Opinion
H047616
10-12-2021
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS RAYMOND O'CONNOR, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 216705
BAMATTRE MANOUKIAN, J.
In October and November 2017, defendant Nicholas Raymond O'Connor used a gun and shot at surveillance cameras at two schools during the early morning hours. Following his indictment, O'Connor requested mental health diversion under Penal Code sections 1001.35 and 1001.36, arguing that his offenses were the result of his underlying mental health condition, autism spectrum disorder. The trial court denied O'Connor's request, concluding that there was insufficient evidence that O'Connor's autism spectrum disorder significantly contributed to the commission of his offenses and finding that O'Connor would pose an unreasonable risk to public safety if treated in the community.
Unspecified statutory references are to the Penal Code.
Subsequently, O'Connor pleaded no contest to four counts of possession of a firearm on school grounds (§ 626.9, subds. (b), (f)(1)), three counts of felony vandalism (§ 594, subds. (a), (b)(1)), misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A)), and misdemeanor exhibiting a firearm (§ 417, subd. (a)(2)). The trial court denied probation and sentenced O'Connor to a total term of six years in prison.
On appeal, O'Connor argues that the trial court abused its discretion by denying his request for mental health diversion over his experts' unanimous opinions that he would not pose a risk to public safety and that his autism spectrum disorder substantially contributed to his underlying offenses. He also argues that the trial court abused its discretion in denying him probation and sentencing him to prison. As we explain, we find no merit in O'Connor's contentions and affirm the judgment.
I. Background
Since defendant pleaded no contest to his offenses, we derive our factual summary of his crimes from the probation report, which was based on a report prepared by the San Jose Police Department.
On November 15, 2017, San Jose Police Department officers responded to Booksin Elementary School after the principal reported that the school's surveillance cameras had been damaged by what appeared to be gunshots.
On November 28, 2017, at around 3:51 a.m., officers again responded to Booksin Elementary School following a report that a male subject was seen discharging a firearm on school grounds. An officer who arrived at the scene saw O'Connor and a woman running across school grounds. The woman told officers that she had decided to investigate after she was woken up by the sounds of gunshots coming from the elementary school. When she got to the campus, she saw O'Connor use a “ ‘rifle' ” and shoot at three surveillance cameras. O'Connor turned and pointed his gun toward the woman, and she fell to the ground and crawled for cover. She saw O'Connor walk toward another wing of the school and fire his gun again. She approached O'Connor and yelled at him. O'Connor then fled on foot with the woman in pursuit. O'Connor eventually jumped over a school fence.
After O'Connor was arrested, officers found two.22 caliber rifles, a 12 gauge shotgun, an empty shotgun case, and ammunition inside his house, where he lived with his family. These items belonged to various members of O'Connor's household.
An administrative representative from the San Jose Unified School District noticed similarities between the shootings at Booksin Elementary School and vandalism incidents that had occurred at Willow Glen High School on October 11 and October 31, 2017. On October 11, 2017, a surveillance video showed an individual wearing a gorilla mask, hooded shirt, and gloves on school grounds. Surveillance videos from October 31, 2017, showed an individual wearing similar clothing carrying a firearm and shooting at surveillance cameras. O'Connor was identified to be the individual shown on the surveillance videos from Willow Glen High School.
B. The Indictment
On April 9, 2018, the Santa Clara County District Attorney's Office filed an indictment charging O'Connor with four counts of possession of a firearm on school grounds (§ 626.9, subds. (b), (f)(1); counts 1, 4, 6, 8), three counts of felony vandalism (§ 594, subds. (a), (b)(1); counts 2, 5, 7), misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A); count 9), and misdemeanor exhibiting a firearm (§ 417, subd. (a)(2); count 3). It was alleged as to counts 1, 2, and 4 through 7 that O'Connor personally used a firearm (§§ 667, 1192.7).
C. The Request for Mental Health Diversion and the People's Opposition
On March 4, 2019, O'Connor filed a request for pretrial mental health diversion under sections 1001.35 and 1001.36. According to the request, O'Connor had no criminal record and had never displayed tendencies toward violence or aggressive behavior before he committed the charged offenses. In early July 2017, O'Connor became convinced that the installation of surveillance cameras by law enforcement or government agencies was a threat to society, and he began to “obsess over the ‘dangers' of government monitoring.” O'Connor attributed his obsessive beliefs to his underlying mental health condition, autism spectrum disorder. O'Connor's condition was mild and presented as “simple quirks, or being overly shy or withdrawn.” O'Connor went to Booksin Elementary School and Willow Glen High School because he wanted to eliminate the schools' surveillance cameras, and he believed his actions were justified to protect society.
O'Connor's request stated that he was released on bail after his arrest and that he was “allowed” to start taking classes at Utah State University in January 2018. While at school, O'Connor became associated with several classmates that were firearm enthusiasts. O'Connor told one of his classmates that he wanted to anonymously obtain gun parts and build a semi automatic firearm in the future. The classmate reported this conversation to the campus police. As a result, O'Connor's bail was revoked, and he was remanded into custody starting on June 6, 2018.
Attached to O'Connor's request were several reports prepared by psychologists, including a report authored by Dr. Robert Perez. Dr. Perez met with O'Connor once, met with his parents once, administered mental exams and psychometric testing, and reviewed O'Connor's psychiatric history. Dr. Perez summarized that in addition to O'Connor's charged offenses, records from Utah State University indicated that there was an incident in May 2018 where O'Connor reportedly drove a car in an unauthorized area, the sidewalk of the student quad, and an incident where O'Connor had participated in firearms related activity and made statements about wanting to purchase or obtain an Uzi gun.
