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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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
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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