse of discretion.
       Defendant also contends that the denial of his request to strike the prior strike
violated his constitutional rights. He asserts that the trial court’s improper denial of his
request implicates his federal and state due process and equal protection rights. He also
argues that his enhanced sentence amounts to cruel and unusual punishment.
       Defendant’s equal protection and due process claim is unavailing. He asserts that
the “ ‘ “failure of a state to abide by its own statutory commands may implicate a liberty
interest protected by the Fourteenth Amendment against arbitrary deprivation by a
state.” ’ [Citation.]” This is not what happened in this case. Here, the record shows that
the trial court considered, pursuant to section 1385, whether to exercise its discretion to
strike defendant’s prior strike. That the court ultimately declined to do so after weighing
all the relevant factors is consistent with the statutory command of section 1385. Because
the court properly exercised its authority and did not abuse its discretion, defendant’s
claim that the court’s improper application of section 1385 violated his due process and
equal protection rights necessarily fails.
       We also reject defendant’s claim that his six-year prison sentence amounts to cruel
and unusual punishment. Relying almost entirely on Gregg v. Georgia (1976) 428 U.S.


                                              7
153, 183, defendant contends that because his sentence is without penological
justification, it represents a “ ‘gratuitous infliction of suffering.’ ” The sentence in this
case, however, was not without penological justification. Defendant had an extensive
criminal history involving violence towards others and recidivism, and his current offense
was violent. Accordingly, defendant’s sentence was not a gratuitous infliction of
suffering and thus was not cruel and unusual punishment.


                                     B. Section 1001.36
       Defendant contends that his case should be remanded to determine his eligibility
for mental health diversion under section 1001.36, which was enacted after he was
sentenced. The Attorney General argues that defendant is precluded from seeking
pretrial mental health diversion because the statute is not retroactive and because
defendant has not shown eligibility for mental health diversion under section 1001.36.
                                        1. Background
       Effective June 27, 2018, the Legislature added two new sections to the Penal Code
(§§ 1001.35, 1001.36) that authorize trial courts to grant “pretrial diversion” to
defendants diagnosed with qualifying mental disorders.4 (Stats. 2018, ch. 34, § 24.)
Section 1001.36 permits a trial court to “grant pretrial diversion to a defendant pursuant
to this section if the defendant meets all of the requirements specified in paragraph (1) of
subdivision (b).” (§ 1001.36, subd. (a).) “As used in this chapter, ‘pretrial diversion’
means the postponement of prosecution, either temporarily or permanently, at any point




4
        Effective January 1, 2019, the statute was amended to prohibit its use in cases
involving murder, voluntary manslaughter, rape and other sex crimes, the use of a
weapon of mass destruction, 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.”
(Stats. 2018, ch. 1005, § 1.)

                                                8
in the judicial process from the point at which the accused is charged until
adjudication . . . .” (§ 1001.36, subd. (c).)5
       Section 1001.36 sets forth six requirements that must be satisfied for a defendant
to be eligible for mental health diversion. First, the trial court must be “satisfied that the
defendant suffers from a mental disorder as identified in the most recent edition of the
Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to,
bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress
disorder, but excluding antisocial personality disorder, borderline personality disorder,
and pedophilia.” (§ 1001.36, subd. (b)(1)(A).) Second, the trial court must be “satisfied
that the defendant’s mental disorder was a significant factor in the commission of the
charged offense.” (§ 1001.36, subd. (b)(1)(B).) Third, “a qualified mental health expert”
must opine that “defendant’s symptoms of the mental disorder motivating the criminal
behavior would respond to mental health treatment.” (§ 1001.36, subd. (b)(1)(C).)
Fourth, subject to certain exceptions related to incompetence, the defendant must consent
to diversion and waive his or her right to a speedy trial. (§ 1001.36, subd. (b)(1)(D).)
Fifth, the defendant must agree to “comply with treatment as a condition of diversion.”
(§ 1001.36, subd. (b)(1)(E).) Finally, the court must be “satisfied that the defendant will
not pose an unreasonable risk of danger to public safety . . . if treated in the community.”
(§ 1001.36, subd. (b)(1)(F).)
       If a defendant meets the eligibility requirements of section 1001.36, the trial court
may order pretrial diversion into an approved treatment program. (§ 1001.36,
subds. (c)(1)(A)-(B).) “The period during which criminal proceedings against the
defendant may be diverted shall be no longer than two years.” (§ 1001.36,
subd. (c)(1)(3).) “If the defendant has performed satisfactorily in diversion, at the end of


