People v. Whitmill
86 Cal.App.5th 1138
Cal. Ct. App.2022Background
- On March 26, 2021 Thomas Whitmill (age 61, honorably discharged veteran) fired one shot into the air during an altercation in an alley; nearby witnesses gave inconsistent statements, he discarded the gun and complied with deputies.
- He was charged with possession of a firearm by a felon (§ 29800), discharge of a firearm with gross negligence (§ 246.3), and criminal threats (§ 422); he later pleaded no contest to negligent discharge (§ 246.3) after the diversion ruling and appealed the denial.
- Whitmill sought pretrial mental-health diversion under Penal Code § 1001.36 and submitted a psychological evaluation (Dr. Campbell) and VA support showing service‑connected PTSD (90%) and prior benefit from treatment; Dr. Campbell recommended a dual-diagnosis treatment plan and opined he would not pose an unreasonable danger if treated and abstinent from substances.
- The People opposed diversion as posing an unreasonable danger, emphasizing the gun use and claimed risk of a future "super‑strike" (e.g., murder/attempted murder); they relied on the facts of the shooting and Whitmill’s substance history.
- The trial court denied diversion, reasoning Whitmill’s firing of a gun and alleged threat to kill made him likely to commit a super‑strike and that the expert’s risk opinion was too qualified (dependent on abstinence); the court referenced deterrence/sentencing objectives in its analysis.
- The Court of Appeal reversed, holding there was no substantial evidence Whitmill posed an unreasonable risk of committing a future super‑strike, the court applied incorrect standards (relying on general sentencing objectives), and directed the trial court to grant diversion and refer him to a program.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supported denial of §1001.36 diversion under the "unreasonable risk to public safety" prong (§1001.36(b)(1)(F)) | Whitmill’s firing of a gun and alleged threat show violence and substance relapse risk, creating an unreasonable risk of future super‑strike (murder/attempted murder). | Expert testimony, VA records, lack of prior violent convictions, compliance at arrest, and proposed dual‑diagnosis plan show he is treatable and not likely to commit a super‑strike; no substantial evidence of such likelihood. | Reversed — no substantial evidence he is likely to commit a super‑strike; trial court erred in finding an unreasonable public safety risk. |
| Whether the trial court properly considered suitability for diversion (may not rely on general sentencing objectives) | Denial justified by need for deterrence and prior suspended jail term (less motivation under diversion). | Court must apply §1001.36/§1001.35 purposes (broad access to diversion, treatment focus); relying on rule 4.410 sentencing objectives is improper. | Reversed — trial court improperly relied on general sentencing/deterrence objectives and grafted extra considerations onto diversion suitability. |
Key Cases Cited
- Frahs v. Superior Court, 9 Cal.5th 618 (establishes scope and purpose of mental‑health diversion statute)
- People v. Moine, 62 Cal.App.5th 440 (discusses trial court discretion and risk assessments in diversion denials)
- People v. Oneal, 64 Cal.App.5th 582 (standard of review for diversion rulings)
- People v. Curry, 62 Cal.App.5th 314 (courts have broad discretion evaluating diversion suitability)
- People v. Bunas, 79 Cal.App.5th 840 (abuse of discretion and evidentiary support requirements for diversion denials)
- People v. Qualkinbush, 79 Cal.App.5th 879 (trial courts may not rely on general sentencing objectives; must follow diversion statute purposes)
- People v. Hoffman, 241 Cal.App.4th 1304 (denial on super‑strike risk requires finding defendant likely to commit such an offense)
- People v. Pacheco, 75 Cal.App.5th 207 (contrast — arson creating mass‑casualty risk supported denial of diversion)
- People v. Jefferson, 1 Cal.App.5th 235 (definition and scope of "super‑strike" offenses)