People v. Rodriguez CA6 ( 2021 )


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  • Filed 6/28/21 P. v. Rodriguez CA6
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SIXTH APPELLATE DISTRICT
    THE PEOPLE,                                                          H046731
    (Santa Clara County
    Plaintiff and Respondent,                                  Super. Ct. No. C1654170)
    v.
    LARRY WILLIAM RODRIGUEZ,
    Defendant and Appellant.
    A jury convicted defendant Larry William Rodriguez of assault with a deadly
    weapon and simple battery, and he was sentenced to prison. He argues the judgment
    must be conditionally reversed to allow him to seek mental health diversion in the trial
    court under Penal Code section 1001.36. He also notes an error in the abstract of
    judgment. The People concede both points and we accept the concessions. We will
    conditionally reverse the judgment and remand the matter to the trial court with
    directions to conduct a diversion eligibility hearing.
    I.     TRIAL COURT PROCEEDINGS
    Defendant was charged with assault with a deadly weapon (Pen. Code, § 245,
    subd. (a)(1)) and simple battery (Pen. Code, §§ 242, 243). The information alleged
    defendant had one prior strike conviction (Pen. Code, § 667, subds. (b)–(i)), one prior
    serious felony conviction (Pen. Code, § 667, subd. (a)), and had served one prior prison
    term (Pen. Code, § 667.5, subd. (b)). The charges were based on two incidents of
    domestic violence perpetrated by defendant against his father. His father reported
    defendant had mental health issues. (A detailed factual recitation is unnecessary given
    the nature of defendant’s appellate arguments.)
    A question arose as to defendant’s competence to stand trial, and proceedings
    were temporarily stayed. (Pen. Code, §§ 1368–1370.) Defendant was found incompetent
    to stand trial in 2017 based on psychological evaluations that opined defendant was
    suffering from bipolar disorder, schizoaffective disorder, or an “unspecified
    schizophrenia spectrum and other psychotic disorder.” The trial court found defendant
    restored to competence later that year, and the matter proceeded to a jury trial.
    A jury found defendant guilty of the two charged offenses, and defendant admitted
    the three special allegations. Defendant was sentenced to nine years in prison, consisting
    of four years for assault with a deadly weapon (the low term, doubled because of the
    prior strike conviction; Pen. Code, §§ 245, subd. (a)(1), 667, subd. (e)(1)) and five years
    consecutive for the prior serious felony conviction (Pen. Code, § 667, subd. (a)). The
    trial court orally struck punishment for the prior prison term enhancement because it was
    based on the same conduct as the prior serious felony enhancement, but the abstract of
    judgment lists it as being stayed rather than stricken.
    II.   DISCUSSION
    A. MENTAL HEALTH DIVERSION (PEN. CODE, § 1001.36)
    The parties agree that we should conditionally reverse and remand the matter to
    allow the trial court to hold a mental health diversion hearing. Penal Code
    section 1001.36 allows for pretrial diversion for individuals diagnosed with qualifying
    mental disorders including, among other things, schizophrenia and psychosis. To qualify
    for diversion, a court must find that a defendant meets six criteria: the defendant suffers
    from a qualifying mental disorder; the disorder played a significant role in the
    commission of the charged offense; a qualified expert has opined that the defendant’s
    symptoms are treatable; the defendant has consented to diversion and has waived his or
    her right to a speedy trial; the defendant agrees to treatment as a condition of diversion;
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    and the defendant does not pose an unreasonable risk of danger to public safety.
    (Pen. Code, § 1001.36, subd. (b)(1)(A)–(b)(1)(F).) That section took effect about two
    weeks after defendant was convicted in this case.
    In People v. Frahs (2020) 
    9 Cal.5th 618
     (Frahs), the Supreme Court considered
    whether the mental health diversion statute applies retroactively to cases without a final
    judgment under the reasoning of In re Estrada (1965) 
    63 Cal.2d 740
     (Estrada), and
    whether the proper appellate remedy in such a case would be to conditionally reverse the
    judgment and remand the matter for a diversion hearing. The Supreme Court concluded
    that Estrada applies to Penal Code section 1001.36, and affirmed the appellate court’s
    “determination that defendant is entitled to a limited remand for the trial court to decide
    whether he should receive diversion under [Penal Code] section 1001.36.” (Frahs, at
    p. 625.)
    Because of the competency proceedings in this case, the record affirmatively
    shows that defendant suffers from a qualifying mental disorder. Though psychiatric
    professionals were not entirely in agreement about defendant’s diagnosis, they opined
    that he suffered from one or more of the following: bipolar disorder, schizoaffective
    disorder, or an unspecified schizophrenia spectrum and other psychotic disorder.
    Defendant’s mental health issues were serious enough that the trial court initially found
    defendant was not competent to stand trial. On this record, defendant has made a prima
    facie showing of potential eligibility for mental health diversion and we accept the
    People’s concession that a “conditional limited remand is appropriate for the trial court to
    conduct a mental health diversion eligibility hearing.” We express no opinion on whether
    defendant meets the statutory criteria for mental health diversion; that is to be determined
    by the trial court after considering evidence at the eligibility hearing.
    B. PRIOR PRISON TERM ENHANCEMENT (PEN. CODE, § 667.5, SUBD. (B))
    The parties agree that the abstract of judgment does not accurately reflect the trial
    court’s oral pronouncement of sentence for the prior prison term enhancement. At
    3
    sentencing, the trial court stated that because the “prior prison [term] enhancement and
    serious felony prior enhancement are based on the same conduct, the Court will strike the
    one-year prison prior count and enhancement. That’s pursuant to Penal Code
    Section 667.5[, subdivision] (b), and that will be pursuant to People vs. Jones.” Because
    those enhancements were based on the same conduct, the trial court was correct to strike
    the prior prison term enhancement. (People v. Jones (1993) 
    5 Cal.4th 1142
    , 1153.) We
    also note that the statute governing prior prison term enhancements has been narrowed
    since defendant’s conviction to apply only to certain sexually violent offenses (Pen.
    Code, § 667.5, subd. (b)), such that defendant’s prior burglary conviction no longer
    qualifies for the enhancement. Defendant is also entitled to that ameliorative change in
    the law since his case is not yet final on appeal. (People v. Petri (2020)
    
