Persiani v. Superior Court, 2024 WL 833043 (Cal.App. 4 Dist.), 1
Summary: A trial court has authority under Penal Code section 1370.01, subdivision (b)(1)(A) to order treatment through mental health diversion for a mentally incompetent misdemeanor defendant charged with driving under the influence.
Persiani was charged in four misdemeanor cases with driving under the influence (Veh. Code § 23152, subd. (a)). While the charges were pending Persiani was found incompetent to stand trial.
Pursuant to section 1370.01, Persiani was evaluated and found suitable for outpatient treatment through mental health diversion. The court ultimately concluded Persiani was ineligible for such treatment because Vehicle Code section 23640 prohibits diversion in cases where a defendant is charged with driving under the influence. Perisani sought dismissal of her four cases, arguing dismissal was required under section 1370.01, subdivision (b)(2), because she was ineligible for any of the treatment options in subdivision (b)(1)(D) of the statute. The court denied Persiani’s motion to dismiss and imposed as conditions of Persiani’s release certain provisions of a treatment plan the Orange County Health Care Agency recommended for Persiani.
Persiani argues the respondent court erred in its application of section 1370.01and exceeded its authority by imposing mental health treatment provisions as conditions of her release. She requests we issue a writ directing the respondent court to dismiss her four cases or, alternatively, to relieve her of any conditions of release. and not set further court dates in those cases. At oral argument before this court, she urged dismissal of her cases due to the length of time she has been subject to the treatment plan as conditions of her release.
The court misunderstood its authority under section 1370.01 and the Court of Appeal remand the matter and directed the trial court to hold a hearing to determine whether to order Persiani be provided mental health diversion treatment under section 1370.01, subdivision (b)(1)(A), and if so, the length of such treatment.
Mental health diversion treatment provided for in section 1370.01, subdivision (b)(1)(A) is available for someone charged with driving under the influence
Mentally incompetent misdemeanor defendants may be granted mental health diversion treatment as provided by section 1370.01, notwithstanding the charge of driving under the influence. Vehicle Code section 23640 does not interfere with a court’s ability to order mental health diversion treatment after a court has found a misdemeanor defendant mentally incompetent to stand trial and suspended criminal proceedings.
Statutory framework for defendants who are mentally incompetent to stand trial
The federal and state guarantees of due process forbid a court from trying, convicting, or punishing a criminal defendant who is mentally incompetent to stand trial. (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15; People v. Rodas (2018) 6 Cal.5th 219, 230, 239 Cal.Rptr.3d 814, 429 P.3d 1122.) This principle is codified in section 1367. (People v. Rodas, supra, 6 Cal.5th at p. 230, 239 Cal.Rptr.3d 814, 429 P.3d 1122.) Section 1367 qualifies a person as mentally incompetent to stand trial “if, as a result of a mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a); accord, Cooper v. Oklahoma (1996) 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 [federal test for incompetence].)
Section 1370.01 applies when the defendant has been charged with one or more misdemeanors Senate Bill 317 replaced former section 1370.01 with a new statute, effective January 1, 2022. (Stats. 2021, ch. 599, §§ 1, 2.) The bill’s author explained the need for the legislation: “ ‘Existing law does not provide incompetent defendants adequate mental health treatment when the defendant is charged with a misdemeanor. These defendants often spend most, if not all, of their pre-trial detention waiting for a treatment bed. SB 317 provides pathways to appropriate mental health treatment for defendants charged with misdemeanors.’ ” The new legislation did “not contemplate restoration of competency or a resumption of criminal proceedings.” The objective, instead, was mental health treatment. Thus, Senate Bill 317 repealed the provisions regarding resumption of criminal proceedings upon restoration of mental competence for a person charged with a misdemeanor or a violation of misdemeanor probation. It also eliminated referrals to custodial treatment for incompetent misdemeanor defendants, including provisions concerning the administration of antipsychotic medication. (Fresno County Public Guardian v. Superior Court, supra, 81 Cal.App.5th Supp. at p. 5, 296 Cal.Rptr.3d 887.)
Section 1370.01
As enacted by Senate Bill 317, section 1370.01 provided in relevant part: “(b) If the defendant is found mentally incompetent, the trial, judgment, or hearing on the alleged violation shall be suspended and the court may do either of the following:
“(1) [¶] (A) Conduct a hearing, pursuant to Chapter 2.8A (commencing with Section 1001.35) of Title 6, and, if the court deems the defendant eligible, grant diversion pursuant to Section 1001.36 for a period not to exceed one year from the date the individual is accepted into diversion or the maximum term of imprisonment provided by law for the most serious offense charged in the misdemeanor complaint, whichever is shorter.