According to Dr. Perez, O'Connor reported that he had “an obsessive focus on... concerns regarding totalitarian governmental control of the community” and believed that security cameras “were an instrument allowing this control.” Dr. Perez noted that O'Connor's actions “raise obvious concern regarding issues of possible community safety, ” but “[o]n a positive note, ” O'Connor denied having an intent to harm any individuals and his actions, which involved shooting at schools during predawn hours, did “not appear to immediately imperil student, faculty, or staff (i.e., they wouldn't be on campus at those hours).” Dr. Perez diagnosed O'Connor with “Mild Autistic Spectrum Disorder” and opined that O'Connor's actions could be understood from the perspective that he had a mental condition. Dr. Perez summarized that O'Connor had “shown a pattern of adopting interests with an obsessional focus, ” he had difficulty with social reciprocity, and he had “limited ability to empathetically appreciate the probable reactions of others.”
Also attached to the motion was a report prepared by Dr. John Greene, who independently evaluated and prepared a treatment plan for O'Connor. Dr. Greene met with O'Connor twice, spoke with O'Connor's parents, conducted psychological testing, and reviewed the police records and documents related to his case. O'Connor told Dr. Greene that he had studied abroad in London in July 2017, and when he was there, he saw cameras everywhere and started to believe that cameras were extensively monitoring all of society and were a threat to individuals. O'Connor referenced the book “1984” and stated that he believed that destroying surveillance cameras would reduce the threat. Thus, starting in August 2017, O'Connor began to develop a plan to use the firearms in his house to vandalize cameras. O'Connor chose Willow Glen High School because he thought the school's principal was “ ‘ridiculous,' ” and he wanted to decrease the principal's ability to monitor others. O'Connor said that he thought the “ ‘collateral damage' ” that he caused from shooting at the surveillance cameras was justifiable, and he did not express a complete understanding that his actions put others in danger. O'Connor, however, expressed that he did not intend any harm.
Dr. Greene spoke to O'Connor about the events that followed his arrest. O'Connor stated that he had intended to enter the military before he was arrested. Following his arrest, he decided to continue school and started at Utah State University in January 2018. While at school in Utah, O'Connor's roommates invited him to go shooting. A father of one of O'Connor's classmates “ ‘made assault rifles as a living.' ” Since O'Connor wanted to own a weapon himself, he asked the classmate if he could use the classmate's address so that he could anonymously obtain gun parts. O'Connor told the classmate that he thought he could not get a weapon because of his pending legal charges.
Dr. Greene's report also summarized the records from the Utah State University Police Department. According to the records, O'Connor asked a classmate if he could use his mailing address “to mail gun parts... that he would purchase with gift cards.” Several classmates took O'Connor shooting at Hyde Park Canyon. O'Connor also asked either the same or a different classmate if the classmate wanted to make some quick money and cautioned the classmate that his request was “ ‘going to sound kind [of] sketch.' ” O'Connor told his classmate that he was assembling an Uzi and would pay the classmate $500 in cash to help him purchase parts. O'Connor told his classmate that he did not have the money right now, but he wanted to either purchase the parts or have the gun assembled in approximately three to six months. The classmate told O'Connor that automatic weapons are illegal, and O'Connor replied, “ ‘Don't worry[, ] it will be semi.' ” The classmate said that O'Connor described “that the method of shipping would be that he would send it to a person that is like FFA certified... and that he would then pick it up from him and get it to O'Connor.” The classmate said to O'Connor, “ ‘You're not planning a school shooting are you, please don't shoot me if you are.' ” The classmate said that O'Connor gave an “awkward laugh” and said, “ ‘Haha, I won't, I won't shoot you, oh yeah don't worry I won't shoot you.' ”
The record is unclear if O'Connor had separate conversations with the same classmate, or if he had separate conversations with different classmates.
There is no definition of “FFA certified” in the record.
Dr. Greene's report concluded that O'Connor displayed “a constriction of emotional expression, and a constricted awareness that his actions leading to his arrest had placed others at risk of harm.” O'Connor also “expressed a lack of complete understanding that his discussion of wanting to build or purchase a weapon in Utah could lead others to be concerned about him.” Dr. Greene found that O'Connor had “a low risk of reoffending” and “is at a low risk for recidivism.” Dr. Greene agreed with Dr. Perez's diagnosis that O'Connor had “Autism Spectrum Disorder.” Dr. Greene characterized O'Connor's condition as “Without Accompanying Intellectual or Language Impairment” and noted that O'Connor also had “Attention Deficit/Hyperactivity Disorder (ADHD).”
Dr. Greene determined “with reasonable medical certainty” that O'Connor's autism spectrum disorder “substantially contributed to his involvement in the commission of his offense.” Dr. Greene opined that individuals with autism spectrum disorder “can experience an abnormal focus of belief that is generally difficult to alter, and they generally cannot consider alternative perspectives outside of their belief.” Thus, O'Connor's focus on the threat posed by surveillance cameras was consistent with symptoms related to his autism spectrum disorder, which “prevented him from rationally understanding the repercussions of his actions.”
Dr. Greene further concluded “with reasonable medical certainty” that O'Connor would not pose an unreasonable risk of danger to public safety if he were treated in the community. Dr. Greene opined that “the greatest predictor of future behavior is past behavior, ” and O'Connor had no previous arrests or charges which placed him “at a generally low risk of recidivism.” Furthermore, O'Connor showed no signs of suffering from mental illness that would increase his future risk of reoffending, and he did not suffer from any substance use disorders. O'Connor had also demonstrated an ability to sustain close relationships with his family, including his parents.
Should O'Connor be released into the community, Dr. Greene recommended weekly therapy sessions for a minimum of two years.
