Opinion
C099449
04-09-2024
THE PEOPLE, Plaintiff and Respondent, v. LATASHA JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 22FE011595
EARL, P. J.Following the denial of her request for pretrial mental health diversion defendant Latasha Jackson pled no contest to arson of an inhabited structure. Defendant now appeals the denial of her diversion request, arguing the trial court abused its discretion by finding her unsuitable for diversion on the basis that she "pose[d] an unreasonable risk of danger to public safety, as defined in Section 1170.18." (Pen. Code, § 1001.36, subd. (c)(4).) Finding no abuse of discretion, we affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, who resided in an assisted living facility, intentionally set fire to her room, using a lighter and aerosol deodorant to ignite a blanket. Other residents called the fire department when they saw smoke coming from the windows. Before anyone was injured, the fire was extinguished by fire sprinklers, but an arson investigator confirmed the fire was intentionally set. Officers located defendant at a nearby bus stop with a lighter, aerosol deodorant, and medications on her person. When asked about the incident, defendant claimed other residents in the facility had stolen millions of dollars from her and she "wanted to burn the place down." According to counsel, she was "clearly suffering from delusions and hallucinations at the time" she spoke to police.
Prior to this offense, defendant had been diagnosed with a mental health disorder recognized in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). (§ 1001.36.) Defendant admitted that at the time of the incident she had access to mental health treatment and had been prescribed medications but was not taking them.
Defendant was charged with one count of arson of an inhabited structure, in violation of section 451, subdivision (b). The complaint also alleged defendant suffered a prior strike, based on her 2015 conviction of section 245, subdivision (a)(1)-assault with a deadly weapon.
Defendant filed a request for pretrial mental health diversion. An expert forensic consultant performed defendant's mental health diversion clinical assessment, finding her "level of violence risk was moderate." The assessment recommended defendant participate in a "dual-diagnosed / co-occurring substance abuse and mental health treatment program" and further opined that defendant would "benefit from the Mental Health Diversion and outpatient treatment in the community."
At the mental health diversion hearing, the court denied defendant's request, finding it "concerning" that defendant "has the capability of engaging in either violent behavior or potentially life-threatening behavior with the strike prior and now the instant case kind of respectively. She was connected to some type of [mental health] services . . . when she committed this matter and had prescribed medications but was not taking them. Well, you know, that's kind of what we do with diversion cases. They're connected to a provider agency . . . . And she'd have prescription medication. [¶] . . . And for whatever reason, she was off her medication and [arson] is what seemed to her to be acceptable conduct. For the Court it's just a bridge too far. There's just too much risk."
At the diversion hearing, counsel stated that defendant was not taking her prescribed medication at the time she committed the assault with a deadly weapon.
Defendant subsequently pled no contest to the violation of section 451, subdivision (b), as charged in the complaint. She also admitted the prior strike allegation, and the court sentenced her to six years-the low term of three years, doubled due to the prior strike.
Defendant obtained a certificate of probable cause from the trial court and has timely appealed.
DISCUSSION
Whether a defendant should be granted mental health diversion, under section 1001.36, is a two-step inquiry, requiring the court to find a defendant both eligible and suitable for the program. "Since . . . a trial court may deny a motion for diversion on the basis of either suitability or eligibility, if the court determines that the defendant or offense is not suitable, it makes no difference whether the defendant is eligible." (People v. Bunas (2022) 79 Cal.App.5th 840, 860.)
"An order denying diversion is a preliminary determination . . . which is subject to review on appeal from a judgment in the criminal proceedings." (Morse v. Municipal Court for San Jose-Milpitas Judicial Dist. (1974) 13 Cal.3d 149, 155.) "A trial court's ruling on a motion for mental health diversion is reviewed for an abuse of discretion, and factual findings are reviewed for substantial evidence." (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147; see People v. Moine (2021) 62 Cal.App.5th 440, 448-450; People v. Oneal (2021) 64 Cal.App.5th 581, 588.) "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." (Moine, at p. 449; see People v. Bunas, supra, 79 Cal.App.5th at pp. 848-849.)
Thus, the issue in this case is whether the denial of defendant's mental health diversion request was an abuse of discretion, based on whether there is substantial evidence supporting the finding that defendant is unsuitable for diversion because of the likelihood that she will commit a "super strike," if treated in the community.
