THE PEOPLE, Plaintiff and Respondent, v. DEMORYIE WATTS, Defendant and Appellant.
B312913
(Los Angeles County Super. Ct. No. MA077615)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Filed 6/14/22
CERTIFIED FOR PUBLICATION
Laura R. Vavakin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
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This case involves a denial of mental health diversion under
We agree with appellant that it was error for the trial court to conclude that diversion required consent by the People. But this error was
BACKGROUND
The details of the underlying offense are not relevant to the issues on appeal. In summary, based on the preliminary hearing, appellant was with some other men, he approached the driver‘s side of a vehicle, struck the driver in a failed attempt to steal the vehicle, then ran away. He was charged with a single count of attempted carjacking, a violation of
Appellant made three initial requests for his case to be transferred (i.e., diverted) to mental health court under
On May 6, 2021, appellant filed a written petition for diversion pursuant to
On May 10, 2021, the People filed a written opposition to appellant‘s petition. The People argued that appellant had failed to show that his disorder played a significant role in the offense. Specifically, Dr. Vienna opined that the charged offense was related to appellant‘s intellectual ability because it is difficult for appellant to say “no” or otherwise recognize when he is being manipulated. The People pointed out that Dr. Vienna reached her conclusions without reviewing the police report, probation report, preliminary hearing
The People also argued that appellant‘s history of failing to appear at mental health treatments indicated that he was not amenable to treatment. Specifically, while out of custody in his pending case, appellant failed to appear at an initial medical evaluation and two therapy appointments. Given these problems with appellant‘s prima facie case, the prosecution asked that the court deny appellant‘s motion for diversion.
The court held a hearing on appellant‘s petition for diversion on May 12, 2021. The court denied the request, citing both the prosecution‘s opposition to diversion as well as appellant‘s history of noncompliance with mental health treatment. The trial court clearly expressed its view that diversion was intended to be collaborative, and therefore the consent of the People was required. Appellant argued the statute contained no requirement of prosecutorial consent to diversion. The court went to some lengths to explain that the lack of consent was not the only reason for denying diversion. The court felt Dr. Vienna‘s assessment was “rather one-sided based upon her conversations with [appellant].” It found that appellant‘s diagnosis was not a “significant factor” in the commission of the offense. It cited to his history of failing to attend mental health appointments. It indicated that appellant‘s mental health case plan was insufficient. The court concluded that for the “reasons” (plural) that it had discussed, it was denying diversion.
DISCUSSION
I. Standard of Review
The court‘s decision on a motion for diversion is reviewed for an abuse of discretion, and factual findings are reviewed for substantial evidence. (See People v. Frahs (2020) 9 Cal.5th 618, 626 [noting that
II. The Trial Court Erred in Finding That Prosecution Consent to Diversion Was Required
Third, “a qualified mental health expert” must opine that “the defendant‘s symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment.” (
Appellant correctly points out that nothing in
III. The Trial Court‘s Ruling That the People Must Agree to Diversion Was Harmless Error
In light of the court‘s erroneous belief that prosecutorial consent to diversion was necessary, the question is, did the trial court abdicate its responsibility to independently decide whether it agreed with the People‘s position that diversion should be denied? If the court also decided for itself whether diversion was appropriate under the statute, regardless of the People‘s lack of consent, then its ruling about consent was harmless error. (See People v. Jefferson (2019) 38 Cal.App.5th 399, 409 [no remand for mental health diversion hearing required where trial court comments indicated the court would not find defendant eligible for diversion].)
Several statements made by the trial court demonstrate that its position that the People needed to consent to diversion was in addition to its own determination that the requirements for diversion under
Second, immediately after making this statement indicating that the defendant‘s mental disorder was not a significant factor in the commission of the offense, the court stated, “I also do believe that because it‘s an informal diversion, both sides do need to collaborate and agree.” (Italics added.) The purported “need to collaborate” had nothing to do with the first conclusion cited by the court. It is clear the court was giving an additional reason why diversion was not warranted, not a reason that was the basis for the court‘s initial statement that it had concluded the disorder was not a significant factor in the commission of the offense.
Third, in response to appellant‘s argument that consent of the People was not required, the trial court stated it would “not go along with it unless there‘s an agreement between both parties, but I‘ve also indicated additional information as to why I will not grant 1001.36 in this case.” (Italics added.) This is yet another statement by the trial court that it had decided to deny diversion for multiple reasons, including reasons other than the lack of consent by the People.
he will once again agree to consent of treatment, but that to me is based upon his history of insufficiently not [sic] complying with the terms and conditions that he consented to agreeing to. The court is not confident that based on that statement that he would – that he will be successful under 1001.36.” (Italics added.) The court explicitly referenced its own lack of confidence that appellant was amenable to treatment in light of his history of non-compliance. Fifth, the court found the case plan was insufficient.
Finally, in summarizing the court‘s reasons for denying the diversion motion, the court referenced the disorder not being a significant factor in the commission of the offense, and the lack of agreement by the prosecutor, and then said, “For those reasons and the others that I‘ve indicated plus his history of failing to go to his appointments multiple times in Department A-16, the motion for [section] 1001.36 is respectfully denied.” (Italics added.) This was yet another direct statement by the trial court that multiple reasons justified denial of diversion, and that it was not simply basing its decision on the People‘s lack of consent.
Since the trial court gave multiple grounds for denying diversion, any one of which was an independently permissible basis for concluding the requirements of
IV. Appellant Did Not Have a Due Process Right to Live Expert Testimony at the Diversion Hearing
Dr. Vienna wrote a report favorable to appellant, concluding that he met the criteria for mental health diversion. The trial court considered and analyzed the report. Appellant‘s request to also call Dr. Vienna as a live witness was denied. Appellant argues this was a denial of due process.
It is important to focus on the proceeding in which appellant wished to call the witness. It was a pre-trial hearing involving a statutorily created alternative to criminal prosecution. It was not a trial. Appellant cites to numerous
In this case, the statute explicitly states that the hearing is informal, and may be based on purely documentary evidence.
To engraft a right to live testimony onto the statute would contradict the legislative decision to keep the hearing informal. And if saying the hearing shall be informal is not clear enough, the legislature lists the normal elements of the hearing (offers of proof, reliable hearsay, and argument). Live testimony is the opposite of a hearing based on offers of proof and hearsay. In addition, the statute states the court may summarily deny diversion, an even further indication that the court is not required to prolong the hearing by granting a request for live testimony.
Appellant argues he was entitled to call Dr. Vienna under the due process clause to respond to the court‘s (and People‘s) criticism of her written report. He cites to no case suggesting that criticism of a written report triggers a due process right to call the report‘s author. If that were the rule, the concept of informal hearings would disappear. Every written report would potentially lead to the need for a parade of witnesses if anyone disputes anything about the report. One of the main reasons for holding hearings based on written reports is to avoid the time and trouble of hauling experts into court. Appellant knew exactly what Dr. Vienna had said in her report (which was entirely helpful to appellant), and was given a full opportunity to argue about the criticisms the People raised about her conclusions. Due process (and
The trial court‘s ruling denying mental health diversion was supported by substantial evidence and was within the court‘s discretion. To the extent the court felt prosecutorial consent was required, this was an alternative ground that constituted harmless error. Appellant was not denied due process by the court considering the expert‘s written report but denying the request for live testimony. The judgment is affirmed.
CERTIFIED FOR PUBLICATION
HARUTUNIAN, J.*
We concur:
GRIMES, Acting P. J.
WILEY, J.
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* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.