People v. Bustillos CA4/1 ( 2021 )

Filed 9/13/21 P. v. Bustillos CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077994
Plaintiff and Respondent,
v.
(Super. Ct. Nos. SCD280040 and
ROBERT JOHN BUSTILLOS, SCD284653)
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Margie G. Woods, Judge. Affirmed.
Linnéa M. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney
General, Daniel Rogers and Kristen Kinnaird Chenelia, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Robert Bustillos was charged with robbery (Pen. Code,
§ 211),1 attempted carjacking (§§ 664, 215, subd. (a)), and battery by gassing
(§ 243.9, subds. (a), (b) [“ ‘gassing’ means intentionally placing or
throwing . . . human excrement or other bodily fluids” on “the person of
another”]). Before trial, he filed a comprehensive noticed motion seeking
mental health diversion under section 1001.36. Bustillos supported his
motion with a 30-page report from a psychologist, and a proposed transition
plan from a social worker. After two hearings, the trial court denied the
motion with a lengthy oral explanation. Among its reasons for denying the
motion, the trial court was not satisfied that Bustillos—who had a long
history of mental illness, substance abuse, and violent criminal activity—
would respond to mental health treatment or could be treated in the
community without posing an unreasonable risk of danger to public safety.
Bustillos then pleaded guilty, and the trial court sentenced him to seven
years in prison.
On appeal, Bustillos contends the trial court abused its discretion in
denying his motion by applying the wrong legal standard. Specifically, he
contends that because the court and parties referred to the diversion hearing
as a “prima facie” hearing, the court was required to accept his assertions as
true; thus, the court erred by weighing evidence and making credibility
determinations. On the appellate record before us, we are not persuaded.
Regardless of the label the trial court and counsel applied to the diversion
hearing, Bustillos received exactly the type of hearing he expected and to
which he was entitled—a meaningful hearing at which the court thoroughly
evaluated Bustillos’s comprehensive evidentiary showing.
1 Further undesignated statutory references are to the Penal Code.
2
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 7, 2019, Bustillos approached a convenience store customer
who was returning to his electric vehicle. Bustillos approached the customer,
stated he had a gun, and demanded the customer’s car keys and cellphone.
The customer complied. When Bustillos had trouble starting the car, he fled
on foot and discarded the stolen keys and cellphone. Police apprehended him
nearby a short time later.
Bustillos was charged in case Number SCD280040 with one count each
of robbery (§ 211) and attempted carjacking (§§ 664, 215, subd. (a)), with the
further allegations that he had suffered two serious felony priors and two
strike priors.
On November 19, 2019, Bustillos moved the trial court for an order
granting him mental health diversion under section 1001.36.
Three days later (on November 22), while in local custody, Bustillos
threw urine on a guard. He was charged in case Number SCD0284653 with
battery by gassing (§ 243.9, subd. (a)), with the further allegation that he had
suffered two strike priors.
The trial court denied Bustillos’s motion in January 2020.
In February 2020, under the terms of a global plea bargain, Bustillos
pleaded guilty to all charges and admitted the serious felony and strike prior
allegations, in exchange for a 13-year lid.
In August 2020, the trial court sentenced Bustillos to seven years in
prison.
3
DISCUSSION
Bustillos contends the trial court abused its discretion in denying his
mental health diversion motion by applying the wrong legal standard. On
the record before us, we disagree.
A. Background
1. Bustillos’s Diversion Motion
In November 2019, Bustillos filed a motion requesting that the trial
court grant him pretrial mental health diversion under section 1001.36.
Bustillos supported his motion with an 11-page memorandum of points and
authorities; a 30-page (single-spaced) report from a clinical and forensic
psychologist (Dr. Malek), which was filed under seal; and a two-page letter
from a defense social worker detailing the proposed transition to diversion
treatment.
In her report, Dr. Malek chronicled Bustillos’s dysfunctional and
abusive childhood, and his lengthy histories of mental health issues,
substance abuse, and criminal activity.
