In People v. Braden, a 5-2 Supreme Court holds that, under a statute allowing a superior court to “grant pretrial diversion” for treatment (leading to possible later dismissal of charges) to defendants accused of certain crimes and diagnosed with certain mental disorders (Penal Code section 1001.36), a defendant must request the diversion “before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first.” It’s yet another case where the court needs to interpret messily drafted legislation.

On the one hand, section 1001.36 says it’s about “pretrial diversion,” but it also defines that term as “any point in the judicial process from the point at which the accused is charged until adjudication.” (Emphases added.) The court’s opinion by Justice Carol Corrigan reviews that language and a bunch of other opaque clues the Legislature dropped into the statutory scheme to conclude that the defendant in the case could not seek diversion after a guilty verdict but before sentencing. “[A] request for pretrial diversion must be made before the process of adjudicating the charges begins,” the court finds.

The majority also determines that diversion requests after the adjudication process starts weren’t authorized by People v. Frahs (2020) 9 Cal.5th 618, where the court determined that section 1001.36 applies retroactively to cases in which the judgment is not yet final. And it acknowledges that its interpretation “might foreclose some otherwise potentially meritorious diversion claims.”

Justice Kelli Evans dissents in an opinion signed by Justice Goodwin Liu. It’s Justice Evans first opinion since joining the court five months ago. She writes that, “[i]n focusing on the word ‘pretrial’ in isolation, the majority places undue emphasis on diverting defendants away from trial,” while “the Legislature made clear that the overriding purpose of mental health diversion is to divert people with mental illness into treatment and rehabilitation and away from the normal criminal process — particularly incarceration.” Evans asserts that trial courts should not be “[d]ivest[ed] . . . of the discretion to consider midtrial and posttrial diversion requests.”

The court affirms the partially published opinion of the Fourth District, Division Two, which disagreed with the Third District’s decision in People v. Curry (2021) 62 Cal.App.5th 314. The court disapproves Curry and the Second District, Division Two, opinion in People v. Graham (2021) 64 Cal.App.5th 827. Both Curry and Graham are grant-and-holds waiting for today’s decision.