Mental Health Diversion: Must Judge Always Consider?

Many people understand that a judge has no independent duty as a judge to exclude evidence. Rather, a defense attorney or prosecutor must object to evidence as a representative of defendant or the State of California. Likewise, a judge has no obligation as a judge to make an argument the prosecutor could make or that a defendant ought to make. The judge is not supposed to intermeddle in that manner.

Lamonte Shermale Banner entered a Kern County restaurant and waited in line for several minutes behind other customers. Two employees helped each customer. When Banner reached the front of the line alongside the cash register, he produced a toy gun and demanded money from the employee operating the register. That employee did not believe the firearm was real and refused to comply.

A second employee standing near the register and across from Banner ran away in fear. Banner subsequently left emptyhanded and was arrested a short time later. He denied committing the crime.

Banner was charged and convicted of two counts of attempted robbery (Penal Code § 212.5). The charges included an allegation that Banner suffered a prior strike and prior serious felony convictions (Penal Code § 667(b) – (i), 1170.12(a) – (d), 667(a)). He was sentenced to nine years in state prison.

At sentencing, the judge announced that he had reviewed “several hundred pages “ of “mental health records . . .” The judge explained that the records revealed Banner’s prior participation in treatment “was inconsistent . . .” The judge noted that he believed Banner did have mental health "issues” and expressed appreciation for the Legislature’s enactment of Penal Code § 1001.36.

The judge further noted that when Banner committed the attempted robbery, his mental disorders were in abeyance or not affecting him.

Banner appealed the verdict and the sentence to the Fifth Appellate District in Fresno on several grounds, but this article will only consider his argument that the “trial court erroneously violated its duty to consider his eligibility for pretrial mental health diversion under section 1001.36.” He argued that the judge “had a su sponte duty to consider . . . eligibility for mental health diversion . . .”

Banner curiously argued that a defendant’s consent to treatment is irrelevant if the statute requires a request for diversion. In other words, why would a statute require consent if defendant is required to request diversion?

The People opposed this argument, stating that “[s]ection 1001.36 contains no language mandating the court to entertain diversion in any case.” The People also maintained that Banner did not otherwise meet all the criteria for mental health diversion.

The Fifth Appellate District found that the Legislature did not clearly mandate courts to, on its own, consider mental health diversion in every case and if it did, the Legislature would have included that requirement in the statute if it intended to do so, but it did not. Instead, the statute requires the diversionary request come from defendant, counsel, prosecutor, or the judge. In most cases, the defendant or defendant’s counsel will be in the best position to determine whether mental health diversion is an appropriate outcome and courts have no duty to consider diversion eligibility absent a request.

We bring this summary to the reader’s attention because we have had potential clients and existing clients ask us if a judge must suggest mental health diversion if he or she observes obvious mental health issues in defendant.

However, simply having mental health issues is not the only requirement for mental health diversion. Defendant must be diagnosed with a recognized mental health condition and it cannot be certain specified conditions (i.e., anti-authoritarian disorder, etc.), the condition must be treatable and the treatment, according to a doctor, must be effective or helpful to defendant. Defendant must explicitly state that he or she is interested in such treatment and will be cooperative in treatment. Defendant must waive his or her Sixth Amendment right to a speedy trial while treatment is ongoing. Lastly, the doctor must state that he or she believes defendant would not pose a danger to public safety while undergoing treatment.

We mention these detailed requirements to show that a judge cannot offer such professional opinions. Only a mental health professional who has interviewed defendant in a clinical scenario, perhaps with diagnostic examination(s), can do so.

The citation for the Fifth Appellate District Court ruling discussed above is People v. Lamonte Shermale Banner (5th App. Dist., 2022) 74 Cal. App. 5th 191, 289 Cal. Rptr. 3d 336.

For more information about mental health diversion, please click on the following articles: