Filed 1/28/19
                               OPINION ON REHEARING

                     CERTIFIED FOR PARTIAL PUBLICATION *

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D073304

        Plaintiff and Respondent,

        v.                                         (Super. Ct. No. SCS295489)

VERONICA AGUAYO,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County, Dwayne

K. Moring, Judge. Conditionally reversed, with directions.

        Linnéa M. Johnson, 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, Warren Williams and Steve

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.




*      Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part II of the Discussion.
       Veronica Aguayo hit her elderly father about 50 times with a bicycle lock and

chain, then threw a ceramic pot on his head. A jury found her guilty of assault with a

deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1)) and assault by means

of force likely to produce great bodily injury (force-likely assault) (Pen. Code, § 245,

subdivision (a)(4)). 1 The trial court placed her on probation. Aguayo appealed.

       This is our second opinion in this appeal. In our original opinion, we rejected the

sole issue Aguayo initially asserted: that we must vacate her conviction for force-likely

assault because it is a lesser included offense of assault with a deadly weapon. Aguayo

then filed a petition for rehearing in which she challenged the reasoning of our original

opinion and asserted a new argument based on legislation enacted while this appeal was

pending. Specifically, she argued that newly enacted sections 1001.35 and 1001.36,

which grant trial courts the discretion to place defendants with mental disorders into

pretrial diversion, apply retroactively to her case. We granted Aguayo's petition on the

newly asserted issue and received supplemental briefing from the parties.

       In this opinion, we once again reject the lesser-included-offense argument Aguayo

originally raised. The portions of this opinion addressing that issue are substantively

identical to our original opinion. As to the new issue, which is now pending before the

California Supreme Court on its own motion (see People v. Frahs (2018) 27 Cal.App.5th

784, 791 (Frahs) [finding the statutes retroactive], review granted Dec. 27, 2018,



1      Statutory references are to the Penal Code unless otherwise noted. For
convenience, we will use the phrase "deadly weapon" to refer to a deadly weapon other
than a firearm, unless otherwise noted.
                                             2
S252220), we conclude the mental health diversion legislation applies retroactively. We

further conclude Aguayo has made a showing of potential eligibility sufficient to warrant

a remand for further proceedings. Accordingly, we conditionally reverse the judgment

for the limited purposes specified in the Disposition.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On the afternoon of August 8, 2017, 43-year-old Veronica Aguayo was working

on her bicycle in her parents' yard. Her 72-year-old father (Father) turned on the

sprinklers to water the plants, accidentally wetting Aguayo's cell phone charger. Aguayo

began yelling expletives and insults at Father, who turned around to go back inside

because he "didn't want to hear her mouth calling [him] names."

       As Father turned, Aguayo hit him on the back with her bicycle lock and chain.

Father grabbed the lock to prevent Aguayo from hitting him again, but as they struggled

over the lock, Father slipped and let go of the chain. Aguayo then hit Father with the

chain and lock about 15 times on the arms, chest, and head. Father again grabbed the

lock, and during a struggle for possession, Aguayo fell to the ground, pulling Father with

her.

       On the ground, Aguayo began "hollering" for her mother (Mother) inside. Aguayo

then grabbed a small ceramic pot and threw it at Father, striking his head exactly where

he had previously had two brain surgeries. Father fell on top of Aguayo, grabbed a rock

to hit her with, but thought better of it and threw the rock away. However, the rock

ricocheted off the house and hit Aguayo.



                                             3
       Father got up to go back in the house, and another struggle ensued for possession

of the chain and lock, which Father apparently won. As Aguayo picked up a rock to hit

Father, Mother emerged from the front door and warned, "Don't do that." Aguayo

discarded the rock, and Father tossed the chain and lock toward her. Aguayo picked up

the chain and lock, and rode off on her bicycle. The whole encounter lasted between five

minutes (according to Mother) and 30 minutes (according to Father), during which Father

estimated he was hit about 50 times.

       Mother called 911, and police and paramedics responded. Father was evaluated at

the hospital and released with only minor treatment. Police apprehended Aguayo a few

hours later during an unrelated traffic stop.

