Opinion
H049601
12-08-2023
THE PEOPLE, Plaintiff and Respondent, v. LUKUS JAMES PHILLIPS, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. C2003779, C2004335
LIE, J.
Defendant Lukus James Phillips challenges the trial court's denial of mental health diversion under Penal Code section 1001.36 in two related criminal cases. We conclude that recent amendments to section 1001.36 retroactively apply to Phillips's case and that the trial court erred in finding that Phillips posed an unreasonable risk of danger to public safety. Accordingly, we reverse the judgment.
Unspecified statutory references are to the Penal Code.
I. BACKGROUND
In March 2020, the Santa Clara County District Attorney charged Phillips in case number C2003779 with assault on a peace officer or firefighter with a deadly weapon (§ 245, subd. (c)). Days later, in case C2004335, the district attorney charged Phillips with two counts of first degree burglary (§ 460, subd. (a)). In both cases, the district attorney also alleged a prior conviction for discharge of firearm with gross negligence (§ 246.3) constituting both a strike prior (§ 1170.12) and a five-year prior (§ 667, subd. (a)(1)).
A. Application for Mental Health Diversion
Released in June 2020 to a treatment program, Phillips sought mental health diversion 11 months later pursuant to section 1001.36. In support of his application, he provided an assessment and treatment plan by Santa Clara County Behavioral Health Services, which reported that he had been diagnosed with bipolar disorder, posttraumatic stress disorder (PTSD), methamphetamine use disorder, and cannabis use disorder. Phillips represented through counsel that he had been self-medicating with methamphetamine to treat the symptoms of his bipolar disorder during the time of the charged incidents but that since his release the previous year he had "made significant progress in treatment" and was both "gainfully employed, and . . . motivated to continue in his rehabilitative journey." The prosecution opposed Phillips's application.
Although the court had authorized Phillips's release in April 2020, it appears that he remained in custody until early June.
Both parties relied upon the police reports of Phillips's current offenses in addressing whether Phillips was eligible for mental health diversion. The police reports, attached to the operative complaints, reflect the following:
In February 2020, police officers responding to a neighbor's report of suspicious activity at a house in Milpitas, California, found the side gate and electrical box open and the window of the rear door to the house smashed. Several rooms of the house had been ransacked.
Later that same month, police responded to another report of a residential burglary. The victim had awoken early in the morning to find Phillips on the staircase holding a flashlight. Phillips fled the house and drove away in a minivan. Two electrical breakers had been switched off, turning off the power to the house. The breakers in an electrical subpanel in the garage were also turned off. An office window adjacent to the front door was shattered. A surveillance camera recorded Phillips's vehicle.
Milpitas detectives located Phillips's vehicle a few days later. When they saw Phillips enter the minivan and drive off, the detectives followed Phillips and eventually surrounded his car, positioning police vehicles at Phillips's rear bumper, driver's side door, and front bumper, respectively. Detective Madnick's vehicle was hood to hood with Phillips's minivan. Phillips accelerated into Madnick's vehicle, attempting to use the minivan to push the police car backward in an attempt to escape, his engine revving and tires smoking. Another detective positioned her vehicle directly behind Madnick's. Madnick exited his car and ran behind the driver's door of a different detective's vehicle to get out of the way. Phillips's minivan then "[ran] up onto the hood of [Madnick's] vehicle" and despite continue efforts to accelerate, Phillips lost traction. Disregarding commands at gunpoint to "PUT [HIS] HANDS UP" and "GET OFF THE GAS," Phillips lit a cigarette and flipped his middle finger at the detectives.
Madnick experienced injuries consisting of an abrasion to the upper left forehead and pain to his shoulder, neck, and head. He was treated in the emergency room and released.
B. The Hearing on Mental Health Diversion
At the July 2021 hearing on Phillips's application for mental health diversion, the prosecution disputed both Phillips's eligibility and suitability for diversion. As to eligibility under subdivision (b) of section 1001.36, the prosecution argued that his diagnosed mental health disorders were not a substantial factor in his commission of the residential burglary, although it acknowledged that Phillips's "PC 69"was "consistent with mental health disorders insofar as he was confronted with a very overwhelming and very stressful confrontation and his reaction to that was fight or flight, that seems absolutely consistent with his diagnoses."
We understand the prosecution's reference to section 69 (which prohibits an attempt "by means of any threat or violence, to deter or prevent an executive officer from performing any duty") to have meant the violation of section 245, subdivision (c) charged in case number 2003779.
As to suitability for diversion under subdivision (c) of section 1001.36, the prosecution acknowledged Phillips's performance on pretrial release and expressed that it was "very[,] very willing to give Mr. Phillips all the credit that he deserves. We have made an offer to strike the strike, to get probation to offer him a situation where he can -and has frankly earned - much lower term or sentence than would normally be offered because of the hard work that he has put in." But considering Phillips a threat to public safety, the prosecution indicated, "[We] [s]imply don't think [Phillips] is appropriate for mental health diversion."
