# P. Vidor CA1/1

> California Court of Appeal · February 6, 2023

URL: https://www.frixlaw.com/law-library/cases/9368709

## Case

- **Court:** California Court of Appeal
- **Decided:** February 6, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 2/6/23 P. Vidor CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A163804
v.
MATTHEW VIDOR, (Sonoma County
Super. Ct. No. SCR-668037-1)
Defendant and Appellant.

This is the third appeal in this matter following appellant Matthew
Vidor’s convictions for carjacking and two related offenses which resulted in a
prison sentence of 10 years and eight months. On remand from this court
following the second appeal, the trial court found appellant ineligible for
mental health diversion (Pen. Code, § 1001.36)1 after concluding that his
mental illness was not a significant factor in his criminal behavior. On
appeal, appellant contends the court abused its discretion in denying his
request for diversion. We affirm.2

1 All undesignated statutory references are to the Penal Code.
On February 4, 2022, we granted appellant’s request for judicial
2

notice of the record in his appeal from the original judgment. (People v. Vidor
(September 27, 2018, A152527) [nonpub. opn.] (Vidor I); Evid. Code, §§ 452,
subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) We derive much of the
factual and procedural background from that case as well as from our opinion

1
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 2015, appellant was charged with carjacking (§ 215, subd. (a)),
count 1), fleeing a pursuing police vehicle while driving recklessly (Veh. Code,
§ 2800.2, count 2), and elder abuse (§ 368, subd. (b)(1), count 3). The
complaint further alleged that count 1 was a serious and violent felony
pursuant to section 667.9, subdivision (a) because the victim was elderly.
(Vidor II, supra, A156690.)
Early in the proceedings, the trial court appointed psychiatrist Dr.
Donald Apostle to evaluate appellant’s mental competency. Dr. Apostle
determined that appellant was not mentally competent to stand trial. (Vidor
I, supra, A152527.) Proceedings were suspended from August 5, 2015 to
December 11, 2015, while appellant was restored to competency. He
ultimately entered an open plea to all charges in March 2016. (Vidor II,
supra, A156690.)
On July 19, 2016, the trial court imposed and suspended a sentence of
10 years, eight months and placed appellant on formal probation for four
years on the condition that he serve one year in county jail and enter the
Jericho Project drug and alcohol treatment program (Jericho). The court
awarded 349 days actual credit plus 348 days conduct credit plus 35 hospital
days for a total of 732 presentence custody credits. (Vidor II, supra,
A156690.)
On August 28, 2016, nine days after his admission, appellant was
discharged from Jericho, reportedly due to his negative attitude and behavior
and his failure to respond adequately to treatment. He did not contact the

in the second appeal, People v. Vidor (Dec. 3, 2020, A156690) [nonpub. opn.]
(Vidor II).

2
probation department and report his discharge, even though he had been
instructed to do so. On September 2, 2016, the Sonoma County trial court
summarily revoked his probation and issued a warrant for his arrest. After
serving 251 days in custody in San Francisco County jail on an unrelated
probation violation, appellant was returned to Sonoma County on May 30,
2017. Appellant admitted his probation violation in this matter on July 17,
2017. On September 19, 2017, the trial court terminated appellant’s
probation as unsuccessful and executed the previously imposed sentence of 10
years, eight months. (Vidor II, supra, A156690.) He timely appealed.
After appellate counsel filed a brief pursuant to People v. Wende
(1979) 25 Cal.3d 436, we affirmed appellant’s conviction in an unpublished
opinion filed on September 27, 2018, but remanded the case to allow “the trial
court to properly consider the custody credits appellant is entitled to in the
case.” (Vidor I, supra, A152527.) After the trial court declined to adjust the
custody credits, appellant again appealed. While we agreed with the trial
court’s ruling on credits, we conditionally reversed appellant’s conviction and
directed the court to conduct a hearing on his suitability for mental health
diversion under section 1001.36. (Vidor II, supra, A156690.)
On August 27, 2021, appellant filed a motion seeking mental health
diversion. Following argument at a hearing conducted on October 21, 2021,
the trial court denied the motion, concluding that appellant’s mental health
disorder was not a significant factor in the commission of the charged
offenses. Appellant timely appealed and requested a certificate of probable
cause, which was granted on October 26, 2021.
II. DISCUSSION
In People v. Moine (2021) 62 Cal.App.5th 440, 448, the Court of Appeal
concluded that the abuse of discretion standard of review applies “on appeal