       Aguayo was charged with three offenses: (1) elder abuse, with deadly-weapon and

great-bodily-injury enhancement allegations (§§ 368, subd. (b)(1), 1192.7, subd. (c)(23),

12022, subd. (b)(1)); count 1); (2) assault with a deadly weapon, with an enhancement

allegation that she "personally used a dangerous and deadly weapon, to wit: bicycle

chain/lock" (§§ 245, subd. (a)(1), 1192.7, subd. (c)(23); count 2); and (3) force-likely

assault (§ 245, subd. (a)(4); count 3). After deliberating less than two hours, the jury

found Aguayo guilty on both assault counts, and found true the deadly-weapon-use

allegation attached to count 2. The jury was unable to reach a verdict on the elder abuse

count, which the court ultimately dismissed at the prosecutor's request.

       Although Aguayo was presumptively ineligible for probation, the court found she

had untreated mental health issues that constituted unusual circumstances warranting

probation. Accordingly, the court suspended imposition of sentence and placed Aguayo

                                                4
on three years' formal probation with a variety of terms and conditions, including that she

spend 365 days in local custody. Despite having suspended imposition of sentence, the

court sentenced Aguayo concurrently on counts 2 and 3, but stayed the sentence on count

3 under section 654.

       Aguayo appeals.

                                       DISCUSSION

                       I. Aguayo's Lesser-included-offense Challenge

       Aguayo contends we must vacate her conviction for force-likely assault because it

is a lesser included offense of assault with a deadly weapon. We disagree.

       "In general, a person may be convicted of, although not punished for, more than

one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38

Cal.4th 1224, 1226 (Reed); see §§ 954, 2 654; 3 People v. Sanders (2012) 55 Cal.4th 731,

736 (Sanders); People v. Cady (2016) 7 Cal.App.5th 134, 139 (Cady).) "However, a



2       Section 954, which addresses multiple convictions, states in part: "An accusatory
pleading may charge two or more different offenses connected together in their
commission, or different statements of the same offense or two or more different offenses
of the same class of crimes or offenses, under separate counts . . . . The prosecution is
not required to elect between the different offenses or counts set forth in the accusatory
pleading, but the defendant may be convicted of any number of the offenses charged, and
each offense of which the defendant is convicted must be stated in the verdict or the
finding of the court . . . ."

3      Section 654, subdivision (a), which prohibits multiple punishments, states: "An act
or omission that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one bars a prosecution for
the same act or omission under any other."
                                             5
'judicially created exception to this rule prohibits multiple convictions based on

necessarily included offenses.' " (Sanders, at p. 736; see Reed, supra, 38 Cal.4th at p.

1227; Cady, at p. 139.) "When a defendant is found guilty of both a greater and a

necessarily lesser included offense arising out of the same act or course of conduct, and

the evidence supports the verdict on the greater offense, that conviction is controlling,

and the conviction of the lesser offense must be reversed." (Sanders, at p. 736; Cady, at

p. 139.) "If neither offense is necessarily included in the other, the defendant may be

convicted of both, 'even though under section 654 he or she could not be punished for

more than one offense arising from the single act or indivisible course of conduct.' "

(Sanders, at p. 736.)

       The courts "have established two tests for whether a crime is a lesser included

offense of a greater offense: the elements test and the accusatory pleading test." (People

v. Gonzalez (2018) 5 Cal.5th 186, 197.) The parties agree that "[i]n deciding whether

multiple convictions are barred because one offense is a lesser included offense of the

other, we apply the 'elements' test." (Cady, supra, 7 Cal.App.5th at p. 140; see Reed,

supra, 38 Cal.4th at p. 1229.) "Under the elements test, if the statutory elements of the

greater offense include all of the statutory elements of the lesser offense, the latter is

necessarily included in the former." (Reed, at p. 1227; see Sanders, supra, 55 Cal.4th at

p. 737.) "In other words, ' "[i]f a crime cannot be committed without also necessarily

committing a lesser offense, the latter is a lesser included offense within the former." ' "

(Sanders, at p. 737; see Reed, at p. 1227.) We apply the elements test "in the abstract,"



                                               6
without regard to the "evidence introduced at trial." (People v. Chaney (2005) 131

Cal.App.4th 253, 256 (Chaney).)