5
       On our own motion, we take judicial notice of the legislative history of Assembly
Bill No. 1810 and Senate Bill No. 215. (Evid. Code, § 452, subd. (c).)

                                                 9
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).) In addition, access to the “record of the arrest” shall be restricted, subject to
specified limitations. (§ 1001.36, subd. (e).)
       The Legislature expressly stated that the purpose of the mental health diversion
law was “to promote all of the following: [¶] (a) Increased diversion of individuals with
mental disorders to mitigate the individuals’ entry and reentry into the criminal justice
system while protecting public safety. [¶] (b) Allowing local discretion and flexibility
for counties in the development and implementation of diversion for individuals with
mental disorders across a continuum of care settings. [¶] (c) Providing diversion that
meets the unique mental health treatment and support needs of individuals with mental
disorders.” (§ 1001.35.)
                                    2. Legal Framework
       The critical issue before us is whether section 1001.36 is retroactive. “It is well
settled that a new statute is presumed to operate prospectively absent an express
declaration of retrospectivity or a clear indication that the electorate, or the Legislature,
intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287; § 3 [“No part
of [the Penal Code] is retroactive, unless expressly so declared.”].) However, in In re
Estrada (1965) 63 Cal.2d 740, 744-745, 748 (Estrada), the California Supreme Court
held that the presumption against retroactivity does not apply when the Legislature
reduces the punishment for criminal conduct. Thus, under Estrada, we presume that the
Legislature intended for a statutory amendment reducing criminal punishment to apply
retroactively in cases that are not final on appeal. (Ibid.)
       “The Estrada rule rests on the presumption that, in the absence of a savings clause
providing only prospective relief or other clear intention concerning any retroactive
effect, ‘a legislative body ordinarily intends for ameliorative changes to the criminal law


                                              10
to extend as broadly as possible, distinguishing only as necessary between sentences that
are final and sentences that are not.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 881-882
(Buycks).) In other words, “the Estrada rule reflects a presumption about legislative
intent,” and “the Legislature . . . may choose to modify, limit, or entirely forbid the
retroactive application of ameliorative criminal law amendments if it so chooses.”
(People v. Conley (2016) 63 Cal.4th 646, 656 (Conley).) The mere absence of an express
statement concerning retroactivity “ ‘does not end “our quest for legislative intent.” ’ ”
(Ibid.) This is because case law “do[es] not ‘dictate to legislative drafters the forms in
which laws must be written’ to express an intent to modify or limit the retroactive effect
of an ameliorative change; rather, they require ‘that the Legislature demonstrate its
intention with sufficient clarity that a reviewing court can discern and effectuate it.’ ” (Id.
at pp. 656-657.)
       In People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308 (Lara), the Estrada
“inference of retroactivity” was held to apply to a statutory amendment that “ameliorated
the possible punishment for a class of persons, namely juveniles.” (Id. at p. 308.) In
Lara, the statutory amendment at issue was the Public Safety and Rehabilitation Act of
2016 (Proposition 57). Proposition 57 changed the law to require the prosecution to
initiate an action against a juvenile in juvenile court before a juvenile’s case could be
transferred to an adult criminal court. (Lara, at p. 303.) In Lara, the question presented
was “whether [the] requirement of a transfer hearing before a juvenile can be tried as an
adult applie[d] to [the] defendant even though he had already been charged in adult court
before Proposition 57 took effect.” (Id. at p. 306)
       The Lara court concluded that Estrada’s rationale applied: “The possibility of
being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than
being tried and sentenced as an adult can result in dramatically different and more lenient
treatment.” (Lara, supra, 4 Cal.5th at p. 303.) Because Proposition 57 “reduce[d] the


