California Cases March 30, 2021: Carroll v. Superior Court

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court , rule 8.1115(a) , prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published , except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Monterey County Super. Ct. No. 19CR004807)

Defendant William Carroll filed a motion seeking mental health diversion (see Pen. Code, §§ 1001.35, 1001.36) after being charged by information with willful infliction of corporal injury (§ 273.5, subd. (a)) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) for an alleged incident involving his girlfriend. After a hearing, the trial court denied the motion, finding that the case was not suitable for mental health diversion. The court reached this conclusion after characterizing the case as involving severe domestic violence and expressing concern

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that the case "should not be rendered nearly nonexistent," apparently in reference to the restriction on access to the record of arrest after a defendant successfully completes mental health diversion. (See § 1001.36, subd. (e).)

Defendant has filed a petition for writ of mandate contending that the trial court (1) erroneously considered whether he would commit a new offense after successful completion of diversion, and (2) erroneously believed that upon his successful completion of diversion and the sealing of records, the facts in the case could not be used against him in a future criminal case.

As we will explain, it appears that the trial court believed that records sealed upon successful completion of mental health diversion would "be rendered nearly nonexistent" and would not be available for use in a future criminal case. We will therefore issue a peremptory writ commanding respondent court to vacate the challenged order and reconsider defendant's motion. We express no opinion on whether the trial court should exercise its discretion to grant diversion under section 1001.36.

A. The Charged Offenses

According to the evidence presented at the preliminary hearing, Jane Doe and defendant were both in the military. They were in a dating relationship for approximately three and a half to four years and lived together.

Doe testified that during their relationship, defendant was verbally and emotionally abusive with "a little push and shove here and there." She indicated that the physical abuse got "really worse" near the end of the relationship.

Doe testified that in late June 2018, defendant knocked her to the ground, grabbed her arms, and dragged her through the residence. Doe also testified that defendant pulled out a gun, had his arms around her neck, and at one point smothered her with pillows.

According to Doe, another incident occurred in September 2018. Doe testified that the pair had argued about defendant being abusive, him cheating on her, and finances

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due to her supporting him for at least two and half years. At some point, they talked about defendant needing to leave. Doe testified that defendant punched her three times in the ribs and head. He pinned her down and spit on her face. As Doe cried and screamed for defendant to stop, he used his hand to cover her nose and mouth. At one point, defendant had both hands applying pressure around Doe's neck, and "he slammed [her] head on the ground as if it was a basketball." When Doe "came to," she was on the bed. Defendant kept saying "sorry" and stated that he was going to jail. Doe started screaming and crying again. Defendant smothered her with a pillow, preventing her from breathing. Doe fought him off and went to get her phone. Defendant grabbed the phone and threw it under the bed. Defendant eventually gathered his belongings and left the residence.

As a result of the incident, Doe suffered a bloody nose, bruises on her neck and wrist, and scratches on her arm. Doe did not initially call the police. She testified that she still cared for defendant and didn't want to get him in trouble. She also felt embarrassed and believed it was her fault.

Defendant and Doe talked "a little bit" after the September 2018 incident, trying to work things out. They did not see each other until the beginning of the following year when she traveled out of state to visit him. Defendant had been participating in an inpatient program, but obtained day passes to see Doe. Doe testified that she wanted to get closure, but that she also thought that they both wanted to be back in a relationship. Doe also wanted to get money that he owed, as she had contributed more than him to the household. The pair spent the night together.

At some point, Doe sent text messages to defendant demanding that he pay back $5,000 that he owed. She also sent messages indicating that she cared for him. In March 2019, after defendant had gotten out of treatment, he told Doe that he did not want to be in a relationship with her. After talking to a friend, Doe reported the June and September 2018 incidents to the police. The police officer who interviewed Doe testified that Doe

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did not mention that defendant had smothered her or pulled a gun during the June incident.

On December 16, 2019, defendant was charged by information with willful infliction of corporal injury (§ 273.5, subd. (a); count 1) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2). Both counts were based on the alleged September 2018 incident.

