Metropolitan News-Enterprise


Thursday, January 11, 2024


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Court of Appeal:

Past Failed Treatment Did Not Justify Denial of Diversion

Majority Says Unsuccessful Efforts at Drug-Abuse Rehabilitation Does Not Warrant Conclusion That Programs Aimed at Mental-Health Problems Would Be Ill-Fated; Dissenter Accuses Colleagues of Mangling Facts, Law


By a MetNews Staff Writer


Div. One of the Fourth District Court of Appeal has ordered the issuance of a writ directing the Superior Court to grant a woman who attempted to rob a liquor store a mental health diversion, prompting a dissent that insists that requisites for writ review are not met and asserts that the majority is usurping discretion vested in the trial judge.

The dissent also accuses the majority of misrepresenting the facts.

Justice William Dato authored the majority opinion, in which Justice Julia Kelety joined. Acting Presiding Justice Joan K. Irion was the dissenter.

Defendant Jeanette Sarmiento had requested pretrial diversion, pursuant to Penal Code §1001.36, based on her posttraumatic stress disorder (“PTSD”) and reliance on methamphetamines. San Diego Superior Court Judge Dwayne K. Moring denied the request because previous substance abuse treatment had failed and based on his perception that Sarmiento would pose “an unreasonable risk of danger to the public” if not incarcerated.

Inadequate Reasons

Dato said, in an opinion filed Monday:

“By its terms, section 1001.36 was designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior. As with any principled exercise of discretion, the court must utilize the appropriate criteria consistent with the principles and purposes of the governing law, only drawing conclusions supported by substantial evidence. Applying these principles, neither of the reasons relied on by the trial court provide a proper basis to deny diversion.”

The justice took note of a report by San Diego neuropsychologist Cynthia Boyd saying that Sarmiento was unable to maintain sobriety because of her mental health problems, self-medicating with methamphetamine to gain relief.

“[T]he undisputed evidence in this case indicates Sarmiento never received any coordinated treatment for her two primary mental health diagnoses—PTSD [posttraumatic stress disorder] and major depressive disorder,” Dato wrote. “It appears the trial court failed to appreciate the distinction between different types of treatment, conflating substance abuse recovery with therapy and medication directed at PTSD and depression.”

He drew the conclusion that “[o]n this record, where [Sarmiento’s] mental health disorders were never treated comprehensively, there is insufficient evidence to support the trial court’s conclusion that Sarmiento’s symptoms would not respond to treatment.”

Danger to Public

One of the requirements for granting diversion, under subd. (c)(4) of §1001.36, is that the defendant “defendant will not pose an unreasonable risk of danger to public safety,” as elsewhere defined in terms of a propensity to commit a “super strike”—one of enumerated violent felonies. However, case law recognizes “residual discretion” in the trial court to deny diversion under other circumstances.

Moring did not make a finding of a likelihood that Sarmiento would commit such a “super strike” if released into the community but did cite her dangerousness. Dato said:

“[W]hile it is clear a trial court retains ‘residual’ discretion to deny diversion even if all the threshold requirements are met, that does not mean, as the court suggested here, that it could reject a request for diversion based on an alternative meaning of ‘public safety’ inconsistent with the specific statutory definition in section 1001.36, subdivision (c)(4). In the guise of exercising its ‘residual’ discretion, a court is not permitted to redefine public safety in a manner inconsistent with the Legislature’s expressed intent.”

Dato declared:

“[A] defendant like Sarmiento is the poster child for mental health diversion. Although she plainly never asked for the psychological conditions that challenge her, the question is not whether Sarmiento ‘deserved’ the opportunity for treatment. The Legislature has determined that in most cases, the community will be safer if defendants like Sarmiento receive mental health treatment so that they will pose fewer risks to the community both now and in the future. The trial court’s role is to determine whether a narrow range of factors warrant making this specific case an exception.”

Irion’s Dissent

Irion said in her dissent:

“We never should have taken this case up on writ review.”

A writ of mandate will not issue for the purpose of directing how discretion is exercised, she recited. Yet, Irion complained, the majority overturns Moring’s order “with which it disagrees but was within the trial court’s discretion to make, and it does so based on an assumed set of facts contradicted by the record.”

What matters, she maintained, is that substantial evidence supports the factual findings that underlie Moring’s exercise of discretion.

 Failings Enumerated

“In my view, in granting writ relief the majority neglects principles of writ review, disregards the applicable standard of review, ignores facts that refute its premises and conclusions, and misconstrues the mental health diversion statute,” Irion asserted. “I cannot join such a decision.”

She continued:

“No order to show cause should have been issued in this case. Except when it is the only form of appellate review available, writ review of an interlocutory order should be confined to two categories of cases. One category includes cases presenting an issue of ‘public or jurisprudential significance,’ such as ‘a novel or constitutional question,’ an issue ‘of widespread interest,’ or an issue that has produced ‘conflicting trial court interpretations [that] need resolution.’…The other includes cases where ‘the lower court’s determination imposes unusually harsh and unfair results for which ordinary appellate review is inadequate.’…This case fits into neither category.”

The dissenting jurist went on to remark: “Appeal is a presumptively adequate remedy, and Sarmiento has the burden to show it is not….She has not met that burden.”

False Statements Alleged

With respect to her allegation that Dato has misstated facts, Irion set forth:

“A careful review of the documents Sarmiento submitted in support of her request for pretrial diversion refutes the majority’s factual premise that ‘Sarmiento never received any coordinated treatment’ for PTSD and depression.”

She said: “The record…shows Sarmiento for many years has been under the care of a psychiatrist or other physician and has been treated for PTSD and depression or has been offered such treatment, and despite such treatment or offers she continued to abuse methamphetamine and to commit crimes. A reasonable inference from this record is that Sarmiento would not respond to mental health treatment for depression and PTSD if she were diverted because she has not responded in the past….Since that inference supports the trial court’s decision to deny the request for pretrial diversion, we must draw that inference.”

Boyd’s Report

Irion, like Dato, drew attention to Boyd’s report. She noted that according to that report, Sarmiento began using methamphetamines 26 years ago, has been repeatedly hospitalized for substance-abuse problems, relapsing, and returning to robbery or attempted robbery in an effort to gain funds with which to buy drugs.

“Of the three mental health disorders with which Boyd diagnosed Sarmiento, the substance abuse disorder was the one most immediately related to her criminal behavior,” Irion said. “The trial court therefore reasonably focused on that disorder and how Sarmiento had responded to treatment of that disorder.”

With approval, she quoted Moring as saying that “past performance is the best indicator of future performance and success,” observing:

“Sarmiento’s past poor performance, as documented in Boyd’s report, constitutes substantial evidence…supporting the trial court’s conclusion that Sarmiento would not respond to mental health treatment.”

The justice reasoned that if the majority had recognized that substantial evidence does support Moring’s finding that further mental health treatment is not apt to work, it would not have seen a need to discuss dangerousness. In any event, she said, she disagrees with the proposition that a propensity to commit a super strike must be found before dangerousness may be taken into account.

The case is Sarmiento v. Superior Court (People), 2024 S.O.S. 169.


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