California Cases June 28, 2021: People v. Devalle

Case Description

NOT TO BE PUBLISHED

APPEAL from the judgment of the Superior Court of Los Angeles County No. BA469565, John A. Torribio, Judge. Affirmed.

Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.

ROTHSCHILD, P. J.

A jury convicted defendant and appellant Jimmy Devalle of one count of assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).) While he was apparently suffering psychotic symptoms induced by schizophrenia, Devalle pushed a man into the path of an oncoming train at Union Station in Los Angeles. Devalle contends that the trial court abused its discretion by denying his motion for pretrial mental health diversion pursuant to section 1001.36. He also argues that the trial court erred by imposing fines and fees without determining that he is able to pay them. We affirm.

FACTS AND PROCEEDINGS BELOW

At around 9:00 a.m. on July 11, 2018, Griffin Hunsaker was standing on a platform at Union Station waiting for the Gold Line train to return home after working the night shift at his job. Devalle was also on the platform, as were two Los Angeles Metro security officers who were checking to see if patrons had paid their fares. Hunsaker saw Devalle on the platform, but he did not interact with him. Hunsaker was listening to a podcast on his headphones and was not aware that anyone was trying to speak to him.

As the train was approaching the station, Devalle pushed Hunsaker from behind, causing him to fall onto the tracks. Hunsaker landed on his left arm and broke his wrist. The train was already slowing down as it pulled into the station, and the two Metro security officers flagged down the operator, who stopped the train before it struck Hunsaker. With help from other passengers waiting for the train, Hunsaker was able to climb up from the tracks to the platform. Some of the patrons on the platform restrained Devalle and told the security officers that he was the one who pushed Hunsaker. Devalle did not attempt to resist or escape.

The officers handcuffed Devalle and asked why he pushed Hunsaker. Devalle said he was sorry and wanted to go home. He also told the officers that he had asked Hunsaker for money or a cigarette, and he was afraid Hunsaker would hit him, so he pushed Hunsaker. Devalle was cooperative and spoke coherently throughout his interaction with the officers.

The security officers called the Los Angeles Police Department, and two police officers arrived on the scene shortly thereafter. According to one officer, Devalle said, “I just asked him for a dollar, he said no. I didn't think he would fall.” The officers believed, based on Devalle's demeanor, that he had a mental illness or was under the influence of a substance.

An information charged Devalle with one count of attempted murder. (§§ 664, 187, subd. (a).) Prior to trial, Devalle's attorney filed a motion for mental health diversion under section 1001.36, which the trial court summarily denied. After the close of testimony, the trial court granted the prosecution's motion to amend the information to add one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), with an allegation that Devalle inflicted great bodily injury in the commission of the offense. (§ 12022.7, subd. (a).) The jury acquitted Devalle of attempted murder but convicted him of assault by means likely to cause great bodily injury. The jury also found true the allegation that Devalle inflicted great bodily injury. The trial court sentenced Devalle to an aggregate sentence of seven years, consisting of the high term of four years for the principal offense, and three years for the enhancement.

DISCUSSION

A. Mental Health Diversion Under Section 1001.36

Devalle contends that the trial court erred both in the procedure it followed and in the substance of its decision denying his request for pretrial diversion. As to substance, he contends that all available evidence supported granting diversion, and that the trial court abused its discretion in concluding otherwise. In the alternative, he contends that the trial court erred by failing to hold a proper hearing before denying his request. We disagree with both of these claims.

1. Relevant proceedings

Devalle filed a motion for pretrial diversion under section 1001.36 on April 18, 2019. The motion included a letter from a psychiatrist who had been appointed as an expert to provide a report on Devalle's mental condition. The psychiatrist stated that he had interviewed Devalle and reviewed legal and medical records dating back to 2004. On the basis of that data, the psychiatrist diagnosed Devalle with schizophrenia, as well as cocaine use disorder and depressive disorder. The psychiatrist concluded that “at the time of the alleged offense Mr. Devalle was experiencing psychotic symptoms[ ] that were likely exacerbated by recent cocaine use, and that these factors played a significant role [in] the commission of the charged offense.” In addition, the psychiatrist concluded that Devalle's “psychotic condition will likely respond to treatment consisting of medication management by a trained psychiatrist, psychosocial rehabilitation and intensive case management.” The psychiatrist recommended “intensive treatment at an inpatient substance treatment program” to address Devalle's cocaine use disorder. The psychiatrist noted that Devalle's prior history showed that he “responds well” to antipsychotic drugs, allowing for successful management of his condition. The psychiatrist acknowledged that Devalle had done poorly in the past when he had ceased taking his medications, but believed this problem could be overcome by administering Devalle monthly with long-acting injectable formulations of his medications, so that he would not need to take pills every day.