D. The People's Opposition to Mental Health Diversion
The People opposed O'Connor's request for pretrial mental health diversion. The People argued that O'Connor had not established that his autism spectrum disorder played a significant role in his offenses. The People also argued that O'Connor had not established that his mental disorder would respond to treatment, and Dr. Greene's proposal of weekly therapy appointments was insufficient to show that O'Connor's symptoms would be adequately addressed. Moreover, the People argued that O'Connor posed an unreasonable risk of danger to public safety. The People asserted that although O'Connor did not physically harm anyone when he committed his crimes, the “concern in [his] case is that [he] was targeting local campuses['] security cameras as a means to carry out a more sinister attack on students and/or faculty.”
E. The Reply to the People's Opposition and the Additional Expert Reports
On April 12, 2019, O'Connor filed a reply to the People's opposition and argued that all the statutory criteria for mental health diversion had been met. Attached to the reply was a rebuttal report prepared by Dr. Greene that responded to the People's opposition. Dr. Greene asserted that there was sufficient evidence to show that O'Connor had “Autistic Spectrum Disorder.” Moreover, Dr. Greene disputed the People's argument that O'Connor's mental condition did not substantially contribute to his offenses. Dr. Greene opined that O'Connor's “fixation leading to his actions” was a symptom of his autism spectrum disorder, which played a significant role in his offenses. Moreover, Dr. Greene stated that his recommendation of comprehensive weekly therapy would “address[] all pathological symptoms in the individual's presentation of mental illness, and automatically addresses behavior leading to criminal action.”
Also attached to the reply was a treatment plan prepared by Dr. Debbie Francis at the Bay Area Psychotherapy Group. Dr. Francis recommended a treatment plan that included comprehensively assessing O'Connor's past and current behaviors, developing strong boundaries through therapy, providing psycho education regarding diagnosis and specific symptoms, and using cognitive restructuring techniques.
On June 3, 2019, Dr. Francis prepared a second report after she had interviewed O'Connor while he was incarcerated. Dr. Francis opined that the “profound difference in gun culture between Utah and California speaks to differing views regarding safety issues involving firearms as well as rights and responsibilities of each State's residents. In this context, Mr. O'Connor's recent behavior was a reasonable attempt to try to fit in with his new peers in this environment with such a vastly different gun culture than he was accustomed to.” Dr. Francis acknowledged that O'Connor's behavior “did cause fear and harm to other students, albeit unintentional, and no doubt, this behavior needs to be corrected with social skills training.” O'Connor had agreed to participate in individual psychotherapy for a minimum period of two years. Dr. Francis's report summarized a recommended treatment plan, broken down into weeks and months, where different issues would be addressed.
On June 4, 2019, Dr. Greene prepared a supplemental report. Dr. Greene opined “with reasonable medical certainty” that O'Connor's behavior in Utah, including driving his vehicle on the campus sidewalk and his statements about wanting to possess an Uzi, “was substantially influenced by his presentation of Autism Spectrum Disorder.” According to Dr. Greene, O'Connor drove on the grass at the school campus because he was unable to get to the computer lab as he usually did and was unable to “adjust his instinct to the appropriate social context.” Furthermore, O'Connor's discussion of weapons with his classmates in Utah “reflects his difficulty in responding to social situations appropriately, and reflects a deficit in his ability in understanding relationships in general, symptoms consistent with Autism Spectrum Disorder.” Dr. Greene had reviewed the treatment plan prepared by Dr. Francis, and he concluded that the treatment plan would “comprehensively address the behavior Mr. O'Connor conducted in San Jose and Utah, which led to his instant offenses.”
O'Connor's family and friends also wrote multiple support letters that described O'Connor as a “good citizen” and his family as “close knit.” O'Connor's family wrote a letter indicating that they were committed to “providing whatever support is needed to get [O'Connor] the help he needs.”
F. The Hearing on the Request for Mental Health Diversion
On June 7, 2019, the trial court held a hearing on O'Connor's request for pretrial mental health diversion. At the outset, the trial court stated that “given the whole totality of the circumstances here, ” including O'Connor's actions in Utah, it had “an extraordinary concern” about whether O'Connor would pose an unreasonable risk of danger to public safety if treated in the community. The trial court specifically noted that “one of the extraordinary concerns presented to the Court is that the activities in Utah were designed to hurt a lot of people at the same time. [¶] So when I see information that someone is trying to procure materials to make an Uzi, and then is in a car driving on a sidewalk, where presumably normally pedestrians are.... [¶]... [¶] I think you can understand how an outside observer might say that those activities are moving in the area of hurting lots of people at the same time.”
O'Connor's counsel argued that the events that occurred in Utah arose because O'Connor was in a different environment “where guns are a big deal, ” and he was trying to fit in with a group of friends but was unable to “appropriately interact with people.” O'Connor's counsel further argued that the trial court could put a GPS device on O'Connor to track where he is going.
The trial court expressed skepticism over whether the statutes permitted GPS monitoring, and further stated that it was unsure that GPS monitoring would be helpful. The trial court stated: “It's not where Mr. O'Connor is. It's what he does. And this connection between... what happened in San Jose and then the whole gun issues in Utah, regardless of environment, is a complex analysis from a public safety standpoint.” The trial court also stated that it was unsure that the issues that arose in Utah were related to O'Connor's autism spectrum disorder, noting: “You're saying [the Utah issues] occurred because [O'Connor] was associating with people-and the doctors are as well-he was associating with people who were into guns. But they were into guns. And Mr. O'Connor says I'm into guns and I'm into an Uzi when he already has some pretty serious criminal charges hanging over his head. I'm not sure that's related to an autism spectrum issue.”
