Motion for Mental Health Diversion Improperly Denied

Over the last three years, our appellate courts in California and even the California Supreme Court have ruled on lower court rulings denying and granting motions for mental health diversion in factual scenarios the Legislature could have never foreseen when this law, at Penal Code § 1001.36, was enacted.

We know of only one appellate court decision addressing a trial court’s finding that, if mental health diversion were granted, defendant would pose an unreasonable risk of danger to public safety.  Coincidentally, the case arose out of the Torrance Court and Judge George F. Bird was the trial court judge, who was reversed by the Second Appellate District on this issue.  People v. Marco Moine (2d App. Dist., 2021) 62 Cal. App. 5th 440, 276 Cal. Rptr. 3d 668.

The Torrance Courthouse, coincidentally, was the origin of what we believe is only the second such ruling on this issue as well.  This second case, however, arose in the court of Judge Amy Carter.

Thomas Whitmill and his girlfriend, Shannon Carter, shared an apartment in West Covina.  In March 2021, they drove to Gardena to visit Dez, a friend of Ms. Carter.

Whitmill, age 61, was an honorably discharged veteran of the U.S. armed forces who suffers from several severe mental disorders.

When Whitmill and Carter arrived in Gardena, Whitmill told Carter he was not feeling good, so he was going to go to a grocery store nearby to get “some medications.”  Carter then went into an apartment to visit with Dez. 

Whitmill returned and sat in the car, still not feeling well.  Dez and Carter went out to the car.  Whitmill was now standing outside it.  Dez approached Whitmill to ask how he was doing and Whitmill suddenly pulled out a loaded gun and fired a shot in the air.  Dez was only three or four feet away.  Whitmill then turned to Ms. Carter and said, “Bitch, I will kill you.”  It appeared that Whitmill was jealous of Ms. Carter visiting with a male friend.

Ms. Carter then flagged down a Los Angeles County Sheriff’s car that was coming in her direction.  Deputy Walker then detained Whitmill.  Another police officer arrived and found one 9-millimeter shell casing and the 9-millimeter handgun discharged by Whitmill in the back of a pickup truck nearby, apparently discarded by Whitmill in an attempt to hide it.

Whitmill was then arrested and later charged in Torrance Superior Court with one count of possession of a firearm by a felon (Penal Code § 29800(a)(1)), one count of discharge of a firearm with gross negligence (Penal Code § 246.3(a)) and one count of criminal threats (Penal Code § 422(a)).

Whitmill later filed a motion for mental health diversion, which was supported by a declaration from his public defender, a psychological evaluation report by Robin Rhodes Campbell, Ph.D., MPH, and a letter from Whitmill’s liaison at the Veteran’s Administration (VA).

VA records indicated that Whitmill was treated for military sexual trauma (MST) and was diagnosed with post-traumatic stress disorder (PTSD).  Whitmill reported an ongoing pattern of using substances “as a way of dealing with the MST” and his psychiatric symptoms. 

 

Dr. Campbell opined that Whitmill suffered from “severe mental illness” further complicated by substance abuse.

The People opposed the motion for mental health diversion, arguing that the defense failed to provide any evidence Whitmill would not pose an unreasonable risk of danger to public safety.  They argued that Whitmill has demonstrated he is violent and likely to commit a super-strike, namely attempted murder or murder and likely to continue using illegal narcotics.

Judge Carter denied the motion, agreeing the People’s opposition, even comparing Moine to Whitmill and explaining that Whitmill was far more dangerous due to his use of a loaded firearm while on a three-year joint suspended sentence. 

Whitmill then appealed to the Second Appellate District Court in Los Angele, which reversed Judge Carter.  The appellate court found there was no substantial evidence that Whitmill posed an unreasonable risk of danger to public safety or that he was too dangerous to be treated in the local community because he would commit a new violent super strike (murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, any serious or violent felony punishable by death or life imprisonment, or any sexually violent offense or sexual offense against minor under the age of 14). 

Most notably, the Second Appellate District explained that Judge Carter did not find Whitmill was likely to commit a super-strike offense and there was no evidence in the record to support such a finding.  It was undisputed that Whitmill’s prior criminal history did not include violent or sexually violent convictions, let alone a super strike.

Therefore, the ruling on the motion for mental health diversion was reversed with directions to Judge Carter to grant Whitmill’s motion for mental health diversion.

We believe this second opinion out of the Second Appellate District on this issue exemplifies how little discretion judges have in finding a defendant poses a risk to public safety.

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