The trial court addressed Devalle's motion six months later, on October 8, 2019, two days before Devalle's trial was scheduled to begin. Near the end of a hearing to discuss the status of the case, Devalle's attorney asked, “[C]an the court rule on my motion” for pretrial diversion? The prosecutor interrupted and asked about Devalle's current whereabouts. The court responded that Devalle had refused to come to court that day. Devalle's attorney asked if it might be possible to continue the matter until the following day. The court rejected this possibility, stating, “I'm off tomorrow, ” and the judge covering for his courtroom would be overworked. Devalle's attorney asked, “Can the court just rule on my motion then?” The court responded, “It's denied. Thank you, ” and ended the hearing.

2. The trial court did not abuse its discretion by denying Devalle's motion

The trial court has the authority to grant pretrial diversion under section 1001.36 “at any point in the judicial process from the point at which the accused is charged until adjudication.” (§ 1001.36, subd. (c).) If the court grants diversion, the prosecution of the defendant is postponed while the defendant undergoes suitable inpatient or outpatient mental health treatment. ( Ibid. ) If, after a maximum of two years, “the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant's mental health condition, and has a plan in place for long-term mental health care, ” the charges are dismissed. (§ 1001.36, subd. (e).) If the defendant fails to meet these requirements during the diversion period, the trial court may, after a hearing, reinstate the criminal charges, modify the treatment regimen, or refer the defendant for conservatorship proceedings. (§ 1001.36, subd. (d).)

To be eligible for pretrial diversion, a defendant must meet six statutory criteria: “(A) The court is 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.... [¶] (B) The court is satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense.... [¶] (C) In the opinion of a qualified mental health expert, the defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment. [¶] (D) The defendant consents to diversion and waives the defendant's right to a speedy trial [or is an appropriate candidate for diversion but unable to consent due to defendant's mental incompetence].... [¶] (E) The defendant agrees to comply with treatment as a condition of diversion. [¶] (F) The 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.” (§ 1001.36, subd. (b)(1)(A)−(F).)

In deciding whether the defendant meets these requirements, the trial court “perform[s] a quintessential discretionary function.” ( People v. Moine (2021) 62 Cal.App.5th 440, 448 ( Moine ); accord, People v. Curry (2021) 62 Cal.App.5th 314, 324 [“the trial court, being in the best position to decide the matter, has broad discretion to determine whether a given defendant is a good candidate for mental health diversion”].) We therefore review the trial court's decision to deny pretrial diversion for abuse of discretion. ( Moine , supra , at pp. 448-449.) “A court abuses its discretion when it makes an arbitrary... decision by applying the wrong legal standard [citations], or bases its decision on express or implied factual findings that are not supported by substantial evidence.” ( Id. at p. 449.) The defendant bears the burden of demonstrating that the trial court abused its discretion. Where, as here, the record is silent as to the trial court's reasoning, we will presume that the court applied the correct standard unless the defendant can affirmatively demonstrate that was not the case. (See Ross v. Superior Court (1977) 19 Cal.3d 899, 913; Evid. Code, § 664 [“It is presumed that official duty has been regularly performed”].)

In this case, the Attorney General essentially concedes that Devalle met the first five of the criteria for pretrial diversion. Devalle suffers from an identified mental disorder, schizophrenia (§ 1001.36, subd. (b)(1)(A)); that disorder was a significant factor in his decision to push Hunsaker from the platform (§ 1001.36, subd. (b)(1)(B)); a qualified mental health expert has opined that the symptoms of Devalle's mental disorder would respond to mental health treatment (§ 1001.36, subd. (b)(1)(C)); and Devalle's attorney represented that Devalle agreed to comply with treatment as a condition of diversion (§ 1001.36, subd. (b)(1)(E)), consented to diversion, and waived his right to a speedy trial (§ 1001.36, subd. (b)(1)(D)).

The question, then, is whether the trial court could have reasonably concluded that Devalle failed to meet the sixth requirement, that he did not pose an unreasonable risk to public safety if treated in the community. In our recent opinion in Moine , supra , 62 Cal.App.5th 440, we addressed this issue in detail. We noted that the statute defines “ ‘unreasonable risk of danger to public safety' ” narrowly, as the risk a defendant will commit a so-called “super-strike” offense. ( Id. at pp. 449−450.) Super-strike offenses, as listed in section 667, subdivision (e)(2)(C)(iv), 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,' ” as well as “sexually violent offenses and sexual offenses committed against minors under the age of 14.” ( Moine , supra , at pp. 449-450.)