The court denied Phillips's application for mental health diversion. On the issue of his suitability for diversion, the court initially stated: "I am convinced that [Phillips] does not pose an unreasonable risk of danger to public safety as defined in the statute." On eligibility, although the court found Phillips met the other criteria for diversion, it did not find "that his mental disorder played a significant role in the commission of the charged offense." With regard to the violation of section 245, subdivision (c) (C2003779), the court stated: "I am concerned for public safety on that one because of what he did - understanding that he does suffer from PTSD, I am concerned that he did use his vehicle as a weapon and an officer had to go to the hospital, I'm concerned about that."
C. Plea and Sentencing
At a later hearing, by agreement of the parties, Phillips pleaded no contest to first degree burglary (C2004335) and a newly added misdemeanor count of resisting arrest (§ 148, subd. (a)) (C2003779), in return for the district attorney's dismissal of the prior conviction allegations and the violation of section 245, subdivision (c) and a sentence of "credit for time served" with "Probation and Mental Health Treatment Court."
The court suspended imposition of sentence and granted Phillips probation for two years in C2004335 and for one year in C2003779; a condition that he serve 180 days in jail was deemed satisfied by his 188 days of custody credits.
Phillips timely appealed his conviction pursuant to a certificate of probable cause issued under section 1237.5.
II. DISCUSSION
A. Standard of Review and Legal Principles
Section 1001.36 provides that, with the exception of certain enumerated felonies not at issue here, a court has discretion to grant pretrial diversion to a defendant if the defendant satisfies the eligibility requirements in the statute. (§ 1001.36, subd. (a).) A defendant is eligible if: (1) "[t]he defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders"; and (2) "[t]he defendant's mental disorder was a significant factor in the commission of the charged offense." (§ 1001.36, subd. (b)(1)-(2).) With regard to the latter, "[i]f the defendant has been diagnosed with a mental disorder, the court shall find that the defendant's mental disorder was a significant factor in the commission of the offense unless there is a clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant's involvement in the alleged offense." (§ 1001.36, subd. (b)(2).)
If a defendant has been established as eligible for pretrial diversion, the court must thereafter consider enumerated criteria to determine the defendant's suitability for diversion: "A defendant is suitable for pretrial diversion if all of the following criteria are met: [¶] (1) In the opinion of a qualified mental health expert, the defendant's symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment. [¶] (2) The defendant consents to diversion and waives the defendant's right to a speedy trial .... [¶] (3) The defendant agrees to comply with treatment as a condition of diversion ....[¶] (4) The defendant will not pose an unreasonable risk of danger to public safety . . . if treated in the community." (§ 1001.36, subd. (c).)
We review a trial court's ruling on a motion for mental health diversion for abuse of discretion. (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147.)
B. Mental Disorder as Significant Factor
As to case number C2004335, the Attorney General appropriately concedes that remand is appropriate due to the recent amendments to section 1001.36.
Because we accept the concession, we need not address Phillips's other claims of error as to the court's denial of pretrial diversion in that matter.
At the time of the court's denial of pretrial diversion, the provision of section 1001.36 on which Phillips relied conditioned eligibility on the court's being "satisfied" that the defendant's mental disorder was a significant factor in the commission of the offense. (Former §1001.36, subd. (b)(1)(B).) In Senate Bill No. 1223, effective on January 1, 2023 (Sen. Bill No. 1223 (2021-2022 Reg. Sess.) § 1), the Legislature amended section 1001.36 to mandate that "the court shall find that the defendant's mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant's involvement in the alleged offense." (§ 1001.36, subd. (b)(2), italics added.) As amended, the current statute's rebuttable presumption applies retroactively to cases in which judgment is not final. (People v. Frahs (2020) 9 Cal.5th 618, 624, 640.)
Because the trial court evaluated Phillips's eligibility under the former version of the statute, it had no occasion to apply the legislative presumption in his favor or to determine whether the prosecution had produced clear and convincing evidence that Phillips's mental disorder was not a motivating, causal, or contributing factor. Accordingly, as the parties agree, we conclude remand is appropriate for the trial court to determine Phillips's eligibility under the current statutory standard.