The People argued that O'Connor's classmate in Utah had reported that O'Connor had said that the “mini Uzi” that he wanted to make “would not be used for hunting or recreation purposes.” Moreover, the People argued that O'Connor's assertion that he wanted the gun to fit in with his friends “ends at the point where [he] is asking for those parts to be given to him anonymously. That's not trying to just fit in.” Accordingly, the People argued that O'Connor's mental disorder did not play a significant role in the commission of his underlying offenses, it was unclear if his symptoms would respond to mental health treatment, and he posed an unreasonable risk of danger to public safety.
The trial court stated that it had concerns about “what conditions really will work” in O'Connor's case because he had been out on bail when he engaged in “even more serious behavior in Utah.” The trial court explained that it believed that O'Connor's actions in Utah were more serious than his underlying offenses because “he was out on bail and knew that he was putting his freedom at risk” with his conduct. Moreover, the trial court stated that O'Connor was not simply requesting a firearm to blend in with his friends but was “looking at building a weapon that is designed to hurt a lot of people all at one time, ” and his firearm discussions were “repeated... over a period of time” and reflected that he wanted to obtain a firearm anonymously. Moreover, O'Connor drove on the campus sidewalk, which was also “high risk behavior while out on bail.” The trial court reiterated its concern about O'Connor's risk to public safety, stating that it was “at a loss here on how to address that issue.”
After considering the parties' arguments, the trial court denied O'Connor's request for mental health diversion. The trial court stated: “[T]here are two main areas where the Court has concern. The first is that the Court is not satisfied that the autism spectrum disorder directly contributed to the commission of the offense. And that is in consideration of the totality of the circumstances, including the actions taken by Mr. O'Connor in Utah. [¶] The second is that the Court cannot think of a way to address the extraordinary public safety risks that Mr. O'Connor poses. And that, again, is in totality of the circumstances. [¶] The actions in Utah concern the Court greatly.” The trial court further explained that it understood that O'Connor claimed that there was “a benign reason for the actions in Utah, ” but reiterated that it was difficult for the trial court to “get behind and support that decision making in terms of a decision to grant mental health diversion.” Moreover, the trial court expressed skepticism over the treatment plan and stated that it was unsure if it would “manage issues related to the underlying behaviors, ” which it “consider[ed] to be quite serious.”
G. The Plea
On August 14, 2019, O'Connor pleaded no contest to all the charges and allegations, which included four counts of possession of a firearm on school grounds (§ 626.9, subds. (b), (f)(1); counts 1, 4, 6, 8), three counts of felony vandalism (§ 594, subds. (a), (b)(1); counts 2, 5, 7), misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A); count 9), and misdemeanor exhibiting a firearm (§ 417, subd. (a)(2); count 3), and to the allegations as to counts 1, 2, and 4 through 7 that he had personally used a firearm (§ 1192.7, subd. (c)(23)).
H. The Probation Report
The probation report recommended that the trial court deny probation and sentence O'Connor to a term of three years in prison. The probation report acknowledged that it was “clear” that O'Connor had autism spectrum disorder, and it is “known” that O'Connor's decision to act was “based on the ideology and a disdain of a totalitarian government, in which he believed camera surveillance of people was a threat to people's individuality.” The probation report also acknowledged that O'Connor had no known adult criminal history. The probation report, however, observed that “with the knowledge of the seriousness in the present matter and pending consequences, wherein [O'Connor] was granted his conditional release to attend school in Utah, [O'Connor] violated the protective order by possessing and discharging a firearm. Moreover, [O'Connor] attempted to purchase parts to build an illegal firearm, specifically a ‘mini Uzi,' a sub machine gun.” The probation report asserted that “[w]ith this in mind, [O'Connor's] poor decision making must be underscored.”
Attached to the probation report were 22 character reference letters from O'Connor's family, friends, and his parents' business associates that attested to O'Connor's good character.
I. The Sentencing Hearing
At the sentencing hearing on November 7, 2019, several individuals, including a parent of a child who attended Booksin Elementary School, spoke out against O'Connor. The woman whom O'Connor had chased at the elementary school and her daughter submitted letters detailing the impact that O'Connor's crimes had on their lives. Multiple family friends, relatives, and family members spoke on O'Connor's behalf and stated that they did not believe that O'Connor would harm anyone.
Dr. Greene testified at the sentencing hearing as an expert in forensic psychiatry. Dr. Greene opined that O'Connor had a mild form of autism spectrum disorder, and he had difficulty with social interactions. O'Connor also had a “lifetime history of having obsessional thinking, ” which led to his “very strong belief that the government was monitoring individuals.” Dr. Greene believed that O'Connor chose to go to college in Utah in “a random attempt... to get out of state and try a different world, ” but he unfortunately “[chose] an environment that was around guns.” Dr. Greene opined that O'Connor was “trying to fit in” with the other students at Utah State University.
According to Dr. Greene, O'Connor's level of dangerousness would remain the same if he did not get treatment for his autism. However, if he did get treated, “his risk substantially decreases.” Dr. Greene pointed out that O'Connor did not have a diagnosis of anti social personality disorder, he did not have a substance use disorder, and he did not have a history of violence or breaking the law. Dr. Greene stated that O'Connor would be unable to receive the treatment he needed if he was imprisoned, and he believed that O'Connor would need intensive therapy, or cognitive behavior therapy, for about two years. Dr. Greene believed that O'Connor would respond to therapy.
The trial court stated that it had concerns about how to limit O'Connor's risk of harm to the public. In response, Dr. Greene conceded that O'Connor's “risk of harm to other people increases if he has access to weapons.” The trial court responded, “Correct. How do I prevent that? It didn't work before.... Tell me, what does the Court do, short of keeping him under lock and key? He is an adult. He doesn't have to do a darn thing that his parents say. He doesn't have to live there. He can do whatever he wants. How does the Court address that? And if we had a-frankly-a restricted medical facility, a place where he could get treatment for two years and be in a facility that doesn't allow him access to the world while the treatment is kicking in, that would be wonderful. We don't have that. That is a terrible gap that we have in our justice system. What does the Court do?” Dr. Greene responded that he had previously worked with family members and providers to create a “supportive communication net, ” but the “bottom line is that” he did not have an answer.
