People v. Thompson CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 On June 28, 2019, in an unpublished opinion, we affirmed, concluding that section 1001.36 did not retroactively apply to defendant’s case, which had been “adjudicated” before the statute’s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