Opinion
E082467
12-26-2023
ERIC CLEAVON BRINKLEY, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Steven L. Harmon, Public Defender, William A. Meronek, Deputy Public Defender, for Petitioner. Michael A. Hestrin, District Attorney, and Jesse Male, Deputy District Attorney, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Super. Ct. No. RIF2201574 Helios (Joe) Hernandez, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted.
Steven L. Harmon, Public Defender, William A. Meronek, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Michael A. Hestrin, District Attorney, and Jesse Male, Deputy District Attorney, for Real Party in Interest.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Petitioner Eric Cleavon Brinkley seeks a writ of mandate compelling the superior court to vacate its order denying mental health diversion and enter a new and different order granting mental health diversion. After reviewing Brinkley's writ petition, this court invited respondent and real party in interest (the People) to file a response. The People filed a response conceding Brinkley is entitled to a new eligibility hearing. We therefore grant the petition and issue a peremptory writ in the first instance directing the superior court to vacate its order denying Brinkley's motion and conduct a new hearing consistent with this opinion. We deny Brinkley's request to take judicial notice of the text of Senate Bill No. 215 (2017-2018 Reg. Sess.).
FACTUAL AND PROCEDURAL HISTORY
Brinkley is charged in a felony complaint with one count of vandalism in excess of $400 damage (Pen. Code, § 594 subds. (a), (b)(1)) with one prior strike conviction after he used a hammer to strike the sidewalk and break the window of a vacant business. His behavior was reportedly unprovoked, he was taken into custody without incident, and when interviewed by the police, Brinkley claimed breaking the window was an accident and he would pay for the damages. Brinkley's criminal history includes two strike prior convictions consisting of a 2008 first degree burglary and a 2018 assault with a deadly weapon.
Undesignated statutory references will be to the Penal Code unless otherwise indicated.
On May 30, 2023, Brinkley filed a motion for mental health diversion eligibility, which the People opposed. Judge Gail A. O'Rane found Brinkley eligible for mental health diversion and forwarded the matter to a separate department for proceedings regarding Brinkley's suitability. On August 29, 2023, the trial court denied Brinkley's motion on the basis that although Brinkley met the statutory requirements of eligibility and suitability for mental health diversion, the trial court still retains discretion to deny mental health diversion should it see fit.
STANDARD OF REVIEW
A denial of pretrial diversion is appealable. (See generally People v. Bunas (2022) 79 Cal.App.5th 840, 848-849.) Nonetheless, such an order may also be reviewed through a petition for writ of mandate. (See, e.g., Moore v. Superior Court (2020) 58 Cal.App.5th 561, 569.) We review the trial court's ruling for abuse of discretion, and its factual findings for substantial evidence. (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147.)
DISCUSSION
In order to receive mental health diversion, a defendant must show both eligibility and suitability for diversion. (§ 1001.36, subd. (a).) Effective January 2023, the Legislature modified the statute governing mental health diversion to read in part, that "the court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c)." (§ 1001.36, subd. (a), italics added.)
Prior to the 2023 amendments, the limitations of a trial court's discretion were discussed in People v. Qualkinbush (2022) 79 Cal.App.5th 879 (Qualkinbush), where the trial court found the defendant unsuitable for diversion, despite meeting the statutory criteria, instead relying on the general sentencing objectives in California Rules of Court, rule 4.410. (Id. at p. 885.) In Qualkinbush, the court acknowledged possible circumstances where the interests of justice may not support granting diversion for an otherwise eligible/suitable defendant: criminal and/or mental health history that reflects a substantial risk the defendant will commit dangerous crimes beyond the"' "super strikes"' "; no reasonably available or suitable treatment; defendant's treatment history indicates poor prospects of completion; poor conduct in prior diversion programs. (Id. at p. 890.)
While simultaneously acknowledging the trial court's discretion to deny an otherwise qualifying defendant diversion, the court in Qualkinbush found the trial court committed error in relying on general sentencing objectives and failing to consider the primary purposes of mental health diversion as articulated in section 1001.35. (Qualkinbush, supra, 79 Cal.App.5th at p. 891.) The stated purpose of the mental health diversion legislation is to keep individuals with mental health disorders from entering and re-entering the criminal justice system, and the California Supreme Court has found that the Legislature intended the mental health diversion program to be applied as broadly as possible. (People v. Frahs (2020) 9 Cal.5th 618, 631-632.)
Here, the trial court appears to interpret the 2023 amendments as affording the trial court overarching discretion to deny a defendant mental health diversion based on a totality of the circumstances style review, including application of a lower standard of dangerousness than articulated in the statute. At the diversion hearing, after quoting the amendment, the trial court opined, "[t]his is discretion. That's what discretion is all about. It is not just X's and O's, and hire an AI, artificial intelligence, to add them up and make the call, this is what discretion is . . . I am convinced that he would commit a 245.... I can't say where, but I just have that doubt that he's going to be violence- free."
In reaching its decision to deny Brinkley mental health diversion, it appears the trial court considered: (1) the availability of mental health treatment through formal probation; (2) Brinkley's prior strike convictions for burglary and assault with a deadly weapon; (3) the belief that Brinkley may commit an assault in the future; (4) Brinkley's use of a hammer in the commission of the vandalism; and (5) concern that Brinkley may commit a crime of violence that is not a super-strike.
The trial court's ruling appears to be based, at least in part, on the general objectives in sentencing articulated in California Rules of Court, rule 4.410(a)(1) and (a)(8).) However, consideration of general sentencing objectives runs afoul of Qualkinbush, and is contrary to the primary purposes of diversion as articulated in section 1001.35. Although Qualkinbush was decided before the most recent statutory amendments, its reasoning remains consistent with the Legislature's continued intent to have the program applied as broadly as possible. The People concede Brinkley is entitled to a new suitability hearing, and as such, it is appropriate to grant Brinkley a new hearing. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1241.)
DISPOSITION
Let a peremptory writ of mandate issue, directing the respondent superior court to vacate its August 29, 2023, order denying Brinkley's mental health diversion motion and hold a new hearing consistent with this opinion. We express no opinion as to whether Brinkley is ultimately suitable for mental health diversion. When this decision becomes final, the stay of proceedings in the trial court shall be lifted.
We concur: McKINSTER J., CODRINGTON J.