Subsequently, the trial court determined that probation was not appropriate in O'Connor's case. The trial court noted that it found the following factors to be unfavorable: the seriousness of the crimes and whether O'Connor was armed or used a weapon, whether O'Connor was an active or passive participant in his crimes, whether his crimes were committed because of an unusual circumstance, whether his crimes demonstrated criminal sophistication or professionalism, whether O'Connor was remorseful for his actions, whether he would suffer adverse collateral consequences due to a felony conviction, and the likelihood that if not in prison, the defendant would be a danger to others. The trial court found the following factors to be favorable: O'Connor had no prior criminal history, and he expressed a willingness to comply with the terms of probation.
Thereafter, the trial court sentenced O'Connor to an aggregate term in prison of six years. The sentence was composed of three years for possession of a firearm on school grounds (§ 626.9, subds. (b), (f)(1); count 1), one year for possession of a firearm on school grounds (§ 626.9, subds. (b), (f)(1); count 4), one year for possession of a firearm on school grounds (§ 626.9, subds. (b), (f)(1); count 6), and one year for possession of a firearm on school grounds (§ 626.9, subds. (b), (f)(1); count 8). The trial court also imposed and stayed three two year sentences for O'Connor's three convictions for felony vandalism (§ 594, subds. (a), (b)(1); counts 2, 5, 7).
II. Discussion
A. Denial of the Request for Mental Health Diversion
O'Connor argues that the trial court abused its discretion when it denied his request for mental health diversion. He argues that the trial court erroneously rejected the uncontradicted opinions of Dr. Perez, Dr. Greene, and Dr. Francis, and he met all the criteria for mental health diversion under section 1001.36. As we explain, we find no abuse of discretion.
1. General Legal Principles and Standard of Review
A defendant may be eligible for pretrial diversion pursuant to section 1001.36 if the defendant has not been charged with a disqualifying offense and the trial court finds: “(1) the defendant suffers from a qualifying mental disorder; (2) the disorder played a significant role in the commission of the charged offense; (3) the defendant's symptoms will respond to mental health treatment; (4) the defendant consents to diversion and waives his or her speedy trial right; (5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.” (People v. Frahs (2020) 9 Cal.5th 618, 626 627 (Frahs); see § 1001.36, subd. (b)(1)(A) (F), (2)(A) (H).)
Regarding the latter requirement, section 1001.36 states that pretrial diversion may be granted if “[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. 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, the current charged offense, and any other factors that the court deems appropriate.” (§ 1001.36, subd. (b)(1)(F).) Section 1170.18 defines “ ‘unreasonable risk of danger to public safety' [to] mean[] an unreasonable risk that the petitioner will commit a new violent felony” described in section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).) “These violent felonies are known as ‘super strikes' and include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment.” (People v. Jefferson (2016) 1 Cal.App.5th 235, 242.)
“If the defendant makes a prima facie showing that he or she meets all of the threshold eligibility requirements and the defendant and the offense are suitable for diversion, 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. (§ 1001.36, subds. (a), (b)(3) & (c)(1).)” (Frahs, supra, 9 Cal.5th at p. 627.)
We review the trial court's order denying mental health diversion for an abuse of discretion. (People v. Moine (2021) 62 Cal.App.5th 440, 448 (Moine); see Frahs, supra, 9 Cal.5th at p. 626 [“Section 1001.36 gives trial courts the discretion to grant pretrial diversion for individuals suffering from certain mental health disorders.”].) “A court abuses its discretion when it... bases its decision on express or implied factual findings that are not supported by substantial evidence.” (Moine, supra, at p. 449.)
2. Analysis
When denying O'Connor's request for pretrial mental health diversion, the trial court expressly stated that it found that there was an unreasonable risk of danger to public safety if O'Connor was treated in the community and it was not satisfied that O'Connor's autism spectrum disorder significantly contributed to his underlying offenses.
O'Connor argues that by coming to this conclusion, the trial court erroneously rejected the multiple expert opinions presented by the defense, including the opinions provided by Dr. Perez, Dr. Greene, and Dr. Francis. Collectively, the three experts submitted reports that opined that O'Connor's underlying offenses and his actions in Utah arose from his underlying autism spectrum disorder. Dr. Greene stated that he believed that O'Connor's symptoms could be treated with cognitive behavioral therapy, and Dr. Francis provided a detailed summary of a proposed treatment plan that would address O'Connor's issues. Dr. Greene specifically concluded “with reasonable medical certainty” that O'Connor would not pose an unreasonable risk of danger to public safety if he were released to the community. Dr. Greene also opined that “the greatest predictor of future behavior is past behavior, ” and O'Connor had no previous arrest or charges which placed him “at a generally low risk of recidivism.”
O'Connor relies on Chesapeake & O. R. Co. v. Martin (1931) 283 U.S. 209 and argues that “[t]he jury [(or fact finder)] is [not] at liberty, under the guise of passing upon the credibility of a witness, to disregard his testimony, when from no reasonable point of view is it open to doubt.” (Id. at p. 216.) O'Connor also relies on this court's decision in In re Smith (2003) 114 Cal.App.4th 343, where we concluded in the context of a parole decision that “the record provides no reasonable grounds to reject, or even challenge, the findings and conclusions of the psychologist and counselor concerning Smith's dangerousness” and “[i]n the absence of such grounds or other evidence, the Governor's view that Smith's propensity for violence cannot adequately be predicted at this time is unsubstantiated speculation and as such appears to be arbitrary and capricious.” (Id. at p. 369.) Finally, O'Connor relies on In re Stoneroad (2013) 215 Cal.App.4th 596, where the Court of Appeal noted that the Board of Parole Hearings' “disregard of the regulatory factors and psychological evaluations [when denying an inmate parole] is unexplained, unjustified, and indeed disturbing.” (Id. at p. 624.)