B. The Motion for Mental Health Diversion

In June 2020, defendant filed a motion seeking mental health diversion. He stated that he was a veteran and current reservist, and that he had been diagnosed with post-traumatic stress disorder (PTSD) in connection with his military service. Defendant contended that his PTSD "played a significant role in committing the charged offenses." He reported that he was receiving mental health treatment for his condition, and that he had responded well to the treatment. Defendant contended that he was an "appropriate candidate for diversion." He argued that he was being successfully treated in the community, and that he had remained crime-free since the incident giving rise to this case.

In support of the motion, defendant provided a psychological assessment from a clinical psychologist who evaluated him in October 2019. The clinical psychologist determined that defendant met the criteria for a diagnosis of PTSD, that his mental disorder played a significant role in the commission of the charged offenses, that his symptoms would improve with mental health treatment, and that he did not pose an unreasonable risk of danger if treated in the community. Defendant also provided a letter from his current psychiatric treatment provider, who had been treating him since August 2019. According to the letter, defendant was taking medication, was regularly engaging in psychotherapy care in the community for PTSD management, and had not shown any elevated risk of harming others while he was engaged in outpatient mental health care.

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The prosecutor filed opposition to the motion. The prosecutor contended that defendant did not acknowledge culpability or express remorse in the clinical psychologist's report, that there was of a risk of future criminality by defendant, that there was uncertainty regarding defendant's treatment plan, and that section 1170.9 [sentencing of military members suffering from service-related mental health conditions] was more appropriate for defendant.

Defendant subsequently provided a declaration from his mental health counselor, who had been treating him since October 2019. The counselor set forth a recommended treatment plan for the next 12 months.

C. The Trial Court's Order

A hearing on the motion for mental health diversion was held on August 5, 2020, by the same judge who had presided over defendant's preliminary hearing. After hearing argument from the parties, the trial court denied the motion, explaining as follows:

"Typically I look at these cases as an eligibility and suitability analysis. . . . [¶] I think initially it's pretty clear that the defendant is eligible and that a prima facie case has been established. The concern for the Court is sort of generally or loosely covers or comes under the suitability analysis, and my concern is whether or not this case is suitable for this type of diversion. And I'm sort of emphasizing 'case' and 'type.'

"My concern is the level and the severity of the violence presented here. Now, for purposes of my analysis the Court is going to assume that the allegations are true.

"We did have a preliminary hearing and Jane Doe testified. And the evidence . . . from the preliminary hearing showed increasing violence with verbal and emotional abuse leading towards pushes and shoves. In the incident for which the defendant stands charged it was a protracted event. The violence took place across different rooms. It involved or escalated to punches with the fist, slamming of her head as it was described 'like a basketball on the ground,' the brandishing of a weapon and strangulation, and then

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an attempt to smother her with a pillow in addition to the strangulation. She was actually rendered unconscious as a result.

"She tried to use her phone to call for help, but the defendant, as evidence presented shows, grabbed it from her and threw it under the bed. Again, . . . I'm assuming these allegations are true for purposes of this analysis.

"And so what we then saw in the preliminary hearing like with many domestic violence cases the alleged victim has mixed feelings and in some ways blames herself. So from a dangerousness perspective this case has several indicators of potential future lethality, by that I mean potential future risk of death.

"Certainly without treatment I feel very concerned about the safety of anyone in a relationship with the defendant.

"Now, pursuant to mental health diversion under 1001.36 if the defendant successfully completes it, it is deemed never to have occurred with very limited exceptions.

"This is a domestic violence case, and in my view, it's very important in domestic violence cases to understand an alleged offender's history going forward. Adequately addressing someone's danger in the future depends, especially in domestic violence cases, on having an accurate record of his past.

"When you have a case such as this one when the alleged violence is this severe that is part of the history that should not be rendered nearly nonexistent under 1001.36. So I do not find this is a suitable case for diversion under 1001.36. So to that extent the motion is denied.

"On the other hand, I am going to comment that the information presented does make the defendant an excellent candidate for military diversion under 1170.9, . . . which seems to me to be perfectly suited for him. He's done well in treatment. With the help of continued services specifically designed for military veterans I think the statutory scheme under 1170.9 is much more appropriate. And if the defendant is interested in pursuing

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that avenue the Court would be happy to find him eligible and suitable for that kind of diversion based on the information that was presented in this proceeding.

"So for purposes of 1001.36 the motion is denied. I'm leaving the door open as to other forms of diversion."