                                              11
possible punishment for a class of persons” and “nothing in Proposition 57’s text or ballot
materials rebut[ted]” the Estrada inference of retroactivity, the California Supreme Court
“conclude[d that] this part of Proposition 57 applie[d] to all juveniles charged directly in
adult court whose judgment was not final at the time it was enacted.” (Id. at p. 304.)
                                        3. Analysis
       There is uniform agreement that section 1001.36 “confers a potentially
ameliorative benefit to a specified class of persons.” (People v. Craine (2019) 35
Cal.App.5th 744, 754, review granted Sept. 11, 2019, S256671 (Craine); People v. Frahs
(2018) 27 Cal.App.5th 784, 791, review granted Dec. 27, 2018, S252220 (Frahs); People
v. Weaver (2019) 36 Cal.App.5th 1103, 1117, review granted Oct. 9, 2019, S257049
(Weaver).) We agree that the statute is an ameliorative change in the criminal law
because it potentially reduces punishment for a class of persons. Accordingly, to
determine if section 1001.36 may be applied retroactively, we must determine if “ ‘the
Legislature demonstrate[d] its intention’ ” to overcome the Estrada presumption “ ‘with
sufficient clarity that a reviewing court can discern and effectuate it.’ ” (Conley, supra,
63 Cal.4th at p. 657.)
       Our review of the text, purposes, and operation of section 1001.36 reveals that the
Legislature has demonstrated with sufficient clarity that it did not intend for section
1001.36 to apply retroactively to cases that have progressed beyond adjudication but are
not yet final. “ ‘ “As in any case involving statutory interpretation, our fundamental task
here is to determine the Legislature’s intent so as to effectuate the law’s purpose.
[Citation.] We begin by examining the statute’s words, giving them a plain and
commonsense meaning. [Citation.]” [Citation.]’ ” (People v. Scott (2014) 58 Cal.4th
1415, 1421.)
       Section 1001.36 defines “ ‘pretrial diversion’ ” as the “postponement of
prosecution, either temporarily or permanently, at any point in the judicial process from


                                             12
the point at which the accused is charged until adjudication, to allow the defendant to
undergo mental health treatment” subject to the court’s supervision. (§ 1001.36,
subd. (c), italics added.) By plainly identifying the statute as a pretrial diversion
program, the Legislature clearly expressed its intent that the statute not be applied after a
person has been convicted. The Legislature’s express statement that the statute would
apply only “until adjudication” precludes a construction of the statute that would apply it
after “the rendition or pronouncement of judgment, which occurs at the time of
sentencing.” (Craine, supra, 35 Cal.App.5th at p. 755, italics omitted.)
       We “must assume . . . that the Legislature’s choice of words was not an idle act.”
(County of Alameda v. Workers’ Comp. Appeals Bd. (2013) 213 Cal.App.4th 278,
284-285.) Had the Legislature intended for section 1001.36’s mental health diversion
provisions to apply to posttrial defendants, after adjudication, the Legislature would have
said so. (Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th
507, 529.) It did not. Rather, the clear statutory text is plainly inconsistent with an intent
that the statute operate retroactively after adjudication. The statutory language clearly
reflects the Legislature’s intent that the pretrial diversion program operate only
prospectively, that is, “from the point at which the accused is charged until
adjudication . . . .” (§ 1001.36, subd. (c).)
       The statute’s eligibility requirements also expressly reflect the Legislature’s intent
that the statute be applied only prior to adjudication. For instance, the statute requires the
defendant to consent to diversion and “waive[] the defendant’s right to a speedy
trial . . . .” (§ 1001.36, subd. (b)(1)(D).) However, there is no longer a right to a speedy
trial to waive after a defendant has been convicted and sentenced. (Betterman v.
Montana (2016) __ U.S. __ [136 S.Ct. 1609, 1618]; People v. Domenzain (1984) 161
Cal.App.3d 619, 622.) Retroactive application of the statute would render this provision
impossible to satisfy, which would be inconsistent with section 1001.36’s command that


