People v. Gates CA4/3

Filed 1/25/21 P. v. Gates CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058175

v. (Super. Ct. No. 17HF1457)

DEVON DANIEL GATES, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Richard J. Oberholzer, Judge. (Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. John F. Shuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent. * * *

A jury convicted Devon Daniel Gates of driving under the influence of alcohol causing great bodily injury and driving with a blood alcohol content of or more than 0.08 percent. (Veh. Code, § 23153, subds. (a) & (b).) The jury also found to be true the allegation Gates personally inflicted great bodily injury on the victim. (Pen. Code, 1 § 12022.7, subd. (a).) The sole issue on appeal is whether the trial court erred when it denied Gates’s pretrial request for mental health diversion under section 1001.36. We conclude substantial evidence supports the court’s decision to reject Gates’s request and discern no abuse of discretion. We affirm the judgment. I

FACTS AND PROCEDURAL HISTORY In August 2017, after smoking marijuana and consuming alcohol at a bar, Gates drove his vehicle through a red light and crashed into another vehicle in the middle of an intersection, severely injuring the other driver. The Orange County District Attorney’s Office charged Gates with driving under the influence of alcohol and driving with an illegal blood-alcohol content. The prosecutor also alleged Gates had inflicted great bodily injury and had a previous conviction for driving with an unlawful blood- alcohol content. Gates requested pretrial mental health diversion under section 1001.36. He presented expert testimony by psychologist Ryan Jordan who testified Gates suffered from substance abuse disorders for alcohol and cannabis that were “significant factors” in the drunk driving offenses. Jordan tested and evaluated then 27-year-old Gates, who reported first using alcohol and cannabis when he attended junior high school. Except for a couple of months of sobriety, Gates continued his substance abuse over the years, even after being