    45 Cal.App.5th 82
    , 94.) We therefore accept the People’s concession and will direct the
    clerk of the superior court to prepare a new abstract of judgment striking rather than
    staying punishment for the prior prison term enhancement (Pen. Code, § 667.5,
    subd. (b)), in the event the conviction and sentence are reinstated after the mental health
    diversion eligibility hearing.
    III.    DISPOSITION
    The judgment is conditionally reversed and the matter is remanded with
    instructions to conduct a mental health diversion eligibility hearing (Pen. Code,
    § 1001.36). If the trial court finds that defendant suffers from a mental disorder, does not
    pose an unreasonable risk of danger to public safety, and otherwise meets the six
    statutory criteria (as nearly as possible given the postconviction posture of this case), the
    court may grant diversion. If defendant successfully completes diversion, the trial court
    shall dismiss the charges. However, if the trial court determines that defendant does not
    meet the criteria of Penal Code section 1001.36, or if defendant does not successfully
    complete diversion, then the conviction and sentence shall be reinstated. In the event the
    conviction and sentence are reinstated, the clerk of the superior court is directed to
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    prepare a new abstract of judgment striking rather than staying punishment for the prior
    prison term enhancement (Pen. Code, § 667.5, subd. (b)).
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    ____________________________________
    Grover, J.
    WE CONCUR:
    ____________________________
    Elia, Acting P. J.
    ____________________________
    Bamattre-Manoukian, J.
    H046731 - The People v. Rodriguez
    

Document Info

Docket Number: H046731

Filed Date: 6/28/2021

Precedential Status: Non-Precedential

Modified Date: 6/28/2021