Court applied wrong standard in denying Veteran mental health diversion

THE PEOPLE, Plaintiff and Respondent, v. THOMAS WHITMILL, Defendant and Appellant. (Cal. Ct. App., Dec. 23, 2022, No. B318582) 2022 WL 17883593 

 Summary: Sixty-one-year-old Whitmill appealed the denial of his pretrial motion for mental health diversion of his criminal prosecution. He argued that because he is an honorably discharged veteran who suffers from a severe mental disorder, he meets the eligibility requirements for pretrial mental health diversion under Penal Code section 1001.36.

The Court of Appeal ruled that the trial court erred when it denied Whitmill’s motion and remanded to the trial court with instructions to grant the motion for diversion.

The Charges and Plea

On June 10, 2021, Whitmill  was charged with one count of possession of a firearm by a felon (§ 29800, subd. (a)(1)), one count of discharge of firearm with gross negligence (§ 246.3, subd. (a)), and one count of criminal threats (§ 422, subd. (a)).

On July 15, 2021, he  entered a plea of not guilty. He also informed the court he “seeks mental health diversion.”

Motion for Mental Health Diversion

On October 29, 2021, Whitmill filed a notice of motion for pretrial diversion pursuant to section 1001.36. Whitmill submitted a sworn declaration from his counsel, a confidential psychological evaluation report by Robin Rhodes Campbell, Ph.D., MPH, MS (Dr. Campbell), and a letter from appellant’s Veteran’s Administration (VA) liaison Jonathan Clark, LCSW.

VA records indicate Whitmill was treated for military sexual trauma (MST) and was diagnosed with post-traumatic stress disorder (PTSD).

Whimill had substance abuse treatment at the VA for over two years, but relapsed in November 2020 upon learning a loved one was diagnosed with cancer; a few months later, he was arrested following the March 2021 incident.

The VA liaison noted appellant received an honorable discharge and was diagnosed and rated as 90 percent service-connected for PTSD. He suffered from PTSD, hypervigilance, high-startle response, deep depression, insomnia, sleep disturbance, self-isolation, and anxiety.

The court found that “based on the defendant’s willingness to make a threat to kill accompanied by firing a gun into the air, that that conduct demonstrates that he is likely to commit a super strike offense.” The court concluded that appellant “poses an unreasonable risk of danger to public safety as defined in … section 1170.18” and denied his motion.

Mental Health Diversion

Section 1001.36 authorizes pretrial mental health diversion for defendants with qualifying mental health disorders. Pretrial diversion means 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.

six threshold eligibility requirements in section 1001.36, subdivision (b)(1)(A)–(F).

• The court must find defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. (Id., subd. (b)(1)(A).) “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.”
• The court must find “the defendant’s mental disorder was a significant factor in the commission of the charged offense.” (§ 1001.36, subd. (b)(1)(B).)
• “a qualified mental health expert” must opine that “the defendant’s symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment.” (§ 1001.36, subd. (b)(1)(C).)
• The defendant must consent to diversion and waive his or her right to a speedy trial. (§ 1001.36, subd. (b)(1)(D).)
• The defendant must agree to comply with treatment as a condition of diversion. (§ 1001.36, subd. (b)(1)(E).)
• The court must find defendant will not pose an “unreasonable risk of danger to public safety … if treated in the community.” (§ 1001.36, subd. (b)(1)(F).)

Section 1170.18, subdivision (c) defines “unreasonable risk of danger to public safety” to mean “an unreasonable risk that the petitioner will commit a new violent felony” within the meaning of section 667, subdivision (e)(2)(C)(IV). That  itemizes eight categories of offenses—sexually violent offenses, oral copulation with a child under 14, lewd or lascivious act with a child under 14, homicide, solicitation to commit murder, assault with a machine gun on a peace officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by life imprisonment or death- referred to as “super strikes.” (§ 667, subd. (e)(2)(C)(iv); Bunas, supra, 79 Cal.App.5th at p. 851, fn. 11.)

Even if a defendant meets the six threshold eligibility requirements, a trial court may still exercise its discretion to deny mental health diversion if it finds that the defendant or the offense are not suitable for diversion.

The purpose of mental health diversion is to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services. The Legislature intended the mental health diversion program to apply as broadly as possible.

If the defendant successfully completes diversion, including having in place a plan for long-term mental health care, the criminal charges shall be dismissed. (§ 1001.36, subd. (e).) However, if after diversion is granted, a qualified mental health expert concludes the defendant “is performing unsatisfactorily in the assigned program,” the court shall, after notice to defendant, hold a hearing to determine whether criminal proceedings should be reinstated or treatment modified. (Id., subd. (d)(4)(A).)

Does Whitmill pose an unreasonable risk to public safety?

On appeal, the only  issue raised is if defendant “will not pose an unreasonable risk of danger to public safety … if treated in the community.” (§ 1001.36, subd. (b)(1)(F).)

Whitmill satisfies the first five of the six qualifying mental health diversion requirements. The Court of Appeal found there was no substantial evidence that appellant poses an unreasonable risk to public safety or that he is too dangerous to be treated in the community because he would commit a new violent super strike.

Here, the trial court did not find that appellant is “likely to commit a super-strike offense.” (People v. Hoffman (2015) 241 Cal.App.4th 1304, 1210; Moine, supra, 62 Cal.App.5th at p. 450 [“a trial court necessarily must find the defendant is ‘likely to commit a super-strike offense’ ” to deny diversion on this ground; in other words, “the risk of danger is narrowly confined to the likelihood the defendant will commit a limited subset of violent felonies”].) No evidence in the record to support such a finding.

The Court of Appeal reversed the trial court’s denial of appellant’s motion, with directions to grant the motion and refer the defendant to a pretrial mental health diversion program, to “avoid the unnecessary delay occasioned by yet [another]hearing.” (People v. Williams (2021) 63 Cal.App.5th 990, 1005.)