Bustillos did well in high school, until the onset of symptoms of
schizophrenia caused his grades to slip. After graduating in 1997, he
attended one year of community college before joining the Air Force. After
less than one year, he was discharged over mental health concerns.
In May 2000, Bustillos was convicted of misdemeanor battery. In June
2000, he was convicted of disturbing the peace. In July 2000, he was
convicted of assault with a deadly weapon and battery. In November 2000,
he was again convicted of assault with a deadly weapon, as well as being
under the influence of a controlled substance. In September 2001, he was
convicted of misdemeanor and felony battery causing serious bodily injury. It
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appears that Bustillos committed several of these assaults while living in a
residential treatment setting.2
In September 2002, Bustillos was convicted of reckless driving and
“wet” reckless driving.
In April 2003, while driving on a suspended or revoked license and
under the influence of alcohol, Bustillos caused a traffic collision in which one
man died and three others were injured. Bustillos was convicted of gross
vehicular manslaughter while intoxicated, and sentenced to 10 years 8
months in prison. While incarcerated, Bustillos was diagnosed with
schizophrenia undifferentiated type, and alcohol and cannabis dependence in
a controlled environment. He was under an order for involuntary medication
for five years.
Bustillos was paroled in March 2012 and psychiatrically hospitalized as
a mentally disordered offender until July 2012. Three days after his release
in July 2012, Bustillos committed a robbery. He was convicted and received
antipsychotic medication while incarcerated.
In April 2013, while incarcerated, Bustillos straddled another inmate
and repeatedly punched him in the face. In June 2013, Bustillos struck
another inmate in the head, neck, and chest area several times.
Bustillos was paroled in 2014 and psychiatrically hospitalized. He was
again diagnosed with schizophrenia undifferentiated type, and alcohol and
cannabis dependence in a controlled environment.
2 Dr. Malek’s report indicates that while Bustillos was residing at a
center called Grant House, he hit a female resident in the face, and “knocked
another female down the stairs and threw a chair at her.” The report also
indicates that in Spring 2000, Bustillos “was in jail for assaulting security
guards at SJGH.”
5
Following his release, Bustillos moved to Texas, where he committed a
series of misdemeanors. He sought housing and psychiatric assistance from
the Veterans Administration, but was not eligible due to his limited service
term.
In July 2018, Bustillos returned to California and spent about 18
months alternating between being homeless and spending time in sober
living facilities in Stockton.
In January 2019, Bustillos traveled to San Diego to investigate veteran
housing options. While on a waitlist, Bustillos was homeless, relapsed on
methamphetamine and marijuana, and committed the current robbery and
attempted carjacking offenses. While in local custody on these charges, he
had “several incidents of smearing feces/covering his cell in urine and gassing
deputies.”
Dr. Malek ultimately opined (1) Bustillos suffers from a qualifying
mental health disorder under section 1001.36 (schizophrenia, independent of
his substance-use disorders); (2) “his mental disorder was a significant factor
in the commission of the charged offense[s]”; (3) he was “currently stabilized
on medication,” “appeared to have insight into his mental illness,” and his
symptoms would respond to mental health treatment; and (4) his treatment
needs could be met by “an evidence[ ]-based approach such as Assertive
Community Treatment (ACT).”
Bustillos acknowledged in his diversion motion that “[i]t is without
question that [he] has a significant criminal history and . . . faces a life
sentence as he has two strike priors.” But he maintained he would not pose a
danger to public safety if treated in the community because he was now
receiving “enormously effective” monthly injections of antipsychotic
medications that were not previously available to him.
6
Bustillos also stated in his motion that he consents to mental health
diversion and waives his speedy trial rights.
Bustillos made no mention of prima facie principles in his motion.
2. Prosecution Opposition
The prosecution opposed Bustillos’s motion, arguing (1) he failed to
prove he suffers from a qualifying mental disorder because his significant
mental health issues were exacerbated by his substance abuse problems;
(2) his mental disorder was not a significant factor in the commission of the
current robbery and attempted carjacking offenses because his intent was
simply to steal property; (3) he had not shown his symptoms would respond
to treatment because he “continues to engage in criminal offenses” despite
having “been afforded a wide variety of mental health and substance abuse
treatment”; (4) his extensive history of criminal conduct showed he would
pose an unreasonable risk of danger to public safety if treated in the
community; and (5) he failed to provide a specific treatment plan.
