Trial Court Erred By Denying Untimely Request For Mental Health Diversion

California v. Curry Court: California Courts of Appeal, Docket: C090409 (Third Appellate District), Opinion Date: March 22, 2021. Defendant-appellant David Curry was convicted by jury of robbery. Before the trial court sentenced him to state prison for 40 years to life and imposed various costs, defendant sought to file a motion for mental health diversion pursuant to Penal Code section 1001.36. The trial court ruled the motion was untimely and did not consider it. On appeal, defendant contended: (1) the trial court erred by denying as untimely his request for mental health diversion; (2) if the diversion request was untimely, trial counsel provided ineffective assistance; and (3) the trial court violated due process principles by imposing costs without determining defendant’s ability to pay. After review, the Court of Appeal agreed with defendant’s first contention and conditionally reversed the judgment with instructions for the trial court in considering defendant’s eligibility for mental health diversion. The Court's holding mooted defendant’s second contention. The Court disagreed with defendant’s due process challenge to costs imposed.