“(B) If the court opts to conduct a hearing pursuant to this paragraph, the hearing shall be held no later than 30 days after the finding of incompetence. If the hearing is delayed beyond 30 days, the court shall order the defendant to be released on their own recognizance pending the hearing.
“(C) If the defendant performs satisfactorily on diversion pursuant to this section, at the end of the period of diversion, the court shall dismiss the criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.
“(D) If the court finds the defendant ineligible for diversion based on the circumstances set forth in subdivision (b) or (d) of Section 1001.36, the court may, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether to do any of the following:
“(i) Order modification of the treatment plan in accordance with a recommendation from the treatment provider.
“(ii) Refer the defendant to assisted outpatient treatment pursuant to Section 5346 of the Welfare and Institutions Code…. If the defendant is accepted into assisted outpatient treatment, the charges shall be dismissed pursuant to Section 1385.
“(iii) Refer the defendant to the county conservatorship investigator in the county of commitment for possible conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. … If the outcome of the conservatorship proceedings results in the establishment of conservatorship, the charges shall be dismissed pursuant to Section 1385.
“(2) Dismiss the charges pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the county mental health director or the director’s designee.
“(c) If the defendant is found mentally incompetent and is on a grant of probation for a misdemeanor offense, the court shall dismiss the pending revocation matter and may return the defendant to supervision. If the revocation matter is dismissed pursuant to this subdivision, the court may modify the terms and conditions of supervision to include appropriate mental health treatment.
“(d) It is the intent of the Legislature that a defendant subject to the terms of this section receive mental health treatment in a treatment facility and not a jail…. A defendant not in actual custody shall otherwise receive day for day credit against the term of diversion from the date the defendant is accepted into diversion….” (Stats. 2021, ch. 599, § 2.)
This version of section 1370.01 was in effect when Persiani was found incompetent to stand trial.
Under the plain language of section 1370.01, subdivision (b)(1)(A), a court has the discretion to order mental health diversion treatment pursuant to section 1001.36 for a mentally incompetent misdemeanor defendant if the court deems the defendant eligible. Section 1370.01 does not exclude a mentally incompetent defendant charged with misdemeanor driving under the influence from receiving treatment through mental health diversion under section 1001.36. While defendants charged with certain offenses may not be placed into mental health diversion (id., subd. (d)), driving under the influence is not listed as an excludable offense. Nothing in the language of either section 1370.01 or section 1001.36 bars a court from exercising its discretion to provide treatment through mental health division to a mentally incompetent defendant charged with misdemeanor driving under the influence.
Vehicle Code Section 23640
Vehicle Code section 23640, subdivision (a), provides: “In any case in which a person is charged with a violation of Section 23152 or 23153, prior to acquittal or conviction, the court shall neither suspend nor stay the proceedings for the purpose of allowing the accused person to attend or participate, nor shall the court consider dismissal of or entertain a motion to dismiss the proceedings because the accused person attends or participates during that suspension, in any one or more education, training, or treatment programs, including, but not limited to, a driver improvement program, a treatment program for persons who are habitual users of alcohol or other alcoholism program, a program designed to offer alcohol services to problem drinkers, an alcohol or drug education program, or a treatment program for persons who are habitual users of drugs or other drug-related program.”
Recent cases have concluded Vehicle Code section 23640 bars pretrial diversion for defendants charged with driving under the influence. These cases, however, addressed the availability of pretrial diversion to competent defendants charged with driving under the influence.
Vehicle Code section 23640 does not prohibit a court from exercising its discretion under Penal Code section 1370.01 to order treatment through mental health diversion for a mentally incompetent defendant charged with misdemeanor driving under the influence. Vehicle Code section 23640 prohibits a court from suspending the proceedings for the purpose of allowing a defendant to attend or participate in a treatment program. (Id., subd. (a).) However, a court acting under Penal Code section 1370.01 suspends the criminal proceedings because the defendant is mentally incompetent to stand trial (id., subd. (b)), not for the purpose of allowing the defendant to attend or participate in a pretrial diversion or treatment program. The prohibition in Vehicle Code section 23640 does not apply when a misdemeanor defendant charged with driving under the influence is found to be incompetent to stand trial. a violation of misdemeanor probation and the court finds the defendant may be incompetent to stand trial because of a mental health disorder.
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