The prosecution also argued that because mental health diversion is
discretionary, if the court were to find that Bustillos “has made a prima facie
case for eligibility, the People are entitled to a further hearing to present
evidence showing that this case is not appropriate for diversion and that
granting [Bustillos]’s motion would be against the public interest.”
The prosecution later supplemented its opposition with records
documenting Bustillos’s extensive history of criminal conduct and quickly
reoffending upon being released from custody.
3. Bustillos’s Supplement
As noted, just days after Bustillos filed his diversion motion, he
committed the charged gassing offense. The trial court began hearing the
7
motion in December 2019, but continued it to January 23, 2020. The
reporter’s transcript of the December hearing is not in the appellate record.
A few days before the continued hearing date, Dr. Malek submitted a
letter “to address some of the Court’s concerns regarding Mr. Bustillos’[s]
recent behavior in jail (gassing a jail deputy on 11/22/19) and his past
treatment failures.” Dr. Malek wrote that Bustillos attributed his conduct to
“his medications . . . having an adverse effect on him and that he was
experiencing increased auditory hallucinations . . . telling him to ‘defend
[him]self.’ ” “He also had fears/delusions that the deputies were trying to
obtain a blood sample from him.”
Dr. Malek explained that although she “certainly find[s] [Bustillos’s]
behavior concerning,” it is not uncommon for inmates with mental health
issues to “resort[ ] to gassing and smearing feces” when experiencing the
“significant distress” of “jails/prison and other locked facilities.” She believed
“an ACT approach” to community-based treatment would provide “the least
restrictive level of care while also ensuring public safety.”
4. Diversion Hearing
At the January 23, 2020 diversion hearing, the court and counsel
discussed both the merits and procedural posture of Bustillos’s motion.
On the merits, the prosecutor argued the court should not grant
diversion because of Bustillos’s extensive criminal record, history of poor
performance in custody, lack of response to prior treatment, and history of
quickly reoffending upon release. The prosecutor argued the recent gassing
incident demonstrated Bustillos’s symptoms would not respond to treatment,
and that he misled Dr. Malek about the circumstances of the incident
because he told her he committed the offense because he was afraid the guard
was going to take a blood sample from him, yet preliminary hearing
8
testimony from that morning established that guards sought a blood test only
after the gassing incident to determine whether Bustillos had any
communicable diseases.
Defense counsel countered that Dr. Malek’s report and supplemental
letter established that Bustillos was eligible and suitable for diversion.
Regarding the recent gassing incident, counsel emphasized Dr. Malek’s
observations about the impact of stressful custodial settings on inmates with
mental health issues.
Regarding the procedural posture, defense counsel addressed the court
regarding an inquiry from the initial unreported December hearing about the
moving party’s “burden of proof in a prima facie hearing.” Counsel clarified
that although he had previously told the court that the preponderance of
evidence standard applied, he now believed the “prima face measure of proof
is essentially equivalent to what you get at a preliminary hearing; so it is not
quite a preponderance but a reasonable or strong suspicion.” Counsel argued
Dr. Malek’s report and letter satisfied this requirement. Counsel urged, “And
as the court well knows, this is just a prima facie hearing. We are trying to
get past this so we can put on more evidence.”
The court expressed concern about whether Bustillos had actually been
accepted into a treatment program, and whether, “especially with all of the
history of Mr. Bustillos in mental health treatment,” he could “successfully be
treated.” The court told defense counsel he had “put the court in a difficult
spot” because he was “asking the court to find eligibility by weighing the
background of the defendant, the nature of the current offense, the summary
of the defendant’s criminal history, the defendant’s treatment history, and
finding that, with all of that in mind, the treatment that is being
9
contemplated, but not in place, is treatment . . . the defendant can positively
successfully respond to.”
