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Mental Health Diversion Denial Not Abuse of Discretion

In some cases, a judge’s denial of mental health diversion for a defendant is proper, as the following Fourth Appellate District Court case summary explains.

The case arose in San Diego County in 2016 when Hayden Abraham Gerson and Alisha F. dated for eight months before Alisha broke up with Mr. Gerson because his “drug use was out of control.”  He had used marijuana regularly, but then started experimenting with other drugs.

About two months before his arrest, Gerson started taking dimethyltryptamine, or DMT, a hallucinogenic drug, and mushrooms.  A friend of Gerson’s, later testifying in court, described Gerson as “constantly” talking about various conspiracy theories, claiming he was God and that he had special powers.  He also started telling Jewish people that he was Hitler.

On December 12, 2016, Gerson contacted Alisha and invited her over.  When she arrived, she noticed he was intoxicated “based on his large eyes, rapid movements and tone of his voice.”  She had never seen Gerson this intoxicated before.  He told Alisha that he was eating mushrooms for “breakfast, lunch and dinner.”  He admitted that he was under the influence of psilocybin (the active ingredient in several types of mushrooms) and nitrous oxide and that he had used cannabis that day.  Gerson then inhaled about fourteen cannisters of nitrous oxide in front of Alisha. 

Alisha stepped out of the house and called the police to report Gerson “was 5150” with her and asked someone to come over immediately. 

Police eventually arrived and a physical confrontation between Gerson and police officers ensued.  One officer deployed his Taser when Gerson ignored his order to get on the ground.  The Taser had no effect on Gerson and Gerson then punched that officer in the face.

Gerson, who had jiu jitsu training, put one of the officers in a chokehold while another officer hit him with a baton.  Gerson eventually released the chokehold and went back into his house, only to emerge carrying a semiautomatic gun.  
Police then brought in the SWAT team and at some point, the officers released a K-9 that bit Gerson and held contact.  Gerson then put the dog in a chokehold and bit the dog.  Eventually, officers overcame Gerson and placed him in a body wrap. 

He was charged with multiple counts, including attempted voluntary manslaughter.  Gerson filed a motion for mental health diversion under Penal Code § 1001.36.

The People opposed the motion, arguing that Gerson did not suffer from a qualifying mental disorder. 
The judge held a three-day hearing on the motion.  Several experts testified, including Dr. Nicole Friedman, all providing conflicting testimony and battling over whether Gerson met the criteria for bipolar disorder.

The judge denied the motion, concluding that Gerson had not met his burden of establishing that he suffered from a recognized mental health disorder. 

The jury then found Gerson guilty and sane during the commission of the offenses, which included assaulting a police officer with a semiautomatic firearm and criminal threats.  The judge sentenced Gerson to 33 years and eight months in state prison.

Gerson appealed on many grounds, but this article will only summarize the Fourth Appellate District Court’s ruling on Gerson’s claim that the judge abused his discretion in denying his motion for mental health diversion. 

The Fourth Appellate District in San Diego affirmed the trial court’s ruling that Gerson did not meet his burden of showing he suffered from bipolar disorder. 

The appellate court explained that the trial court did not abuse its discretion in finding that Dr. Friedman’s diagnosis was most accurate that Gerson suffered from a personality disorder, not a bipolar condition.  The judge explained that he found Dr. Friedman’s testimony undermined the other psychiatrists because her analysis was more thorough and insightful, meticulously scrutinizing, dissecting, resolving and explaining Gerson’s behavior.

We present this summary as somewhat of a warning to the reader.  It is critical, as this case exemplifies, to have an expert who does a “thorough, insightful” analysis that more deeply evaluates defendant.

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