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May Court Grant Mental Health Diversion if DA Objects?

To many of our clients, mental health diversion is regarded as an easy and convenient way to avoid punishment for a mental health condition that defendant may have had for years.  The fact that such a program even exists perpetuates a general misunderstanding that our criminal justice system is lax, easy to avoid with “a good lawyer who can find loopholes and get a case dismissed,” that everyone deserves a second chance, and all records can be erased if one just files the right request.  It means no one is really accountable or responsible for what they do or the damage they cause.  
It makes judges blood boil to see this attitude in court, as it suggests that the judge is part and parcel of a system where justice is evaded.

In the Lancaster court of Commissioner Lisa Strassner, it made her commit a legal mistake in the case of Demoryie Watts, who was charged with attempted carjacking (Penal Code §§ 215(a), 664).  As most people will recognize, carjacking is a serious and violent crime.  It is not shoplifting an apple from Costco.

While his case was pending, Mr. Watts requested mental health diversion.  Four times.  Each time, the judge denied Watts’ motion.

Mental health diversion is provided for at Penal Code § 1001.36.  A judge may grant such a form of pretrial diversion is the following six prerequisites are met.  First, the judge must be “satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders [DSMMD] . . .” (Penal Code § 1001.36(b)(1)(A)).  “Evidence of defendant’s mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert.”

Second, the judge must be “satisfied that the defendant’s mental disorder was a significant factor in the commission of the charged offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by defendant’s mental health treatment provider, medical records, . . .” (Penal Code § 1001.36(b)(1)(B)).

Third, “a qualified mental health expert” must opine that “the defendant’s symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment.”  (Penal Code § 1001.36(b)(1)(C).

Fourth, subject to certain exceptions, the defendant must consent to diversion and waive his or her right to a speedy trial (Penal Code § 1001.36(b)(1)(D)).

Fifth, the defendant must agree to comply with treatment as a condition of diversion (Penal Code § 1001.36(b)(1)(E).  
Finally, sixth, the judge must be “satisfied that the defendant will not pose an unreasonable risk of danger to public safety . . . if treated in the community” (Penal Code § 1001.36(b)(1)(F)).  This has been interpreted by our court to mean that the judge must find defendant is not likely to commit a “Super Strike” offense, based on his prior criminal history and evidence in the case.

In Watts’ case, after requesting judicial diversion several times and each time, being denied, he eventually entered a guilty plea and was sentenced to 18 months (half of three years) in state prison.

Once in state prison, he appealed the judge’s denial of his motion for mental health diversion because the judge required the consent of the prosecutor and the prosecutor would not agree to mental health diversion for Watts because the People did not agree that Watts’ mental disorder, “Intellectual Disability, Mild, and Unspecified Psychosis,” played a significant role in the offense.

Watts’ appeal was to the Second Appellate District in downtown Los Angeles, which agreed with Watts that Commissioner Strassner erred in requiring the prosecution’s consent. 

However, the Second Appellate District found that the error was harmless because the commissioner independently found Watts did not meet the criteria for mental health diversion because he had failed to show up for therapy appointments three times and therefore was not a suitable candidate for mental health treatment.   

We present this summary because we believe it shows how easy it is for a judge to deny mental health diversion and how an appellate court will affirm such a ruling.  We caution anyone bringing such a request to court to be careful in every way when presenting the defendant as a suitable candidate.

For more information about mental health diversion, please click on the following articles:
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