The court asked defense counsel, “If the court does find there is a prima
facie showing of eligibility, what will you present next?” Defense counsel
responded,
“I guess at the next hearing, I would call Dr. Malek so that
she could provide additional information. That would be
subject to questions the court may have as well as cross-
examination by the prosecutor.
“In addition, I could bring in the social worker. I don’t
know that she is permitted to testify, so to speak, but I
believe she could answer the court’s questions
informally, . . . and that will probably be it.
“Maybe I would have Mr. Bustillos directly speak with the
court as well at the next level.”
The prosecutor responded that he did not anticipate calling any
witnesses at a future hearing, but that if Dr. Malek were to testify, he would
need discovery materials from the defense to enable an effective cross-
examination.
The court stated it would deliver its ruling in one week, after it took
“another look at the exhibits and the information that counsel has provided.”
The court indicated “the most significant points” it would consider were
whether Bustillos is able “to comply with treatment as a condition of
diversion,” and “even with his best intentions and plans, whether he would
pose a threat and/or danger of unreasonable risk to the community.” The
court noted Bustillos has “a long history . . . , and there is also a question of
credibility that the Court has to weigh in the information we receive about
Mr. Bustillos, from Mr. Bustillos, through the doctor. [¶] There is also the
question of . . . how much weight, as the trier of fact, should the Court give to
the doctor’s opinion.”
10
5. Ruling
The court delivered its ruling on January 30, 2020. The court began
the hearing by reading aloud the pertinent provisions of section 1001.36. The
court noted that while the statute allows the court to conduct an “informal”
prima facie hearing that “may proceed on offers of proof,” the current
proceedings were not informal and “actually” proceeded on “reports,”
“opinions,” and “written information.” The court confirmed with counsel that
the statute “provides the Court a lot of broad powers, broad choices in
determining whether or not it should consider and possibly grant . . .
diversion.”
The court then summarized its “discussion[s]” with counsel “about the
burden of proof”—the prosecutor advocated a preponderance of the evidence
(or “greater probability of truth”) standard, while Bustillos advocated a
preliminary hearing (or “reasonable and probable cause or sufficient cause”)
standard. The court observed, “So that’s the background information that the
Court notes, and [the] Court believes counsel agrees, is the backdrop of this
proceeding, this motion.” The court invited counsel to address the court, and
the defense and prosecutor submitted on their prior filings and argument.
The court observed that Bustillos’s current robbery offense is a violent
felony, during which he pretended to have a gun while attempting to take a
car he might then have driven dangerously while under the influence of
methamphetamine and marijuana. The court noted Bustillos had given
varying accounts to police and Dr. Malek as to why he committed these
offenses.
The court then noted Bustillos’s extensive criminal history, which
included gross vehicular manslaughter, and a history of violence that “is not
aberrant or different behavior,” but is “violence that continues.”
11
The court also observed that Bustillos’s conduct while in custody
included gassing, even after he switched to injected medication.
Regarding Bustillos’s amenability to treatment, the court noted that
Bustillos gave Dr. Malek varying explanations for his behavior on different
occasions. The court found this pertinent to its role “of gauging how much
weight, how much believability the Court can give to” Bustillos. The court
found it “should be very cautious about” Bustillos’s “credibility.”
In this respect, the court noted that Dr. Malek stated in her report that
Bustillos’s self-reported personality assessment “potentially involve[d]
considerable distortion” by virtue of his providing inconsistent responses to
similar test items, which led Dr. Malek to “opin[e] that he seemed to present
himself in a more negative or pathological manner.”
As to whether Bustillos’s mental illness, rather than substance abuse,
was a substantial factor in his commission of the current offenses, the court
noted Bustillos’s “long history of both combined,” working “hand in hand for
the most part.”
The court acknowledged Dr. Malek’s current diagnosis of Bustillos
(schizophrenia) qualifies for diversion, but the court noted he had previously
been diagnosed with a nonqualifying mental illness (personality disorder).