                                                13
a court may not grant pretrial diversion unless “the defendant meets all of the
requirements specified in paragraph (1) of subdivision (b).” (§ 1001.36, subd. (a), italics
added.)
       Section 1001.36’s other requirements are also expressly inconsistent with
retroactive application. The statute lists certain circumstances under which the court
“shall . . . hold a hearing to determine whether the criminal proceedings should be
reinstated, whether treatment should be modified, or whether the defendant should be”
subject to conservatorship proceedings. (§ 1001.36, subd. (d)(1)-(4).) These provisions,
which provide for what to do if a defendant who is initially granted diversion is later
found to be no longer suitable for pretrial diversion, are capable of application only in a
situation where the defendant’s case has not been adjudicated. To apply section 1001.36
retroactively to cases that have been adjudicated would require the court to rewrite the
statute to provide for the dismissal or reinstatement of a conviction and sentence, as
circumstances warrant. “This court has no power to rewrite the statute so as to make it
conform to a presumed intention which is not expressed. This court is limited to
interpreting the statute, and such interpretation must be based on the language used.”
(Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365.)
       In Frahs, the Fourth District Court of Appeal found section 1001.36 to be
retroactive, but we find the reasoning in Frahs to be unpersuasive. The Fourth District
acknowledged the obvious incongruity between the plain statutory language limiting
pretrial diversion to the period prior to adjudication and the potential retroactive
application of the statute to cases after adjudication. However, it discounted this
incongruity by reasoning that “[t]he fact that mental health diversion is available only up
until the time a defendant’s case is ‘adjudicated’ is simply how this particular diversion
program is ordinarily designed to operate.” (Frahs, supra, 27 Cal.App.5th at p. 791.)
We do not find this reasoning persuasive. Section 1001.36 describes the one and only


                                             14
way in which the Legislature designed this pretrial diversion program to operate. To
apply the statute under circumstances that do not fall within the statute’s requirements
would require this court to rewrite the statute or engage in extrastatutory judicial
construction. “When the language of a statute . . . is clear and unambiguous, judicial
construction is not necessary and the court should not engage in it.” (Agnew v. State Bd.
of Equalization (1999) 21 Cal.4th 310, 323.) Here, the Legislature clearly expressed the
limits of the statute, and we lack the power to rewrite the statute to expand its reach.
          In Weaver, a panel of this court also concluded that section 1001.36 is retroactive.
That panel took the position “that the burden to overcome the Estrada inference is
substantial.” (Weaver, supra, 36 Cal.App.5th at p. 1117.) It concluded that to overcome
the Estrada presumption, the statute needed to include either an express savings clause or
“an alternative mechanism, such as a petition requirement,” that clearly demonstrated
legislative intent on the question of retroactivity. (Weaver, at p. 1119.) Notwithstanding
the prospective structure and apparent limiting language in the statute, the panel
concluded that there was “nothing in the text of section 1001.36 sufficient to overcome
the Estrada presumption.” (Id. at p. 1120.) It noted that “the Legislature did not include
in section 1001.36 an ‘express savings clause’ mandating prospective application.”
(Ibid.)
          The California Supreme Court has made clear that “the absence of an express
savings clause does not necessarily resolve the question whether a lawmaking body
intended a statute reducing punishment to apply retrospectively.” (People v. DeHoyos
(2018) 4 Cal.5th 594, 601.) “Rather, what is required is that the Legislature demonstrate
its intention with sufficient clarity that a reviewing court can discern and effectuate it.”
(In re Pedro T. (1994) 8 Cal.4th 1041, 1049.) In this context, the Estrada presumption is
a “limited rule of retroactivity that applies to newly enacted criminal statutes intended to
reduce punishment for a class of offenders.” (Buycks, supra, 5 Cal. 5th at p. 881, italics