O'Connor's reliance on Chesapeake, Smith, and Stoneroad is misplaced. It is true that the prosecution did not present its own experts to rebut the opinions provided by O'Connor's experts. However, the record reflects that the trial court did not arbitrarily disregard the opinions of Dr. Perez, Dr. Greene, and Dr. Francis. The trial court stated on the record that it had read and considered all the experts' reports. Nonetheless, the trial court was not required to automatically accept the experts' conclusions. Generally, “[t]he value of an expert's testimony depends on the material upon which the opinion is based and the reasoning used to form that opinion [citations], and a trial court is not obligated to accept even unanimous or uncontradicted expert opinion. [Citations.] The trial court may reject completely the testimony of an expert witness, as long as its decision to do so is not arbitrary.” (People v. McCoy (1995) 40 Cal.App.4th 778, 785 (McCoy); In re Scott (2003) 29 Cal.4th 783, 823 [a “fact finder may reject even ‘a unanimity of expert opinion' ”].)
In this case, Dr. Greene was the only expert proffered by the defense that specifically opined that O'Connor would not pose an unreasonable risk of danger to public safety. Dr. Greene concluded in his first report “with reasonable medical certainty” that O'Connor would not pose an unreasonable risk of danger. Dr. Perez's report was less straightforward and expressed some concerns about public safety. Dr. Perez noted that “[O'Connor's] actions raise obvious concern regarding issues of possible community safety, ” but “[o]n a positive note, ” O'Connor denied that he intended to harm anyone, and his actions did not “appear to immediately imperil student, faculty, or staff.” Dr. Francis recommended a treatment plan in her June 3, 2019 report, but she did not offer opinions about whether O'Connor would be an unreasonable risk of danger, merely stating that her recommended treatment plan was “an appropriate level of care for Mr. O'Connor to reintegrate into the community.” Thus, this is not a case where multiple experts were clearly in agreement that O'Connor would pose little or no risk to public safety if treated in the community.
Moreover, the trial court's rejection of Dr. Greene's opinion was not based on speculation; it was based on an assessment of the evidence in the record. During the sentencing hearing, the trial court stated that it had concerns about “what conditions really will work” in O'Connor's case because he had been out on bail when he engaged in “even more serious behavior in Utah.” It is undisputed that O'Connor did not distance himself from firearms when he was on bail. Instead, he told his fellow Utah classmates that he wanted to anonymously obtain gun parts to build an “Uzi.” Dr. Greene summarized in his first report that O'Connor told his classmate that he thought he could not get a weapon because of his pending legal charges. Thus, there was evidence in the record that O'Connor knew that he should not be in possession of a firearm while out on bail, but he made statements to others and took preliminary steps to anonymously obtain parts to build a firearm. As the trial court observed, O'Connor engaged in this type of behavior even though he “knew that he was putting his freedom at risk.”
Dr. Greene opined that O'Connor's discussion of guns in Utah “reflects his difficulty in responding to social situations appropriately, and reflects a deficit in his ability in understanding relationships in general, symptoms consistent with Autism Spectrum Disorder.” The district attorney, however, argued that O'Connor's behavior in Utah was not just about trying to fit in because he stated that he had an intent to obtain firearm parts anonymously. When making its dangerousness determination, the trial court was entitled to consider the district attorney's opinion. (§ 1001.36, subd. (b)(1)(F).) The trial court agreed with the district attorney, noting that O'Connor's behavior demonstrated that he was not simply requesting a firearm to fit in with his classmates; he was “looking at building a weapon that is designed to hurt a lot of people all at one time, ” and his firearm discussions were “repeated... over a period of time.” The trial court's conclusion was supported by records from the Utah State University Police Department, which described conversations where O'Connor told a classmate his plan to ship the gun parts and conversations where O'Connor offered to pay a classmate $500 in exchange for assistance in obtaining gun parts. This evidence suggested that O'Connor's discussion about making an Uzi was not merely hypothetical-he actively took some preliminary steps to obtain the necessary parts. The trial court could reasonably conclude that, contrary to Dr. Greene's opinion, O'Connor's desire to anonymously obtain gun parts is not adequately explained by an inability to appropriately respond to social situations due to his autism spectrum disorder. (See McCoy, supra, 40 Cal.App.4th at p. 785 [value of expert opinion depends on “the reasoning used to form that opinion”].)
The trial court also expressed concern over Dr. Francis's treatment plan and stated that it was unsure if the plan would “manage issues related to [O'Connor's] underlying behaviors, ” which it “consider[ed] to be quite serious.” Dr. Francis's June 3, 2019 report summarized a recommended treatment plan, broken down into weeks and months, where O'Connor's issues would be addressed. Dr. Greene asserted that Dr. Francis's treatment plan would “comprehensively address the behavior Mr. O'Connor conducted in San Jose and Utah, which led to his instant offenses.” The trial court, however, expressed doubt that O'Connor's autism spectrum disorder fully explained his behavior in Utah, stating that it was “not sure [that O'Connor's behavior in Utah was] related to an autism spectrum issue.” As a result, the trial court was reasonably skeptical of Dr. Greene's opinion that Dr. Francis's treatment plan would comprehensively address all of O'Connor's dangerous behaviors.
O'Connor also argues that the there was insufficient evidence that there was an unreasonable risk of danger that he would commit a “super strike” offense, which include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment (People v. Jefferson, supra, 1 Cal.App.5th at p. 242), because he had no past history of violence.
