Opinion
2d Crim. B319748
06-28-2023
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY FACCIPONTI, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General. Kenneth C. Byrne, Supervising Deputy Attorney General, Stephanie C. Santoro, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. KA126226 David C. Brougham, Judge Salvatore Sirna, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General. Kenneth C. Byrne, Supervising Deputy Attorney General, Stephanie C. Santoro, Deputy Attorney General, for Plaintiff and Respondent.
CODY, J.
Robert Anthony Facciponti appeals the judgment entered after he pleaded no contest to fleeing a pursuing peace officer's motor vehicle while driving against traffic (Veh. Code, § 2800.4) and fleeing a pursuing officer's vehicle while driving recklessly (id., § 2800.2). The trial court sentenced him to two years in state prison. Appellant entered his no contest plea after the trial court denied his request for mental health diversion under Penal Code section 1001.36 (section 1001.36). Appellant contends the case must be remanded for the trial court to reconsider his request for diversion under recent amendments to section 1001.36. We conclude that a remand is unnecessary and accordingly affirm.
FACTS AND PROCEDURAL HISTORY
On December 15, 2020, appellant was charged in a felony complaint with fleeing a pursuing police officer's motor vehicle while driving against traffic (count 1), fleeing a pursuing officer's vehicle while driving recklessly (count 2), and driving under the influence (DUI) of an alcoholic beverage (count 3) (Veh. Code, § 23152, subd. (a)). According to the pre-conviction probation report, California Highway Patrol (CHP) officers observed appellant speeding on a motorcycle. After the officers activated their lights and ordered appellant to pull over, he led them on a chase in which he drove recklessly and reached a speed of approximately 105 miles per hour. Appellant eventually stopped his motorcycle and fled on foot into a residential neighborhood, where he fell into a pool and was apprehended. The officers who arrested appellant smelled the odor of alcohol emanating from him. Following a DUI investigation, the officers determined that appellant had been driving while under the influence of alcohol. Appellant refused to take a breathalyzer test and was transported to the hospital, where a blood test was conducted with his consent. The results of that test indicated that appellant had a blood alcohol level of .02 percent.
In February 2021, appellant filed a request for mental health diversion under section 1001.36 and attached a report from Dr. Jack Rothberg, a forensic psychiatrist. Dr. Rothberg also testified on appellant's behalf at the May 2021 hearing on his request for diversion. Dr. Rothberg evaluated appellant on February 18, 2021, and also reviewed the police and probation reports in the matter. The doctor diagnosed appellant with substance and alcohol use disorder and depression. Appellant had recently relapsed on methamphetamine and alcohol following over six years of sobriety. Dr. Rothberg opined that appellant's substance and alcohol use disorder was a significant factor in his commission of the charged offenses, that he would respond well to treatment, and that he could be safely treated in the community.
According to Dr. Rothberg's report, appellant had said that "[o]n the day in question he had been drinking, but wanted to get out and clear his head a little bit. He was going to go to a Hot Wheels event with his son the following day. He thought he was going to get some tickets, but his girlfriend had beaten up his bike after she had caught him cheating." The doctor added that "[alt]hough the police report indicates that [appellant] was going 85, he thought he might have been going even faster and consequently believed that he would lose his Class A license if he was stopped. He was looking forward to becoming a truck driver and this led to him failing to stop."
After taking the matter under submission, the trial court denied appellant's request for mental health diversion. The court found that although appellant had a qualifying mental disorder and was otherwise eligible for mental health diversion, his disorder was not a significant factor in his commission of the charged offenses as contemplated in subdivision (b)(2) of section 1001.36. In addition to noting that Dr. Rothberg had not offered any explanation or reasoning to support his opinion in that regard, the court reasoned: "I find a uniquely compelling factor which, in my opinion, waters down any possible involvement of his mental disorder....[Appellant] tells the police that he's leaving and driving to get tickets for Hot Wheels event for his son. As soon as he sees the cops chase him, he didn't want to lose his Class 'A' license. So he led them on a chase thinking he could get away. And when he could not get away, he furthered his intent to get away from them by jumping fences when he got stuck by a pool."
The court continued: "[T]here is such a specific design, intent of a plan and attempt to get away and . . . nothing supporting the fact that his mental disorder both in his conversations with the police or the way he conducted them that supports the doctor's opinion and in fact a much more compelling factor, driving factor of a specific plan for not allowing the police to mess up his schedule that day leads me to believe-and I find under element two-that I am not satisfied that his mental disorder was a significant factor. I suppose it could be a factor. I do not believe it was a significant factor, and a far more significant factor was a plan in this case that was thought out and deliberate and again without any supporting evidence of the mental disorder other than the doctor just saying so."
On February 2, 2022, appellant pleaded no contest to counts 1 and 2 and was sentenced to two years in state prison. In accordance with appellant's plea agreement, count 3, DUI, was dismissed under Penal Code section 1385 at the prosecution's request on the ground of insufficient evidence.
DISCUSSION
Appellant contends recent changes to section 1001.36 that went into effect while his appeal was pending apply retroactively to his case such that the matter must be remanded for further proceedings on his request for mental health diversion under that section. We are not persuaded.