       Simple assault "is an unlawful attempt, coupled with a present ability, to commit a

violent injury on the person of another." (§ 240.) Section 245 enumerates several forms

of aggravated assault. We are concerned here with two of the forms specified in

subdivision (a):

          "(1) Any person who commits an assault upon the person of another
          with a deadly weapon or instrument other than a firearm shall be
          punished . . . . [¶] . . . [¶]

          "(4) Any person who commits an assault upon the person of another
          by any means of force likely to produce great bodily injury shall be
          punished . . . ."

       Using CALCRIM No. 875, the trial court instructed the jury regarding the

elements of assault with a deadly weapon and force-likely assault. As instructed, the

elements of assault with a deadly weapon are:

          "1. The defendant did an act with a deadly weapon other than a
          firearm that by its nature would directly and probably result in the
          application of force to a person;

          "2. The defendant did that act willfully;

          "3. When the defendant acted, she was aware of facts that would
          lead a reasonable person to realize that her act by its nature would
          directly and probably result in the application of force to someone;

          "4. When the defendant acted, she had the present ability to apply
          force with a deadly weapon other than a firearm[;] [¶] AND




                                             7
          "5. The defendant did not act in self-defense." 4

      The elements of force-likely assault are:

          "1. The defendant did an act that by its nature would directly and
          probably result in the application of force to a person, and

          "2. The force used was likely to produce great bodily injury;

          "3. The defendant did that act willfully;

          "4. When the defendant acted, she was aware of facts that would
          lead a reasonable person to realize that her act by its nature would
          directly and probably result in the application of force to someone;

          "5. When the defendant acted, she had the present ability to apply
          force likely to produce great bodily injury to a person. [¶] AND

          "6. The defendant did not act in self-defense."

      As to both offenses, the jury was instructed with CALCRIM No. 875 regarding the

meaning of "force":

          "The terms application of force and apply force mean to touch in a
          harmful or offensive manner. The slightest touching can be enough
          if it is done in a rude or angry way. Making contact with another
          person, including through his or her clothing, is enough. The
          touching does not have to cause pain or injury of any kind.
          [¶] . . . [¶] The People are not required to prove that the defendant
          actually touched someone. [¶] The People are not required to prove
          that the defendant actually intended to use force against someone
          when she acted. [¶] No one needs to actually have been injured by
          defendant's act. But if someone was injured, you may consider that
          fact, along with all the other evidence, in deciding whether the
          defendant committed an assault, and if so, what kind of assault it
          was."


4      The court included this optional self-defense element because Aguayo testified she
struck her father with the chain and lock only because he lunged at her while she was
swinging the chain defensively.

                                            8
       The elements of both offenses are, thus, substantially similar except for the first

element of assault with a deadly weapon (doing an act with a deadly weapon), and the

first and second elements of force-likely assault (doing an act that would probably result

in the application of force to a person where the force is "likely to produce great bodily

injury"). Force-likely assault, then, is only a lesser included offense of assault with a

deadly weapon if every assault with a deadly weapon requires that the defendant use the

weapon in a way that is likely to produce great bodily injury. Although that will often be

the case, it is not necessarily so.

       In People v. Aguilar (1997) 16 Cal.4th 1023 (Aguilar), the California Supreme

Court addressed whether hands and feet can constitute deadly weapons under section

245. (Aguilar, at p. 1026.) In doing so, the court explored the meaning of "deadly

weapon" as used in section 245:

           "[A] 'deadly weapon' is 'any object, instrument, or weapon which is
           used in such a manner as to be capable of producing and likely to
           produce, death or great bodily injury.' [Citation.] Some few objects,
           such as dirks and blackjacks, have been held to be deadly weapons
           as a matter of law; the ordinary use for which they are designed
           establishes their character as such. [Citations.] Other objects, while
           not deadly per se, may be used, under certain circumstances, in a
           manner likely to produce death or great bodily injury. In
           determining whether an object not inherently deadly or dangerous is
           used as such, the trier of fact may consider the nature of the object,
           the manner in which it is used, and all other facts relevant to the
           issue." (Aguilar, at pp. 1028-1029.)