We acknowledge that in some cases, Courts of Appeal have concluded that it is an abuse of discretion to find that defendants who have committed nonviolent offenses pose an unreasonable risk of danger to public safety for the purposes of mental health diversion. For example, in People v. Williams (2021) 63 Cal.App.5th 990 (Williams), the defendant was convicted of felony stalking after making multiple “extremely disturbing” threats (id. at p. 993), such as writing that he would “blow [a victim's] fucking head off” (id. at p. 994, fn. 4). The First Appellate District concluded that the trial court erred in finding that the defendant posed an unreasonable risk of danger to public safety for purposes of mental health diversion because his underlying charges were not super strikes, he posed a low risk to public safety in the uncontroverted opinions of two mental health professionals, there was no evidence he owned, possessed, or had access to weapons, and the trial court had previously released the defendant on bond for two years without incident. (Id. at p. 1002.)
Likewise, in Moine, supra, 62 Cal.App.5th 440, the defendant was convicted of assault following a fist fight and of making criminal threats. (Id. at pp. 444 445.) The defendant had threatened that he had a gun and that he was going to come in and kill everyone; however, there was no evidence in the record that he owned, possessed, or had access to guns. (Id. at p. 445 & fn. 2.) The Second Appellate District found that the trial court abused its discretion when it determined that the defendant would pose an unreasonable risk of danger to public safety because there were two opinions by psychiatrists that the defendant posed a low risk of committing assault, the defendant had a criminal history of committing misdemeanors, and the circumstances of the pending charges did not rationally support an inference that he was likely to commit a super strike offense. (Id. at p. 451.)
We find Williams and Moine distinguishable. In Williams and Moine, there was nothing in the record to suggest that the defendants owned or had access to firearms. (Williams, supra, 63 Cal.App.5th at p. 1002; Moine, supra, 62 Cal.App.5th at p. 445, fn. 2.) Here, O'Connor's underlying offenses were not super strikes, but they involved his personal use of firearms. He committed his offenses in the early morning hours, when it was less likely that anyone would be present; however, the school campuses where he committed his crimes were still public grounds. The potential risk to public safety was underscored by the fact that O'Connor ultimately encountered a woman at Booksin Elementary School and pointed a gun at her. No injuries were incurred and O'Connor expressed that he did not have an intent to harm anyone, but it was reasonable for the trial court to conclude that his offenses were dangerous and had the potential to result in significant violence.
O'Connor argues that the trial court's focus on his uncharged acts in Utah, including the incident where he drove on the college campus's sidewalk, amounted to no more than “rank speculation that Mr. O'Connor was going to be the next ‘school shooter' and would harm numerous people.” The trial court's concern over his actions in Utah involving guns, however, was based on the evidence in the record. As we have noted, there was evidence that when O'Connor was released on bail, he made attempts to anonymously obtain parts to build an Uzi, a weapon that is undoubtedly dangerous and could inflict great harm. The Utah State University Police Department's records indicated that O'Connor's classmate asked him, “ ‘You're not planning a school shooting are you, please don't shoot me if you are.' ” In response, O'Connor gave an “awkward laugh” and said, “ ‘Haha, I won't, I won't shoot you, oh yeah don't worry I won't shoot you.' ” We agree that based on these statements alone, it is unclear whether O'Connor intended to use a gun to commit violence or if his comments were made in jest. However, his behavior was concerning enough that his classmate reported their conversations to the police. The trial court could rationally infer that O'Connor's statements tended to suggest that he may have intended to use a gun for violent purposes. O'Connor's behavior in Utah was also evidence of his inability to comply with restrictions, and an inability to abide by restrictions serves to heighten his risk to public safety.
Accordingly, having carefully reviewed the evidence in the record as a whole, we conclude that the trial court did not abuse its discretion when it determined that O'Connor would pose an unreasonable risk of danger to public safety if treated in the community. (Moine, supra, 62 Cal.App.5th at p. 449.)
Finally, O'Connor argues that the trial court also abused its discretion by concluding that his mental disorder was not a significant factor in his underlying offense. He argues that Dr. Greene “clearly spelled out” exactly how his autism spectrum disorder contributed to his underlying offenses, including his fixation on surveillance cameras. However, even if we assume that the trial court's conclusion was erroneous on this point, reversal is not required. As we have explained above, there was substantial evidence to support the trial court's determination that O'Connor would pose an unreasonable risk of danger to public safety if treated in the community. This finding independently supports the trial court's ruling that O'Connor was not eligible for pretrial mental health diversion. (People v. Oneal (2021) 64 Cal.App.5th 581, 593; § 1001.36, subd. (b)(1)(F).)
O'Connor argues in his opening brief that he met all the other eligibility criteria under section 1001.36. As we have stated, the trial court's single finding that O'Connor posed an unreasonable risk of danger to public safety rendered him ineligible for mental health diversion. Accordingly, we do not need to address the sufficiency of the evidence to support O'Connor's eligibility under the additional criteria described under section 1001.36.
B. Denial of Probation
O'Connor argues that the trial court abused its discretion by denying him probation because it failed to consider certain mitigating factors and did not adhere to his experts' opinions that he had a low risk of recidivism. We disagree and conclude that the trial court did not abuse its discretion when it denied probation.
1. General Legal Principles and Standard of Review
California Rules of Court, rule 4.414 sets forth the criteria for a trial court to use in deciding whether to grant probation, which includes facts relating to the underlying offense and facts relating to the defendant.
Unspecified rule references are to the California Rules of Court.
“ ‘Probation is an act of clemency which rests within the discretion of the trial court, whose order granting or denying probation will not be disturbed on appeal unless there has been an abuse of discretion.' ” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 (Du).) “ ‘Abuse of discretion,' in turn, depends on whether the trial court's order ‘ “exceeds the bounds of reason.”' ” (People v. Superior Court (Dorsey)(1996) 50 Cal.App.4th 1216, 1225.)
