People v. Rodriguez CA6

Filed 6/28/21 P. v. Rodriguez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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; 2