Filed 5/24/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079014
Plaintiff and Respondent,
(Super. Ct. No. F17905964)
v.
WILLIE DONTE ONEAL, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. James A.
Kelley, Judge.
Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L.
Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Defendant Willie Donte Oneal was charged with multiple counts of burglary,
robbery, and related offenses arising from several incidents. After the trial court denied
his motion for mental health diversion (Pen. Code, § 1001.36),1 he pled no contest to one
count of attempted second degree robbery (§§ 211, 664; count 3) and one count of first
degree burglary (§§ 459, 460, subd. (a); count 4), admitted a nonparticipant was present
during the burglary (§ 667.5, subd. (c)(21)), and admitted having suffered a prior strike
(§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and having served three prior prison terms
(§ 667.5, subd. (b)). The remaining counts were dismissed. Defendant was sentenced to
an aggregate term of 13 years, four months.
On appeal, defendant challenges the trial court’s denial of his motion for mental
health diversion. The court denied the motion on the grounds that defendant’s mental
illness was not a significant factor in his criminal behavior and he presented a risk of
danger to public safety if treated in the community, both of which are statutorily
disqualifying factors for participation in mental health diversion. (§ 1001.36,
subd. (b)(1)(B), (b)(1)(F).) Defendant contends the court’s ruling deprived him of due
process because the court improperly relied on reports prepared in relation to his initial
insanity plea (§§ 1026, 1027), and those reports did not support the court’s finding that
his mental illness was not a significant factor in his criminal behavior. He additionally
contends the record does not support the court’s finding that he presented a risk of danger
to public safety, as defined by statute.
We conclude defendant forfeited his challenge to the court’s reliance on reports
prepared in relation to his insanity plea by failing to object below. Nonetheless, we
exercise our discretion to reach the issue on the merits and conclude the court was
permitted to consider the challenged reports, and that the reports support the court’s
1 Undesignated statutory references are to the Penal Code.
2.
finding that defendant was ineligible for mental health diversion because his
schizoaffective disorder was not a significant factor in his criminal behavior. Because
this finding independently supports the court’s denial of defendant’s motion, we conclude
defendant was not prejudiced by any error in determining whether he presented a risk of
danger to public safety. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with attempted first degree burglary (§§ 459, 460,
subd. (a), 664; count 1), two counts of first degree burglary (§§ 459, 460, subd. (a);
counts 2 & 4), attempted second degree robbery (§§ 211, 664; count 3), prowling (§ 647,
subd. (h); count 5), obstruction of a police officer (§ 148, subd. (a)(1); count 6), and
providing false information to a police officer (§ 148.9, subd. (a); count 7). The People
additionally alleged that a nonparticipant was present during the burglaries (§ 667.5,
subd. (c)(21)), that defendant had suffered a prior strike conviction (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)), and that defendant had served three prior prison terms
(§ 667.5, subd. (b)).
The allegations arose out of multiple incidents that occurred in Fresno on
October 1, 2017, and October 10, 2017. Relevant here, count 3 arose from an incident on
October 10, 2017, in which defendant followed a woman and grabbed her purse strap and
then her purse. The victim feared for her life and believed defendant was attempting to
steal her purse, although he was unsuccessful. Count 4 arose from an incident on
October 1, 2017, when defendant entered the apartment of a different woman and asked
to use her phone. The woman told defendant she had a man in the house and he left.
When the woman later went outside to walk her dog, defendant confronted the woman
3.
and offered her $200 to use the phone. The woman told him she was going to call the
police and defendant left.2
Defendant initially pled not guilty and not guilty by reason of insanity. (§ 1026.)
