P. v. McDaniels

Filed 5/2/19 P. v. McDaniels CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA MCDANIELS,
Defendant and Appellant.
D073692
(Super. Ct. No. SCD264069)
APPEAL from a judgment of the Superior Court of San Diego County, David M.
Rubin, Judge. Affirmed.
Daniel J. Kessler, 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, Meredith S. White and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Joshua McDaniels of first degree murder (Pen. Code,1 § 187).
At a bifurcated proceeding, the jury also found that McDaniels was sane at the time he
committed the offense. The court sentenced McDaniels to prison for 25 years to life.
McDaniels appeals, arguing that we must remand this matter to allow the trial
court to consider granting McDaniels mental health diversion under section 1001.36,
which became effective after McDaniels committed the homicide. To this end,
McDaniels asks this court to follow People v. Frahs (2018) 27 Cal.App.5th 784 (Frahs),
review granted December 27, 2018, S252220 and conclude section 1001.36 is retroactive.
Our high court granted review in Frahs to address whether the mental health
diversion statute applies retroactively. Yet, we do not need to weigh in on this issue
because, effective January 1, 2019, the Legislature amended section 1001.36 to exclude
from consideration those defendants charged with murder. (See § 1001.36,
subd. (b)(2)(A).) McDaniels was charged with and convicted of murder. As such, even
if we assume section 1001.36 is retroactive, McDaniels is not eligible for the mental
diversion program under that statute. We therefore affirm the judgment.
FACTUAL BACKGROUND
Because this appeal presents a pure question of law, we need not discuss in detail
the underlying facts of McDaniels's crime. Suffice it to say, on October 9, 2015,
McDaniels killed the victim while both men were in a "dress out holding cell" in a local
jail.
1 Statutory references are to the Penal Code unless otherwise specified.

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At trial, McDaniels's primary defense was that he was suffering from a mental
health disorder at the time he killed the victim.
At the bifurcated sanity phase of the trial, one expert witness opined that
McDaniels was insane at the time he committed the homicide, and two other experts
disagreed. Two of the experts stated that McDaniels suffers from schizoaffective
disorder. The other expert testified that McDaniels suffers from an "unspecified
psychotic disorder."
Ultimately, the jury found McDaniels was sane at the time of the killing.
DISCUSSION
Effective June 27, 2018, the Legislature created a diversion program for
defendants with diagnosed and qualifying mental disorders such as schizophrenia, bipolar
disorder, and posttraumatic stress disorder.2 (§ 1001.36, subd. (a) & (b)(1)(A).) A court
may grant pretrial diversion under section 1001.36 if the court finds: (1) the defendant
suffers from an identified mental disorder; (2) the mental disorder played a significant
role in the commission of the charged offense; (3) the defendant's symptoms will respond
to treatment; (4) the defendant consents to diversion and the defendant 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, as defined in
section 1170.18, if the defendant is treated in the community. (§ 1001.36,
subd. (b)(1)(A)-(F).)
2 For purposes of our analysis here, we assume McDaniels is suffering from a
qualifying mental disorder under section 1001.36, subdivision (b)(1)(A).

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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).)
Effective January 1, 2019, the Legislature amended section 1001.36, to exclude
those defendants charged with murder. (See § 1001.36, subd. (b)(2)(A).) The People
thus argue that McDaniels is not eligible under section 1001.36 even if we find the statute
is retroactive. McDaniels counters that the failure to give him the opportunity for mental
health diversion on remand violates the ex post facto clauses of the California and United
States Constitutions. We disagree.
"A statute violates the prohibition against ex post facto laws if it punishes as a
crime an act that was innocent when done or increases the punishment for a crime after it
is committed." (People v. White (2017) 2 Cal.5th 349, 360.) The ex post facto
prohibition ensures that people are given "fair warning" of the possible punishment they
may be subjected to if they violate the law; they can rely on the meaning of the statute
until it is explicitly changed. (Weaver v. Graham (1981) 450 U.S. 24, 28-29.)
On October 9, 2015, McDaniels committed the crime of murder. On that date, the
possibility of pretrial mental health diversion did not exist (the earlier version of
section 1001.36 became effective on June 27, 2018). Consequently, McDaniels could not
have relied on the possibility of pretrial mental health diversion when he committed the

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crime of murder. Moreover, the Legislature's amendment of the statute to eliminate
murder as an eligible offense (effective January 1, 2019), did not make an act unlawful
that was not formerly unlawful, nor did it increase the punishment for any crime.
(See People v. White, supra, 2 Cal.5th at p. 360.) Thus, the amendment to
section 1001.36 does not violate ex post facto considerations.
In short, even if we assume section 1001.36 is retroactive, McDaniels is ineligible
for mental diversion as he was charged with murder. (See § 1001.36, subd. (b)(2)(A).)
DISPOSITON
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
GUERRERO, J.

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