                                               15
added.) Section 1001.36’s express language and structure is sufficiently clear to
demonstrate the Legislature’s intent that the statute operate only prospectively, and it
therefore overcomes Estrada’s limited presumption of retroactivity. The obvious
incongruity between the language and structure of the statute on the one hand and
retroactive application on the other clearly demonstrates that the Legislature did not
intend for section 1001.36 to apply retroactively to cases that have progressed beyond
adjudication of guilt to sentencing. A more explicit statement on retroactivity was not
required.
       We find additional support in the legislative history for our holding that section
1001.36 was not intended to be applied retroactively. The Legislature described the
original diversion program as the “Incompetent to Stand Trial Mental Health Diversion
Program,” which was aimed at implementing “a mental health diversion program with a
focus on reducing the number of Incompetent to Stand Trial referrals to the Department
of State Hospitals.” (Assem. Floor, Bill Analysis of Assem. Bill No. 1810 (2017-2018
Reg. Sess.) as amended June 12, 2018, p. 7; see also, Sen. Rules Com., Off. of Sen. Floor
Analyses, Bill Analysis of Assem. Bill No. 1810 (2017-2018 Reg. Sess.) as amended
June 12, 2018, p. 3.) It is inconceivable that a program aimed at reducing pretrial
referrals to state hospitals would be intended to apply after trial, adjudication, and
sentencing. Indeed, incompetency proceedings are only applicable before a defendant
has been convicted and sentenced. (E.g., § 1368, subd. (a) [“If, during the pendency of
an action and prior to judgment, or during revocation proceedings for a violation of
probation, mandatory supervision, postrelease community supervision, or parole, a doubt
arises in the mind of the judge as to the mental competence of the defendant . . . .”
(Italics added.).]
       When section 1001.36 was amended by Senate Bill No. 215, the legislative
analysis noted that the bill’s author had stated that the bill sought “to reduce recidivism


                                             16
rates for mentally ill defendants, and to avoid unnecessary and unproductive costs of trial
and incarceration.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business
Analysis of Sen. Bill No. 215 (2017-2018 Reg. Sess.) as amended Aug. 23, 2018, p. 3.)
The author also noted the high costs of jailing a mentally ill defendant. “The predictable
results of California’s reliance on this outdated method are higher costs for taxpayers,
who are forced to pay for the continuous warehousing of the mentally ill, when early,
court-assisted interventions are far more likely to lead to longer, cheaper, more stable
solutions for the community, and for the person suffering from mental illness.” (Id. at
pp. 2-3.)
       This legislative focus on pretrial “early . . . interventions” demonstrates that
section 1001.36 was intended to divert eligible defendants at an early stage of the
criminal proceedings to avoid the costs of referrals to state hospitals, pretrial
incarceration, and trials, and to provide eligible defendants the benefit of early
intervention. By the time a defendant has already been tried, convicted, and sentenced,
there is no longer any opportunity for early intervention. The instant case illustrates why
the Legislature’s intent in enacting section 1001.36 is inconsistent with retroactive
application of the statute. Here, defendant was sentenced on September 20, 2017, and he
was awarded a total of 868 days of presentence custody credit against his six-year prison
term. If section 1001.36 applied retroactively, defendant would have served the bulk of
his sentence before his case could be remanded for consideration of pretrial diversion.6
       We conclude that the structure, language, and legislative history of section
1001.36 establish that it was not intended to apply retroactively to cases that have been
adjudicated but are not yet final on appeal. We respectfully disagree with the dissent’s

6
       The time interval in this case between defendant’s sentencing and consideration of
his appeal is not unusual. As the Craine court observed, based on recent statistics,
“[n]inety percent of criminal appeals are processed within an average of 834 days.”
(Craine, supra, 35 Cal.App.5th at p. 759.)

