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Diversion Properly Withheld Where Psychotic Man Pushed Stranger Onto Railroad Tracks—C.A.
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that a judge did not abuse his discretion in denying pretrial mental health diversion to a defendant who, according to the medical evidence, acted as the result of schizophrenia in pushing a stranger onto the tracks at Union Station.
The unprovoked attack by Jimmy Devalle was charged as attempted murder. Devalle was convicted, instead, of assault by means of force likely to produce great bodily injury, and was sentenced to seven years in prison.
His victim, Griffin Hunsaker, suffered a broken wrist.
Rothschild’s Opinion
Devalle should not have been tried, his appointed counsel, Inglewood attorney Melissa J. Kim, argued on appeal, but should have been granted pretrial diversion pursuant to Penal Code §1001.36. Presiding Justice Frances Rothschild of Div. One authored the unpublished opinion rejecting that contention.
She noted that Devalle met the first five of six statutory criteria for diversion, but that the question was whether Torribio “could have reasonably concluded that Devalle failed to meet the sixth requirement.” That requirement is that the court “is satisfied that the defendant will not pose an unreasonable risk of danger to public safety…if treated in the community.”
In deciding that issue, Rothschild said, the judge may take into account the seriousness of the charge—which was attempted murder. Although he was convicted of a lesser offense, the jurist observed, “if the circumstances had been even slightly different, Hunsaker could have been killed.”
No Provocation
She continued:
“Devalle’s condition has improved in the past when he receives treatment, but there can be no guarantee that he would continue taking his medication if treated in the community, even if the medication is administered in a monthly injection rather than a daily pill. The circumstances of the case were especially troublesome because Devalle acted apparently at random, with no provocation from Hunsaker. It is not unreasonable to conclude that if he avoids taking his medication in the future, he might attack any other stranger he comes across. Thus, the trial court could have reasonably concluded that Devalle did not meet the criteria for pretrial diversion.”
The case is People v. Devalle, B304287.
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