A. Eligibility
A defendant is eligible for mental health diversion if the defendant (1) has been diagnosed with a mental disorder identified in the DSM-5, and (2) the mental disorder was a significant factor in the commission of the charged offense. (§ 1001.36, subd. (b)(1), (2).) The second element is presumed: "If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant's mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor." (§ 1001.36, subd. (b)(2), italics added.)
Here, defendant was presumptively eligible for mental health diversion, as she had been diagnosed with a mental health condition recognized in the DSM-5, and the prosecution presented no evidence showing the arson was not related to defendant's mental health condition. In fact, the prosecution objected to the mental health diversion request only on suitability grounds. Furthermore, the court made findings that suggest it did find a relationship between defendant's mental health and the current offense. For example, the court stated the fire occurred because defendant was off her medication, causing her to believe that lighting the fire was acceptable conduct. Again, however, "if the court determines that the defendant or offense is not suitable, it makes no difference whether the defendant is eligible." (People v. Bunas, supra, 79 Cal.App.5th at p. 860.)
B. Suitability & Dangerousness
The mental health diversion statute affords the trial court discretion to deny diversion to otherwise eligible defendants if it finds them unsuitable for the program. (§ 1001.36; People v. Oneal, supra, 64 Cal.App.5th at p. 588; People v. Moine, supra, 62 Cal.App.5th at pp. 448-449; People v. Bunas, supra, 79 Cal.App.5th at p. 860.) A defendant is suitable for mental health diversion if (1) a mental health expert opines the defendant's mental health symptoms would respond to mental health treatment, (2) the defendant consents to diversion and waives speedy trial rights, (3) the defendant agrees to comply with treatment, and (4) the court finds the defendant, if treated in the community, will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18. (§ 1001.36, subd. (c).)
Section 1170.18 defines" 'unreasonable risk of danger to public safety'" as "an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667." (§ 1170.18, subd. (c).) This portion of section 667 enumerates offenses that constitute "violent felonies," commonly known as "super strikes," including (1) a sexually violent offense (Welf. & Inst. Code, § 6600, subd. (b)), (2) oral copulation, sodomy, or sexual penetration of a child under 14 (§§ 288a, 286, 289), (3) a lewd or lascivious act involving a child under 14 (§ 288), (4) any homicide offense, including attempted homicide (§§ 187-191.5), (5) solicitation to commit murder (§ 653f), (6) assaulting a peace officer with a machinegun (§ 245, subd. (d)(3)), (7) possession of a weapon of mass destruction (§ 11418, subd. (a)(1)), and (8) any serious or violent felony punishable by life imprisonment or death. (§667, subd. (e)(2)(C)(iv).) Thus, to deny mental health diversion to an otherwise eligible defendant, a trial court must find the defendant is likely to commit one of these enumerated super strike offenses. (People v. Moine, supra, 62 Cal.App.5th at p. 450.)
The diversion statute enumerates factors the court may consider in evaluating this risk, including "the opinions of the district attorney, the defense, or a qualified mental health expert, and . . . 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).) Where the "trial court also expressly consider[s] each enumerated factor in exercising its discretion" and "[t]he court's 'dangerousness' finding is supported by those same factors," the court likely did not abuse its discretion. (People v. Hall (2016) 247 Cal.App.4th 1255, 1265; see id. at pp. 1265-1266.)
Such is the case here, where the trial court properly evaluated defendant's potential to commit a super strike by considering many of the enumerated factors. The court examined defendant's criminal history, which included a prior violent strike from 2015. Additionally, the court considered the mental health expert's report and the arguments and opinions offered by the district attorney and defense counsel at the diversion hearing. The trial court also considered the gravity of the current arson offense, which occurred in an inhabited assisted living facility, endangering a vulnerable population. These facts are direct and substantial evidence that defendant is likely to commit a violent super strike if treated in the community, since "a person would commit a super strike-first degree murder-if he intentionally set [a] fire . . . and an unintended death occurred as a result of the arson." (People v. Pacheco (2022) 75 Cal.App.5th 207, 213.)
