Opinion
H050694
04-05-2024
THE PEOPLE, Plaintiff and Respondent, v. DANIEL PATRICK ALVARADO, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C2114617
BROMBERG, J.
Defendant Daniel Patrick Alvarado was charged with one count of inflicting corporal injury on a person with whom he had a dating relationship. (Penal Code, § 273.5, subd. (a).) The information also alleged that Alvarado inflicted great bodily harm in circumstances involving domestic violence. (§§ 12022.7, subd. (e), 1203, subd. (e)(3).) Alvarado appeals from the trial court's denial of his application for mental health diversion under section 1001.36. Although the trial court found that Alvarado had a qualifying mental health disorder that contributed to the charged offense, it denied diversion on the ground that Alvarado would pose an unreasonable risk to public safety if treated in the community. Because substantial evidence supports this finding, and the trial court applied the correct standard in reaching it, we affirm.
Subsequent undesignated statutory references are to the Penal Code.
I. Background
The facts regarding the underlying offense are taken from the parties' filings on the application for mental health diversion and the transcript of the preliminary examination.
In November 2021, Alvarado lived in a homeless encampment where he shared a shelter with his partner, L.T. (To protect the privacy of the victim in this case, we refer to him by his initials. (Cal. Rules of Court, rule 8.90(b)(4)).) On November 5, 2021, L.T. contacted police from a San Jose hospital. He told police that, earlier in the day after he refused to have sex, Alvarado attacked him. Alvarado threw a hammer at L.T., and when the hammer missed, Alvarado "violently" grabbed L.T.'s testicles. Although L.T. screamed, Alvarado continued "squeezing and yanking" his testicles hard enough to tear the scrotum. After finally letting go, Alvarado picked up a hatchet and swung it several times as if he were going to chop the toes of L.T.'s bare feet. Alvarado then elbowed L.T. in the face before fleeing.
Alvarado's actions caused a partial protrusion of L.T.'s testicle from the scrotum, which required surgery and stitches to repair.
B. The Mental Health Diversion Request
On November 5, 2021, the Santa Clara County District Attorney charged Alvarado with inflicting corporal injury under section 273.5 and sought a domestic violence protective order, which the trial court granted. In June 2022, a court-appointed psychotherapist found Alvarado competent to stand trial. The following September Alvarado applied for mental health diversion under section 1001.36.
In support of the application Alvarado submitted a psychotherapist's report and an assessment from the Santa Clara County Behavioral Health Services, which he later supplemented with a report from a psychologist. The psychotherapist concluded that at the time of the attack on L.T., Alvarado was "likely experiencing many of the persistent chronic symptoms of a major depressive disorder" and that this disorder played a role "in having compromised his judgment and reduced his ability to behave lawfully at the time of the altercation." The health services assessment also recognized that Alvarado suffers from a major depressive disorder, and it additionally found a severe "amphetamine-type use disorder" and noted that Alvarado reported using methamphetamine for approximately six years. The assessment reported as well that Alvarado likely lacked insight into the effect of his drug use, but was receptive to treatment recommendations.
The psychologist retained by Alvarado also found that Alvarado appeared open to treatment and capable of benefitting from it. In assessing the criteria for evaluating eligibility and suitability for section 1001.36 grants of diversion, the psychologist concluded that Alvarado suffered from a qualifying mental health disorder, that the disorder played a significant role in the commission of the charged offense, that the symptoms motivating the criminal behavior would respond to mental health treatment, and that he agreed to comply with treatment as a condition of diversion. Finally, the psychologist concluded that Alvarado would not pose an unreasonable risk of danger to the public if treated in the community. She stated that Alvarado was at some risk for violence, as shown by his offense, but he was "not a highly criminogenic, violent individual by nature," and his offense conduct was directly linked to his mental illness symptoms and other contributing factors, such as intoxication and lack of coping skills. As a consequence, the psychologist opined, if Alvarado remained sober and compliant with medication, "future decompensation and violence of this kind do appear to be preventable."
