People v. Rodriguez

• Court: California Court of Appeals
• Writing for the Court: POOCHIGIAN, J.
• Decision Date: 24 September 2021
• Docket Number: F080268
• Citation: People v. Rodriguez, F080268 (Cal. App. Sep 24, 2021)
• Parties: THE PEOPLE, Plaintiff and Appellant, v. FRANCISCO CORTEZ RODRIGUEZ, Defendant and Respondent.

THE PEOPLE, Plaintiff and Appellant, v. FRANCISCO CORTEZ RODRIGUEZ, Defendant and Respondent.

F080268

California Court of Appeals, Fifth District

September 24, 2021

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Tulare County. No PCF358304 Michael B. Sheltzer, Judge.

Tim Ward, District Attorney, Dan Underwood, Chief Deputy District Attorney, Dave Alavezos, Jessica Weatherly, Adam Clare, and Katherine Smith, Deputy District Attorneys, for Plaintiff and Appellant.

Susan L. Jordan, under appointment by the Court of Appeal, for Defendant and Respondent.

OPINION

POOCHIGIAN, J.

INTRODUCTION

Respondent and defendant Francisco Cortez Rodriguez (Rodriguez), who was 70 years old and diagnosed with Alzheimer's dementia, was arrested after an altercation with a security guard at a market. He was charged with four felony offenses with one prior strike conviction. After being held to answer, he moved for pretrial mental diversion pursuant to Penal Code^[1] sections 1001.35 and 1001.36, based on the argument that his Alzheimer's dementia was a significant factor in the commission of the charged offenses. The Tulare County District Attorney's office opposed the diversion motion. After a lengthy evidentiary hearing including testimony from an expert about Rodriguez's mental disorder, the trial court overruled the district attorney's objections, granted Rodriguez's motion and placed him on pretrial mental health diversion with a specific treatment plan pursuant to section 1001.36.

Thereafter, the People of the State of California, as appellant and represented by the district attorney, filed the instant appeal from the trial court's order that granted the diversion motion.

Rodriguez argues the People lack the statutory right to file an appeal from the trial court's order. In the alternative, Rodriguez asserts the People have raised a new objection to the testimony of the expert that was not raised at the diversion hearing and have forfeited appellate review of this contention.

We affirm. We find the People have a statutory right to file an appeal from the trial court's order granting pretrial mental health diversion based on section 1238, subdivision (a)(1). We further find the People forfeited review of the new argument about the expert testimony being raised on appeal, based on the People's concession that they did not raise this objection at the diversion hearing, and well-recognized authorities that hold such challenges are forfeited if not raised below.

FACTS

On November 3, 2017, B.S. was working as the security guard for Guadalajara Meat Market in Porterville.^[2] He saw Rodriguez in the parking lot, jumping in front of vehicles and trying to stop customers. B.S. gave Rodriguez $2 and asked him to leave the property. B.S. went into the store and was contacted by a female customer, who reported that Rodriguez solicited her to commit a sexual act.

B.S. returned to the parking lot and saw Rodriguez relieving himself in public. B.S. told Rodriguez to leave, but he refused. B.S. said he was going to place Rodriguez in handcuffs until the police arrived. Rodriguez told B.S. that if he touched him, he was going to kill him. B.S. tried to detain Rodriguez, but Rodriguez hit B.S. in the face with a stick that was four to five feet long. Rodriguez said his friends were going to “get” B.S. and beat him up.

The police responded to the market and tried to take Rodriguez into custody. The officers believed he was intoxicated based on his watery and bloodshot eyes, slurred speech, and the strong odor of an alcoholic beverage coming from him. Rodriguez was still holding the stick and refused to comply with the officers' orders to put down the stick. When the officers attempted to detain him, Rodriguez resisted and tried to pull away from them. He was eventually restrained, placed in handcuffs, and seated in a patrol car. While he was in the car, he kept shouting in Spanish and threatened to kill the officers when he got out of jail or have someone do it for him.

Rodriguez was arrested and booked into custody at the jail.

