Skip to content
Name: Persiani v. Superior Court (2024) 100 Cal.App.5th 48
Case #: G062648
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 02/28/2024
Summary

Trial court has authority under Penal Code section 1370.01(b)(1)(A) to order treatment through mental health diversion for a mentally incompetent misdemeanor defendant charged with driving under the influence. Defendant was charged in four misdemeanor cases with DUI (Veh. Code, § 23152(a)). While the charges were pending, the trial court found defendant incompetent to stand trial. Although defendant was found suitable for outpatient treatment through mental health diversion (Pen. Code, § 1370.01), the court concluded defendant was ineligible for such treatment because Vehicle Code section 23640 prohibits diversion in cases where a defendant is charged with DUI. Defendant petitioned for writ of mandate, seeking dismissal of her cases. Held: Petition denied but remanded for further proceedings. Under section 1370.01(b)(1)(A), a trial court has 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. Although recent cases have concluded that Vehicle Code section 23640 bars pretrial diversion for defendants charged with DUI, those cases involved competent defendants charged with DUI, not incompetent misdemeanor defendants. 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. A court acting under section 1370.01 suspends the criminal proceedings because the defendant is mentally incompetent to stand trial, not for the purpose of allowing the defendant to attend or participate in a pretrial diversion or treatment program. Thus, when a misdemeanor defendant charged with DUI is found incompetent to stand trial, the prohibition in Vehicle Code section 23640 does not apply. Because the trial court misunderstood its authority to order mental health diversion under section 1370.01, the court remanded for the trial court to determine whether to order defendant be provided mental health diversion treatment, and if so, the length of such treatment.