Opinion
F084129
12-20-2022
JUAN MIGUEL NEGRON, Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Peter Kang, Kern County Public Defender, and Nick Roth, Deputy Public Defender, for Petitioner. No appearance for Respondent. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; in mandate. Chad A. Louie, Judge. Super. Ct. No. BF182498
Peter Kang, Kern County Public Defender, and Nick Roth, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Real Party in Interest.
OPINION
MEEHAN, J.
INTRODUCTION
In prior writ proceedings related to two underlying criminal actions against petitioner Juan Miguel Negron, we concluded petitioner was not statutorily ineligible for mental health diversion under Penal Code section 1001.36 simply because he suffers from one statutorily excluded disorder, antisocial personality disorder (ASPD), while also suffering from other qualifying mental health disorders. We granted petitioner's requests for writs of mandate in both cases and directed the trial court to give renewed consideration to petitioner's requests for mental health diversion under section 1001.36. (Negron v. Superior Court (2021) 70 Cal.App.5th 1007, 1018 (Negron I).)
All statutory references are to the Penal Code unless otherwise indicated.
Upon reconsidering petitioner's requests for pretrial mental health diversion, the trial court concluded petitioner was ineligible because he posed an unreasonable risk of danger to public safety if treated in the community (§ 1001.36, subd. (b)(1)(F)) and because there was no unequivocal opinion from a mental health expert that petitioner's symptoms of his mental health disorders motivating his criminal behavior would respond to mental health treatment (id., subd. (b)(1)(C)). Petitioner again seeks a writ of mandate in each case, arguing the trial court abused its discretion in denying diversion.
Among the criteria necessary to grant pretrial diversion, a trial court must be satisfied the defendant will not, if treated in the community, pose an unreasonable risk of danger to public safety as defined under section 1170.18-i.e., an unreasonable risk that the defendant will commit a new violent felony within the meaning of section 667, subdivision (e)(2)(C)(iv)-an enumerated set of felonies that are colloquially referred to as super strikes. (§§ 1001.36, subd. (b)(1)(F), 1170.18, subd. (c).) Thus, the question under this eligibility criterium is whether a defendant is likely to commit a super-strike offense, which is a determination reviewed for an abuse of discretion. (People v. Moine (2021) 62 Cal.App.5th 440, 448-449 (Moine).)
While reasonable minds could differ in this case as to whether petitioner is likely to commit a super-strike offense if treated in the community (and thus poses an unreasonable risk of danger to public safety), the trial court's determination that petitioner poses such a risk is not outside the bounds of reason or otherwise arbitrary or capricious. We are satisfied the trial court understood and applied the correct statutory framework in reaching its conclusion in this regard and considered relevant facts supported by the record. The trial court's denial of pretrial diversion was not an abuse of discretion, and the writ petitions are dismissed.
BACKGROUND
Petitioner has two pending criminal cases that have been stayed during the pendency of these writ proceedings.
The background facts in both matters are taken from the preliminary examination hearing transcripts and the police reports. These facts have not been proven or admitted.
A. Kern Superior Court Case No. BF180104A
On February 18, 2020, police officers witnessed a driver, later identified as petitioner, smashing into another car. A traffic stop was attempted, but petitioner refused to stop and led police on a chase that lasted several miles and reached speeds of at least 80 miles per hour. Police ultimately subdued and arrested petitioner. The driver whose car petitioner smashed into said she had been rammed by petitioner's blue pickup truck three times; she had tried to move out of the way of the truck, but petitioner blocked her from doing so; and then petitioner's truck hit her car's passenger side causing her car to spin 180 degrees. Her child, who was approximately two- to three-years old, was in the car with her.
An information was filed on March 6, 2020, which alleged two felony counts: (1) assault with a deadly weapon (a car) under section 245, subdivision (a)(1); and (2) felony evasion of a peace officer in violation of Vehicle Code section 2800.2. As to each count, two prior felony convictions were alleged under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and alleged to be serious prior felonies under section 667, subdivision (a).
B. Kern Superior Court Case No. BF182498A
While the first case was pending, a driver later identified as petitioner was seen by police running a red light in a maroon pickup truck on September 17, 2020. When the officer attempted a traffic stop, petitioner waved his hand out the window and yelled, "'[n]o brakes.'" A chase ensued during which petitioner ran multiple red lights and sped through a residential area, petitioner eventually stopped the car, fled the vehicle and hid, but officers found him and arrested petitioner after he initially resisted.