Regarding Bustillos’s treatment history, the court observed that
although Bustillos claimed he had been in prison “all this time” and has “not
been treated out in the community,” he actually had “been treated out in the
community” in group homes, halfway houses, conservatorship, and hospitals.
The court expressed concern that the defense’s proposed diversion program
“lacks all and much of the structure that’s been provided before, in the past,
and has not resulted in success.” The court believed an approach lacking
12
sufficient court supervision would be inconsistent with the Legislature’s
intent in establishing diversion.
The court then denied Bustillos’s motion, making the following
findings:
“The Court finds, based on its careful review of the record,
the circumstances of the crime, the prior mental health
history, the treatment received in the past, the criminal
history of Mr. Bustillos in the past, that the prima facie
showing has not been made and . . . cannot find that Mr.
Bustillos is eligible for diversion and/or suitable for
diversion.”
When the court asked defense counsel if he had “[a]nything else on
behalf of [his] client,” counsel changed the topic to timing and settlement
issues.
B. Legal Principles
In June 2018, the Legislature enacted section 1001.36, which
“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 . . . .’ [Citation.] 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
13
treatment and support needs of individuals with mental disorders.’ ” (People
v. Frahs (2020) 9 Cal.5th 618, 626 (Frahs).)
Subdivision (a) of section 1001.36 gives trial courts discretionary
authority to grant pretrial diversion “if the defendant meets all of the
requirements specified in” subdivision (b)(1). (§ 1001.36, subd. (a);3 see
Frahs, supra, 9 Cal.5th at p. 624.) Subdivision (b)(1) sets forth the following
six eligibility criteria:
“(A) The court is satisfied that the defendant suffers from a
[qualifying] mental disorder . . . .[4]
“(B) The court is satisfied that the defendant’s mental
disorder was a significant factor in the commission of the
charged offense. . . .[5]
3 Section 1001.36, subdivision (a) states: “On an accusatory pleading
alleging the commission of a misdemeanor or felony offense, the court may,
after considering the positions of the defense and prosecution, grant pretrial
diversion to a defendant pursuant to this section if the defendant meets all of
the requirements specified in paragraph (1) of subdivision (b).” (Italics
added.)
4 Section 1001.36, subdivision (b)(1)(A) states in full: “The court is
satisfied that the defendant suffers from a mental disorder as identified in
the most recent edition of the Diagnostic and Statistical Manual of Mental
Disorders, including, but not limited to, bipolar disorder, schizophrenia,
schizoaffective disorder, or post-traumatic stress disorder, but excluding
antisocial personality disorder, borderline personality disorder, and
pedophilia. Evidence of the defendant’s mental disorder shall be provided by
the defense and shall include a recent diagnosis by a qualified mental health
expert. In opining that a defendant suffers from a qualifying disorder, the
qualified mental health expert may rely on an examination of the defendant,
the defendant’s medical records, arrest reports, or any other relevant
evidence.”
5 Section 1001.36, subdivision (b)(1)(B) states: “The court is satisfied
that the defendant’s mental disorder was a significant factor in the
commission of the charged offense. A court may conclude that a defendant’s
14
“(C) In the opinion of a qualified mental health expert, the
defendant’s symptoms of the mental disorder motivating
the criminal behavior would respond to mental health
treatment.
“(D) The defendant consents to diversion and waives the
defendant’s right to a speedy trial . . . .
“(E) The defendant agrees to comply with treatment as a
condition of diversion.
“(F) The court is satisfied that the defendant will not pose
an unreasonable risk of danger to public safety, as defined
in Section 1170.18, if treated in the community. The court
may consider the opinions of the district attorney, the
defense, or a qualified mental health expert, and may
consider the defendant’s violence and criminal history, the
current charged offense, and any other factors that the
court deems appropriate.”
The Legislature amended section 1001.36 a few months after it was
enacted “to specify that defendants charged with certain crimes, such as
murder and rape, are ineligible for diversion.” (Frahs, supra, 9 Cal.5th at
p. 627; see § 1001.36, subd. (b)(2)(A)-(H).) None of Bustillos’s charged
offenses are subject to this amendment.