D. Writ Proceedings

Defendant filed a petition for a writ of mandate in this court in October 2020, contending that the trial court erred in denying his request for mental health diversion. Defendant argued that the trial court erroneously considered whether he would commit a new offense after successful completion of diversion, and erroneously believed that upon his successful completion of diversion and the sealing of records, the facts in the case could not be used against him in a future criminal case. Defendant sought a peremptory writ of mandate directing the trial court to vacate its order denying his request for mental health diversion and reconsider his suitability for diversion "based upon a correct understanding of the law." Defendant also requested a temporary stay of trial court proceedings pending this court's writ review.

On November 10, 2020, this court issued an order staying all trial court proceedings until further order of this court. This court also gave the People, as the real party in interest, the opportunity to file preliminary opposition to the petition for writ of mandate and allowed defendant to file a reply.

On January 8, 2021, this court issued an order to show cause why a peremptory writ should not issue as requested in the petition for a writ of mandate. This court provided the People the opportunity to file a return in opposition to the writ, and we gave defendant the opportunity to file a reply to the return. In opposition, the People contend that writ review is not compelled in this case because an appeal is an adequate remedy, and that the record does not demonstrate that the trial court misunderstood the law in denying mental health diversion.

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We first consider whether writ review is appropriate in this case before turning to the substance of defendant's petition.

A. Availability of Writ Review

A writ of mandate "must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law." (Code Civ. Proc., § 1086.) Mandamus is generally not available when there is an adequate legal remedy by appeal. ( Conway v . Municipal Court (1980) 107 Cal.App.3d 1009, 1015 ( Conway ).)

"An order denying diversion is a preliminary determination from which no provision is made for interlocutory review but which is subject to review on appeal from a judgment in the criminal proceedings. [Citation.]" ( Morse v . Municipal Court (1974) 13 Cal.3d 149, 155 [drug diversion]; accord, Wade v . Superior Court (2019) 33 Cal.App.5th 694, 706 [military diversion].) "Where an order is not appealable, but is reviewable only upon appeal from a subsequent judgment, various factors, such as expense of proceeding with a trial and prejudice resulting from delay, may operate to make that remedy inadequate." ( Phelan v . Superior Court (1950) 35 Cal.2d 363, 370; accord, Conway , supra , 107 Cal.App.3d at pp. 1015-1016.) For example, "[r]elief by mandamus is appropriate where it will prevent a needless, expensive trial and an ultimate reversal [citation] . . . ." ( City of Huntington Beach v . Superior Court (1978) 78 Cal.App.3d 333, 339.)

In this case, defendant sought pretrial diversion under section 1001.36. One of the purposes of this section is to "[i]ncrease[] diversion of individuals with mental disorders to mitigate the individuals' entry and reentry into the criminal justice system while protecting public safety." (§ 1001.35, subd. (a).) If a defendant is successful in pretrial diversion under section 1001.36, the defendant's criminal charges are dismissed. ( Id ., subd. (e).) In this case, requiring an appeal after a judgment of conviction to correct the trial court's alleged misunderstanding of the law regarding pretrial diversion would entail

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a waste of time and funds through trial. (See Shuford v . Superior Court (1974) 11 Cal.3d 903, 907 ["remedy of going to trial and appealing if petitioner should be convicted would not be speedy or adequate; such a procedure would entail personal hardships for petitioner, as well as a waste of public time and funds"].)

We are not persuaded by the People's contention that defendant's writ petition is "premature" based on the trial court's suggestion that defendant could seek "military diversion" or relief under section 1170.9. As defendant points out, military diversion is available for cases alleging a misdemeanor offense, not felonies as defendant was charged in this case. (See § 1001.80, subd. (a).) Defendant also points out that section 1170.9, which applies to "convicted" defendants who have served in the military ( id ., subd. (a)), does not provide for pretrial diversion.

We therefore determine that defendant may properly seek writ review of the trial court's order under the circumstances of this case.

B. Mental Health Diversion

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. [Citation.]" ( 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 division 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.

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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. [Citations.]" ( 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.)

"The maximum period of diversion is two years. ([§ 1001.36], subd. (c)(3).) If the defendant is subsequently charged with an additional crime, or otherwise performs unsatisfactorily in the assigned program, then the court may reinstate criminal proceedings. ( Id ., subd. (d).)" ( Frahs , supra , 9 Cal.5th at p. 627.)