After a preliminary hearing was held, an information was filed on October 29, 2020, alleging (1) felony evading a police officer under Vehicle Code section 2800.2; (2) resisting or obstructing a police officer in violation of section 148, subdivision (a)(1); and (3) driving without a license in violation of Vehicle Code section 12500, subdivision (a), a misdemeanor. An enhancement was alleged as to count 1 for committing an offense while on bail under section 12022.1, and prior felony strikes were alleged under the Three Strikes law.
II. Denial of Pretrial Mental Health Diversion
Petitioner made a request for mental health diversion in 2021, supported by an evaluation of Dr. Musacco. A hearing was held in July 2021 where Dr. Musacco testified, the request for mental health diversion was denied, and petitioner instituted writ proceedings. We granted the writ petitions on the ground petitioner's one statutorily excluded mental health disorder did not render him statutorily ineligible for diversion when he simultaneously suffered from other qualifying mental health disorders. (Negron I, supra, 70 Cal.App.5th at p. 1018.)
After our direction to the trial court to reconsider petitioner's diversion requests in both cases, counsel and the trial court discussed how to best proceed. Defense counsel sought to submit the issue on the original motion. The court noted that for diversion to be granted, it had to be satisfied the recommended treatment program would meet the specialized mental health treatment needs of petitioner. To that end, defense counsel asked for a referral to the Adult Transition Team (ATT), which is a unit of Kern County Behavior Health. According to defense counsel, if ATT deemed petitioner certifiable for its services, that unit would provide a report regarding a treatment plan that petitioner would submit to the court. Once that report was received, defense counsel indicated he would request petitioner be formally admitted to that program.
The court asked defense counsel why it was not incumbent on counsel to seek the ATT report before the court took up the diversion issue. Defense counsel represented this issue was discussed previously at a conference with a different trial judge-the efficiency concern at that time was to prevent referring defendants to ATT who are going to be found ineligible for diversion on other grounds. Counsel represented the process decided upon was to have the matter referred to ATT once petitioner was deemed otherwise conditionally eligible/suitable for diversion.
The prosecutor did not have a specific recollection of what was discussed at the prior conference but noted that, as a practical matter, "if there is either a statutory ineligibility or more broadly a concern that the Court might have as far as the relationship between the conduct and the criminal act or the overall dangerousness of [petitioner] in question, it probably would make more sense to litigate that at the outset and not have to bother SPO with evaluating somebody who's going to be denied [pretrial diversion] anyway."
The court agreed this made sense, and reiterated that counsel was asking the court to "go through the factors in [section 1001.36, subdivision (b)(1)] and sort of a screening, and if the Court believes that [petitioner] would be eligible for mental health diversion, but for finding the appropriate program, and then the Court would refer it to ATT, and then if it appears there is an appropriate program, he's in. If there is [not] an appropriate program, then it doesn't happen." Defense counsel responded, "Right. Before we have to try to find some other provider for that person, correct."
Relevant to the issue of diversion, Dr. Musacco had explained at the June 2021 hearing that all of petitioner's diagnosed conditions (which includes ASPD, borderline intellectual functioning, unspecified schizophrenia spectrum disorder, and stimulant use disorder) impair his functional abilities, but excepting out petitioner's ASPD, his qualifying conditions significantly contributed to his current offenses, including the assault with a deadly weapon charge. In discussing treatability of petitioner's conditions, Dr. Musacco recognized there is no real treatment for ASPD or borderline intellectual functioning. He testified that if petitioner could stay sober, he had a chance of being a good citizen, but if he continued to use drugs, his criminal behavior would likely continue. As for the risk petitioner would commit a super strike, Dr. Musacco testified he thought petitioner did not present such a risk because petitioner has no history of the super strikes; while Dr. Musacco was concerned about petitioner's past behaviors using drugs, stealing cars, and fleeing from police, those behaviors were not the type of violent super-strike crimes articulated in the statute. Dr. Musacco testified he had considered the vehicle as the basis for the assault with a deadly weapon charge in forming this opinion, but he believed that fleeing in a vehicle is very different behavior from killing or sexually assaulting someone that super-strike offenses represent.
