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Burden on defendant to show he qualifies for mental health diversion

People v. Gerson (2022) 74 Cal.App.5th 561, 570–571 [290 Cal.Rptr.3d 18, 25, 74 Cal.App.5th 561, 570–571], reh’g denied (Feb. 16, 2022), review denied (Apr. 13, 2022)

Summary: A jury found Gerson guilty of two counts of attempted voluntary manslaughter, a lesser included offense of attempted murder ; two counts of assaulting a peace officer with a semiautomatic firearm; shooting at an inhabited house; assault on a peace officer with force likely to produce great bodily injury; making a criminal threat; exhibiting a firearm to a peace officer to resist arrest ; two counts of resisting an executive officer; and harming or interfering with a police animal. The jury also found true various enhancements to these offenses. The jury found Gerson to be sane during commission of the offenses. The trial court sentenced Gerson to a total term of 33 years eight months in prison.
Gerson appealed contending that the judgment must be reversed because the trial court erred when it denied his motion for pretrial diversion based on a mental disorder.

The court of appeal concluded that substantial evidence supported the trial court’s finding that Gerson did not meet his burden of showing he suffered from bipolar disorder, a mental disorder that qualifies for pretrial diversion. Accordingly, its ruling denying Gerson’s motion for pretrial diversion did not amount to an abuse of discretion.

Post-arrest Evidence
The police transported Gerson to the hospital where an emergency room physician diagnosed him as suffering agitated delirium from abusing several substances. The physician concluded that Gerson was suffering from “toxic encephalopathy” consistent with potential neurological issues from using an inhalant and this condition caused Gerson’s delirium.

The trial court did not err when it denied pretrial diversion
Legal principles governing pretrial diversion
Section 1001.36 authorizes courts to grant pretrial diversion to defendants who meet the statute’s six qualifying criteria or eligibility requirements. (§ 1001.36, subds. (a), (b)(1); People v. Williams (2021) 63 Cal.App.5th 990, 995). One purpose of the program is to increase “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 mental health diversion is granted and the defendant satisfactorily completes the court’s approved mental health treatment program, then the defendant’s criminal charges are required to be dismissed and the defendant’s arrest on the charges “shall be deemed never to have occurred.” (§ 1001.36, subd. (e).)

Mental disorders that qualify for diversion include, but are not limited to, “bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder.” (§ 1001.36, subd. (b)(1)(A).) Excluded disorders are “antisocial personality disorder, borderline personality disorder, and pedophilia.” The defendant must make a prima facie showing that he or she meets the minimum requirements of eligibility for diversion. (§ 1001.36, subd. (b)(3); see Evid. Code, § 500 [“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he [or she] is asserting.”].)

The court “may” (§ 1001.36, subd. (a)) grant pretrial diversion if a defendant meets all six requirements: (1) the court is satisfied that the defendant suffers from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM); (2) the court is satisfied the “defendant’s mental disorder was a significant factor in the commission of the charged offense”; (3) a qualified mental health expert opines “the defendant’s symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment”; (4) the defendant “consents to diversion and waives [his or her] right to a speedy trial”; (5) the defendant “agrees to comply with treatment as a condition of diversion”; and (6) the court is satisfied “the defendant will not pose an unreasonable risk of danger to public safety … if treated in the community.” (§ 1001.36, subd. (b)(1)(A)-(F).) Even if a defendant otherwise satisfies the six eligibility requirements, the court must also be satisfied that the recommended mental health treatment program “will meet the specialized mental health treatment needs of the defendant.”

The trial court’s determination “whether the defendant’s disorder played a significant role in the commission of the charged offense” is “a quintessential fact finding process” subject to review for substantial evidence. (People v. Oneal (2021) 64 Cal.App.5th 581, (Oneal).) Similarly, the court’s determination whether the defendant suffers from a mental disorder under subdivision (b)(1)(A) of section 1001.36 involves evaluating expert testimony and making conclusions based thereon and is also reviewed for substantial evidence.

“On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.) “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.”
Diversion under 1001.36 is discretionary
Ultimately, however, diversion under section 1001.36 is discretionary, not mandatory, even if all the requirements are met.A court may exercise its discretion to deny an eligible defendant mental health diversion].) We therefore review for abuse of discretion the trial court’s decision whether to grant a request for mental health diversion. (People v. Moine (2021) 62 Cal.App.5th 440, 448(Moine).)

Gerson filed a motion for mental health diversion pursuant to section 1001.36. The court held a hearing on the motion over the course of three days. At the hearing, An experts for Gerson testified that Gerson suffers from bipolar disorder with psychotic features that is independent of substance use.

It was Gerson’s burden to present evidence that he suffered from a qualifying mental disorder. (§ 1001.36, subd. (b)(3); Evid. Code, § 500.) The issue is more precisely framed as whether Gerson met his burden of presenting evidence that he suffered from endogenous bipolar disorder. The trial court’s statements after a lengthy hearing show that, based on the totality of the evidence, it was not convinced that Gerson met his burden of showing he suffered from endogenous bipolar disorder, a qualifying mental disorder.

Prosecution experts concluded that Gerson’s violent behavior resulted from his voluntary substance use combined “with his interpersonal reactivity, grandiose self-importance, entitlement, [and] hostility.”

Areviewing court, does not reweigh the evidence or resolve evidentiary conflicts. (People v. Valenti (2016) 243 Cal.App.4th 1140.) It is bound by the principle that “[t]he testimony of a single witness can be sufficient to uphold [the trial court’s factual finding] even when there is significant countervailing evidence, or the testimony is subject to justifiable suspicion.”

Substantial evidence supported the trial court’s finding that Gerson did not meet his burden of showing that he suffered from bipolar disorder. Accordingly, its ruling denying the motion for pretrial diversion did not amount to an abuse of discretion.

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