C. Unreasonable Risk of Danger to Public Safety
Although Phillips filed a single, combined application for mental health diversion in both case number C2003779 and case number C2004335, the trial court at the hearing denied mental health diversion on a different ground in each case. As we have observed, the trial court initially stated that it was "convinced that [Phillips] does not pose an unreasonable risk of danger to public safety as defined in the statute." After the trial court denied Phillips's application for diversion on the ground that it was not apparent that his mental health disorder was a substantial factor in his commission of the residential burglary, defense counsel asked the court to consider granting diversion at least as to case number C2003779 and the charge of assaulting the detective. It was in denying this request that the court stated its concern regarding the charged assault and hospital treatment of the detective. It is not apparent from the record whether the court intended its legitimate expression of concern about the charged violation of section 245 and the injury to the detective to be taken as a reversal of its prior statement that it was convinced Phillips "does not pose an unreasonable risk of danger to public safety as defined in the statute," as an offense-specific alternative finding, or as an independent nonstatutory reason for finding him unsuitable for diversion. Each of these potential interpretations of the court's basis for ruling, however, would constitute reversible error.
Section 1001.36 provides that a defendant eligible for pretrial diversion may nonetheless be denied placement in a diversion program if the defendant "will . . . pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community." (§ 1001.36, subd. (c)(4).) Section 1170.18, in turn, defines the disqualifying risk as "an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667." (§ 1170.18, subd. (c).) Section 667, subdivision (e)(2)(C)(iv) defines "super-strike" offenses-sexually violent offenses; sexual offenses against children under 14 years of age; homicide; solicitation to commit murder; assault with a machinegun on a peace officer or firefighter; possession of a weapon of mass destruction; and any serious or violent felony offense punishable in California by life imprisonment or death. (§ 667, subd. (e)(2)(C)(iv).) "By requiring an assessment of whether the defendant 'will commit a new violent felony' within the meaning of section 667, subdivision (e)(2)(C)(iv), a trial court necessarily must find the defendant is 'likely to commit a super-strike offense.'" (People v. Moine (2021) 62 Cal.App.5th 440, 450 (Moine).) In assessing the risk of danger to public safety under section 1001.36, "[t]he court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant's treatment plan, the defendant's violence and criminal history, the current charged offense, and any other factors that the court deems appropriate." (§ 1001.36, subd. (c)(4).)
Noting what he characterizes as "two conflicting findings with respect to the unreasonable risk of danger," Phillips argues the happenstance of different docket numbers should not result in different findings when the "two different dockets are being considered for diversion at the same time." Although the causal relationship between a defendant's mental health disorder and the charged offenses may vary according to the specific offenses, we see no viable basis for a single trier of fact to reach simultaneous divergent assessments of a single defendant's future dangerousness under section 1001.36, subdivision (c)(4). Although that provision calls for consideration of "the current charged offense" among other factors, nothing in the provision restricts the court's consideration of more than one charged offense or pending criminal case. Indeed, the court in applying the statutory definition of dangerousness may consider "any other factors that the court deems appropriate." (§ 1001.36, subd. (c)(4).) The trial court had before it a report from the Santa Clara County Behavioral Health Services, which stated that, although the chances of relapse are high in the population for individuals with diagnoses like Phillips, he had a high chance of maintaining sobriety with a supportive mental health team in place. With regard to Phillips's past convictions, the court noted that "his offenses go back many[,] many years and there seems to be a fair amount of charges involving violence, such as domestic violence and misdemeanor assaults, as well as criminal threats and other offenses including a robbery." But none of the past convictions included a super strike, and the trial court itself was "convinced that [Phillips] does not pose an unreasonable risk of danger to public safety as defined in the statute." Although the prosecutor argued otherwise, her acknowledgment that Phillips's "hard work" merited a grant of probation-"the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community" (§ 1203, subd. (a))-undermines the prosecution claim that information before the court warranted a finding of dangerousness under 1001.36, subdivision (c)(4).
Instead, the trial court relied exclusively on Phillips's current charge of violating section 245, subdivision (c) to find him unsuitable for mental health diversion. The court was of course entitled to be concerned by the gravity and recklessness of the offense and by the injury to the detective. Notwithstanding the Attorney General's attempt to analogize Phillips's offense to the super strikes of murder of a peace officer and murder in the course of a vehicular assault, however, section 245 is "not a super strike," and the reports relied on by both parties and the court do not support a conclusion that Phillips had any intent to kill the detective. As the police themselves acknowledged, Phillips's ramming of the police vehicle from close range was an attempt to escape by forcing open an escape route. As the prosecutor acknowledged, it was representative of Phillips's mental health disorder and associated "fight or flight" response.
The trial court was not obliged to accept the perspective of the police or district attorney as to Phillips's intent in accelerating to the point of driving over the hood of the opposing vehicle. But given the court itself stated that it was "convinced" Phillips did not pose an unreasonable risk of danger to the public "as defined in the statute," and the undisputed evidence of post-offense rehabilitation supporting that conclusion, we are left no option but to conclude either that the trial court arbitrarily reversed its own assessment of Phillips's future dangerousness even as it expressed its support for Phillips remaining out of custody, or else that it relied on a broader, nonstatutory definition of dangerousness, whereby "concern for public safety" not amounting to a finding of "unreasonable risk" would be disqualifying.