Section 1001.36, subdivision (b)(3) gives trial courts the discretion to
require the moving defendant to make a prima facie showing of eligibility:
mental disorder was a significant factor in the commission of the charged
offense if, after reviewing 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, the court concludes that the
defendant’s mental disorder substantially contributed to the defendant’s
involvement in the commission of the offense.”
15
“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. The hearing on the
prima facie showing shall be informal and may proceed on
offers of proof, reliable hearsay, and argument of counsel.
If a prima facie showing is not made, the court may
summarily deny the request for diversion or grant any
other relief as may be deemed appropriate.”
“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. [Citations.] The maximum period of diversion is two
years. [Citation.] 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. [Citation.] ‘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.’ ” (Frahs, supra, 9 Cal.5th at p. 627.)
We review a trial court’s ultimate decision whether to grant pretrial
mental health diversion for an abuse of discretion. (See People v. Moine
(2021) 62 Cal.App.5th 440, 448 (Moine); see also People v. Oneal (2021)
64 Cal.App.5th 581, 589 [trial court’s determination “whether the defendant’s
disorder played a significant role in the commission of the charged offense” is
16
“a quintessential fact-finding process” subject to review for substantial
evidence].)
“[A] trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.” (People
v. Carmony (2004) 33 Cal.4th 367, 377.) But “[a] court abuses its discretion
when it makes an arbitrary or capricious decision by applying the wrong legal
standard [citations], or bases its decision on express or implied factual
findings that are not supported by substantial evidence.” (Moine, supra, 62
Cal.App.5th at p. 449.)
C. Analysis
Bustillos primarily argues the trial court abused its discretion by
applying the wrong legal standard. He maintains that because the court and
parties referred to the diversion hearing as a “prima facie hearing,” the court
was required to apply a traditional prima facie standard that accepts the
moving party’s assertions as true. (See, e.g., In re Figueroa (2018) 4 Cal.5th
576, 587 [“This court evaluates a [habeas corpus] petition ‘by asking whether,
assuming the petition’s factual allegations are true, the petitioner would be
entitled to relief” (italics added)]; People v. Lewis (2021) 11 Cal.5th 952[applying habeas corpus prima facie standard to § 1170.95 hearings].) He
thus contends the court erred by weighing evidence and making credibility
determinations. On the record before us, we find no abuse of discretion.
Regardless of the label the trial court and counsel applied to the diversion
hearing, Bustillos received exactly the type of hearing he expected and to
which he was entitled—a meaningful hearing at which the court thoroughly
evaluated Bustillos’s comprehensive evidentiary showing.
Section 1001.36 gives trial courts great leeway in conducting mental
health diversion hearings. Subdivision (a) of the statute requires only that
17
the court “consider[ ] the positions of the defense and prosecution.”
(§ 1001.36, subd. (a).) Additionally, the court “may”—but need not—“require
the defendant to make a prima facie showing,” the hearing for which “shall
be informal.” (§ 1001.36, subd. (b)(3), italics added.) As the trial court
observed, the hearing it conducted was not informal.
To the contrary, Bustillos filed a formal, noticed motion requesting
diversion, supported by an extensive evidentiary showing. He did not
mention prima facie principles, nor did he request a prima facie hearing.
Similarly, the prosecution responded with an evidentiary showing regarding
Bustillos’s extensive criminal history, and requested an evidentiary hearing
only if the court was otherwise inclined to grant Bustillos’s motion.
For its part, the court conducted two hearings (one in December and
one in January), and requested additional input from Dr. Malek regarding
Bustillos’s recent gassing incident. The court then carefully and thoughtfully
weighed the parties’ competing evidentiary showings.
The court observed that certain of Dr. Malek’s opinions were based on
Bustillos’s self-reporting, about which the court was rightfully dubious. For
example, Dr. Malek acknowledged Bustillos’s self-reported personality
assessment “potentially involve[d] considerable distortion,” and Bustillos’s
explanation to her of the charged gassing incident was contradicted by
preliminary hearing testimony. Of course, “any expert’s opinion is only as
good as the truthfulness of the information on which it is based.” (People
v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.)