Furthermore, the court properly considered defendant's likelihood to commit a super strike if "treated in the community" by analyzing her amenability to treatment, the fact that she had previously undergone similar treatments, and that she had access to treatment and medications when she committed the current offense. (See § 1001.36, subds. (c)(4), (k).) While the mental health treatment available to defendant at the time of the current offense was not court-sanctioned diversion, the court recognized that the services defendant had access to were evidence of her amenability to treatment because they were essentially "what we do with diversion cases. They're connected to a provider agency . . . . And she'd have prescription medication."
People v. Pacheco, supra, 75 Cal.App.5th 207 is instructive here. In Pacheco, the defendant, who suffered from schizophrenia and methamphetamine addiction, was charged with arson of forest land. (Id. at pp. 210-211.) A mental health expert opined that the defendant would not pose an unreasonable risk of danger when treated in the community, as long as he took his antipsychotic medications and refrained from methamphetamine use; however, the expert also noted that if defendant failed to do these things, he was likely to reoffend. (Ibid.) The appellate court upheld the diversion denial, finding that, based on the defendant's history, if treated in the community, he likely would not refrain from using methamphetamine or" 'comply with treatment as evidenced by the fact that he has seemingly been self-medicating with methamphetamine since the age of 16.'" (Id. at p. 212.) Thus, the trial court properly found the defendant unsuitable for diversion because he posed an unreasonable risk of danger to public safety. (Id. at p. 214.)
Similarly, the record here shows that defendant, if treated in the community, would likely not comply with mental health treatment or take her prescribed medications, as it was her failure to do so that led to the current offense. Defendant argues the mental health expert's recommendation undermines this finding, since the expert recommended defendant for diversion and found her "level of violence risk was moderate"; however, this assessment took place while defendant was taking her prescribed medications. The report does not address whether defendant is likely to take her prescribed medications if treated in the community or whether her risk of violence and super strike would increase if she stopped taking her medications-which the court reasonably found she was likely to do based on her past behavior. The instant offense, which occurred while defendant was being treated in the community and failing to comply with such treatment, is indicative of how she is likely to perform in the mental health diversion program. Additionally, defendant's prior violent strike in 2015 occurred when she was not taking her medications. Thus, like in Pacheco, defendant's record shows that her failure to regularly take her medications when treated in the community often leads to violent or dangerous behavior, such as the arson at issue in this case. (People v. Pacheco, supra, 75 Cal.App.5th at pp. 211, 214.)
Thus, we agree with the People that the facts in this case are more akin to Pacheco and easily distinguished from People v. Moine, supra, 62 Cal.App.5th 440 and People v. Whitmill, supra, 86 Cal.App.5th 1138. (People v. Whitmill, supra, 86 Cal.App.5th at pp. 1152-1153 [holding that the defendant's firearm use in the current offense was insufficient to show an unreasonable risk of danger to public safety where such a finding was otherwise "belied by the totality of appellant's behavior and criminal history"]; People v. Moine, supra, 62 Cal.App.5th at pp. 451-452 [rejecting the argument "that [the defendant] cannot be safely treated in a mental health facility because his current offenses were committed in similar facilities" as irrelevant to whether he was likely to commit a super strike, where other factors did not support such a finding].) In making the ruling at issue, the court specifically addressed these cases, assuring defense counsel that the ruling "shouldn't just be because we have a published case that deals with arson; therefore, we say . . . all arson should be denied for diversion . . . we have to look case by case. And look at . . . the potential for . . . the death result of a person's conduct." The court then proceeded to properly examine the unique circumstances of this case and this defendant, including the fact that defendant-unlike the defendants in Whitmill and Moine-does have a violent criminal history and, while off her medications, committed a prior strike in 2015, when she was convicted for felony assault with a deadly weapon. (Whitmill, at p. 1151; Moine, at p. 450.)
Overall, in determining defendant's suitability, the trial court heard evidence on and addressed nearly every factor enumerated in the statute-the expert's opinion, the opinions of defense counsel and the district attorney, defendant's violent criminal history, the facts of the current offense, and defendant's negative history with mental health treatment and medications. (§ 1001.36, subd. (c)(4).) Therefore, the court's finding that defendant was likely to commit a super strike if treated in the community is reasonable and supported by substantial evidence. (People v. Hall, supra, 247 Cal.App.4th at pp. 1265-1266.) Thus, we find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur HULL, J., WISEMAN, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.