       In light of this definition, the court explained that, "Ultimately, (except in those

cases involving an inherently dangerous weapon), the jury's decisionmaking process in



                                              9
an aggravated assault case under section 245, subdivision (a)(1),[ 5] is functionally

identical regardless of whether, in the particular case, the defendant employed a weapon

alleged to be deadly as used or employed force likely to produce great bodily injury; in

either instance, the decision turns on the nature of the force used." (Aguilar, supra, 16

Cal.4th at p. 1035, italics added.) Thus, although the court concluded "a 'deadly weapon'

within the meaning of section 245 must be an object extrinsic to the human body" (id. at

p. 1034), the court found the prosecutor's contrary closing argument was harmless

because the jury necessarily engaged in the same analysis under either theory because the

alleged weapons (hands and feet) were not inherently deadly and, thus, their deadly

nature turned on the manner of their use. (Id. at p. 1036 ["Regardless . . . of which path

the jury took, the same finding was necessary to a verdict of guilt."].)

       But the Aguilar court explained that its reasoning equating assault with a deadly

weapon and force-likely assault does not apply in the context of an inherently deadly

weapon:

          "We observe that, despite the identity of the jury's reasoning
          processes under either the 'deadly weapon' clause or the 'force likely'
          clause in this case, our holding does not reduce the former clause to
          surplusage. There remain assaults involving weapons that are
          deadly per se, such as dirks and blackjacks, in which the prosecutor
          may argue for, and the jury convict of, aggravated assault based on


5       When Aguilar was decided, assault with a deadly weapon and force-likely assault
were both contained in subdivision (a)(1) of former section 245. (Aguilar, supra, 16
Cal.4th at p. 1028.) The Legislature subsequently split them into subdivisions (a)(1) and
(a)(4), respectively. (Stats. 2011, ch. 183, § 1; see People v. Brunton (2018) 23
Cal.App.5th 1097, 1104, rehg. den. June 11, 2018, petn. for review pending, petn. filed
July 5, 2018 (Brunton).) As we explain below, this legislative amendment does not alter
our analysis.
                                             10
             the mere character of the weapon." (Aguilar, supra, 16 Cal.4th at p.
             1037, fn. 10, italics added.)

       Justice Mosk wrote a concurring opinion synthesizing the Aguilar majority's

reasoning:

             "[Section 245] punishes an assault committed either (1) with a
             'deadly weapon or instrument' other than a firearm or (2) by means
             of any 'force likely to produce great bodily injury.' [¶] In turn, a
             'deadly weapon or instrument' is either (1) a weapon that is deadly
             per se (e.g., a dagger) or (2) any 'object, instrument, or weapon' that
             is used in a way likely to produce death or great bodily injury (e.g., a
             hammer). [Citations.] [¶] Reading this definition back into the
             statute, we find that section 245 . . . thus actually punishes an assault
             committed in any one of three ways: i.e., (1) with a weapon deadly
             per se, or (2) with an object used in a way likely to produce great
             bodily injury, or (3) by means of a force also likely to produce great
             bodily injury." (Aguilar, supra, 16 Cal.4th at p. 1038 (conc. opn. of
             Mosk, J.).)

       Aguilar's distinction between inherently and noninherently deadly weapons is

reflected in CALCRIM No. 875's definition of "deadly weapon," which states: "A deadly

weapon other than a firearm is any object, instrument, or weapon that is [1] inherently

deadly or [2] one that is used in such a way that it is capable of causing and likely to

cause death or great bodily injury."

       Applying these principles, we conclude force-likely assault is not a lesser included

offense of assault with a deadly weapon because, although every force-likely assault must

be committed in a way that is likely to produce great bodily injury (either with or without

a deadly weapon), there is a subset of assaults with deadly weapons—those committed

with inherently deadly weapons—that are not necessarily likely to produce great bodily

injury. The Attorney General posits the following illustration:


                                                11
          "For example, if a defendant cuts a single strand of a sleeping
          person's hair with an inherently dangerous weapon such as a dagger,
          he will have committed assault with a deadly weapon even if no
          evidence shows he used the dagger in a manner capable of causing
          or likely to cause death or great bodily injury. Although a defendant
          must do an act 'that by its nature would directly and probably result
          in the application of force to a person' (CALCRIM [No.] 875), the
          'terms application of force and apply force mean to touch in a
          harmful or offensive manner. The slightest touching can be enough
          if it is done in a rude or angry way.' (Ibid.) Moreover, the 'People
          are not required to prove that the defendant actually touched
          someone.' (Ibid.)" (Italics added.)