The psychologist also made a risk assessment-though she prefaced the assessment by cautioning that "it is usually not possible to confidently predict dangerous behavior in individual cases." Taking into consideration his historical or underlying factors, his clinical history, and his risk factors, the psychologist placed Alvarado in "the moderate range of risk for violence."
On October 25, 2022, after a contested hearing, the trial court denied diversion. The court found that Alvarado satisfied most of the requirements for diversion. It found a qualifying mental health disorder and that the disorder substantially contributed to the commission of the offense in question. It also agreed with Alvarado's psychologist that the symptoms motivating the offense conduct would respond to mental health treatment. The trial court, however, found one requirement unsatisfied: It found that that Alvarado had not shown that he "does not pose an unreasonable risk to public safety as defined in [section] 1170.18." To the contrary, the court believed that "it is likely he could commit a super strike." "Whether he threw the hammer at the person or he threw it four feet away from the person," the court reasoned, "he threw a hammer." In addition, the court continued, "[g]oing to another individual and grabbing them by the privates, as was described, and causing a rupture through which I guess one of the testicles popped out of the scrotum is such an unbelievable injury, such a drastic and very, very personal and very, very serious medical injury that I'm concerned." Finally, the court expressed concern that "with the amphetamine use and without him getting treatment that he would possibly commit a super strike."
The trial court therefore denied mental health diversion, but expressed hope that with appropriate supervision and support Alvarado "could very well succeed in mental health treatment court."
C. Subsequent Proceedings
In November 2022, the month following the denial of his request for mental health diversion, Alvarado pleaded nolo contendere to count 1 pursuant to plea agreement in which the parties agreed to three years of formal probation and 364 days in the county jail. At a sentencing hearing in December 2022, the trial court suspended imposition of sentence and placed Alvarado on three years of formal probation. The court also ordered him to serve 364 days in the county jail and, pursuant to the plea agreement, dismissed the great bodily injury enhancement. Later that month, Alvarado was transferred to Drug Treatment Court, and the court suspended the balance of the county jail term and placed Alvarado in a residential treatment facility.
Towards the end of December 2022, Alvarado filed a timely notice of appeal and request for certificate of probable cause, which the trial court granted.
II. Discussion
Alvarado argues that the trial court abused its discretion in denying his application for mental health diversion because it erroneously determined that he failed to show he would not pose an unreasonable risk of danger to public safety and because it used an erroneous standard in doing so. As explained below, neither argument is persuasive.
A. The Mental Health Diversion Statute
In June 2018, the Legislature enacted section 1001.36 (Stats. 2018, ch. 34, § 24), which created a pretrial diversion program for certain defendants with mental health disorders. (See People v. Frahs (2020) 9 Cal.5th 618, 624.) The statute allows trial courts to postpone prosecution, either temporarily or permanently, to permit a defendant to undergo mental health treatment. (§ 1001.36, subd. (f)(1) [defining" '[p]retrial diversion' "].) To place a defendant in a pretrial diversion program, a trial court must find that the defendant satisfies section 1001.36's criteria for both eligibility and suitability. (§ 1001.36, subd. (a).)
There are six requirements in total, two for eligibility and four for suitability. The two eligibility requirements are (1) the defendant has been diagnosed with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Health Disorders and (2) this disorder was a significant factor in the commission of the charged offense. (§ 1001.36, subd. (b).) The four suitability requirements are: (1) the defendant's symptoms would respond to mental health treatment, (2) the defendant consents to diversion and waives his or her speedy trial rights, (3) the defendant, if capable of doing so, agrees to comply with treatment as a condition of diversion, and (4) the defendant will not pose an unreasonable risk to public safety. (§ 1001.36, subd. (c).)