Trial courts have the discretion to grant pretrial diversion upon a showing that (1) the defendant has been diagnosed with a qualifying mental disorder; (2) the disorder played a significant role in the commission of the charged offense; (3) the defendant's symptoms would respond to mental health treatment; (4) the defendant consented to diversion and waived his or her speedy trial right; (5) the defendant agreed to comply with treatment; and (6) the defendant would not pose an unreasonable risk of danger to public safety if treated in the community. (§ 1001.36, subds. (b) &(c).) Under the version of the law in effect when appellant's request for diversion was adjudicated, defendants bore the burden of proving that their mental disorder was a significant factor in their commission of the charged offenses. (Former § 1001.36, subd. (b)(1)(B); Stats 2019, ch. 497, § 203.)
While this appeal was pending, the governor signed Senate Bill No. 1223 (2021-2022 Reg. Sess.) (Stats. 2022, ch. 735, § 1), effective January 1, 2023, amending section 1001.36. There is now a rebuttable presumption that a defendant's mental disorder was a significant factor in their commission of the charged offenses. (§ 1001.36, subd. (b)(2).) The statute states in pertinent part: "If the defendant has been diagnosed with a mental health disorder, the court shall find that the defendant's mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant's involvement in the alleged offense." (§ 1001.36, subd. (b)(2).) Even if a defendant meets all of the eligibility and suitability requirements set forth in section 1001.36, the court still retains the discretion to deny diversion. (People v. Watts (2022) 79 Cal.App.5th 830, 834-835; People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888.) Moreover, the court may rely on the evidence pertaining to the circumstances of the charged offenses in deciding whether to grant mental health diversion. (People v. Bunas (2022) 79 Cal.App.5th 840, 866-867.)
The trial court denied appellant's request for mental health diversion under section 1001.36 after finding that his diagnosed mental disorder was not a significant factor in his commission of the charged offenses. Although overlooked by the court and the parties both below and on appeal, appellant was categorically ineligible for diversion under section 1001.36 because he was charged with a DUI offense. (Veh. Code, §§ 23152, 23640; Tellez v. Superior Court (2020) 56 Cal.App.5th 439, 444-445.) Because the court would have been compelled to deny appellant's request for diversion pursuant to Vehicle Code section 23640 even if the recent amendments to section 1001.36 had been in effect when the court ruled on the request, appellant's claim that the amendments apply retroactively to his case is moot.
In arguing that appellant's alcohol and substance use disorder was not a significant factor in his commission of the charged offenses, the prosecution noted appellant had offered no evidence to rebut the presumption that he was not under the influence of alcohol when he committed the offenses because his blood alcohol level was less than 0.05 percent. (See People v. Gallardo (1994) 22 Cal.App.4th 489, 496.) The prosecution went on to reason that in adjudicating appellant's request for diversion the court was thus required to "conclude that [appellant] was not under the influence of alcohol when he led the Sheriff's Department on an over 12-mile motorcycle chase." But this does not undermine the fact that appellant was still charged with a DUI offense, which rendered him categorically ineligible for diversion under section 1001.36. The DUI charge was ultimately dismissed as a term of appellant's no contest plea to the fleeing charges. Moreover, in opposing the request for diversion the prosecution never claimed it would be unable to rebut the presumption that appellant was not DUI if the matter ever proceeded to trial.
Even assuming that the amendments apply retroactively to appellant's case, he would not be entitled to a remand because the record clearly indicates the court would not have granted diversion even if had applied the rebuttable presumption set forth in the recent amendments to the law. (See People v. Jefferson (2019) 38 Cal.App.5th 399, 407 [declining to remand for retroactive application of original version of section 1001.36 where "the record before us 'clearly indicates' the trial court would not have found defendant eligible for diversion"].)
The court's comments clearly indicate it would have denied appellant's request for diversion notwithstanding the recent amendments to section 1001.36, even if appellant had not been charged with a DUI offense. In concluding that appellant's mental disorder was not a significant factor in his commission of the offenses the court also found "a uniquely compelling factor which, in [the court's] opinion, waters down any possible involvement of his mental disorder." Specifically, the court relied on appellant's own stated "plan and intent" to evade the police because he did not want to lose his Class A license. The court also noted that Dr. Rothberg had not offered any explanation or support for his opinion that appellant's mental disorder was a substantial factor in his decision to lead CHP officers on a high speed chase. These comments indicate the court would have found that appellant's own statements to Dr. Rothberg constituted clear and convincing evidence that his mental disorder was not a motivating factor, or contributing factor in his commission of the charged offenses. Even if the court had been effectively compelled to find otherwise it still would have had the discretion to deny the request for diversion. (People v. Watts, supra, 79 Cal.App.5th at pp. 834-835; People v. Qualkinbush, supra, 79 Cal.App.5th at p. 888.) In light of the court's comments, it is reasonably probable that the court would have exercised that discretion even if the new law were applied. (People v. Bunas, supra, 79 Cal.App.5th at pp. 866-867.)
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P. J., BALTODANO, J.