Relevant here, section 1001.36, subdivision (e) states in part: "If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. . . . If the court dismisses the charges,

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the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001 . 9 , except as specified in subdivisions (g) and (h). . . ." (Italics added.)

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Section 1001.36, subdivision (e), regarding restricting access to the record of arrest, refers to both section 1001.9 and section 1001.36, subdivision (g), as indicated in the italicized portion above. These latter two provisions both state that an "order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency's ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851 . 92 ." (§§ 1001.9, subd. (c), 1001.36, subd. (g)(2), italics added.)

Section 851.92, in turn, provides that "[a]rrest records, police investigative reports, and court records that are sealed under this section shall not be disclosed to

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any person or entity except the person whose arrest was sealed or a criminal justice agency . . . ." ( Id ., subd. (b)(5), italics added.) Relevant here, section 851.92 specifically states that, "[n]otwithstanding the sealing of an arrest, a criminal justice agency may continue, in the regular course of its duties, to access, furnish to other criminal justice agencies, and use, including, but not limited to, by discussing in open court and in unsealed court filings, sealed arrests, sealed arrest records, sealed police investigative reports, sealed court records, and information relating to sealed arrests, to the same extent that would have been permitted for a criminal justice agency if the arrest had not been sealed ." ( Id ., subd. (b)(6), italics added.)

A " '[c]riminal justice agency' means an agency at any level of government that performs, as its principal function, activities relating to the apprehension, prosecution, defense, adjudication, incarceration, or correction of criminal suspects and criminal offenders. A criminal justice agency includes, but is not limited to," a state court; a peace officer; a district attorney; a probation or parole officer; a public defender or criminal defense attorney; an expert, investigator, or other specialist contracted by a prosecuting or defense attorney; and a correctional officer. (§ 851.92, subd. (d)(4).)

A trial court has "the discretion to grant pretrial diversion for individuals suffering from . . . mental health disorders" under section 1001.36. ( Frahs , supra , 9 Cal.5th at p. 626; see § 1001.36, subds. (a) ["the court may, after considering the positions of the defense and prosecution, grant pretrial diversion"] & (h) [the court "determin[es] whether to exercise its discretion to grant diversion"].) A trial court's order denying mental health diversion is therefore reviewed for an abuse of discretion.

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The abuse of discretion standard "asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." ( People v . Williams (1998) 17 Cal.4th 148, 162.) "If the court's decision is influenced by an erroneous understanding of applicable law . . . , the court has not properly exercised its discretion under the law. [Citation.] Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal. [Citation.]" ( Farmers Ins . Exchange v . Superior Court (2013) 218 Cal.App.4th 96, 106; accord, People v . Knoller (2007) 41 Cal.4th 139, 156 ["an abuse of discretion arises if the trial court based its decision . . . on an incorrect legal standard"].)

C. Analysis

Defendant contends that the trial court denied his motion for mental health diversion based on "two erroneous understandings of law," which resulted in an abuse of discretion and a deprivation of due process. We consider each contention in turn.

First, according to defendant, the trial court assumed that he would successfully complete diversion but that he might commit a similar offense thereafter. Defendant argues that the court could only consider the risk of danger he posed during the diversion period, not at any point in the future, based on section 1001.36, subdivision (b)(1)(F).

Subdivision (b)(1)(F) of section 1001.36 sets forth one of the threshold eligibility requirements for mental health diversion. This subdivision requires that "[t]he court [be] satisfied that the defendant will not pose an unreasonable risk of danger to public safety . . . if treated in the community." ( Id ., subd. (b)(1)(F).) In making this decision, "[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 violence and criminal history, the current charged offense, and any other factors that the court deems appropriate." ( Id ., subd. (b)(1)(F).)

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We are not persuaded by defendant's contention that the trial court erroneously considered the risk of danger beyond the diversion period. As an initial matter, it is not clear from the court's comments at the hearing that the court denied defendant's motion based on a finding that defendant posed an unreasonable risk to public safety under subdivision (b)(1)(F) of section 1001.36. To the contrary, the court stated that "it's pretty clear that the defendant is eligible and that a prima facie case has been established" for mental health diversion. It appears that the court's main concern was its belief that existing criminal records would be unavailable in any potential future case.

