California Court of Appeals Upholds Conviction of Defendant Whose Attorney Failed to Move for Imposition of Mental Health Diversion Prior to Sentencing
The California Court of Appeals, First Appellate District, recently upheld the conviction of a defendant whose attorney failed to move for imposition of mental health diversion under recently-enacted California Penal Code § 1001.36 in his client's case.
People v. Jason David Hill, Appellate Case No. A157339 (January 21, 2021).
Facts of the case
Hill pled no contest to concealing a dirk or dagger and simultaneously admitted a probation violation from a prior case.
The court sentenced Hill to two years and eight months in the state prison on the dagger case and revoked his probation in the prior case.
On appeal following his plea, Hill argued that both his new conviction and the revocation of his probation in the prior case should be conditionally reversed as his attorney provided ineffective assistance of counsel for failing to request a mental health hearing under Section 1001.36.
Mental Health Diversion Statute – Penal Code 1001.36 PC
The mental health diversion statute provides an opportunity for criminal defendants to earn a complete dismissal of their pending charges, including for relatively serious felony offenses.
The only offenses explicitly excepted from eligibility are the most serious and violent felonies, such as:
- Penal Code 187 PC - murder,
- Penal Code 261 PC - rape, and
- Penal Code 288 PC - lewd acts with a child under the age of 14.
A motion under Section 1001.36 may be brought at any time in the proceedings by defense counsel. The moving party must establish that the defendant:
- (1) suffers from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM”), with limited exceptions such as borderline personality disorder and pedophilia,
- (2) that the disorder was a “significant factor” in the defendant's commission of the charged offense,
- (3) that the disorder would respond to treatment in the opinion of a qualified mental health professional,
- (4) that the defendant would comply with treatment and waive certain procedural rights, and
- (5) that the defendant would not pose an unreasonable risk to public safety if treated in the community.
If the court is satisfied that the requirements are met, it can impose a mental health diversion for up to two years during which time the criminal proceedings are stayed.
The defendant will be ordered to complete a specified course of treatment in the community and make regular progress reports to the court.
Victim restitution
The court must also determine if victim restitution is owed, though the defendant's inability to pay restitution due either to indigence or to the defendant's mental disorder itself may not be used as grounds to deny imposition of diversion or find that the defendant is in violation of an already-granted diversion.
Ineffective Assistance of Counsel
On appeal in Hill's case, the People argued that Hill was procedurally barred for failure to obtain a certificate of probable cause and that, in any event, his lawyer was not prejudicially ineffective for failing to seek diversion.
The Court of Appeals found that Hill was not procedurally barred from bringing his appeal because he challenged the trial court's exercise of sentencing discretion rather than the validity of his plea itself.
More interesting, however, was the Court of Appeals' holding that defense counsel was not ineffective for failing to move for mental health diversion.
Hill had reported to the probation department that he suffered from:
- bipolar disorder, and
- posttraumatic stress disorder;
- both qualifying diagnoses under the DSM.
He reported that he had attempted suicide twice despite receiving behavioral health treatment.
Hill's counsel was aware of these disorders and in fact based his sentencing argument, in which he requested probation, in large part on Hill's mental health challenges.
Hill's counsel also unsuccessfully moved the court to reduce the dagger charge to a misdemeanor under California Penal Code § 17(b) for the same reason.
No Evidence Crime was Committed Due to a Mental Disorder
In denying probation, the sentencing court had noted that Hill had suffered at least three prior felony convictions and that there were no circumstances in mitigation in the instant offense.
The court further found, responding to counsel's invocation of Hill's mental conditions, that there was:
- no evidence that the crime was committed because of a mental disorder;
- nor that Hill would respond favorably to treatment, if it was provided.
Even without the presumption against probation, the court stated that it would deny probation because Hill posed an ongoing danger to society if he was not incarcerated and that his prior performance on probation had been poor.
Strickland standard
Under the familiar Strickland standard for ineffective assistance of counsel, Hill would have to demonstrate both that his attorney was deficient when measured against the standard of a reasonably competent attorney.
Also, that the deficiency prejudiced him to such an extent that it undermined the adversarial process to the point that the result of the case cannot be relied on as just. Hill failed on both counts.
Court Would Have Denied a Motion for Mental Health Diversion
While Hill asserted that his counsel was likely unaware of Section 1001.36, which had been enacted a year prior to his plea, he provided no evidence to that effect.
His claim that there was no rational, tactical reason not to move for imposition of mental health diversion likewise failed.
Given the facts of the case and his extensive criminal record, counsel could have reasonably concluded that making the motion would be futile.
Indeed, this futility was borne out by the trial court's sentencing findings, which explicitly found that:
- Hill was an ongoing danger to society, and
- that his disorder did not contribute to the conduct at issue, and,
- in any event, would not likely respond well to treatment.
On these bases, the court would almost certainly have denied a motion for mental health diversion just as it denied the request for Penal Code 17(b) reduction and the request for probation rather than a prison sentence.
Determining Defendant's Eligibility for Diversion
The Hill decision leaves open the possibility that criminal defense counsel may be found ineffective for failing to move for mental health diversion under Penal Code § 1001.36.
The extremely aggravated facts of Hill's prior criminal record, violation of probation, and relatively thin evidence of mental health disorders allowed the Court of Appeals to dispose of his appeal relatively easily.
Nevertheless, counsel should be aware of the existence of the diversion statute and strongly consider at least having the defendant evaluated by a qualified mental health professional to determine whether he or she is arguably eligible under Penal Code Section 1001.36.
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