After gathering Dr. Musacco's prior evaluation and hearing testimony along with the other records, the parties appeared for a hearing on February 1, 2022. At the hearing, the prosecutor opposed diversion and emphasized petitioner's lengthy criminal history and the risk petitioner posed to public safety if treated in the community. Defense counsel argued that, with respect to public safety, both the statute and subsequent law are clear that the inquiry is whether there is a reasonable likelihood petitioner will commit a super strike if treated in the community. Counsel argued the vast majority of petitioner's prior convictions are theft related, and nothing in the record suggests he is likely to commit a super strike. Counsel also noted Dr. Musacco did not believe petitioner posed a danger to public safety within the definition provided under the statute. Moreover, defense counsel argued, once petitioner was moved into treatment in a drug-free environment (and he would wear an ankle monitor if the court had concerns), his risk of committing such crimes would be reduced even further.
The court questioned whether Dr. Musacco's prior hearing testimony really indicated the symptoms of petitioner's disorders that motivated the criminal behavior in these cases would respond to mental health treatment, and the court pointed to Dr. Musacco's testimony that there is no treatment for petitioner's ASPD or borderline intellectual functioning conditions. Defense counsel noted petitioner had other treatable conditions that were also significant factors contributing to his criminal behavior, and if the matter were referred to the ATT, it could offer a report indicating whether or not petitioner's disorders are amenable to treatment.
In reviewing petitioner's extensive criminal history, the court went through the multiple felony and misdemeanor convictions petitioner suffered between 2001 and 2020:
"So[,] your client has multiple felony convictions for theft related charges, multiple convictions for crimes of violence including misdemeanor resisting arrest, assault with a deadly weapon, and assault with force likely to cause great bodily injury. Now he's being charged with felony assault with a deadly weapon. That was using a vehicle as well as felony evading arrest where someone could have gotten hurt in the felony evading, alleging the strike priors, and then a second case misdemeanor resisting arrest while he's out on bail with the strike priors and another felony evading where someone could get hurt. And so, [counsel], I do understand that the criteria under [section 1001.36, subdivision (b)(1)(F)] is that the [petitioner] will not pose an unreasonable risk of danger to public safety as specifically defined in … Section 1170.1(a), which then refers you to the [super-]strike section. So it's your position that there is no information before the Court that the [petitioner] would pose unreasonable risk of danger to public safety in committing a [super] strike."
Because of the similarity between the sound of "a" and "8," it is quite likely the court actually referred to section 1170.18.
In response, defense counsel again noted Dr. Musacco's opinion that petitioner was not at risk of committing any of the super-strike offenses. Although defense counsel conceded petitioner had a long RAP sheet, he pointed out this is all too common among those who are mentally ill: they do not get the treatment resources they need, and then they self-medicate with drugs. Counsel argued the very purpose of the diversion statute is to try to stop this sort of revolving door of incarceration. Defense counsel also pointed out that many of petitioner's offenses were misdemeanors and lower-level felonies, and he had never committed a super strike in the past. Finally, counsel asserted that if petitioner got the support he needed to stay on antipsychotic medication and off drugs in the context of a structured treatment setting-as opposed to simply being back in the community with no support-it would reduce the potential for any recidivism and benefit the community generally.
Ultimately, the court concluded that it was unclear whether petitioner's symptoms motivating his criminal behavior would respond to mental health treatment. Moreover, the court was not satisfied that petitioner would not pose an unreasonable risk of danger to public safety within the meaning of section 1170.18. The court explained that, "As based on the [petitioner's] previous criminal history as well as the current charges that he's charged with, all it would take is the [petitioner] to [(]while he's being treated in the community, and this is based on the totality of everything that was before this Court including Dr. Musacco's testimony,[)] all it would take would [be] that someone would be assaulted again by the [petitioner] and there [would] be some more-that there [would] be more serious injuries including [great bodily injury] or death that would then be a [super] strike."
On these two grounds, the court denied the motion and petitioner initiated these writ proceedings.
DISCUSSION
I. Legal Standards
A. Mental Health Diversion Under Section 1001.36
Effective June 27, 2018, the Legislature enacted a diversion program for defendants with diagnosed and qualifying mental disorders such as schizophrenia, bipolar disorder, and posttraumatic stress disorder. (§ 1001.36, subds. (a), (b)(1)(A).) "'[P]retrial diversion' means 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 .…" (Id., subd. (c).) "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.…" (Id., subd. (e).)
A trial court may, in its discretion, grant pretrial mental health diversion if a defendant makes a showing of eligibility pursuant to several factors. Currently, the eligibility criteria are articulated in the statute as follows: (1) the defendant suffers from a qualifying mental disorder; (2) the mental disorder was a significant factor in the commission of the charged offense; (3) a qualified mental health expert opines the defendant's symptoms will respond to treatment; (4) the defendant consents to diversion and waives his speedy trial rights; (5) the defendant agrees to comply with the treatment as a condition of diversion; (6) the defendant will not pose an unreasonable risk to public safety, as defined in section 1170.18, if treated in the community. (§ 1001.36, subd. (b)(1)(A)-(F), as amended by Sen. Bill No. 184 (2021-2022 Reg. Sess.), effective June 30, 2022.)
This criterium may be satisfied if the defendant has been found to be an appropriate candidate for diversion in lieu of commitment for restoration of competency treatment pursuant to section 1370, subdivision (a)(1)(B)(iv), and as a result of mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of the right to a speedy trial. (§ 1001.36(b)(1)(D).)
This criterium may be satisfied if the defendant has been found to be an appropriate candidate for diversion in lieu of commitment for restoration of competency treatment pursuant to section 1370, subdivision (a)(1)(B)(iv), and as a result of mental incompetence, cannot agree to comply with treatment (§ 1001.36(b)(1)(E)). This language was added by statutory amendment effective June 30, 2022, after the pretrial diversion determination in this case, but it is not relevant to the issues presented here.
Senate Bill No. 1223 (2021-2022 Reg. Sess.), signed into law on September 29, 2022, significantly amended section 1001.36. The new law will be effective January 1, 2023. (Cal. Const., art. IV, § 8, subd. (c) [except as provided otherwise, statute enacted at a regular session shall go into effect on January 1 next following a 90-day period from the date of enactment of the statute].)
"If the defendant makes a prima facie showing that he or she meets all of the threshold eligibility requirements …, 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." (People v. Frahs (2020) 9 Cal.5th 618, 627; accord, § 1001.36, subd. (c)(1)(A).)
B. Standard of Review
A trial court's factual findings under section 1001.36 must be supported by substantial evidence (Negron I, supra, 70 Cal.App.5th at p. 1016; People v. Oneal (2021) 64 Cal.App.5th 581, 589), and the court's ultimate decision whether to grant mental health diversion is reviewed for an abuse of discretion (People v. Gerson (2022) 80 Cal.App.5th 1067, 1080 [ultimate determination whether to grant mental health diversion is reviewed for abuse of discretion]).
If ruling on an individual factor under the diversion statute requires the trial court to engage in what is a quintessential factfinding process, that finding is reviewed for substantial evidence. (People v. Oneal, supra, 64 Cal.App.5th at p. 589 [whether mental disorder was a significant factor in commission of charged offense requires factfinding process reviewed for substantial evidence]; People v. Gerson, supra, 80 Cal.App.5th at p. 1086 [whether the defendant suffers from a mental disorder is factual question reviewed for substantial evidence].) Where the ultimate ruling on a particular factor is a discretionary determination, it will be reviewed for an abuse of discretion. (Moine, supra, 62 Cal.App.5th at pp. 448-449 [factor assessing risk to public safety requires court to perform a quintessential discretionary function subject to abuse of discretion standard of review]; People v. Williams (2021) 63 Cal.App.5th 990, 1000 (Williams) [same].)
II. Unreasonable Risk of Danger to Public Safety
One eligibility criterium for granting pretrial diversion is whether "[t]he court is satisfied that the 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. (b)(1)(F).) Section 1170.18, subdivision (c), 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" section 667, subdivision (e)(2)(C)(iv) (section 667(e)(2)(C)(iv) or § 667(e)(2)(C)(iv)). The felonies encompassed under section 667(e)(2)(C)(iv) are known as super strikes, and among them are "[a]ny homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive." (§ 667(e)(2)(C)(iv)(IV).) This includes the offense of gross vehicular manslaughter while intoxicated under section 191.5.
"Gross vehicular manslaughter is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence." (§ 191.5, subd. (a).) In turn, Vehicle Code section 23153, subdivision (f), provides that "[i]t is unlawful for a person, while under the influence of any drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver."
To make this determination, the court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant's violence and criminal history, and the current charged offense, and any other factors the court deems appropriate. (§ 1001.36, subd. (b)(1)(F).) As noted, "by requiring the trial court to evaluate 'risk' posed to public safety, the statutory language directs the court to perform a quintessential discretionary function," which is reviewed for abuse of discretion. (Moine, supra, 62 Cal.App.5th at pp. 448-449.)