Even assuming the trial court considered whether defendant posed an unreasonable risk of danger beyond the diversion period, defendant fails to persuasively demonstrate that this was error by the court. Subdivision (b)(1)(F) of section 1001.36 requires a court to consider whether a defendant "pose[s] an unreasonable risk of danger to public safety . . . if treated in the community." (Italics added.) The statute does not expressly state that the court must consider whether the defendant poses an unreasonable risk of danger when treated in the community, while treated in the community, or during treatment in the community, which would indicate a temporal limitation on the court's assessment. (See People v . Burns (2019) 38 Cal.App.5th 776, 789 [a trial court's consideration of mental health diversion entails "findings as to whether, during or after inpatient or outpatient mental health treatment, [the defendant] would 'pose an unreasonable risk of danger to public safety' as defined under section 1001.36, subdivision (b)(1)(F)"].)

Second, defendant contends that the court incorrectly believed that, upon defendant's successful completion of diversion, the case would be sealed and the facts in the case could not be used against him in a future case. Defendant argues that sealed records following successful completion of mental health diversion are still available for use by criminal justice agencies, including between the police and prosecutors.

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The People do not dispute that records sealed following successful completion of mental health diversion are still available for use among criminal justice agencies. The People contend, however, that the trial court's denial of diversion was not based on a misunderstanding concerning sealed records, but rather was based on the level and severity of violence displayed by defendant in this case. The People argue that, "[w]ith respect to any trial court misunderstanding about records being sealed, those statements were superfluous to the . . . court's main finding that section 1001.36, subdivision (b)(1)(F) compelled rejection of pretrial diversion for [defendant]."

We determine that the trial court's denial of diversion was based, at least in some part, on the court's belief concerning the unavailability of sealed records for any potential future case involving defendant. At the hearing in which it denied diversion, the court stated, "This is a domestic violence case, and in my view, it's very important in domestic violence cases to understand an alleged offender's history going forward. Adequately addressing someone's danger in the future depends, especially in domestic violence cases, on having an accurate record of his past. [¶] When you have a case such as this one when the alleged violence is this severe that is part of the history that should not be rendered nearly nonexistent under 1001 . 36 . So I do not find this is a suitable case for diversion under 1001 . 36 . So to that extent the motion is denied ." (Italics added.)

We determine that sealed records are still available for use among criminal justice agencies after a defendant's successful completion of mental health diversion. (See §§ 1001.36, subds. (e) & (g)(2), 1001.9, subd. (c), 851.92, subds. (b)(5), (6) & (d)(4).) Section 1001.36 of the mental health diversion statute expressly states that "[a]n order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency's ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92." ( Id ., subd. (g)(2), italics added.) Section 851.92, in turn, expressly states that, "[n]otwithstanding the sealing of an arrest, a criminal justice agency may continue, in the regular course of its duties, to

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access, furnish to other criminal justice agencies, and use, including, but not limited to, by discussing in open court and in unsealed court filings, sealed arrests, sealed arrest records, sealed police investigative reports, sealed court records, and information relating to sealed arrests, to the same extent that would have been permitted for a criminal justice agency if the arrest had not been sealed ." ( Id ., subd. (b)(6), italics added.) A criminal justice agency includes the court, peace officers, probation and parole officers, district attorneys, and defense attorneys. (See § 851.92, subd. (d)(4).)

Because the record indicates that the trial court believed that records sealed upon successful completion of mental health diversion would "be rendered nearly nonexistent" and would not be available for use in a future criminal case, we conclude that the court should reconsider defendant's motion for mental health diversion with the proper legal standard in mind. We express no opinion on whether the trial court should exercise its discretion to grant diversion under section 1001.36.

Let a peremptory writ of mandate issue commanding the superior court to vacate its order denying defendant's motion for mental health diversion under Penal Code section 1001.36, and to reconsider its ruling in accordance with the principles articulated in this opinion. This opinion is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The temporary stay order shall remain in effect until this decision is final.

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/s/ _________
BAMATTRE-MANOUKIAN, J.

WE CONCUR:

/s/ _________
ELIA, ACTING P.J.

/s/ _________
DANNER, J.