                                              17
reliance on Lara. In Lara, Proposition 57 was held to apply retroactively because it
“reduce[d] the possible punishment for a class of persons,” which permitted the inference
of retrospective operation, and because “nothing in Proposition 57’s text or ballot
materials rebut[ted] this inference.” (Lara, supra, 4 Cal.5th at pp. 303-304.) In this case,
in contrast with Proposition 57, section 1001.36’s structure, language, and legislative
history clearly rebut the Estrada inference. Thus, Lara does not dictate the result urged
by the dissent.
       Our holding is consistent with the holding of the majority of another panel of this
court in People v. Khan (2019) 41 Cal.App.5th 460, review granted January 29, 2020,
S259498 (Khan). In Khan, the majority held that the “text, structure, and purposes of the
pretrial diversion law” clearly demonstrated that “the Legislature did not intend the law
to be applied postadjudication to defendants who have already been properly tried and
found guilty, and are serving their sentences.”7 (Id. at pp. 493-494.)


                                     IV. Disposition
       The judgment is affirmed.




7
       Like the majority in Khan, we do not opine as to whether the pretrial diversion law
“was meant to apply to defendants whose alleged offenses were committed before the
law’s effective date but whose cases are still at the preadjudication stage,” nor do we
“resolve whether the pretrial diversion law was meant to apply to defendants whose
alleged offenses were committed before the law’s effective date, whose convictions are
overturned on appeal, and who may be subjected to a full retrial.” (Khan, supra, 41
Cal.App.5th at p. 494, fn. 7.)

                                            18
                                _______________________________
                                Mihara, J.



I CONCUR:




_____________________________
Elia, Acting P.J.




People v. Lipsett
H045282


                                 19
BAMATTRE-MANOUKIAN, J., Concurring and dissenting.
       I respectfully dissent from my colleagues’ determination that newly enacted
Penal Code section 1001.36,1 which created a pretrial diversion program for certain
offenders with diagnosed mental disorders, does not apply retroactively to all cases not
yet final on appeal.
       Much has been written on this issue. Courts including this one are divided
regarding whether section 1001.36 applies retroactively. (Compare, e.g., People v. Khan
(2019) 41 Cal.App.5th 460, review granted Jan. 29, 2020, S259498 and People v. Craine
(2019) 35 Cal.App.5th 744, review granted Sept. 11, 2019, S256671, with People v.
Weaver (2019) 36 Cal.App.5th 1103, review granted Oct. 9, 2019, S257049 (Weaver),
and People v. Frahs (2018) 27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220
(Frahs).) The majority opinion in this case is scholarly and well-reasoned. However, for
the reasons I state below, based on the California Supreme Court’s recent guidance in
People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), I am compelled to conclude
that section 1001.36 applies retroactively to all nonfinal judgments. (See Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
       When the Legislature lessens or ameliorates punishment, we must infer that it
intended the new legislation to “apply to every case to which it constitutionally could
apply,” including “to acts committed before its passage[,] provided the judgment
convicting the defendant of the act is not final.” (In re Estrada (1965) 63 Cal.2d 740,
745 (Estrada).) This rule “rests on the presumption that, in the absence of a savings
clause providing only prospective relief or other clear intention concerning any
retroactive effect, ‘a legislative body ordinarily intends for ameliorative changes to the
criminal law to extend as broadly as possible, distinguishing only as necessary between




       1
           All further statutory references are to the Penal Code unless otherwise indicated.
sentences that are final and sentences that are not.’ [Citation.]” (People v. Buycks (2018)
5 Cal.5th 857, 881-882, italics added.)
       There is no dispute that section 1001.36 is an ameliorative statute. My colleagues
determine from the law’s “text, purposes, and operation . . . that the Legislature has
demonstrated with sufficient clarity that it did not intend for section 1001.36 to apply
retroactively to cases that have progressed beyond adjudication but are not yet final.”
(Maj. opn. ante, p. 12.) Based on my reading of Lara, I am not persuaded that the
Legislature’s intent in enacting section 1001.36 is sufficiently clear to rebut the Estrada
inference. (See Weaver, supra, 36 Cal.App.5th 1103.)
       In Lara, the court held that Proposition 57, which amended Welfare and
Institutions Code sections 602 and 707 to eliminate prosecutors’ ability to charge juvenile
offenders directly in adult court, applied retroactively to all minors charged directly in
adult court whose judgments were not final, including those already charged, tried, and
convicted as adults. (Lara, supra, 4 Cal.5th at pp. 303-304.) Despite the legislation’s
requirement that prosecutors bring motions to transfer minors from juvenile court to adult
court “prior to the attachment of jeopardy” (Welf. & Inst. Code, § 707, subd. (a)(1), (2)),
the court determined that “[n]othing in Proposition 57 itself or the ballot materials rebuts
[Estrada’s] inference” of retroactivity (Lara, supra, at p. 309). The court concluded that
although “the appropriate remedy” for juveniles already convicted as adults could be
“somewhat complex,” that was “no reason” to deny those offenders transfer hearings.
(Id. at p. 313.)
       Based on Lara, I do not agree with my colleagues’ conclusion that the Legislature,
through its use of the term “pretrial diversion” and its definition of “ ‘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; id., subd. (c)), clearly indicated its intent that the statute apply only
prospectively. (See maj. opn. ante, pp. 12-13.) Rather, I agree with the determination in