In finding petitioner posed an unreasonable risk of danger to public safety, petitioner asserts the court seemed to incorrectly suggest that an assault causing great bodily injury would constitute a super strike, and petitioner maintains even assaultive conduct resulting in death does not necessarily fall into the super-strike category. In concluding petitioner posed an unreasonable risk of danger to public safety, the trial court reasoned "all it would take would [be] that someone would be assaulted again by the [petitioner] and there be … more serious injuries including [great bodily injury] or death that would then be a [super] strike." The court also noted at the hearing that the pending charges involved felony assault with a deadly weapon (a vehicle) and that petitioner used that vehicle to evade police during which someone could have gotten hurt; and the court additionally noted that while out on bail, petitioner committed another felony evading offense where someone could have gotten hurt.
In making its determination, the court appeared to give dispositive weight to petitioner's long criminal history and the nature of his current pending offenses. These were highly relevant considerations as to the likelihood petitioner would commit a super-strike offense in the future, as past behavior-particularly patterns of behavior-can be indicative of future conduct. Petitioner's current pending offenses involve behavior dangerous to the lives of those around him during their commission. Petitioner's pending offenses of assault with a deadly weapon (a car) and evading police in high-speed and reckless car chases could have, but for random luck, turned into much more serious super-strike offenses had petitioner killed anyone while bashing into other cars, running red lights and fleeing from police-a highly predictable and foreseeable result of this conduct. Engaging in repeated dangerous car chases with police (as petitioner is alleged to have engaged in here), as opposed to conduct that has occurred on a single occasion, has every potential to constitute second degree murder if someone is proximately killed as a result. (See generally People v. David (1991) 230 Cal.App.3d 1109, 1114-1115 [prior convictions and experiences can demonstrate implied malice-i.e., when a person does an act, the natural consequences of which are dangerous to life, which was deliberately performed by someone who knows the conduct endangers the life of another].) This is not a farfetched or speculative prospect.
During 2019, there were 8,822 reported police pursuits, which resulted in the deaths of 35 people, 40 percent of whom were uninvolved third parties. (Veh. Code, § 14602.1; California Highway Patrol Report to the Legislature (Sept. 2020); https://www.chp.ca.gov/Documents/Police_Pursuits_SB_719_%202020.pdf [as of December 20, 2022].)
Dr. Musacco testified he was concerned about petitioner's past behaviors "using drugs, stealing cars, fleeing from the police" and, while these behaviors could result in some sort of violence, he felt they were not super strikes. Yet, this is precisely the type of repeat behavior that can lead to implied-malice murder during a police pursuit-a super-strike offense. Petitioner has a demonstrated proclivity for driving without a license (as evidenced by his repeated prior convictions), and stands accused of doing so again now, running several red lights and engaging in a car chase with police-all while out on bail for other pending felony charges of evading police during a high-speed pursuit after ramming into another vehicle multiple times just a few months before.
Compounding this, petitioner admitted to Dr. Musacco that he was on methamphetamine when he ran the red lights and fled from police in September 2020 and that he has a near-daily methamphetamine addiction. Had petitioner killed someone when he ran multiple red lights in September 2020 while under the influence of methamphetamine, it could have constituted gross vehicular manslaughter while intoxicated, which is also a super-strike offense. (§ 667(e)(2)(C)(iv)(IV); see People v. Jimenez (2015) 242 Cal.App.4th 1337, 1355 [substantial evidence the defendant was driving under the influence of methamphetamine supported conviction for gross vehicular manslaughter while intoxicated under § 191.5].) Since petitioner engaged in this alleged conduct while he was released on bail for an alleged third-strike offense that bore striking similarities, it becomes a very real prospect that if he is released into the community for treatment, this behavior could be repeated with deadly consequences. The trial court referenced this in pointing out that, given petitioner's current charges, all it would take while petitioner is being treated in the community is that someone would be assaulted again (rammed into by petitioner's vehicle, especially during a police chase) resulting in death. Petitioner's current pending offenses are serious, dangerous, and involve the type of behavior that can foreseeably result in the death of another in a manner that would constitute a super strike.
Setting aside the risk and likelihood of super-strike offenses arising out of crashing into another vehicle and evading police (the current pending offenses) or driving while under the influence of drugs, petitioner also has a history of assaults that carry an implicit risk of serious injury and death-which the trial court articulated. In 2005, petitioner was convicted of assault with a deadly weapon (not a firearm), in 2013 he was convicted of assault by means of force likely to produce great bodily injury, and his pending charges from 2020 include another assault with a deadly weapon likely to cause great bodily injury. In the pending charges, the assault was alleged to have been purposeful and directed at a vehicle that happened to be carrying a child two- to three-years of age. At a preliminary hearing, an officer who witnessed part of the collision described seeing a truck (driven by a man later identified as petitioner) strike an SUV, causing the SUV to spin out of control. Petitioner drove away from the collision at a high rate of speed and then led police on a chase reaching speeds over 80 miles per hour. The driver of the
SUV, whose child had been in the backseat at the time of the incident, told an interviewing officer that a blue truck had rammed her vehicle from behind at least three times while she was driving. When she attempted to pull over to get out of the way, the blue truck tried to block her from doing so, and she then maneuvered her vehicle in the opposite direction. As she was doing that, the blue truck collided with her vehicle on the passenger side, causing her to lose control and spin 180 degrees, at which point her vehicle came to rest facing southbound in the northbound lanes, and the blue truck sped away.
Assaulting people, especially children, with deadly weapons like cars or force likely to cause great bodily injury is exactly the kind of conduct that always carries an implicit risk of death and can result in a homicide offense, especially repeated conduct an offender is shown to have subjectively known to carry such risks. Complicating this, Dr. Musacco opined petitioner's schizophrenic symptoms were aggravated by his drug addiction, and the key to mental health treatment for petitioner would involve getting sober and staying sober; if his drug use disorder and psychotic disorder were controlled, Dr. Musacco thought there "could be long[-]lasting change. But, …, there is the big word 'if' he can stay sober.… [¶] … [¶] I certainly couldn't tell you that he's going to or not going to."
The trial court weighed petitioner's past convictions for assault; his current offenses involving allegations of assault with a deadly weapon and evading police; and evaluated this in the context of petitioner's drug addiction. Petitioner's repeated commission of violent assaults and his repeated evasion of police in vehicles evidence a pattern of behavior dangerous to life that reasonably indicates what type of conduct petitioner is at risk of engaging in the future. The facts related to petitioner's past and current alleged offenses are supported by evidence in the record and give rise to a reasonable inference of a likelihood petitioner would engage in this type of conduct again (conduct that underpins and can foreseeably lead to super-strike homicide offenses) if treated in the community. Added to this, Dr Musacco felt petitioner's sobriety was a key to treatment success, but reaching and maintaining that sobriety was going to be impossible to predict.
The trial court was entitled to weigh the prior and current pending offenses more heavily than Dr. Musacco's opinion regarding the unreasonable risk of danger to public safety petitioner's treatment in the community posed. Moreover, nothing in the record demonstrates the trial court had an incorrect understanding of the relevant "unreasonable risk of danger to public safety" standard under section 1170.18. Several times during the hearing, the trial court acknowledged that the risk of danger to public safety was determined under the definition provided in section 1170.18, which, in turn, refers to the risk of committing so-called super-strike offenses.
Petitioner maintains the results in Williams and Moine compel a different result, but these cases are both factually distinguishable. In Moine, a trial court's denial of diversion based on the dangerousness factor was found to be an abuse of discretion on review. (Moine, supra, 62 Cal.App.5th at p. 444.) The defendant had pending felony charges of assault and making criminal threats, and misdemeanor charges of resisting an officer and petty theft. (Id. at pp. 445-446, 450.) His prior convictions reflected only misdemeanor convictions for drug- or alcohol-related offenses and one for hit and run; two psychiatrists determined that he posed a low risk for future assault. (Id. at p. 450.) None of his prior or current offenses were super strikes, nor did he have a history of violent offenses. (Ibid.) While the pending charges involved allegations of violence and threats, the reviewing court found no evidence to support an inference he was likely to commit such an offense in the future. (Id. at pp. 450-451.) Moreover, the defendant had been released into the community on bond for a period of over two years prior to the denial of diversion. (Id. at p. 451.) The court found it logically inconsistent to deny mental health diversion on the ground the defendant was likely to commit a super-strike offense while simultaneously finding, for purposes of release on bond, he was not likely to inflict great bodily injury on persons in the community. (Ibid.)
In Williams, the prosecution charged the defendant with one count of felony stalking, to which Williams pled no contest. (Williams, supra, 63 Cal.App.5th at p. 993.) There was an additional charge of making criminal threats because the defendant had sent angry and threatening letters every few months to one of his neighbors, but this misdemeanor charge was dismissed. (Id. at pp. 993-995.) The reviewing court concluded the trial court had erred in determining the defendant posed an unreasonable risk of danger to public safety for purposes of mental health diversion. (Id. at p. 993.) The appellate court noted the defendant "has no prior criminal record … and, for all of his horrific threats, he never actually assaulted anyone or engaged in any violence." (Id. at p. 1003, fn. omitted.) The appellate court also found significant that the defendant had been released on bond for more than two years without incident. (Ibid.)
Here, unlike in Williams or Moine, petitioner has an extensive criminal record, and his pending charges include an alleged third-strike offense under the Three Strikes law. While many of his prior convictions are misdemeanors, several are felonies including two serious felonies of assault with force likely to cause great bodily injury (2013) and first degree burglary (2016). And, although none of petitioner's prior convictions are super strikes, his prior convictions for assault (one with a deadly weapon (2005) and one with force likely to cause great bodily injury (2013)) are reasonably characterized as violent conduct dangerous to the lives of others, even to the extent the assaults did not actually result in serious injury or death. Also distinguishable from Williams and Moine, when petitioner was released on bond after the February 2020 charged offenses, he was arrested again a few months later for committing similar new offenses that carried an unquestionably high degree of risk to the lives of those around him: he was running red lights, fleeing from police and speeding through residential areas while having used methamphetamine. (Williams, supra, 63 Cal.App.5th at p. 1003; Moine, supra, 62 Cal.App.5th at p. 451.)
Finally, petitioner argues the trial court seemed to overlook that his treatment in the community would be in a structured, controlled, sober-living environment, which would markedly decrease the likelihood of any kind of recidivism. Defense counsel quite ably presented this issue at the hearing, arguing that in considering dangerousness, the court should bear in mind that petitioner would be receiving treatment in a sober-living community, he would be receiving antipsychotic mediation, and he would agree to wear an ankle monitor if necessary-all of which would mitigate any potential danger posed to the community. While this is a relevant consideration of whether petitioner will pose an unreasonable risk to public safety if treated in the community, the fact the trial court did not give it dispositive weight does not mean it was not considered. (§ 1001.36, subd. (b)(1)(F) [in determining unreasonable risk of danger, the trial court is empowered to consider any factors it deems appropriate].) Absent affirmative evidence indicating otherwise, we must presume the court was aware of its discretion and properly exercised it. (Evid. Code, § 664; People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430.)
Reasonable minds could differ in assessing whether petitioner is likely to commit a super-strike offense if treated in the community. Some courts might have given more weight to Dr. Musacco's opinion, viewed petitioner's prior felony assault convictions and pending charges as less violent or dangerous to life, or concluded that the structured environment of treatment would appreciably mitigate the risks petitioner's prior convictions and pending charges portend; but that does not establish an abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 655 [facts that merely afford an opportunity for difference of opinion do not establish an abuse of discretion].) In view of petitioner's lengthy criminal history that involves violent behavior and strike offenses and the pending charges, which include another alleged assault with a deadly weapon-a third-strike offense, and his performance while out on bail between February 2020 and September 2020, we are unable to conclude the trial court's determination is outside the bounds of reason, arbitrary or capricious under current law.
As noted above, section 1001.36 has been significantly amended by Senate Bill No. 1223 (2021-2022 Reg. Sess.), which was signed into law on September 29, 2022, and effective as of January 1, 2023. We take no position on any future renewed request for mental health diversion petitioner might present to the trial court based on these changes in the law.
Because the trial court did not abuse its discretion in finding petitioner posed an unreasonable risk of danger to public safety, the request for mental health diversion was properly denied on this ground alone. (§ 1001.36, subd. (b)(1) [pretrial diversion may be granted if all of the criteria are met under subd. (b)(1)].) We need not consider the trial court's additional ground for denial-whether petitioner's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment.
DISPOSITION
Petitioner's request for a writ of mandate is denied, the writ petition is dismissed, and the stay of proceedings in the underlying case is lifted.
WE CONCUR: LEVY, Acting P. J. FRANSON, J.