“ ‘The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]' [Citation.] Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable.” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313, disapproved of on other grounds by People v. Cook (2015) 60 Cal.4th 922, 934 935, 939.)
2. Analysis
O'Connor argues that the trial court abused its discretion by denying him probation because it disregarded Dr. Greene's expert testimony about his low risk for recidivism and the multiple character witnesses that attested to his good character and the support that he would receive in the community if placed on probation.
The record reflects that the trial court did not disregard Dr. Greene's opinions or the character letters that were submitted in support of O'Connor. During the sentencing hearing, the trial court stated that, in addition to the expert testimony that had been presented, it had “read... all of the voluminous pleadings and events [sic] submitted to the Court.”
The trial court, however, properly considered appropriate factors under Rule 4.414 when determining whether to grant probation. During the sentencing hearing, the trial court found the following factors to be unfavorable: the seriousness of the crime and whether O'Connor was armed or used a weapon, whether O'Connor was an active or passive participant in the crimes, whether the crime was committed because of an unusual circumstance, whether the crime demonstrated criminal sophistication or professionalism, whether O'Connor was remorseful for his actions, whether he would suffer adverse collateral consequences due to a felony conviction, and the likelihood that if not in prison, O'Connor would be a danger to others. (Rule 4.414(a)(1), (2), (6), (7), & (8), 4.414(b)(6), (7) & (8).) The trial court stated that it found the following factors to be favorable: O'Connor had no prior criminal history, and he expressed a willingness to comply with the terms of probation. (Rule 4.414(b)(1) & (3).)
O'Connor argues that the trial court did not consider certain mitigating factors, including that he expressed remorse for his actions, his autism spectrum disorder played a role in his offenses, he exercised caution to avoid harm to person and property when he committed his offenses, and he believed that his actions were in support of the greater good because of his concerns over surveillance. Nonetheless, the trial court was not required to conclude that the mitigating factors identified by O'Connor outweighed the applicable aggravating factors, and “ ‘[a] trial court may minimize or even entirely disregard mitigating factors without stating its reasons.' [Citation.] Further, unless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the relevant criteria, such as mitigating circumstances, enumerated in the sentencing rules.” (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.) In fact, the trial court acknowledged that Dr. Greene's testimony was “very clear” that “the diagnosis of the mild autism spectrum disorder is an explanation as to [O'Connor's] inability to make a connection between action and effect of that action on others.” However, “even if there were several mitigating factors that might weigh in favor of probation, this does not necessarily mean that the trial court abused its discretion in deciding against granting probation.” (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530 1531.)
O'Connor claims that the trial court required that he “demonstrate a certainty” that he would never violate his probation, which is “a higher standard of confirmation than was possible.” We disagree. The record does not reflect that the trial court held O'Connor to an impossible standard. The trial court, however, was reasonably concerned about O'Connor's ability to be successful on probation. During the sentencing hearing, the trial court expressed concern that O'Connor would be unable to comply with probation conditions, citing to his actions in Utah where he used firearms and tried to obtain gun parts anonymously while on bail. The trial court acknowledged that O'Connor's autism spectrum disorder may have impacted his inability to comply with the court's previous orders, stating, “[a]nd I do understand the mental health perspective that was presented as to the reasons why Mr. O'Connor did not or was unable to comply with the Court's orders.” Nonetheless, the trial court also stated that when granting probation, it needed to know that a defendant “has the ability to comply with the terms and conditions of probation.” O'Connor's ability to comply with probation conditions was directly related to the likelihood that he would be a danger to others if not imprisoned, which was an appropriate factor for the trial court to consider. (Rule 4.414(b)(8).)
O'Connor insists that he acknowledged his mistakes in Utah, accepted that his behavior violated his release terms, and had demonstrated growth while incarcerated. He further argues that the trial court based its conclusion that he would be a danger to others if not imprisoned on speculative evidence, such as testimony of a parent of a child who attended Booksin Elementary School who spoke out against O'Connor during the sentencing hearing and the statements of the woman whom O'Connor had chased at Booksin Elementary School and her daughter. O'Connor, however, ignores the nonspeculative evidence in the record that supported the trial court's determination. Contrary to O'Connor's claim, the trial court could reasonably determine based on the evidence that O'Connor's crimes, which involved the use of firearms on public grounds, was serious. Moreover, as we have concluded, the trial court could reasonably find that O'Connor's past performance on bail reflected his inability-or unwillingness-to comply with court orders, rendering it likely that he would be a danger if released.
O'Connor also argues that the trial court erroneously raised concerns that he attended Utah State University knowing that the school had a tolerance for firearms, even though there is nothing in the record to support this conclusion. During the sentencing hearing, the trial court noted that O'Connor had “select[ed] a school that is in an area where guns are prolific, and, in fact, lauded.” However, even if O'Connor did not have prior knowledge of the school's gun culture, it is undisputed that O'Connor went to a firing range when he was on bail and shot firearms, and, even more troubling, he indicated to other students that he wanted to anonymously obtain gun parts. The trial court's conclusion that O'Connor's actions in Utah were concerning was not irrational and was not based on speculation.
“Sentencing courts have wide discretion in weighing aggravating and mitigating factors.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) “In reviewing [a trial court's determination whether to grant or deny probation, ] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.” (Du, supra, 5 Cal.App.4th at p. 825.) The trial court in this case weighed appropriate factors and its decision was not based on speculation but on the evidence in the record. Accordingly, we conclude that the trial court's decision to deny probation was not an abuse of discretion.
III. Disposition
The judgment is affirmed.
WE CONCUR: ELIA, ACTING P.J., GROVER, J.