                                               2
Frahs that “[t]he fact that mental health diversion is available only up until the time that a
defendant’s case is ‘adjudicated’ is simply how this particular diversion program is
ordinarily designed to operate. Indeed, the fact that a juvenile transfer hearing under
Proposition 57 ordinarily occurs prior to the attachment of jeopardy, did not prevent the
Supreme Court in Lara . . . from finding that such a hearing must be made available to all
defendants whose convictions are not yet final on appeal.” (Frahs, supra, 27 Cal.App.5th
at p. 791; cf. People v. Francis (1969) 71 Cal.2d 66, 75, 77-78 [concluding that a
statutory amendment vesting discretionary sentencing power in the trial court applied
retroactively to all cases not final on appeal, including those where the defendant had
already been sentenced, despite “ ‘the very nature’ of the [sentencing] amendment”].)
       My colleagues determine that section 1001.36’s requirement that a defendant
waive his or her right to a speedy trial (§ 1001.36, subd. (b)(1)(D)) and its mandate that
the trial court “hold a hearing to determine whether the criminal proceedings should be
reinstated, whether the treatment should be modified, or whether the defendant should
be . . . referred [for] conservatorship proceedings” if circumstances arise indicating the
defendant’s unsuitability for continued placement in the diversion program (§ 1001.36,
subd. (d)) are “expressly inconsistent with retroactive application” (Maj. opn. ante,
p. 14). The same holds true, however, regarding the provisions in Proposition 57 that
require a transfer motion to be filed prior to the attachment of jeopardy and mandate the
juvenile court to “postpone the taking of a plea to the petition until the conclusion of the
transfer hearing.” (Welf. & Inst. Code, § 707, subd. (a)(3); see id., subd. (a)(1)-(3).)
Despite those requirements, which are also inconsistent with retroactive application, the
Supreme Court found “[n]othing in Proposition 57” to rebut Estrada’s inference of
retroactivity. (Lara, supra, 4 Cal.5th at p. 309.)
       The majority also points to the fact that the retroactive application of
section 1001.36 “to cases that have been adjudicated would require the court to rewrite
the statute to provide for the dismissal or reinstatement of a conviction and sentence, as