In Moine , we reversed the trial court's denial of pretrial diversion because there was insufficient evidence of dangerousness under this standard. We noted that “[n]one of Moine's past convictions involved a violent felony, let alone a super-strike felony. (See § 667, subd. (e)(2)(C)(iv).) The pending charges, while involving allegations of violence and threats of violence, are not super-strike offenses. There is nothing in the record to indicate the prosecution presented evidence to suggest Moine was likely to commit such an offense in the future, and the circumstances of the pending charges did not support such an inference. To the contrary, two psychiatrists determined that he posed a low risk for future assault.” ( Moine , supra , 62 Cal.App.5th at pp. 450-451.) By contrast, we noted that courts “have affirmed denials of resentencing under section 1170.18's ‘dangerousness' prong where the petitioners had long criminal histories involving violent felonies.” ( Id. at p. 451.) Thus, in People v. Hall (2016) 247 Cal.App.4th 1255 ( Hall ), the court affirmed a finding of dangerousness where the defendant “for nearly two decades... has regularly engaged in serious criminal behavior that has become increasingly violent.” ( Id. at p. 1265.) The defendant's most recent offense was a robbery where he threatened to stab the victim if she did not comply. ( Id. at p. 1266.)

Devalle contends that there is nothing in his record to suggest that he is likely to commit a super strike if treated in the community. Unlike the defendant in Hall , he does not have a two-decade history of increasingly violent offenses. His most serious prior offenses were for domestic violence and assault with a deadly weapon, and they occurred approximately 20 years before his current offense. Although the prosecution in this case charged him with a super-strike-attempted murder-the jury acquitted him of that charge. Furthermore, Devalle notes that he has committed crimes only when his mental illness was untreated; he has not been dangerous when he takes his medication.

Although reasonable minds might differ as to whether to grant Devalle pretrial diversion, we are not persuaded that the trial court's decision to deny his motion was an abuse of discretion. Section 1001.36 explicitly allows the court to consider “the current charged offense” as a basis for determining whether a defendant will pose an unreasonable risk of danger to public safety (§ 1001.36, subd. (b)(1)(F)). In this case, Devalle was charged with attempted murder, a super strike. The jury ultimately convicted him only of assault by means likely to cause great bodily injury, but if the circumstances had been even slightly different, Hunsaker could have been killed. Devalle's condition has improved in the past when he receives treatment, but there can be no guarantee that he would continue taking his medication if treated in the community, even if the medication is administered in a monthly injection rather than a daily pill. The circumstances of the case were especially troublesome because Devalle acted apparently at random, with no provocation from Hunsaker. It is not unreasonable to conclude that if he avoids taking his medication in the future, he might attack any other stranger he comes across. Thus, the trial court could have reasonably concluded that Devalle did not meet the criteria for pretrial diversion.

3. Failure to hold a hearing

Devalle also contends that the trial court erred by failing to hold a “proper hearing” before deciding the motion. We are not persuaded. Devalle does not explain what a proper hearing would entail, nor does he describe any additional evidence he would have presented that was not included in his motion for pretrial diversion.

Devalle objects to the manner in which the court denied his motion: At the end of a hearing in which the parties discussed the prosecution's most recent plea offer, Devalle's current whereabouts, the schedule of the trial, the number of witnesses each side planned to call, and whether the court would consider continuing the trial to a later date, Devalle's attorney asked if the court could rule on the motion for pretrial diversion. The court responded, “It's denied. Thank you.” Devalle's attorney did not ask for a hearing to argue the motion or to present additional evidence.

Nothing in the text of section 1001.36 creates a specific procedure for the trial court to follow before deciding a defendant's motion. Subdivision (a) requires the court to “consider[ ] the positions of the defense and prosecution” before granting diversion, but does not dictate the manner in which the parties present their positions. The trial court at any time “ may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion” (§ 1001.36, subd. (b)(3), italics added), and if the defendant fails to do so, “summarily deny the request for diversion” ( ibid .), but the statute does not mandate such a hearing, nor does it provide any guidelines for how the court should render a final decision on the merits in cases where the defendant has made a prima facie case.

In the absence of any statutory requirement to hold a more detailed hearing, we cannot fault the trial court for denying the motion in the manner in which it did. Furthermore, it is Devalle's duty as appellant to show that the trial court both erred and prejudiced him. (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Without such a showing, we must infer that the trial court considered all the criteria for pretrial diversion and concluded that Devalle did not meet at least one of them. As we have described above, the court could have reasonably done so.

C. Fines and Fees

At the sentencing hearing, the trial court imposed a total of $370 in fines and fees. These included a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)). Devalle's attorney did not object to these fines and fees at the sentencing hearing, but he now contends under People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168-1172 ( Dueñas ) that the trial court violated his due process rights by imposing the fines and fees without considering whether he would be able to pay them.

We disagree. As we explained in detail in People v. Caceres (2019) 39 Cal.App.5th 917, 926-929, the imposition of fees and restitution fines does not ordinarily implicate due process or require trial courts in all cases to determine a defendant's ability to pay before imposing them. Nothing about Devalle's case suggests that it involves the “extreme facts” ( id. at p. 923) in which due process claims might be involved. Because Devalle's claim fails on the merits, we need not decide whether he forfeited it by failing to object to the imposition of the fines and fees.

DISPOSITION

The judgment is affirmed.

We concur: BENDIX, J., FEDERMAN, J.

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Notes:

Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Subsequent unspecified statutory references are to the Penal Code.

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