PROCEDURAL BACKGROUND

On November 7, 2017, a felony complaint was filed in the Superior Court of Tulare County charging Rodriguez with count 1, assault with a deadly weapon, a stick (§ 245, subd. (a)(1)); count 2, criminal threats (§ 422), with an enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)); and counts 3 and 4, resisting an executive officer (§ 69); with one prior strike conviction and one prior serious felony enhancement.

On the same day, Rodriguez pleaded not guilty and denied the special allegations. The court set bail and Rodriguez remained in custody.

Section 4011.6 Report

On November 17, 2017, the court granted the request of Rodriguez's attorney for a mental health evaluation pursuant to section 4011.6.^[3] Rodriguez remained in jail.

On December 7, 2017, a licensed mental health clinician with Corizon Behavorial Health Services filed a mental health assessment after meeting with Rodriguez in jail. As the court later stated, the report concluded that Rodriguez met the diagnostic criteria for bipolar disorder based on symptoms of pressured speech, distractibility, inflated sense of self, decreased need for sleep, flight of ideas, and some psychomotor agitation.

On December 8, 2017, the court reviewed the section 4011.6 report, and ordered the probation department to determine whether Rodriguez should receive an honor release.

Probation Report About Pretrial Release

On December 27, 2017, the probation officer filed the requested report. The probation officer tried to interview Rodriguez, who remained in custody at the jail, but Rodriguez's answers to general questions “were sometimes nonsensical, and he seemed to have difficulty comprehending” the questions.

Rodriguez said he did not know why he was in custody; he did not remember what happened on the day of his arrest; and he was not drinking that day. Rodriguez repeatedly said that he had only been in custody three or four days, even though he had been in jail since November 3, 2017. Rodriguez also said he woke up feeling hung over on the morning of the interview and claimed he had consumed alcohol the night before, even though he was in jail and had no access to alcohol.

The probation officer determined Rodriguez had 70 arrests for public intoxication since 1995, plus prior incidents of domestic violence and assault.

The probation officer spoke with Rodriguez's wife, who stated he was diagnosed with dementia one year earlier. He had a history of alcoholism but stopped drinking after he was released from custody in April 2017, following his most recent prior arrest. His wife explained that while he remained sober, he would “consistently wake up in the mornings stating he needs to drink because he feels as though he is hung over because he drank the night before, but Mrs. Rodriguez stated [he] had not consumed any alcohol the night before.” She reported that on the day of his arrest, he snuck out of the house and started drinking alcohol again. She wanted him released from jail but did not think she could care for him by herself and had considered admitting him into an assisting living facility.

The probation officer recommended against pretrial release because of Rodriguez's alcoholism and aggressiveness, and his wife's belief that she could not care for him by herself.

On March 6, 2018, the court granted Rodriguez's motion for pretrial release subject to electronic monitoring. Thereafter, Rodriguez complied with the terms of his pretrial release and electronic monitoring for the entirety of the proceedings and did not commit any new violations of law.

The Information

On May 1, 2018, the court conducted the preliminary hearing and held Rodriguez to answer.

On May 4, 2018, the information was filed that alleged the same felony counts as in the complaint, including the prior strike conviction. Rodriguez again pleaded not guilty and denied the allegations.

PRETRIAL MENTAL HEALTH DIVERSION

Effective on June 27, 2018, the Legislature enacted a discretionary pretrial diversion program for people with qualifying mental disorders. (§§ 1001.35, 1001.36, added by Stats 2018, ch. 34, § 24; People v. Frahs (2020) 9 Cal.5th 618, 626 (Frahs); People v. Moine (2021) 62 Cal.App.5th 440, 447 (Moine).) The provisions of section 1001.36 are fully retroactive to cases not yet final on appeal. (Frahs, supra, 9 Cal.5th at pp. 624, 630.)

Section 1001.36 states that a trial court may grant pretrial diversion if it finds all of the following. First, the court must be “satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.…” (§ 1001.36, subd. (b)(1)(A).)^[4] “Section 1001.36, subdivision (b)(1)(A) defines a qualifying mental disorder as one that is ‘identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia.' ” (Moine, supra, 62 Cal.App.5th at p. 449.)^[5]

“Evidence of the defendant's mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant's medical records, arrest reports, or any other relevant evidence.” (§ 1001.36, subd. (b)(1)(A), italics added.)^[6]

Second the court must be “satisfied that the...