                                              3
circumstances warrant.” (Maj. opn. ante, p. 14.) But the Supreme Court in Lara cited
with approval the judicially crafted remedies fashioned by two Courts of Appeal for
minors who had already been convicted in adult court before the passage of Proposition
57 but whose cases were not final on appeal. (Lara, supra, 4 Cal.5th at pp. 312-313.)
       In People v. Vela (2018) 21 Cal.App.5th 1099, 1113, for example, the Court of
Appeal conditionally reversed the judgment and remanded the matter to the juvenile
court for it to conduct a transfer hearing. The court ordered the juvenile court “[w]hen
conducting the transfer hearing . . . to . . . treat the matter as though the prosecutor had
originally filed a juvenile petition in juvenile court and had then moved to transfer [the
defendant’s] cause to a court of criminal jurisdiction. [Citation.] If, after conducting
the juvenile transfer hearing, the court determines that it would have transferred [the
defendant] to a court of criminal jurisdiction because he is ‘not a fit and proper subject
to be dealt with under the juvenile court law,’ then [the defendant’s] convictions are to
be reinstated. [Citation.] . . . On the other hand, if the juvenile court finds that it would
not have transferred [the defendant] to a court of criminal jurisdiction, then it shall treat
[the defendant’s] convictions as juvenile adjudications and impose an appropriate
‘disposition’ within its discretion.” (Ibid.) Proposition 57 did not contain this remedy;
it was crafted by the Court of Appeal.
       Finally, my colleagues reference section 1001.36’s legislative history
demonstrating the Legislature’s focus on “ ‘early . . . interventions’ ” in order to reduce
the costs incurred from competency referrals to state hospitals and “ ‘the continuous
warehousing of the mentally ill.’ ” (Maj. opn. ante, p. 17.) Because “ ‘early . . .
intervention[]’ ” is impossible in cases such as this where the defendant has already been
convicted, my colleagues conclude that “the Legislature’s intent in enacting
section 1001.36 is inconsistent with retroactive application of the statute.” (Maj. opn.
ante, p. 17.)



                                               4
       However, section 1001.35 “provides an express statutory statement of [the]
legislative intent” behind the enactment of section 1001.36. (People v. Burns (2019)
38 Cal.App.5th 776, 788 (Burns).) Section 1001.35 states that the “purpose” of mental
health diversion “is to promote”: (1) “[i]ncreased diversion of individuals with mental
disorders to mitigate the individuals’ entry and reentry into the criminal justice system
while protecting public safety”; (2) “[a]llowing local discretion and flexibility for
counties in the development and implementation of diversion for individuals with mental
disorders across a continuum of care settings”; and (3) “[p]roviding diversion that meets
the unique mental health treatment and support needs of individuals with mental
disorders.”
       Notably, cost savings are absent from the Legislature’s stated purpose of mental
health diversion, “and the first and third objectives would be promoted by retroactive
application. A similar legislative purpose, to stop the revolving door of criminal justice
for juveniles, was found in Lara to ‘support the conclusion that Estrada’s inference of
retroactivity is not rebutted.’ (Lara, supra, 4 Cal.5th at p. 309.)” (Burns, supra, 38
Cal.App.5th at p. 788.) With respect to the legislative history quoted by the majority,
the retroactive application of section 1001.36 to a qualified offender who has already
been convicted would appear to advance the goal of halting “ ‘the continuous
warehousing of the mentally ill’ ” through “ ‘court-assisted interventions . . . more
likely to lead to longer, cheaper, more stable solutions for the community and for the
person suffering from mental illness’ ” (Maj. opn. ante, p. 17)—even if the interventions
come at a much later stage than will be the case through the prospective application of
the statute.
       For the reasons stated above, I conclude, based on the California Supreme Court’s
guidance in Lara, that section 1001.36 applies retroactively to cases not yet final on
appeal because there is no sufficiently clear indication of the Legislature’s intent to
limit the statute’s “ ‘ameliorating benefit,’ ” rather than extending it “ ‘as broadly as

                                              5
possible.’ ” (Lara, supra, 4 Cal.5th at p. 308.) I respectfully invite the California
Supreme Court to provide guidance at its earliest convenience regarding whether
section 1001.36 applies retroactively to all cases not yet final on appeal.




                                              6
                    ___________________________________
                    BAMATTRE-MANOUKIAN, J.




People v. Lipsett
H045282
Trial Court:                             Monterey County Superior Court

Trial Judge:                             Honorable Lydia Villarreal

Attorney for Defendant and Appellant:    James S. Thomson
                                         Under Appointment by the Sixth District
                                         Appellate Program

Attorney for Plaintiff and Respondent:   Xavier Becerra
                                         Attorney General of California

                                         Gerald A. Engler
                                         Chief Assistant Attorney General

                                         Jeffrey M. Laurence
                                         Senior Assistant Attorney General

                                         Catherine A. Rivlin
                                         Supervising Deputy Attorney General

                                         Basil R. Williams
                                         Deputy Attorney General




People v. Lipsett
H045282
