People v. Thompson CA5 ( 2020 )

Filed 11/30/20 P. v. Thompson CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077598
Plaintiff and Respondent,
(Super. Ct. Nos. F17900396,
v. M17911630)
RICHARD JAMES THOMPSON,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. James
Petrucelli, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B.
Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Peña, Acting P.J., Smith, J. and DeSantos, J.
Defendant Richard James Thompson was convicted of offenses arising from
two incidents of driving under the influence. On appeal, he contended the newly enacted
Penal Code section 1001.361 applied to him retroactively and we should remand for the
trial court to consider whether he should be granted pretrial mental health diversion. On
June 28, 2019, in an unpublished opinion, we affirmed, concluding that section 1001.36
did not retroactively apply to defendant’s case, which had been “adjudicated” before the
statute’s enactment. (See People v. Thompson (June 28, 2019, F077598) [nonpub. opn.],
review granted Sept. 11, 2019, review dism. and remanded Aug. 19, 2020, S256911.)
Our Supreme Court granted review, pending its decision in People v. Frahs (2020)
9 Cal.5th 618 (Frahs). In Frahs, the court held that section 1001.36 applies retroactively
to defendants whose cases were not yet final when the Legislature enacted
section 1001.36. The court transferred the matter back to us with directions to vacate our
decision and reconsider it in light of Frahs.
With the parties’ agreement, we vacate our prior decision, conditionally reverse
the judgment, and remand for the trial court to determine defendant’s eligibility for
mental health diversion under section 1001.36.
PROCEDURAL BACKGROUND
Case No. F17900396 involved events occurring on January 18, 2017. As the case
proceeded, the trial court suspended proceedings because of a doubt as to defendant’s
competence to stand trial (§ 1368). A jury thereafter found defendant competent to stand
trial.
On December 22, 2017, a jury convicted defendant of driving under the influence
while possessing a blood-alcohol concentration of 0.08 percent or more and causing
1 All statutory references are to the Penal Code unless otherwise noted.
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bodily injury (Veh. Code, § 23153, subd. (b); count 1) and driving under the influence
and causing bodily injury (Veh. Code, § 23153, subd. (a); count 2). As to both counts,
the jury found true allegations that defendant caused injury to more than one victim (Veh.
Code, § 23558) and possessed a blood-alcohol concentration of 0.15 percent or more
(Veh. Code, § 23578). Defendant admitted having suffered two prior felony convictions
within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)).
Case No. M17911630 involved events occurring on January 10, 2017. On
April 26, 2018, defendant pled no contest to driving under the influence while possessing
0.08 percent or more of blood alcohol (Veh. Code, § 23152, subd. (b); count 1) and
admitted having suffered two prior felony convictions within the meaning of the Three
Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
On May 31, 2018, the trial court sentenced defendant in both cases to a total of
six years four months. In case No. F17900396, the court imposed the midterm of
four years on count 1 (two years, doubled pursuant to the Three Strikes law), plus a one-
year enhancement pursuant to Vehicle Code sections 23558 and 23578. On count 2, the
court imposed four years (two years, doubled), then stayed the term pursuant to
section 654. In case No. M17911630, the court imposed one year four months (one-third
the two-year midterm, doubled), to be served consecutively to the term in case
No. F17900396. On June 4 and 7, 2018, defendant filed a notice of appeal in both cases.
On June 27, 2018, the Legislature enacted section 1001.36, which created a
pretrial diversion program for certain defendants with qualifying mental disorders.
(§ 1001.36, subd. (a); Stats. 2018, ch. 34, § 24.)
On appeal, defendant contended his conviction should be conditionally reversed
and the matter remanded for the trial court to determine, retroactively, whether he
qualified for a pretrial diversion program under section 1001.36. Defendant argued
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section 1001.36 should apply retroactively because it confers an ameliorative benefit to
defendants whose judgments are not yet final. The People argued section 1001.36 was
not retroactive because the statute provides that pretrial mental health diversion is only
available until adjudication. According to the People, defendant’s claim had already been
adjudicated by the time of the statute’s enactment.
In our unpublished opinion, we agreed with the People and affirmed the judgment.
(See People v. Thompson, supra, F077598.)
The Supreme Court granted review, and transferred the matter back to us with
directions to vacate our prior decision and reconsider the matter in light of Frahs.