As a matter of law, the four requirements for suitability under section 1001.36, subdivision (c) are exclusive by the statute's plain terms: "a defendant is suitable . . . if all [four] criteria" are satisfied. The court accordingly lacked discretion to find Phillips unsuitable based on a consideration beyond those defined by the statute. If it proceeded in a manner not authorized by law, by applying a looser definition of dangerousness, it would necessarily have abused its discretion. (See In re Lugo (2008) 164 Cal.App.4th 1522, 1536, fn. 8.)
If instead the trial court intended to repudiate its previously stated conviction that Phillips "does not pose an unreasonable risk of danger to public safety as defined in the statute," its decision to do so was arbitrary and unsupported by the record. It is undisputed that by the time of the hearing, Phillips had been out of custody for over a year and had not only not reoffended but had impressed the court with his performance in treatment. The trial court expressed no concern about Phillips remaining out of custody. The court noted that Phillips was "doing extremely well and he did fabulously when he was participating at Crisis Residential through Telecare. And I . . . was very impressed by the fact that he asked to stay an additional 30 days, which in many of people that I see in court leave after just a few days to actually complete the 90 and ask for an extra 30 is really not heard of very often." Given these observations, the court expressed its hope that Phillips, notwithstanding the denial of pretrial diversion, "would be able to resolve his case such that he could come to our mental health treatment court, continue in treatment and then earn a record clearance."
In Moine, the appellate court observed that the trial court had released the defendant into the community on bond for a period of over two years, which indicated that the court "necessarily found [the defendant] was not likely to cause 'great bodily harm to others' if released." (Moine, supra, 62 Cal.App.5th at p. 451.) The appellate court stated that "[i]t is logically inconsistent to deny mental health diversion on the ground that a [defendant] was likely to commit a super-strike offense, while simultaneously finding he was not likely to inflict great bodily injury on persons in the community." (Ibid.)
We follow Moine, absent" 'good reason to disagree.'" (See People v. The North River Ins. Co. (2019) 41 Cal.App.5th 443, 455.) Despite the gravity of the section 245 charge, it was as "logically inconsistent" here as in Moine for the trial court to simultaneously deny mental health diversion on this basis, while lauding Phillips's conduct while out of custody for the past year prior and expressly supporting a disposition that would enable his continued treatment in the community out of custody.
In light of Phillips's continuing release status and the trial court's apparent support for Phillips remaining out of custody, it is not apparent from the record what evidence would support a conclusion that Phillips met the "high standard applicable to a finding of 'dangerousness' under section[] 1001.36 ...." (Moine, supra, 62 Cal.App.5th at p. 451; see also People v. Williams (2021) 63 Cal.App.5th 990, 1003 [reversing denial of diversion despite violent threats to family where mental health professionals deemed defendant low risk, no evidence showed ownership or access to weapons, and defendant had been released on bond for more than two years without incident].) If the trial court's stated concern about the gravity of the section 245 charge was intended as a statutory finding of dangerousness, it suffers from the same logical inconsistency that warranted reversal in Moine.
The Attorney General cites People v. Pacheco (2022) 75 Cal.App.5th 207, 213 (Pacheco), in which the appellate court concluded the trial court did not abuse its discretion in finding that the defendant, who had committed arson, had "failed to satisfy the sixth criterion for pretrial mental health diversion - if treated in the community, he would not pose an unreasonable risk to public safety." Pacheco's deferential affirmance supplies no basis to disagree with the principle established by the court's reversal in Moine: in Pacheco, the defendant was still in custody, so the trial court did not have the benefit of a record of out-of-custody conduct. (Id. at p. 211.) Further, the defendant had allegedly started the fire based on voices in his head and continued to have "frequent auditory hallucinations" while in custody; the appellate court noted that extreme drought conditions could cause another fire to have a "devastating effect." (Id. at pp. 211, 214.) Moreover, unlike the defendant in Pacheco, Santa Clara County Behavioral Health Services here found that Phillips had a high chance of maintaining sobriety with a supportive mental health team in place.
On this record, we conclude that the trial court's conclusion that Phillips posed an unreasonable risk of danger to public safety based on the alleged violation of section 245 was an abuse of discretion. As a risk of danger to public safety is but one criterion for suitability under section 1001.36, we remand the matter in case number C2003779 so that the trial court may consider Phillips's eligibility and suitability in the first instance. (Moine, supra, 62 Cal.App.5th at p. 452.)
III. DISPOSITION
The judgment in case numbers C2003779 and C2004335 is reversed.
WE CONCUR: GREENWOOD, P.J., GROVER, J.