The trial court also observed that Bustillos committed the charged
gassing offense after he had been receiving injected medication, which the
defense suggested had improved his condition. This, coupled with his lengthy
history of not responding to treatment and quickly reoffending upon release
18
from a variety of custodial and treatment settings, validated the trial court’s
concerns that Bustillos would not respond to mental health treatment, and
could not be treated in the community without posing an unreasonable risk of
danger to public safety.
Moreover, when the trial court asked defense counsel what additional
evidence he would present at a further evidentiary hearing, defense counsel
made no specific offer of proof. Rather, he merely offered to call Dr. Malek
(who had already submitted a 30-page report and a supplement), and to
possibly call the defense social worker (who defense counsel acknowledged
could not actually testify) and Bustillos. Bustillos did not identify—and still
has not identified—what additional information these witnesses would have
provided, or explained how it would have led the trial court to reach a
different conclusion.
Ultimately, the trial court thoroughly explained its reasoning with an
18-page oral explanation. This is hardly the type of “summar[y] den[ial]”
section 1001.36 contemplates for prima facie hearings. (§ 1001.36, subd.
(b)(3).)
Bustillos’s new appellate theory that the trial court applied the wrong
legal standard to the hearing ignores the fact that the trial court proceeded in
precisely the manner trial counsel expected—and, indeed, in the manner they
proposed. When the court asked counsel to address the parties’ burdens,
defense counsel initially proposed the preponderance standard, and later
proposed the preliminary hearing standard. This proposed standard
contemplates that the court will weigh evidence and make credibility
determinations. (See People v. Abelino (2021) 62 Cal.App.5th 563, 573 [“In
determining whether there is probable cause [at a preliminary hearing], the
magistrate may ‘weigh the evidence, resolve conflicts, and give or withhold
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credence to particular witnesses.’ ”]; People v. Massengale (1968) 261
Cal.App.2d 758, 763 [“[o]n a preliminary hearing the magistrate is required
to weigh the evidence and pass on the credibility of witnesses”].)
Before ruling, the trial court reiterated the parties’ proposed legal
standards and stated the “Court believes counsel agree[ ].” Defense counsel
did not interject.
After ruling, the trial court asked defense counsel if he wished to
address “[a]nything else on behalf of [his] client.” Counsel addressed
unrelated topics, and did not take issue with the fact the court had just
delivered a ruling based on evaluating evidence and credibility.
Thus, contrary to Bustillos’s suggestion on appeal, there was nothing
“fundamental[ly] unfair[ ]” about the hearing because it transpired in the
manner the parties expected.
Similarly, we are unpersuaded by Bustillos’s contention that the fact
the trial court weighed evidence and made credibility determinations shows
that “the trial court was not impartial.” The trial court did exactly what the
parties expected it to do, and nothing in the record indicates the court did so
in an unfair or biased manner.
Finally, contrary to Bustillos’s suggestion, the fact the trial court
considered the serious nature of Bustillos’s current robbery offense does not
indicate the court had “taken issue with” the fact the Legislature did not
include robbery among the offenses that categorically disqualify a defendant
from diversion. (§ 1001.36, subd. (b)(2).) Rather, although the Legislature
identified certain categorically disqualifying current offenses, the Legislature
nonetheless contemplated trial courts would consider the circumstances of
the current offense when evaluating certain of the eligibility criteria. (See,
e.g., § 1001.36, subd. (b)(1)(F) [authorizing trial courts to “consider . . . the
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current charged offense” when determining whether “the defendant will . . .
pose an unreasonable risk of danger to public safety, as defined in Section
1170.18, if treated in the community”], (b)(1)(C) [authorizing trial courts to
consider “police reports, preliminary hearing transcripts, [and] witness
statements” when determining whether “the defendant’s mental disorder was
a significant factor in the commission of the charged offense”].)
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
GUERRERO, J.
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