Specifically, the final suitability factor is that "[t]he defendant will not pose an unreasonable risk of danger to public safety as defined in Section 1170.18, if treated in the community." (§ 1001.36, subd. (c)(4).) Section 1170.18 in turn defines "unreasonable risk of danger to public safety" to mean an unreasonable risk that the defendant "will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of section 667" (§ 1001.36, subd. (c))-the provision defining the "eight categories of offenses . . . colloquially referred to as 'super strikes.'" (People v. Whitmill (2020) 86 Cal.App.5th 1138, 1149 (Whitmill).) Thus, to establish that he or she will not pose an unreasonable risk of danger to public safety and satisfy the final requirement for mental health diversion, a defendant must show that he or she is not likely to commit a super-strike offense. (See People v. Moine (2021) 62 Cal.App.5th 440, 450 (Moine).) In determining whether this requirement has been satisfied, a court may consider "the opinions of the district attorney, the defense, or a qualified mental health expert" as well as "the defendant's treatment plan, the defendant's violence and criminal history, the current charged offense, and any other factors that the court deems appropriate." (§ 1001.36, subd. (c)(4).)
B. The Evidence Concerning the Public Safety Requirement
Alvarado argues that the trial court abused its discretion by erroneously determining that he failed to show that he would not pose an unreasonable risk of danger to public safety. Because diversion under section 1001.36 is discretionary rather than mandatory, trial court decisions whether to grant mental health diversion are reviewed for abuse of discretion. (People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887 (Qualkinbush); Moine, supra, 62 Cal.App.5th at pp. 449-450.) Under this standard, factual findings are reviewed for substantial evidence. (Whitmill, supra, 86 Cal.App.5th at p. 1147; Moine, supra, 62 Cal.App.5th at p. 449.) The trial court's findings concerning the danger to public safety satisfy this deferential standard.
In the first place, Alvarado is charged with conduct that is not far from a super-strike offense. Section 667 lists eight super-strike offenses: sexually violent offenses, oral copulation with a child under 14, lewd or lascivious acts with 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. (§ 667, subd. (e)(2)(C)(iv).) Alvarado is charged with conduct that is sexually violent at least in a colloquial sense, even though it may not satisfy the technical requirements for a sexually violent offense under section 667. (See id., subd. (e)(2)(C)(iv)(I) [incorporating the definition of" 'sexually violent offense'" in Welfare and Institutions Code section 6600].) Moreover, the information alleged that Alvarado inflicted great bodily injury in the commission of a felony. (§ 12022.7.) Although it is unclear what Alvarado's mental state may have been, conduct such as throwing a hammer and swinging a hatchet could easily cause permanent disfigurement "under circumstances manifesting extreme indifference to the physical or psychological well-being of another person" as described in section 205, defining the super-strike offense of aggravated mayhem.
Certainly, the trial court had ample grounds for concluding that Alvarado was accused of inflicting "an unbelievable injury." The evidence presented at the preliminary examination showed that, after throwing a hammer at L.T., Alvarado violently grabbed L.T.'s testicles and, despite L.T.'s screams of pain, continued squeezing and yanking so hard that he tore L.T.'s scrotum, which required surgery and stitches. In light of the cruel and violent nature of these actions, the trial court reasonably found that Alvarado was likely to commit a super-strike offense. (See People v. Bunas (2022) 79 Cal.App.5th 840, 861-862.)
This conclusion is reinforced by Alvarado's criminal history, his lack of remorse, and his repeated violations of his conditions of release. In addition to several drug convictions, Alvarado has been convicted of possessing a switchblade knife and arrested several times for domestic violence. In addition, far from being stunned or repelled by a single rash act of cruelty, Alvarado engaged in multiple acts of violence, starting first with throwing the hammer, then squeezing L.T.'s testicles over L.T.'s screams, and finishing by menacing him with a hatchet and elbowing him in the face. While these actions may have been fueled by methamphetamine, he repeatedly violated the conditions of his release and failed to appear in court. As a consequence, we cannot say that the trial court lacked grounds for finding it likely that, if treated in the community, Alvarado would disregard the conditions of his release, again obtain methamphetamine, and step over the line from his previous conduct into the commission of a super-strike offense.
