Mental Health Diversion & Unreasonable Risk of Public Danger

The legal standard by which an appellate court views a lower court’s alleged abuse of discretion is quite well-established.  A judge abuses his or her discretion when he or she makes an arbitrary or capricious decision by applying the wrong legal standard (People v. Knoller (2007) 41 Cal.4th 139, 156; People v. Hall (2016) 247 Cal.App.4th 1255, 1264) or bases his or her decision on express or implied factual findings that are not supported by substantial evidence (People v. Sedillo (2018) 235 Cal.App.4th 1037, 1055).

The appellate court found that Judge Bird denied mental health diversion solely on the ground that Moine was too dangerous to be treated in the community.

Apparently, this finding was based on the facts of the case, which involved two separate incidents, one where he was involved in a fistfight in the waiting room of an urgent care facility in Palos Verdes.  On that day, he asked a staff member at the front desk to turn off the television.  Another patient confronted Moine about this request and they then fought, each landing blows on the other.

The second incident took place about a year later in another medical provider’s waiting room, wherein Moine was seeking a refill on his medications.  Moine became upset that a referral to a psychiatrist has not been approved.  As he was leaving the medical office, the office manager heard Moine say, “This is America.  I can go home and get my gun and come back and shoot all of you.”

In addition to these two incidents that were pending in front of Judge Bird, Moine also had a separate pending misdemeanor case of resisting an officer in violation of Penal Code § 148(a)(1) and a third misdemeanor case for petty theft in stealing medical supplies. 

So it is certainly understandable that Judge Bird viewed Moine as an individual who had trouble following the law and getting along with others. 

However, Moine had no past convictions or pending matters for matters that fit under the mental health diversion definition of “unreasonable risk of danger to public safety,” which is defined by those offenses listed under Penal Code § 1170.18.  Penal Code § 1001.36 (b)(1)(F) states that in order to grant mental health diversion, the trial court must be “satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in 1170.18.

Penal Code § 1170.18, in turn, defines “unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Penal Code § 667.”  The violent felonies encompassed in this definition “are known as ‘super strikes’ and include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment.”  People v. Jefferson (2016) 1 Cal.App.4th 235, at 242.  Such offenses also include sexually violent offenses and sexual offenses committed against minors under the age of 14.  Penal Code § 667(e)(2)(C)(iv).

So while we doubt no one would disagree with Judge Bird that Moine was likely to commit further offenses if allowed mental health diversion, such offenses were not likely to be murder, attempted murder, etc., as defined under 1170.18 and 667(e)(2)(C)(iv) because he had no history of doing so and nothing suggested he would escalate his behavior to commit such offenses.

Therefore, the order denying mental health diversion was reversed and the matter remanded with instructions that the trial court conduct a new hearing to consider Moine’s eligibility for mental health diversion pursuant to section 1001.36.

The citation for the Second Appellate District Court ruling discussed above is People v. Marco Moine (2d App. Dist., 2021) 62 Cal. App. 5th 440, 276 Cal. Rptr. 3d 668.

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