       Aguayo maintains we are not bound by Aguilar because its discussion of

inherently deadly weapons is merely dicta and it addressed an earlier version of section

245. We agree Aguilar is not binding, but we find its analysis highly persuasive because

of the depth in which the court analyzed the interplay between deadly weapons and the

use of force likely to produce great bodily injury. (See People v. Brown (2000) 77

Cal.App.4th 1324, 1336 ["even dictum from our Supreme Court is considered 'highly

persuasive' "].) And although section 245 was amended post-Aguilar to separate assault

with a deadly weapon and force-likely assault into separate subdivisions, our court

previously explained that "the Legislature made clear it was making only 'technical,

nonsubstantive changes' to section 245 (Legis. Counsel's Dig., Assem. Bill No. 1026

(2011-2012 Reg. Sess.)) to provide clarity for purposes of recidivist enhancements . . . ."

(Brunton, supra, 23 Cal.App.5th at p. 1107.)

       Aguayo relies heavily on In re Jonathan R. (2016) 3 Cal.App.5th 963, which

concluded force-likely assault is a lesser included offense of assault with a deadly

weapon. (Id. at pp. 971-972.) We decline to follow Jonathan R. First, it focuses


                                            12
primarily on noninherently deadly weapons, relegating to a single footnote its discussion

of Aguilar's recognition of inherently deadly weapons. (Jonathan R., at pp. 971-974 &

fn. 5.) In that footnote, the Jonathan R. court concludes that the use of inherently deadly

weapons "necessarily involves the use of force likely to produce death or serious injury"

because they " 'are "dangerous or deadly" to others in the ordinary use for which they are

designed.' " (Id. at p. 973-974, fn. 5, italics added.) But as the Attorney General's

example illustrates, there are nonordinary uses to which one can put an inherently deadly

weapon (e.g., cutting a single strand of hair) without altering the weapon's inherently

deadly character. 6 Second, as our court previously explained in Brunton, due to

intervening California Supreme Court authority, we place less weight on the intervening

amendment to section 245 than did the Jonathan R. court. (See Brunton, supra, 23

Cal.App.5th at pp. 1106-1107.)

       Aguayo argues we should follow Jonathan R. here because a different panel of our

court applied it in an admittedly different context in In re Jose S. (2017) 12 Cal.App.5th

1107. We are not persuaded. In Jose S., a former ward of the juvenile court sought to

seal his juvenile criminal record, which included an admission of assault with a deadly

weapon (a knife). (Id. at p. 1112.) The juvenile court concluded his record was ineligible

for sealing because his assault conviction was a disqualifying offense under the statutory

sealing scheme. (Id. at p. 1112-1113.) On appeal, the appellant argued (for the first


6      By analogy, an individual can commit an assault with a semiautomatic firearm
(§ 245, subd. (b)) even if the firearm is unloaded and used as a mere bludgeon. (See
People v. Miceli (2002) 104 Cal.App.4th 256, 270.)

                                             13
time) his assault conviction was not disqualifying because the sealing statute enumerated

assault with a firearm and force-likely assault, but not assault with a deadly weapon (the

offense he admitted). (Id. at p. 1121.) In rejecting this argument, our court noted the

juvenile court was authorized to consider not only the allegations of the charging

document, but also the facts and circumstances of the actual offense. (Id. at p. 1122.) In

that light, our court concluded the juvenile court was justified in concluding the

defendant's assault with a deadly weapon "amounted to" and "encompasse[d]" force-

likely assault because the evidence supported the factual finding that "[t]he knife used by

[the minor] was capable of causing, and did cause, great bodily injury." (Id. at pp. 1122-

1123.) In that sense, the manner in which the minor committed the assault with a deadly

weapon was also likely to produce great bodily injury and, thus, was tantamount to a

force-likely assault.

       Here, unlike in Jose S., we are not authorized to consider the facts and

circumstances of the offense. Rather, we must apply the elements test "in the abstract,"

without regard to the "evidence introduced at trial." (Chaney, supra, 131 Cal.App.4th at

p. 256.) Thus, Jose S. is inapposite.

       In sum, because an assault can be committed with an inherently deadly weapon

without necessarily using force likely to produce great bodily injury, force-likely assault

is not a lesser included offense of assault with a deadly weapon.

       In her reply brief, Aguayo raises for the first time the alternative argument that

even if we conclude (as we have) that force-likely assault is not a lesser included offense

of assault with a deadly weapon, we must nonetheless vacate her conviction for force-

                                             14
likely assault because it is based on the same act as the assault with a deadly weapon

conviction. This argument fails for several reasons. First, "[o]rdinarily, we do not

consider arguments raised for the first time in a reply brief." (People v. Mickel (2016) 2

Cal.5th 181, 197.) Aguayo has given us no reason to depart from this practice. Second,

Aguayo has not sufficiently developed the argument or supported it with citations to

supporting legal authority. (See In re Groundwater Cases (2007) 154 Cal.App.4th 659,

690, fn. 18 [failure to develop an argument or cite any authority in support of a

contention results in the forfeiture of the issue on appeal].) Finally, the only case Aguayo

cites in support of her argument, Brunton, supra, 23 Cal.App.5th 1097, is readily

distinguishable. There, our court concluded convictions for force-likely assault and

assault with a deadly weapon were impermissibly duplicative because they were both

based on the defendant's single act—"choking his cellmate with a tightly rolled towel."

(Id. at p. 1099.) Here, however, Aguayo's convictions are based on multiple acts—hitting

her father with the bicycle chain and lock, and hitting him with the ceramic pot.

                II. Retroactivity of the Mental Health Diversion Statutes

       Aguayo contends the newly enacted mental health diversion statutes apply

retroactively and that she has made a factual showing of potential eligibility sufficient to

warrant a remand. We agree.

                                     A. Retroactivity

                               1. The Diversion Legislation

       "Generally, pretrial diversion is the suspension of criminal proceedings for a

prescribed time period, subject to certain conditions. (See, e.g., §§ 1000.1 [diversion for

                                             15
specified drug offenses], 1001.60 [bad check diversion], 1001.70 [parental diversion],

1001.80 [military diversion].) Ordinarily, when a defendant successfully completes a

diversion program, the criminal charges are dismissed and the defendant may legally

answer that he or she has never been arrested for—or charged with—the diverted offense,

subject to certain exceptions. (See also, e.g., §§ 1001.9, 1001.33, 1001.55.)" (Frahs,

supra, 27 Cal.App.5th at p. 788, rev. gr.)

       Effective June 27, 2018, as part of a larger health care bill, 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. (See

Stats. 2018, ch. 34, § 24.) The statutes define "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, to allow the defendant

to undergo mental health treatment," provided the defendant satisfies certain eligibility

prerequisites. (§ 1001.36, subd. (c).)

       Section 1001.35 sets forth the legislative purpose of "promot[ing] 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."



                                             16
       Section 1001.36 gives trial courts the discretion to grant pretrial diversion if the

court finds the following eligibility criteria are satisfied: (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. (§ 1001.36, subd. (b)(1)(A)-(F).) 7

       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, subds. (c)(1)(B) & (c)(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).) A "defendant

who successfully completes diversion may indicate in response to any question

concerning his or her prior criminal record that he or she was not arrested or diverted for



7       Shortly after section 1001.36 was enacted, it was amended to (1) eliminate a
defendant's eligibility if the defendant committed certain offenses; (2) allow the trial
court "[a]t any stage of the proceedings" to "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"; and (3) to
make certain technical changes (e.g., changing the phrase "played a significant role" to
"was a significant factor" [italics added]). (Stats. 2018, ch. 1005 (Sen. Bill No. 215), § 1,
eff. Jan. 1, 2019.) These amendments have no bearing on the issues in this appeal.

                                              17
the offense," except in connection with applying for employment as a peace officer.

(§ 1001.36, subds. (e), (g)(1).)

                                   2. Retroactivity Principles

       Criminal statutes are generally presumed to apply prospectively, unless they

indicate otherwise. (§ 3; In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada); People v.

Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara).) In Estrada, however, the

Supreme Court concluded the presumption against retroactivity does not apply when the

Legislature reduces the punishment for a particular crime. (Estrada, at pp. 744-745.)

" 'The Estrada rule 'rests on an inference that, in the absence of contrary indications, a

legislative body ordinarily intends for ameliorative changes to the criminal law to extend

as broadly as possible, distinguishing only as necessary between sentences that are final

and sentences that are not.' " (Lara, at p. 308; see Estrada, at p. 745 ["When the

Legislature amends a statute so as to lessen the punishment it has obviously expressly

determined that its former penalty was too severe and that a lighter punishment is proper

as punishment for the commission of the prohibited act. It is an inevitable inference that

the Legislature must have intended that the new statute imposing the new lighter penalty

now deemed to be sufficient should apply to every case to which it constitutionally could

apply."].)

       Although the Estrada rule arose in the context of ameliorating the punishment for

a particular crime (Estrada, supra, 63 Cal.2d at pp. 743-744 [escape without force or

violence]), the Supreme Court in Lara concluded the rule likewise applies when the

Legislature "ameliorate[s] the possible punishment for a class of persons" (Lara, supra, 4

                                               18
Cal.5th at p. 308, italics added). Thus, the Lara court held that Proposition 57, which

generally eliminated a district attorney's discretion to file criminal charges against a

juvenile in "adult" criminal court, applied retroactively because " 'for a minor accused of

a crime, it is a potential "ameliorating benefit" to have a neutral judge, rather than a

district attorney, determine that he or she is unfit for rehabilitation within the juvenile

justice system.' " (Lara, at p. 308.) The court reasoned Estrada's inference of

retroactivity applied because "[n]othing in Proposition 57 itself or the ballot materials

rebuts this inference." (Lara, at p. 309.)

                                         3. Analysis

       Section 1001.36 is undeniably potentially ameliorative to the class of persons who

meet its eligibility requirements. If an eligible defendant successfully completes

diversion, the court will dismiss his or her criminal charges, and he or she can generally

say "he or she was not arrested or diverted for the offense." (§ 1001.36, subds. (e),

(g)(1).) Thus, under the Estrada rule, section 1001.36 applies retroactively, "in the

absence of contrary indications." (Lara, supra, 4 Cal.5th at p. 308.)

       The Attorney General contends section 1001.36 contains contrary indications—the

statute uses the phrase "pretrial diversion," the definition of which indicates it applies

"until adjudication," which occurs before appeal. (§ 1001.36, subd. (c), italics added.)

The Attorney General contends these phrases are tantamount to a legislative expression

of intent that the statute not apply retroactively. We are not persuaded. Nor was the

court in Frahs, supra, 27 Cal.App.5th at page 791, which rejected the same argument

with the following explanation:

                                              19
           "The 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, supra, 4 Cal.5th 299, from finding that
           such a hearing must be made available to all defendants whose
           convictions are not yet final on appeal." 8

       Furthermore, the California Supreme Court decided Lara before the Legislature

passed section 1001.36. The Legislature is deemed to have been aware of the decision

and its impact on legislation that potentially ameliorates punishment for an entire class of

persons. (See People v. Overstreet (1986) 42 Cal.3d 891, 897 ["[T]he Legislature is

deemed to be aware of existing laws and judicial decisions in effect at the time legislation

is enacted and to have enacted and amended statutes ' "in the light of such decisions as

have a direct bearing upon them." ' "].)

       The Attorney General also cites the legislative history of sections 1001.35 and

1001.36 to support the proposition that they were enacted for budgetary reasons rather

than to benefit offenders with mental disorders. Although we granted the Attorney

General's request to take judicial notice of these materials, we find it unnecessary to refer

to them in discerning the Legislature's intent because section 1001.35 unambiguously

expresses the statutes' purpose. Moreover, sections 1001.35 and 1001.36 were only a

small part of the legislation to which the historical materials relate (see Stats. 2018, ch.




8     Although the California Supreme Court granted review in Frahs on its own
motion, we may (and do) cite Frahs for its persuasive value. (Cal. Rules of Court, rule
8.115(e)(1).)
                                              20
34, §§ 1-32), and the Attorney General has not persuaded us that budgetary

considerations addressed in the materials refer to section 1001.36.

       Because section 1001.36 is potentially ameliorative to an entire class of persons,

and because the statute does not express a legislative intent that it be applied only

prospectively, we conclude the Estrada rule applies to section 1001.36 such that it must

be applied retroactively to any eligible defendant whose judgment is not final.