The court appointed two experts, psychiatrist Howard Terrell and forensic psychologist
Richard Kendall, to examine defendant. (§§ 1026, 1027.) Both evaluators concluded
defendant was legally sane at the time he committed the offenses. Relevant here, Terrell
opined that defendant suffered from “Other Psychotic Disorder” (boldface omitted) and
an unspecified personality disorder. Terrell noted that, at the time of the offenses,
defendant had been off his usual psychotropic medications for a matter of weeks and had
been using methamphetamine. Terrell opined, “His mental illness at the time of the
crimes was most likely a combination of chronic and acute methamphetamine abuse as
well as his underlying psychiatric pathology.” Terrell continued,
“Despite being mentally ill at the time of the crimes, [defendant] is unable
to provide any information to indicate that his hallucinations or other
psychotic thought processes were responsible for him committing the
multiple crimes he is now accused of. [¶] He claims to have no memory of
auditory hallucinations or other psychotic thought processes that would
have caused him to commit robbery, burglary, prowling, resisting
officers[,] or any of the other crimes he is currently charged with . . . .”
Kendall opined that defendant suffered from schizoaffective disorder, antisocial
personality disorder, methamphetamine use disorder, cocaine use disorder, cannabis use
disorder, and alcohol use disorder. Kendall opined,
“The negative behavior the defendant engaged in during the controlling
offense was not . . . the result of a mental illness. [Defendant] has a history
of engaging in burglary and other property offenses in order to fuel his drug
addiction. Based upon the defendant’s admission (in the interview) and
based upon his history of criminal conduct, his proclivity for burglary and
2 The parties stipulated that the police reports provided a factual basis for
defendant’s eventual plea. The factual background is therefore taken from the police
reports, as summarized by the probation department in the probation report.
4.
theft correlates with his drug addiction and willingness to violate the rights
of others, to support his drug habit.”
Kendall further noted that, during his interview with defendant, defendant “was candid
and acknowledged that his behavior was primarily influenced by his drug usage.”
After being held to answer, defendant brought a motion for mental health
diversion pursuant to the recently enacted sections 1001.35 and 1001.36. (See Stats.
2018, ch. 34, § 24.) With the motion, defendant submitted a report by psychologist
Richard Blak, who opined that defendant suffered from schizoaffective disorder,
substance use disorder, and antisocial personality disorder, and that his schizoaffective
disorder “was linked in a causal way” to the charged offenses. Blak opined that
defendant’s “mental disorder played a significant role in the commission of the charged
offenses, this is noted relative to his demeanor, as observed and witnessed by victims and
witnesses as well as law enforcement at the time of contact. [¶] It is the opinion of this
writer that the defendant’s symptoms motivated the behavior . . . .” The People, relying
in part on Terrell’s and Kendall’s reports, opposed the motion.
Following a hearing, the court found defendant ineligible for mental health
diversion and denied the motion. The court found, “based on the evidence supplied, that
the defendant’s mental illness was not a significant factor in his criminal behavior.” The
court further found “that if [defendant] were allowed to participate in the diversion
program, he would be [a] risk to the community based on his behavior prior.”
Thereafter, defendant entered pleas of no contest to counts 3 and 4, admitted that a
nonparticipant was present during the burglary, and admitted the prior strike and three
prior prison term enhancements. The remaining counts were dismissed. Defendant was
sentenced on count 4 to a term of 12 years, consisting of the aggravated term of six years,
doubled due to his prior strike. On count 3, he was sentenced to a consecutive term of
one year, four months, consisting of one-third the midterm, doubled due to the prior
strike. The court struck the prior prison term enhancements.
5.
Defendant filed a timely notice of appeal. He subsequently requested, and was
granted, a certificate of probable cause.
DISCUSSION
I. THE MENTAL HEALTH DIVERSION STATUTE
Section 1001.36, the purported mental health diversion statute, became effective
on June 27, 2018. (Stats. 2018, ch. 34, § 24.) Our Supreme Court recently summarized
the purposes of and requirements for pretrial mental health diversion under the statute as
follows:
“Section 1001.36 authorizes a pretrial diversion program for
defendants with qualifying mental disorders. The statute defines ‘ “pretrial
diversion” ’ as ‘the postponement of prosecution, either temporarily or
permanently, at any point in the judicial process from the point at which the
accused is charged until adjudication, to allow the defendant to undergo
mental health treatment . . . .’ (§ 1001.36, subd. (c).) The stated purpose of
the diversion statute ‘is to promote all of the following: [¶] (a) Increased
diversion of individuals with mental disorders to mitigate the individuals’
entry and reentry into the criminal justice system while protecting public
safety. [¶] (b) Allowing local discretion and flexibility for counties in the
development and implementation of diversion for individuals with mental
disorders across a continuum of care settings. [¶] (c) Providing diversion
that meets the unique mental health treatment and support needs of
individuals with mental disorders.’ (§ 1001.35, subds. (a)-(c).)
“As originally enacted, section 1001.36 provided that a trial court
may grant pretrial diversion if it finds all of the following: (1) the
defendant suffers from a qualifying mental disorder; (2) the disorder played
a significant role in the commission of the charged offense; (3) the
defendant’s symptoms will respond to mental health treatment; (4) the
defendant consents to diversion and waives his or her speedy trial right;
(5) the defendant agrees to comply with treatment; and (6) the defendant
will not pose an unreasonable risk of danger to public safety if treated in the
community. (Former § 1001.36, subd. (b)(1)-(6).) Section 1001.36 was
subsequently amended by Senate Bill No. 215 (2017-2018 Reg. Sess.)
. . . to specify that defendants charged with certain crimes, such as murder
and rape, are ineligible for diversion. (§ 1001.36, subd. (b)(2), as amended
by Stats. 2018, ch. 1005, § 1.)
6.
“If the defendant makes a prima facie showing that he or she meets
all of the threshold eligibility requirements and the defendant and the
offense are suitable for diversion, and the trial court is satisfied that the
recommended program of mental health treatment will meet the specialized
mental health treatment needs of the defendant, then the court may grant
pretrial diversion.[3] (§ 1001.36, subds. (a), (b)(3) & (c)(1).) The
maximum period of diversion is two years. (Id., subd. (c)(3).) If the
defendant is subsequently charged with an additional crime, or otherwise
performs unsatisfactorily in the assigned program, then the court may
reinstate criminal proceedings. (Id., subd. (d).) ‘If the defendant has
performed satisfactorily in diversion, at the end of the period of diversion,
the court shall dismiss the defendant’s criminal charges that were the
subject of the criminal proceedings at the time of the initial diversion’ and
‘the arrest upon which the diversion was based shall be deemed never to
have occurred.’ (Id., subd. (e).)” (People v. Frahs (2020) 9 Cal.5th 618,
626-627.)
II. Standard of Review
The mental health diversion statute affords the trial court discretion to grant or
deny diversion if the defendant meets the statutory eligibility requirements. (People v.
Moine (2021) 62 Cal.App.5th 440, 448-449 (Moine); § 1001.36, subds. (a), (b)(1) [court
“may” grant diversion if all eligibility criteria are met].) A court abuses its discretion
when its decision exceeds the bounds of reason or is so irrational or arbitrary that no
reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 376-
377.)
Recently, in Moine, the reviewing court held that the court’s determination on one
of the eligibility factors – whether the defendant would pose an unreasonable risk of
danger to public safety if treated in the community – likewise is reviewed for abuse of
3 Subdivision (b)(3) of section 1001.36 provides, “At any stage of the proceedings,
the court may require the defendant to make a prima facie showing that the defendant
will meet the minimum requirements of eligibility for diversion and that the defendant
and the offense are suitable for diversion.” At the time of the hearing on defendant’s
motion for mental health diversion, this provision permitting the court to require the
defendant to make a prima facie eligibility determination did not exist. (Former
§ 1001.36, added by Stats. 2018, ch. 34, § 24, eff. June 27, 2018.)
7.
discretion. (Moine, supra, 62 Cal.App.5th at pp. 448-449.) In so doing, Moine relied in
part on decisions interpreting similar language from section 1170.18. (Moine, at pp. 448-
449] [citing People v. Jefferson (2016) 1 Cal.App.5th 235, 242 (Jefferson); People v. Hall
(2016) 247 Cal.App.4th 1255, 1264 (Hall).) Jefferson and Hall, as well as section
1170.18 itself, make clear that the determination of dangerousness is a discretionary
determination for the court. (§ 1170.18, subd. (b) [providing for resentencing “unless the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety”]; see Jefferson, at p. 242; Hall, at p. 1264.)
Moine did not address the eligibility factor at issue here, i.e., whether the
defendant’s disorder played a significant role in the commission of the charged offense.
(Moine, supra, 62 Cal.App.5th at pp. 448-449.) Nor do the parties provide argument on
the standard to be applied to this determination.4 The relevant subsection of section
1001.36 requires the court to review “relevant and credible evidence” to determine
whether “the defendant’s mental disorder substantially contributed to the defendant’s
involvement in the commission of the offense.” (§ 1001.36, subd. (b)(1)(B).) If the court
is then “satisfied that the defendant’s mental disorder was a significant factor in the
commission of the charged offense” and the other eligibility criteria are met, the court
may grant pretrial diversion. (Ibid.) This process of reviewing evidence and making
conclusions based thereon describes a quintessential fact-finding process. We will
uphold the trial court’s factual findings if supported by substantial evidence.5 (People v.
Cromer (2001) 24 Cal.4th 889, 893-894.)
4 Defendant and the People suggest only generally that a trial court’s denial of a
motion for mental health diversion is reviewed for abuse of discretion. They do not
address our review of the individual eligibility criteria.
5 Furthermore, even if the court’s ultimate determination of this eligibility factor can
be understood to fall within the court’s discretionary authority, we determine whether the
court abused its discretion in light of the facts as found.
8.
III. RELIANCE ON REPORTS BY TERRELL AND KENDALL
Defendant argues the court violated his due process rights by relying on reports
prepared by Terrell and Kendall in relation to defendant’s insanity plea, and the reports
did not support the court’s finding that defendant’s mental illness was not a significant
factor in his criminal behavior. Although defendant forfeited his challenge to the court’s
consideration of the reports, we exercise our discretion to reach this issue on the merits in
light of the lack of decisional authority interpreting the mental health diversion statute.
As we explain, we conclude the reports were relevant and support the court’s finding.
A. Forfeiture
Defendant did not object to the court’s consideration of Terrell’s and Kendall’s
reports. To the contrary, he relied on those reports in his written motion for mental health
diversion, arguing that they supported a conclusion that he suffered from psychotic
disorder and/or schizoaffective disorder. At the hearing on the motion, defense counsel
suggested these were “not the right report[s]” for the court to rely on. However, when
pressed by the court as to whether the reports could be considered, defense counsel
stated, “[I]t’s not for me to say what the Court can consider or not. It’s been part of this
file forever.” The court ultimately concluded it could consider the reports, but noted the
lack of statutory or decisional authority in that regard and invited the parties to challenge
the decision. Defense counsel then clarified he was “not objecting to [the court]
considering the [section] 1026 report,” but instead suggested the court “use it with
caution.”
Based on the foregoing, any challenge to the court’s consideration of Terrell’s and
Kendall’s reports was plainly forfeited. (People v. Partida (2005) 37 Cal.4th 428, 433-
434.) Additionally, because the court invited objection and argument from counsel on
this point, we reject defendant’s suggestion that an objection would have been futile or
would have “accomplished nothing.”
9.
Although the failure to challenge an erroneous ruling in the trial court generally
forfeits the right to raise the issue on appeal, a reviewing court has discretion to consider
a forfeited issue that presents a pure question of law. (In re Sheena K. (2007) 40 Cal.4th
875, 887-888, fn. 7.) The question of whether the mental health diversion statute permits
consideration of reports prepared in relation to an insanity plea is such a question. As no
published decision has addressed the evidence a court may rely on in considering a
defendant’s eligibility for mental health diversion, we will exercise our discretion to
address this issue on the merits.
B. Terrell’s and Kendall’s Reports were Properly Considered
Defendant asks us to announce a “per se rule” (boldface omitted) prohibiting a
court from considering psychological assessments relating to a defendant’s insanity plea
in determining whether a defendant is qualified for mental health diversion. We conclude
such a rule is not supported by the mental health diversion statute.
A report prepared by a court appointed psychiatrist or psychologist in relation to a
defendant’s insanity plea must include, but is not limited to, “the psychological history of
the defendant, the facts surrounding the commission of the acts forming the basis for the
present charge used by the psychiatrist or psychologist in making his or her examination
of the defendant, the present psychological or psychiatric symptoms of the defendant, if
any, the substance abuse history of the defendant, the substance use history of the
defendant on the day of the offense, a review of the police report for the offense, and any
other credible and relevant material reasonably necessary to describe the facts of the
offense.” (§ 1027, subd. (b).) The purpose of such report is to assist the trier of fact in
determining whether the defendant “was incapable of knowing or understanding the
nature and quality of his or her act and of distinguishing right from wrong at the time of
the commission of the offense.” (§ 25, subd. (b).) This purpose differs from the purpose
of mental health diversion. (See People v. Frahs, supra, 9 Cal.5th at p. 626.) Moreover,
section 1027 does not require a court appointed psychiatrist or psychologist to address the
10.
precise requirements for mental health diversion. (Compare § 1027, subd. (b) with
§ 1001.36, subd. (b)(1).)
Nonetheless, when determining whether a defendant’s mental disorder was a
significant factor in the commission of the charged offense for purposes of mental health
diversion, section 1001.36 broadly permits the trial court to consider “any relevant and
credible evidence, including, but not limited to, police reports, preliminary hearing
transcripts, witness statements, statements by the defendant’s mental health treatment
provider, medical records, records or reports by qualified medical experts, or evidence
that the defendant displayed symptoms consistent with the relevant mental disorder at or
near the time of the offense.” (§ 1001.36, subd. (b)(1)(B), italics added.) Thus, whether
a court may consider a report prepared in relation to a defendant’s insanity plea when
evaluating a defendant’s eligibility for mental health diversion ultimately turns on the
relevance of that report in determining whether defendant’s mental disorder was a
significant factor in the commission of the charged offense.
Evidence is relevant if it has any tendency in reason to prove a disputed material
fact. (Evid. Code, § 210.) A trial court’s determination regarding relevance is reviewed
for abuse of discretion. (People v. Panah (2005) 35 Cal.4th 395, 474.) Here, both Terrell
and Kendall attributed defendant’s commission of the charged offenses to drug use,
rather than a psychotic or schizoaffective disorder. Terrell and Kendall rendered their
opinions after considering a wide array of materials, such as police reports, prison
medical records, a transcript of the preliminary hearing, communication with and
documents provided by defense counsel, and their own clinical interviews of defendant.
Their conclusions bore directly on, and had a tendency to prove, a disputed question of
material fact, specifically whether defendant’s mental disorder was a significant factor in
his commission of the offenses. The court therefore did not abuse its discretion in
concluding the reports were relevant.
11.
C. The Reports Factually Support the Court’s Finding
The court found defendant’s mental disorder was not a significant factor in the
commission of the charged offenses, and therefore found defendant ineligible for mental
health diversion. This finding is supported by substantial evidence.
To grant pretrial diversion, the court must be “satisfied that the defendant’s mental
disorder was a significant factor in the commission of the charged offense.” (§ 1001.36,
subd. (b)(1)(B).) In this regard, the court must conclude “that the defendant’s mental
disorder substantially contributed to the defendant’s involvement in the commission of
the offense.” (Ibid.) Here, both Terrell and Kendall opined that defendant’s psychotic or
schizoaffective disorder was not responsible for, or a motivating factor in, defendant’s
commission of the offenses. Terrell noted, “[Defendant] is unable to provide any
information to indicate that his hallucinations or other psychotic thought processes were
responsible for him committing the multiple crimes he is now accused of. [¶] He claims
to have no memory of auditory hallucinations or other psychotic thought processes that
would have caused him to commit robbery, burglary, prowling, resisting officers[,] or any
of the other crimes he is currently charged with . . . .” Kendall opined, “The negative
behavior the defendant engaged in during the controlling offense was not . . . the result of
a mental illness.” This evidence was sufficient for the court to conclude that defendant’s
psychotic or schizoaffective disorder did not substantially contribute to defendant’s
commission of the offenses.6
6 In his reply brief, defendant argues for the first time that his substance use
disorders qualified him for mental health diversion. This argument was not presented in
the trial court and is therefore forfeited. (See People v. Partida, supra, 37 Cal.4th at
pp. 433-434.) Additionally, “[t]he argument is untimely because it is asserted for the first
time in the reply brief.” (In re Luke H. (2013) 221 Cal.App.4th 1082, 1090.) We
therefore decline to address it.