In arguing that the trial court abused its discretion in finding an unreasonable risk to public safety, Alvarado largely ignores the nature of the charged conduct and the trial court's evaluation of it. Instead, he points to the Second Appellate District's decision in People v. Whitmill, supra, 86 Cal.App.5th 1138. This case, however, is far different from Whitmill. In Whitmill, a veteran with post-traumatic stress disorder told a friend" '[d]on't walk up on me'" and fired a shot in the air. (Id. at p. 1142.) The veteran then walked toward his girlfriend, pointed his left index finger at her, and, according to one account, said," 'Bitch, I will kill you.'" (Id. at p. 1143.) While the trial court found that the use of a gun accompanied by a criminal threat showed an unreasonable risk to public safety, the Court of Appeal held that there was not substantial evidence that the veteran was likely to commit a super-strike offense because there was evidence that he had never behaved this way before, he warned his friend not to" 'walk up on [him],'" and he fired a single shot into the air as if to warn those around him not to approach any closer. (Id. at pp. 1152-1153.) Here, by contrast, Alvarado has a history of prior criminal conduct and arrests for domestic violence. Even more important, while the veteran in Whitmill fired a shot in the air, seemingly as a warning, that hurt no one, Alvarado actually assaulted L.T. and did so brutally and cruelly over L.T.'s screams of pain. Whitmill's assessment of the very different facts in that case do not help Alvarado.
Alvarado also points to the Fourth Appellate District's decision in People v. Qualkinbush, supra, 79 Cal.App.5th 879. The Qualkinbush decision, however, did not find that the trial court erred in denying mental health diversion because it lacked substantial evidence of a danger to public safety. It reversed the trial court's order because the court found the defendant unsuitable for diversion on general sentencing objectives rather than the purposes of the mental health diversion statute. (Id. at pp. 891-892.) Alvarado does not-and cannot-argue that the trial court similarly erred here.
In addition to pointing to the Whitmill and Qualkinbush decisions, Alvarado points to testimony from the psychologist that he retained, who concluded that Alvarado would not pose an unreasonable risk of danger to public safety. The psychologist, however, acknowledged that Alvarado was "at some risk for violence, as it has been shown in this offense," and while the trial court might have agreed with the psychologist that this risk was not unreasonable, it did not abuse its discretion in concluding otherwise based on the evidence discussed above.
We therefore conclude that the trial court's finding that Alvarado failed to satisfy the public safety requirement was supported by substantial evidence.
C. The Standard
Alvarado also argues that the trial court erred in finding that he failed to satisfy the public safety requirement because it applied the wrong standard. In particular, Alvarado contends that the trial court found that he "possibly" might commit a super-strike offense instead of finding that he was "likely" to do so. As noted, in assessing whether defendant poses an unreasonable risk of danger to public safety, a court must find that the defendant is" 'likely to commit a super strike offense.'" (Whitmill, supra, 86 Cal.App.5th at p. 1151.) In arguing that the trial court failed to apply this standard, Alvarado points to the trial court's statement that Alvarado had not satisfied the danger to public safety requirement because it was concerned "that he would possibly commit a super strike." (Italics added.) However, only a page earlier the court stated that Alvarado had not satisfied the requirement because "I believe it is likely he could commit a super strike." (Italics added.) As "we presume . . . that the [trial] court knows and applies the correct statutory and case law" (People v. Coddington (2000) 23 Cal.4th 529, 644), we conclude that the trial court applied the standard that it correctly stated earlier and simply misspoke in the passage cited by Alvarado.
III. Disposition
The order denying mental health diversion is affirmed.
WE CONCUR: GROVER, ACTING P.J.