                                  B. Sufficient Showing

         Having concluded section 1001.36 applies retroactively, we must now

determine whether Aguayo has made a showing of potential eligibility sufficient to

warrant a remand. Aguayo argues no showing of potential eligibility is required on

appeal, or, alternatively, that we should presume remand is appropriate "unless the record

is clear the [trial] court would not exercise [its] newly-created discretion." She maintains

it "would be fundamentally unfair" to require her to make the same eligibility showing on

appeal that would have been required in the trial court because "[t]here would have been

no reason to make any record showing eligibility in the trial court before the new statutes

were enacted."

         The Attorney General counters that "remand should not be required until a

defendant makes at least a prima facie showing" under all the eligibility criteria set forth

in section 1001.36, subdivision (b). Otherwise, the Attorney General reasons, reviewing

courts will "be required to remand all cases that were not final in June 2018 [when the

mental health diversion statutes took effect] unless there is affirmative evidence in the

record establishing that the defendant was ineligible for mental health diversion."

                                             21
          We need not determine in the abstract the precise evidentiary showing required

to warrant a remand because we are satisfied there is sufficient evidence in this record to

support Aguayo's argument she can make a prima facie showing of eligibility on remand.

(We express no view on whether she ultimately will be able to do so.)

          First, the record suggests Aguayo may suffer from a qualifying mental disorder.

She told her probation officer she "was diagnosed with Post Traumatic Stress Disorder

(PTSD)" in 2010 and "is currently prescribed Cymbalta and Zyprexa" (italics added),

which are used to treat depression, anxiety disorder, schizophrenia, and bipolar disorder. 9

Section 1001.36 lists PTSD, schizophrenia, and bipolar disorder as specific examples of

qualifying mental disorders. (§ 1001.36, subd. (b)(1)(A).)

          Second, the record suggests Aguayo's possible mental disorders were "a

significant factor in the commission of the charged offense." (§ 1001.36, subd.

(b)(1)(B).) Indeed, the trial court stated at sentencing that it "believe[d] the offense was

committed because of a mental condition that aggravated [Aguayo's] behavior." (Italics

added.)

          Finally, the sentence the trial court imposed suggests the court may have been

willing to place Aguayo into mental health diversion had it been an available option.

That is, even though Aguayo was presumptively ineligible for probation and the



9       Cymbalta "is used to treat depression and generalized anxiety disorder."
(https://medlineplus.gov/druginfo/meds/a604030.html [as of January 17, 2019].)
Zyprexa "is used to treat the symptoms of schizophrenia" and "to treat bipolar disorder."
(https://medlineplus.gov/druginfo/meds/a601213.html [as of January 17, 2019].)

                                             22
probation officer "adamantly believe[d] probation is not appropriate in this case," the trial

court nonetheless granted Aguayo probation based (in part) on her untreated mental

health issues.

         Again, we express no view on whether Aguayo ultimately will be able to make

a prima facie showing of eligibility on remand. Nor do we express any view on how the

trial court should exercise its discretion if the court finds her eligible. We grant remand

merely to effectuate the stated legislative purpose of promoting "[i]ncreased diversion of

individuals with mental disorders to mitigate the individuals' entry and reentry into the

criminal justice system while protecting public safety." (§ 1001.35, subd. (a).)

                                       DISPOSITION

       The judgment is conditionally reversed. The cause is remanded to the trial court

with directions to conduct a diversion eligibility hearing under section 1001.36.

       If the trial court determines Aguayo is not eligible for diversion, then the court

shall reinstate the judgment.

       If the trial court determines Aguayo is eligible for diversion but, in exercising its

discretion, the court further determines diversion is not appropriate under the

circumstances, then the court shall reinstate the judgment.

       If the trial court determines Aguayo is eligible for diversion and, in exercising its

discretion, the court further determines diversion is appropriate under the circumstances,

then the court may grant diversion. If Aguayo successfully completes diversion, the

court shall dismiss the charges in accordance with section 1001.36, subdivision (e).



                                             23
However, if Aguayo does not successfully complete diversion, then the trial court shall

reinstate the judgment.




                                                                   HALLER, Acting P. J.

WE CONCUR:



IRION, J.



DATO, J.




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