3
from a trial court’s denial of mental health diversion.” Appellant contends
the trial court abused its discretion in finding him ineligible for section
1001.36 mental health diversion. We are not persuaded.
A. Additional Background
As noted above, in July 2015 the trial court appointed Dr. Apostle to
evaluate appellant’s competency to stand trial.3 (Vidor I, supra, A152527.).
In a report dated July 31, 2015, Dr. Apostle determined that appellant was
incompetent. The doctor indicated that appellant had experienced “delusions
of grandeur” and had been diagnosed with possible bipolar disorder when he
was 18 or 19. He had been prescribed lithium, which did not help. He began
using marijuana in the seventh grade, had used methamphetamine
consistently for the last five years, and had abused a variety of other drugs,
including LSD, mushrooms, Ecstasy, and MDMA. Dr. Apostle noted that
appellant was thought to have a diagnosis of polysubstance dependence with
psychosis, as well as possible post-traumatic stress disorder. Appellant had
recently become “increasingly delusional and fascinated with taking cars,”
which he had done three times since December 2014. In concluding that
appellant was incompetent, the doctor noted that “[t]here may be an
underlying major mental health diagnosis but he needs to be off illicit drugs
before that can definitively be stated.” Based on the report, the trial court
suspended criminal proceedings in August 2015. (Vidor II, supra, A156690.)
The following month, after defense counsel indicated a possible restoration of
competency, the court re-appointed Dr. Apostle. The doctor re-evaluated

3This report and all but one of the reports discussed below were
submitted as exhibits to appellant’s motion for mental health diversion.

4
appellant and concluded that while he showed improvement, he was still
incompetent to stand trial and should be placed in a hospital setting.
An October 2015 report prepared by a hospital interdisciplinary
treatment team pursuant to section 1370 4 further confirmed appellant’s
incompetency to stand trial. However, the report noted that although he had
not been prescribed any antipsychotic medication, appellant showed no
apparent delusions and was fully oriented. He was diagnosed as having
severe amphetamine-type substance use disorder, severe alcohol use disorder,
and moderate cannabis use disorder. The report concluded that appellant
“probably might have had a drug induced psychosis,” based on his significant
history of substance abuse.
On November 25, 2015, the hospital’s medical director submitted a
certification of mental competency. In an accompanying report, the hospital’s
treatment team noted that appellant’s symptoms—primarily paranoid
delusions—had improved despite him not being on psychotropic medications.5
Appellant also was “not showing obvious symptomatology for
psychopharmacological therapy.” The trial court determined appellant was
competent, and criminal proceedings were reinstated on December 11, 2015.
(Vidor 1, supra, A152257.)
More recently, in 2021, prison psychologists reported that appellant
had been exhibiting symptoms of mania and “unusual/erratic behavior.” In
February 2021, he was “floridly psychotic” and was “highly suspected of being
psychotic due to drug use.” He also had been written up for refusing urine

4Section 1370 sets forth the required procedure for transferring
defendants who have been found mentally incompetent to stand trial to the
State Department of State Hospitals for treatment.
5 It appears that this report was not submitted with appellant’s motion.

5
testing in the past. In July 2021, he again exhibited manic-like symptoms
and was suspected of ongoing drug use, although it was unlikely that he had
obtained drugs because he was in administrative segregation. The
psychologist opined that appellant likely suffered from an underlying bipolar
disorder with psychotic features that may have contributed to his self-
medicating behavior in the community.
In denying appellant’s motion for mental health diversion, the trial
court noted that Dr. Apostle had determined in 2015 that appellant may have
an underlying mental health diagnosis, but that he needed to be off of illicit
drugs before a diagnosis could be definitively determined. This suggested to
the court that “the use of controlled substances was clearly a substantial
factor in [appellant’s] behavior as would appear to be the case in the
underlying incident.” The hospital team’s 2015 section 1370 report also
indicated that appellant might have experienced a drug-induced psychosis,
but he was not then exhibiting any psychotic or mood symptoms, reinforcing
the court’s view that appellant’s use of controlled substances was a
substantial contributor to his criminal behavior. As to the more recent
reports from the prison psychologist, the court found it was not inconsistent
with the prior conclusions reached in the 2015 reports, namely, that
appellant’s criminal behavior was the result of methamphetamine usage.
B. Applicable Legal Principles
“Section 1001.36 authorizes a pretrial diversion program for defendants
with qualifying mental disorders. The statute defines ‘ “pretrial diversion” ’
as ‘the postponement of prosecution, either temporarily or permanently, at
any point in the judicial process from the point at which the accused is
charged until adjudication, to allow the defendant to undergo mental health
treatment . . . .’ ” (People v. Frahs (2020) 9 Cal.5th 618, 626 (Frahs).)

6
“[S]ection 1001.36 applies retroactively to all cases not yet final on appeal.”
(Frahs, at p. 632.)
“[A] trial court may grant pretrial diversion if it finds all of the
following: (1) the defendant suffers from a qualifying mental disorder; (2) the
disorder played a significant role in the commission of the charged offense; (3)
the defendant’s symptoms will respond to mental health treatment; (4) the
defendant consents to diversion and waives his or her speedy trial right; (5)
the defendant agrees to comply with treatment; and (6) the defendant will
not pose an unreasonable risk of danger to public safety if treated in the
community.” (Frahs, supra, 9 Cal.5th at pp. 626–627.) “If the defendant
makes a prima facie showing that he or she meets all of the threshold
eligibility requirements and the defendant and the offense are suitable for
diversion, and the trial court is satisfied that the recommended program of
mental health treatment will meet the specialized mental health treatment
needs of the defendant, then the court may grant pretrial diversion.” (Id. at
p. 627.) “ ‘If the defendant has performed satisfactorily in diversion, at the
end of the period of diversion, the court shall dismiss the defendant’s criminal
charges that were the subject of the criminal proceedings at the time of the
initial diversion’ and ‘the arrest upon which the diversion was based shall be
deemed never to have occurred.’ ” (Ibid.)
“Ultimately, however, diversion under section 1001.36 is discretionary,
not mandatory, even if all the requirements are met. [Citations.] We
therefore review for abuse of discretion the trial court’s decision whether to
grant a request for mental health diversion. [Citation.] ‘A court abuses its
discretion when it makes an arbitrary or capricious decision by applying the
wrong legal standard [citations], or bases its decision on express or implied
factual findings that are not supported by substantial evidence.’ ” (People v.

7
Gerson (2022) 80 Cal.App.5th 1067, 1080.) “ ‘It is [defendant’s] burden on
appeal to establish an abuse of discretion and prejudice.’ ” (People v. Pacheco
(2002) 75 Cal.App.5th 207, 213.)
C. Analysis
Appellant first contends that the trial court’s denial of his motion for
mental health diversion runs afoul of section 1001.36. Specifically, he asserts
that the court’s determination that he was ineligible for diversion due to his
drug use is contrary to statute, relying on Negron v. Superior Court (2021) 70
Cal.App.5th 1007, 1016–1018 (Negron). Negron, however, is inapposite.
In that case, the trial court ruled that the defendant was statutorily
ineligible for mental health diversion under section 1001.36 because, while
the court found he suffered from several qualifying mental health disorders,
he also suffered from antisocial personality disorder, a mental disorder that
is expressly excluded under section 1001.36, subdivision (b)(1)(A).6 (Negron,
supra, 70 Cal.App.5th 1007 at pp. 1011–1013.) The central question on
appeal was whether a defendant suffering from an excluded mental health
disorder is statutorily ineligible for mental health diversion where he or she
also suffers from a qualifying mental disorder. (Id. at p. 1009.) The Attorney
General joined the defendant in urging the court of appeal to vacate the
denial and order a new hearing. (Id. at p. 1013–1014.) The appellate court
concurred, concluding that section 1001.36, subdivision (b)(1)(A)

6 Section 1001.36, subdivision (b)(1)(A) provides that diversion may be
granted if “the court is 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, 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. . . .” (Italics added.)

8
unambiguously requires a defendant to establish that he or she suffers from a
qualifying mental disorder, while also providing a list of excluded disorders.
(Id. at p. 1017.) The court ruled that a defendant with multiple disorders,
including an excluded disorder, is not necessarily ineligible for relief:
“Listing included and excluded disorders in this format simply articulates
which disorders may and may not serve to prove the defendant has at least
one qualifying mental disorder.” (Ibid.)
In the present case, the trial court did not rule that appellant was
ineligible for mental health diversion because he had a diagnosis that is
excluded under 1001.36, subdivision (b)(1)(A). Rather, the court ruled he was
ineligible for diversion under 1001.36, subdivision (b)(1)(B) because he failed
to demonstrate that at or near the time of the offenses he had a qualifying
disorder that significantly contributed to his criminal behavior. Negron is
therefore inapplicable to appellant’s circumstances, and he has thus failed to
demonstrate that the trial court’s decision was contrary to statute.
Appellant next contends that the trial court’s decision was not
supported by substantial evidence. Again, we disagree. “To grant pretrial
diversion, the court must be ‘satisfied that the defendant’s mental disorder
was a significant factor in the commission of the charged offense.’ (§ 1001.36,
subd. (b)(1)(B).) In this regard, the court must conclude ‘that the defendant’s
mental disorder substantially contributed to the defendant’s involvement in
the commission of the offense.’ (Ibid.)” (People v. Oneal (2021) 64
Cal.App.5th 581, 592 (Oneal).) “[W]hen determining whether a defendant’s
mental disorder was a significant factor in the commission of the charged
offense for purposes of mental health diversion, section 1001.36 broadly
permits the trial court to consider ‘any relevant and credible evidence,
including, but not limited to, police reports, preliminary hearing transcripts,

9
witness statements, statements by the defendant’s mental health treatment
provider, medical records, records or reports by qualified medical experts, or
evidence that the defendant displayed symptoms consistent with the relevant
mental disorder at or near the time of the offense.’ [Citation.]” (Oneal,
supra, at p. 591, italics omitted.)
Oneal, supra, 64 Cal.App.5th 581, is instructive. In Oneal, the
reviewing court found that the lower court did not abuse its discretion when
it denied diversion after concluding that the defendant’s mental illness was
not a significant factor in his criminal behavior. (Oneal, supra, 64
Cal.App.5th 581 at p. 585.) In that case, the prosecution’s two experts opined
that the defendant’s psychotic or schizoaffective disorder “was not responsible
for, or a motivating factor in,” the defendant’s commission of the offenses.
(Id. at p. 592.) In contrast, the defendant’s expert opined that defendant’s
schizoaffective disorder “ ‘played a significant role in the commission of the
charged offenses,’ ” appearing to rely on testimony from the preliminary
hearing indicating that the defendant had a “ ‘blank look’ ” or “ ‘stare’ ” when
he committed the offenses. (Ibid.) Unlike the prosecution’s experts, the
defendant’s expert “did not engage defendant in a clinical interview or
address the role of defendant’s substance use in his criminal behavior.”
(Ibid.) The appellate court upheld the trial court’s decision, observing that
“[u]ltimately, it was for the trial court to resolve this conflict in the evidence.”
(Id. at p. 593)
The record here contains substantial evidence to support the trial
court’s conclusion that mental illness did not play a significant role in
appellant’s commission of the underlying offenses. As noted above, the court
considered multiple reports dating from July 2015 to August 2021. The
reports from 2015 were made in connection with competency proceedings.

10
Both the July 2015 report of Dr. Apostle and the October 2015 section 1370
report prepared by the hospital treatment team suggested that
methamphetamine use was the primary factor in appellant’s conduct. Those
reports were written relatively close in time to when the offenses were
committed. And the hospital team report indicated that his psychotic
symptoms had improved since his arrest, even though he was not currently
taking psychotropic medications. The trial court thus had significant
evidence before it tending to show that appellant behaved criminally when he
was using illicit drugs, and that he acted appropriately when he was not
taking illicit drugs.
Appellant’s argument relies heavily on the information and opinions
supplied in the 2021 prison psychologists’ reports. However, the trial court
reasonably determined that even if appellant likely had a bipolar disorder
that may have contributed to his drug use, this did not alter the fact that a
drug-induced psychosis was deemed to be the primary driver behind the
underlying offenses. Moreover, as the Oneal court recognized, it was up to
the trial court to resolve the conflicts in the evidence. (Oneal, supra, at p.
593.) As a court of review, it is not within our province to reweigh the
evidence.
Appellant finally contends that even if the trial court’s conclusions were
supported by substantial evidence, the decision to deny diversion was an
abuse of discretion. He argues that “the court abused its discretion by
excluding an individual from treatment who has been suffering from mental
disorders for years, whether exacerbated by drug use or not.” While it does
appear that appellant has a mental health disorder, it does not necessarily
follow that the disorder significantly contributed to the commission of the
underlying offenses, particularly given his long history of chronic

11
methamphetamine use and the relatively rapid decrease in his delusional
symptoms without the use of psychotropic medications following his arrest
and incarceration. In sum, the court’s denial of appellant’s motion for mental
health diversion was a proper exercise of its discretion.
III. DISPOSITION
The order denying appellant’s request for mental health diversion is
affirmed.

12
DEVINE, J.

WE CONCUR:

MARGULIES, ACTING P.J.

BANKE, J.

A163804N

Judge of the Contra Costa County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9368709. Public record. Not legal advice.