DISCUSSION
Effective June 27, 2018, section 1001.36 authorizes pretrial diversion in lieu of
criminal prosecution for defendants with qualifying mental disorders, “including, but not
limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic
stress disorder ….” (§ 1001.36, subd. (b)(1)(A).) “ ‘[P]retrial diversion’ means the
postponement of prosecution, either temporarily or permanently, at any point in the
judicial process from the point at which the accused is charged until adjudication, to
allow the defendant to undergo mental health treatment ….” (§ 1001.36, subd. (c).)
A trial court may grant pretrial diversion under section 1001.36 if it finds: (1) the
defendant suffers from an identified mental disorder;2 (2) the mental disorder was a
significant factor in the commission of the charged offense; (3) the defendant’s symptoms
will respond to treatment; (4) the defendant consents to diversion and waives his or her
2 A “qualifying disorder” is any “mental disorder … identified in the most recent
edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not
limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic
stress disorder, but excluding antisocial personality disorder, borderline personality
disorder, and pedophilia. Evidence of the defendant’s mental disorder shall be provided
by the defense and shall include a recent diagnosis by a qualified mental health expert.”
(§ 1001.36, subd. (b)(1)(A).)
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speedy trial rights; (5) the defendant agrees to comply with the treatment; and (6) the
defendant will not pose an unreasonable risk of danger to public safety if treated in the
community. (§ 1001.36, subd. (b).)
If the trial court grants diversion, the defendant will undergo mental health
treatment by an approved mental health program that will provide regular reports of the
defendant’s progress. Criminal proceedings may be diverted for “no longer than
two years.” (§ 1001.36, subds. (c)(1)(B), (c)(2), (c)(3).) If the defendant performs
satisfactorily in 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” and “the
arrest upon which the diversion was based shall be deemed never to have occurred.”
(§ 1001.36, subd. (e).) Under certain circumstances, if the defendant commits additional
crimes or performs unsatisfactorily in diversion, the court may reinstate criminal
proceedings. (§ 1001.36, subd. (d).)
Before Frahs, the Courts of Appeal were divided on the question of whether
section 1001.36 applies retroactively to persons who were tried, convicted, and sentenced
before section 1001.36 went into effect, but as to whom judgment is not yet final. In
June 2020, the Supreme Court resolved the issue in Frahs. The court held that because
section 1001.36 provides a possible ameliorating benefit for a class of persons, namely,
certain defendants with qualifying mental disorders, and neither the statute’s text nor its
legislative history clearly signals the Legislature’s intent to overcome the inference of
retroactivity created by In re Estrada (1965) 63 Cal.2d 740, section 1001.36 applies
retroactively to cases where the judgment is not yet final. (Frahs, supra, 9 Cal.5th at
p. 624.) The court concluded “a conditional limited remand for the trial court to conduct
a mental health diversion eligibility hearing is warranted when, as here, the record
affirmatively discloses that the defendant appears to meet at least the first threshold
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eligibility requirement for mental health diversion—the defendant suffers from a
qualifying mental disorder.” (Frahs, at p. 640.)
In light of Frahs, the People concede and we now conclude defendant is entitled to
conditional reversal of judgment and remand to the trial court for a determination of his
eligibility for mental health diversion under section 1001.36. (See Frahs, supra, 9
Cal.5th at pp. 639–641.) The parties agree defendant was diagnosed with a qualifying
mental disorder, schizophrenia. Accordingly, he “appears to meet at least the first
threshold eligibility requirement for mental health diversion.” (Frahs, at p. 640.)
Pursuant to Frahs, we conclude a conditional reversal of judgment and remand is
appropriate for the trial court to conduct a mental health diversion eligibility hearing.
(See id. at p. 640; § 1001.36, subd. (b)(3).) We express no opinion on whether defendant
will be able to demonstrate eligibility for mental health diversion under section 1001.36,
or whether the trial court should exercise its discretion to grant diversion if it finds
defendant eligible.
DISPOSITION
Our previous opinion is vacated. The judgment is conditionally reversed and the
matter remanded to the trial court for an eligibility determination under section 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 procedural posture of this case), then the
court may grant diversion. If [defendant] successfully completes diversion, then the court
shall dismiss the charges. However, if the court determines that [defendant] does not
meet the criteria under section 1001.36, or if [defendant] does not successfully complete
diversion, then his convictions and sentence shall be reinstated.’ ” (Frahs, supra, 9
Cal.5th at p. 641.)
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