Persiani v. Super. Ct. of Orange Cty.

318 Cal.Rptr.3d 735

Rhonda PERSIANI, Petitioner,

v.The SUPERIOR COURT OF ORANGE COUNTY, Respondent,The People, Real Party in Interest.

G062648

Court of Appeal, Fourth District, Division 3.

Filed February 28, 2024

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Julian W. Bailey, Judge. Petition denied and matter remanded with directions. (Super. Ct. Nos. 30-2022-01278408, 21HM06672, 20HM02654, 19HM02553, 19HM11594)

Martin F. Schwarz, Public Defender, Laura Jose, Chief Deputy Public Defender, and Adam Vining, Assistant Public Defender, for Petitioner.

No appearance for Respondent.

Todd Spitzer, District Attorney, and Austin Deuel, Deputy District Attorney, for Real Party in Interest.

OPINION

MOTOIKE, J.

We hold 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.¹ Here, petitioner Rhonda Persiani was charged in four misdemeanor cases with driving under the influence (Veh. Code § 23152, subd. (a)). While the charges were pending, a doubt arose as to Persiani’s mental competence, criminal proceedings were suspended, and 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. However, the court and the parties 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. She 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. Instead, to provide Persiani with needed mental health treatment, the court imposed as conditions of Persiani’s release certain provisions of a treatment plan the Orange County Health Care Agency recommended for Persiani.

In the instant writ petition, Persiani argues the respondent court erred in its application of section 1370.01. She asserts the court 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.

Because the record shows the court misunderstood its authority under section 1370.01 and does not show the length of time Persiani was required to comply with the court-ordered treatment plan, we deny the petition and remand the matter for further proceedings. The respondent court is directed 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.

FACTUAL AND PROCEDURAL BACKGROUND

Between February 2019 and July 2021, Persiani was charged with driving under the influence in four different misdemeanor cases. In case No. 19HM02558, she was charged with committing the following offenses on February 12, 2019: driving under the influence (Veh. Code, § 23152, subd. (a); count 1), driving with a blood alcohol level of 0.08 percent or more (Veh. Code, § 23152, subd. (b); count 2), and resisting a peace officer (Pen. Code, § 148, subd. (a)(1); count 3). In case No. 19HM11594, the prosecution alleged Persiani drove on September 5, 2019, while under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 1) and with a blood alcohol content of .08 percent or more (Veh. Code, § 23152, subd. (b); count 2). In case No. 20HM02654, the prosecution alleged Persiani drove on March 10, 2020, while under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 1) and drove with a suspended or revoked license (Veh. Code, § 14601.2, subd. (a); count 2). In case No. 21HM06672, Persiani was charged with committing the following offenses on July 26, 2021: driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 1), resisting a peace officer (Pen. Code, § 148, subd. (a)(1); count 2), and driving on a suspended or revoked license (Veh. Code, § 14601.5, subd. (a); count 3). In each case, Persiani was released after posting a bond.

In August 2021, Persiani’s trial counsel expressed a doubt as to her mental competence. The court suspended criminal proceedings (§ 1368) and appointed two psychologists to evaluate Persiani and assess her competence to stand trial (§ 1369, subd. (a)(1)). Both psychologists concluded Persiani was not competent to stand trial. At Persiani’s competency hearing in February 2022, the parties submitted on the psychologists’ reports. The court found Persiani was mentally incompetent under section 1367, subdivision (a) and referred the matter to the Orange County Mental Health Department to conduct "a placement report."

Dr. Nicole Caceres from the Orange County Health Care Agency Conditional Release Program (CONREP) evaluated Persiani. In a report filed with the court on April 6, 2022, Caceres found Persiani was an appropriate candidate for outpatient treatment through mental health diversion.

At a hearing about a week later, Persiani’s counsel moved for dismissal of all four of Persiani’s cases. Her counsel stated it had been "brought to [their] attention that mental health diversion is generally not considered applicable to driving under the influence cases." Persiani’s counsel asserted dismissal was the only option under section 1370.01 because Persiani was ineligible for mental health diversion given her charges of driving under the influence and she did not meet the criteria for the other options of assisted outpatient treatment and conservatorship. The court expressed uncertainty as to whether individuals like Persiani, who had been charged with driv- ing under the influence and found mentally incompetent, could be excluded from mental health diversion, given the dictates of section 1370.01. Over the defense’s objection, the court reappointed one of the psychologists who originally concluded Persiani was incompetent and the court ordered Persiani be evaluated for borderline personality disorder, so the court could consider whether to grant or deny mental health diversion as directed by section 1370.01.²

The court also exonerated the bonds in Persiani’s cases and released her on her own recognizance (OR release) on the conditions she only drive with a valid driver’s license, she not consume alcohol, and she be fitted with a Secure Continuous Remote Alcohol Monitor (SCRAM) device. Persiani’s counsel objected to the court requiring a SCRAM device as a condition of release. About two weeks later, the court removed the SCRAM requirement.

At a hearing on May 4, 2022, Persiani’s counsel requested the court dismiss Persiani’s four cases. At the prosecution’s request, the court referred the matter to the collaborative court so Persiani could be evaluated for assisted outpatient treatment. After the evaluation was performed, the collaborative court concluded Persiani’s cases were not suitable for the collaborative court.

Her cases were sent back to the referring court, where a hearing was held on June 1, 2022. Her counsel reiterated the argument her cases must be dismissed because she did not qualify for mental health diversion based on her charges and she did not qualify for assisted outpatient treatment or a conservatorship. At the prosecution’s request and over the defense’s objection, the court continued the matter for a hearing at which the prosecution could present evidence concerning a modified treatment plan for Persiani. Persiani remained on OR release on the condition she "not drive."

About a week after the hearing, Persiani’s counsel filed a motion to dismiss, asserting the court was required under section 1370.01 to dismiss Persiani’s four cases. The prosecution filed a written opposition, in which it argued Persiani could pursue treatment under section 1370.01 through mental health diversion, with modifications to address her mental health and addiction issues. The prosecution asserted Persiani should be treated through mental health diversion because it was consistent with the intent of section 1370.01 and because dismissal of her cases would be a danger to society, a disservice to Persiani’s need for treatment, and would lead to an absurd result.

At the prosecution’s request, Caceres submitted a letter to the court, which proposed "a modified treatment plan" for Persiani. The letter noted Caceres previously opined Persiani was an appropriate candidate for mental health diversion, but she was deemed ineligible because of her charges. Caceres therefore recommended Persiani’s treatment plan be modified. Caceres opined Persiani’s mental health had deteriorated since her arrest and recommended, "[g]iven the severity of her mental health symptoms at this time," Persiani "be seen by a psychiatric provider as soon as possible in order to prevent further decompensation." The letter contained spe- cific recommendations regarding Persiani’s treatment plan.

At a hearing on June 29, 2022, the court denied the defense motion to dismiss. The court stated it did not believe the Legislature in enacting section 1370.01, "would have considered it appropriate to take a set of persons who had committed seriously dangerous misdemeanors, and in this case four of them, and simply because of their incompetence preclude the court from fashioning a treatment plan that could hopefully address the issues that brought the person before the court." The court...