12.
We acknowledge that defendant’s expert reached a different conclusion. Blak
opined that defendant’s schizoaffective disorder “played a significant role in the
commission of the charged offenses.” He based this conclusion on defendant’s
“demeanor, as observed and witnessed by victims and witnesses as well as law
enforcement at the time of contact.” His conclusions appeared to be based primarily on
testimony from the preliminary hearing that indicated defendant had a “blank look” or
“ ‘stare’ ” during the commission of the offenses.7 We also note that, unlike Terrell and
Kendall, Blak did not engage defendant in a clinical interview or address the role of
defendant’s substance use in his criminal behavior. To the extent the court credited the
People’s experts over defendant’s, we note that it generally is not an abuse of discretion
for the trial court to give more credit to one expert’s opinion than to another’s. (People v.
Venghiattis (1986) 185 Cal.App.3d 326, 333.)
Ultimately, it was for the trial court to resolve this conflict in the evidence. For
the reasons stated, we conclude substantial evidence supports the trial court’s finding that
defendant’s psychotic or schizoaffective disorder was not a significant factor in the
commission of the charged offenses. Accordingly, the court properly denied defendant’s
motion for mental health diversion.
IV. RISK OF DANGER TO PUBLIC SAFETY
The court also denied defendant’s motion for mental health diversion on the
ground defendant presented a risk of danger to public safety “based on his behavior
prior.” Defendant contends this finding is unsupported by the record. The People argue
we need not reach this issue because the court’s ruling is supported on another ground,
specifically its finding that defendant’s mental illness was not a significant factor in his
crimes. We agree with the People.
7 Meanwhile, Terrell’s and Kendall’s reports attributed defendant’s “strange” or
“bizarre” behavior during the offenses to his substance use.
13.
Section 1001.36 excludes from eligibility for mental health diversion a defendant
who poses an unreasonable risk of danger to public safety, as defined in section 1170.18.
(§ 1001.36, subd. (b)(1)(F).) Section 1170.18 defines “unreasonable risk of danger to
public safety” to mean “an 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 (e) of Section 667.” (§ 1170.18, subd. (c).) “The cited subdivision of section
667 identifies eight types of particularly serious or violent felonies, known colloquially as
‘super strikes.’ ” (People v. Valencia (2017) 3 Cal.5th 347, 351.)
Here, it is undisputed that defendant’s criminal history does not involve any of the
felonies commonly referred to as super strikes. (§ 667, subd. (e)(2)(C)(iv).) It therefore
is unclear how the court determined defendant’s “behavior prior” suggested he presented
an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in
the community. (See Moine, supra, 62 Cal.App.5th at pp. 450-451 [concluding the
record did not support a finding of dangerousness under § 1001.36, subd. (b)(1)(F),
where neither the defendant’s past convictions nor pending charges involved super-strike
offenses].) Nonetheless, even if we assume the court’s finding of dangerousness is not
supported by the record, defendant is not entitled to reversal. As we explained above,
defendant was ineligible for mental health diversion based on the court’s finding that his
mental illness was not a significant factor in his criminal behavior, which finding is
supported by substantial evidence. This finding independently supports the court’s
ruling.
14.
DISPOSITION
The judgment is affirmed.
DETJEN, Acting P.J.
WE CONCUR:
SNAUFFER, J.
DE SANTOS, J.
15.