Denial of Mental Health Diversion must be supported by substantial evidence

Jeanette SARMIENTO, Petitioner, v.The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;The People, Real Party in Interest. D082443; Filed January 9, 20242024 WL 94326 (Cal.App. 4 Dist.), 1

Summary: Sarmiento requested mental health diversion (Pen. Code, § 1001.361) after being charged with  attempted robbery. Sarmiento had handed a liquor store clerk a note written in lipstick on a napkin saying, “Let me get the money.” The store employees did not give her any money but called 911.

A psychiatric evaluation submitted in support of Sarmiento’s request for diversion diagnosed her as suffering from post-traumatic stress disorder (PTSD), major depressive disorder, and stimulant use disorder specific to methamphetamine. The PTSD  was a result of  years of sexual trauma she suffered as a child and adolescent.  Sarmiento never received treatment for her foundational mental health diagnoses of PTSD and depression, and she self-medicated. Her failure to address the foundational mental health issues led to relapse and a resumption of criminal behavior.

Sarmiento met many of the requirements for diversion but the trial court denied her request. The court found that “her inability to remain drug-free after prior participation in [substance abuse] treatment” indicated “she would not respond well to mental health treatment,” which accordingly would not “meet [her] specialized mental health treatment needs.” The court also concluded that Sarmiento “pose[d] an unreasonable risk of danger to the public,”despite not finding that Sarmiento was likely to commit a super strike offense as required by the statute’s definition of dangerousness.

Section 1001.36 was designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior. The court may only draw conclusions supported by substantial evidence. Here, neither of the reasons relied on by the trial court provide a proper basis to deny diversion. The Court of Appeal issued  the writ of mandate and directed the trial court to grant the request for mental health diversion.

Request for Mental Health Diversion

Before  the preliminary hearing, Sarmiento filed a request for mental health diversion under section 1001.36. In support, she attached a medical evaluation and medical records, as well as the statements of various witnesses including family members, her employer, and her parole agent. Opinions of the doctor stated that: 1) the symptoms of Sarmiento’s mental disorders motivating her criminal behavior would respond to treatment, and (2) she would not pose an unreasonable risk to public safety if treated in the community. Sarmiento had been approved for a County-funded residential substance abuse treatment program. She proposed linking substance abuse treatment in a residential setting with County-funded outpatient mental health treatment. The People opposed with argument but no additional evidence.

Trial court denial of mental health diversion

The court found Sarmiento was not suitable for diversion due to several factors. It concluded that Sarmiento’s “inability to remain drug-free after prior participation in treatment” indicated “she would not respond well to mental health treatment.” The judge believed her past failures in drug treatment would be repeated if diversion were authorized.

The court doubted  that the proposed treatment program “will meet the specialized treatment needs of the defendant.” Its reasoning sounded a familiar refrain.

The  trial court acknowledged that section 1001.36 expressly defines “unreasonable risk of danger to public safety” by reference to section 1170.18, subdivision (c). Such a risk exists only if the evidence indicates it is likely the defendant will commit a so-called “super strike” violent felony. The court did not make such a finding. The court referenced its  “residual” discretion under the statute in concluding that diversion should be denied because Sarmiento “pose[d] an unreasonable risk of danger to the public.”
The Mental Health Diversion Process:

Effective January 1, 2023, mental health diversion requires trial court findings that the defendant is both eligible for diversion and suitable for the program. The criteria for each are specified in the statute. (§ 1001.36, subds. (b) & (c).) Defendants are eligible if they have been diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which they are charged. They are suitable if: (1) in the opinion of a qualified mental health expert, the defendant’s mental disorder would respond to treatment; (2) the defendant agrees to waive their speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) the defendant will not pose an “unreasonable risk of danger to public safety” as defined in sections 1170.18 and 667, subdivision (e)(2)(C)(iv). (§ 1001.36, subd. (c).)

Effective January 1, 2023, a defendant’s eligibility no longer turned on findings to the court’s “satisfaction.” Rather, defendants are generally eligible if they “ha[ve] been diagnosed” with a recognized mental disorder. (§ 1001.36, subd. (b)(1).) The amended statute creates a presumption that the defendant’s diagnosed mental disorder was a significant factor in the commission of the charged crime. The court is directed to find a causal connection “unless there is clear and convincing evidence that [the mental disorder] was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.” (Id., subd. (b)(2).)

Assuming the defendant is both eligible and suitable, the trial court must also be satisfied “that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.” (§ 1001.36, subd. (f)(1)(A)(i); see People v. Gerson (2022) 80 Cal.App.5th 1067, 1079, 296 Cal.Rptr.3d 576 (Gerson).) Even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. (Gerson, supra, 80 Cal.App.5th at p. 1079) But this “residual” discretion must be exercised “ ‘consistent with the principles and purpose of the governing law.’ ” That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community. Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

No basis for denial of diversion

Sarmiento never previously received treatment for her underlying mental disorders, there was insufficient evidence to show that her symptoms would not respond to treatment. The court’s concern with Sarmiento’s lack of success in past attempts at substance abuse treatment does not support a finding that the recommended treatment would not meet her “specialized needs.” Here, the alleged failure of prior drug treatment programs says nothing about any inadequacy of the proposed plan to address Sarmiento’s mental health needs.

The trial court misapplied the statutory criteria in deciding that residual concerns for public safety not amounting to a likelihood that Sarmiento will commit a super strike offense can justify the denial of diversion.

The sole issue in the case was whether the defendant would pose “an unreasonable risk of danger to public safety … if treated in the community.” (Whitmill, supra, 86 Cal.App.5th at p. 1150.) Diversion was properly denied only if the defendant was “too dangerous to be treated in the community because he would commit a new violent super strike.” (Ibid.) Considering the defendant’s lack of a prior record of violence and the totality of circumstances in the case, the appellate court concluded there was “no substantial evidence to support the trial court’s finding that appellant posed an unreasonable risk of committing a super strike if treated in the community.” (Id. at p. 1156.) The trial judge likewise applied an incorrect standard by “fail[ing] to consider the primary purposes of mental health diversion as set forth in section 1001.35.” (Whitmill, at p. 1156.)

The Legislature has emphasized that for defendants whose criminal behavior is a function of their diagnosed mental health disorders, treatment is the much preferred option so that diversion should “apply as broadly as possible.” (Whitmill, supra, 86 Cal.App.5th at p. 1149.)

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