When Can a Judge Terminate Mental Health Diversion?

On the afternoon of April 13, 2021, Jasmen Lavar Hall was seen yelling, making noise and possibly either singing or speaking gibberish in a Van Nuys store parking lot.  He dragged a woman out of a nearby parked car and confronted her.  The woman was eventually able to return to her car and drive away.

Shortly after this, another woman, Sharon B., drove into the parking structure and parked her SUV, but left the motor running as she walked around to the rear passenger side to help her mother-in-law get out of the vehicle.  As she was doing so, Mr. Hall approached the vehicle and got into the diver’s seat, shut the door and drove away.

Police had already been called to the scene following the first incident, but Mr. Hall exited the parking structure and drove at a high rate of speed, through several red lights and stop signs and drove on the wrong side of the road.  Officers eventually apprehended Mr. Hall after he abandoned the SUV and ran off on foot.

The judge assigned to Mr. Hall’s case in Van Nuys, Richard Kirschner (who we have appeared before many times and regard as an excellent judge), granted the defense attorney’s motion to place Mr. Hall on mental health diversion.  Relying upon a psychiatrist’s report, Judge Kirschner ordered that Mr. Hall be placed in a highly structured program called First to Serve.

However, after just twelve days there, he was discharged “due to violent and destructive behavior that he presented under the influence of alcohol and / or a controlled substance.”  He fought with another patient there, punched a hole in a bedroom door, punched a 50-inch smart TV, broke a second door and attempted to flee, but officers subdued him.  He then absconded from the program and remained missing for about six months, but was eventually apprehended.

Once Mr. Hall was brought back to court, Judge Kirschner then terminated mental health diversion for Mr. Hall, citing to Mr. Hall’s recent violent outburst, although no charges were filed for such conduct.

Criminal proceedings then resumed against Mr. Hall.  He opted for a jury trial and was convicted of carjacking (Penal Code § 215), attempted carjacking (Penal Code §§ 664, 215) and evading a police officer while driving recklessly (Vehicle Code § 2800.2).  The jury also found true that Mr. Hall had suffered a prior conviction for a strike offense (Penal Code §§ 667(b)-(i), 1170.12).  Judge Kirschner sentenced Mr. Hall to seven years and eight months in state prison.

Mr. Hall then appealed this ruling to the Second Appellate District Court, arguing that Judge Kirschner erred in not reinstating mental health diversion because he did not meet the statutory criteria of Penal Code §§ 1001.36(g)(1) – (4) for having his diversion terminated.  Mr. Hall argued that “criminal conduct rendering a defendant no longer suitable for diversion should be limited to certain serious and violent felony offenses that pose an unreasonable risk of danger to public safety . . . if treated in the community” and since his crimes while on diversion did not meet this high level, he should have been reinstated on diversion.

The Second Appellate District rejected Mr. Hall’s argument and affirmed Judge Kirschner’s ruling, explaining that under Penal Code § 1001.36(g), a judge may terminate mental health diversion and either reinstate criminal proceedings or refer defendant to a conservatorship investigator to initiate conservatorship.  The judge may terminate diversion if defendant poses a danger to society or fails to consent to diversion and comply with treatment.

Here, Mr. Hall’s desertion from the treatment facility demonstrated he no longer consented to and did not comply with treatment because he made no effort to obtain treatment during that time.

We present this summary as a cautionary tale because while the standard to being placed on mental health diversion is rather low, it is important to understand, as demonstrated in this case, that a judge may terminate diversion upon a finding that defendant is making no effort to comply with treatment.