People v. Hall ( 2024 )

Filed 2/22/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B326944
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. LA094627)
v.
JASMEN LAVAR HALL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard H. Kirschner, Judge. Affirmed.
Charles Thomas Anderson, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________
Under Penal Code1 section 1001.36, a trial court may place
a criminal defendant who has been diagnosed with a mental
disorder on mental health diversion, allowing the defendant to
obtain treatment for his or her mental illness and potentially
avoid prosecution. This case requires that we consider what kind
of uncharged criminal conduct by a defendant while on diversion
may justify reinstating charges on the ground that the defendant
is no longer a suitable candidate for diversion. (See id., subd.
(g)(3).)
After the People charged defendant Jasmen Lavar Hall
with carjacking and related offenses, the trial court placed Hall
on mental health diversion. Soon thereafter, Hall was expelled
from his residential treatment program for threatening and
assaulting fellow patients and destroying property. Following
this altercation, Hall absconded and remained missing for
approximately six months. The trial court issued a bench
warrant, terminated diversion after Hall was apprehended, and
reinstated criminal proceedings. Hall was convicted after a jury
trial of the carjacking-related offenses and sentenced to an
aggregate sentence of seven years eight months in prison.
Hall contends the court erred in reinstating criminal
proceedings because he did not meet the statutory criteria for
having his diversion terminated. (§ 1001.36, subds. (g)(1)-(4).)
The People did not charge Hall with any criminal offense related
to his conduct while on diversion. Hall argues that uncharged
“criminal conduct rendering [a] defendant [no longer] unsuitable
for diversion” (§ 1001.36, subd. (g)(3)) should be limited to certain
1 Unless otherwise specified, subsequent statutory
references are to the Penal Code.
2
serious and violent felony offenses that “pose an unreasonable
risk of danger to public safety . . . if treated in the community.”
(§ 1001.36, subd. (c)(4).) As explained below, we reject this
construction of the diversion statute.
FACTS AND PROCEEDINGS BELOW
A. The Carjackings
In the afternoon of April 13, 2021, Hall was seen yelling,
making noise, and possibly either singing or speaking gibberish
in a store parking structure. He dragged a woman out of a
nearby parked car and confronted her. The woman eventually
was able to return to her car and drove away.
Shortly afterward, another woman, Sharon B., drove into
the parking structure. Sharon parked her SUV but left the motor
running as she walked around to the rear passenger side door to
help her mother-in-law get out of the vehicle. As she was doing
so, Hall approached the vehicle, got into the driver’s seat, and
shut the door. When Sharon returned to the driver’s side and
saw Hall, she grabbed the steering wheel, but Hall drove away,
causing Sharon to let go of the wheel.
Law enforcement officers had been called to the scene
following the first incident and were already positioned in a
police car near the exit of the parking structure when Hall drove
away. The officers pursued Hall as he drove at a high rate of
speed, ran through several red lights and stop signs, and drove
on the wrong side of the road. Officers eventually apprehended
Hall after he abandoned Sharon’s SUV and fled on foot.
B. Mental Health Diversion Proceedings
An information filed June 25, 2021, charged Hall with one
count of carjacking (§ 215, subd. (a)), one count of attempted
3
carjacking (§§ 215, subd. (a), 664), and one count of evading a
police officer while driving recklessly (Veh. Code, § 2800.2). It
also alleged Hall had a prior conviction for a strike offense (see
§§ 667, subds. (b)-(i), 1170.12).
At the request of defense counsel, a psychiatrist, Dr. Jack
Rothberg, examined Hall for potential mental health diversion
prior to trial. Rothberg filed a report diagnosing Hall with
“chronic paranoid schizophrenia and polysubstance abuse,” which
in Rothberg’s view “substantially contributed to his behavior” in
committing the offenses. Rothberg believed that Hall needed
treatment “in a locked facility or a very highly structured one
which he cannot leave at will,” and that if he remained on his
medication, abstained from illegal drugs, and completed a mental
health program, “his symptoms will be ameliorated and he will be
able to exercise appropriate judgment and maintain impulse
control.” Perry Zimmerman, a certified addiction specialist for
Recovery Network Resource, wrote a letter to the court
conditionally accepting Hall to a residential recovery home
known as First to Serve. Zimmerman described First to Serve as
a “highly structured treatment” program and “as close to a
‘lockdown’ facility as possible” (bold omitted), where Hall would
not be allowed to leave except for official appointments and only
with an escort from the program.
At a hearing on September 14, 2021, the trial court placed
Hall on mental health diversion for up to two years. The court,
relying on Rothberg’s report, found that Hall’s mental disorders
were a significant factor in the commission of his crimes, that he
would not pose an unreasonable risk to public safety if treated in
a highly structured program, and that he was likely to respond to
mental health treatment.
4
Hall was transported from jail to First to Serve on
September 20, 2021. He was discharged from the program 12
days later “due to violent and destructive behavior that he
presented while under the influence of alcohol and/or a controlled
substance.” The program sent a letter to the court describing the
conduct that led to Hall’s dismissal:
Hall “was found sitting in the restroom with the lights off
throwing up in the waste basket. A fellow client addressed him
and asked him to clean himself and the restroom up and regain
his composure. He then became confrontational with the fellow
client and tried pushing him and grabbed him by the neck. The
client was clearly larger than him and defended himself and took
control of the situation. At that point . . . Hall directed his
aggravation towards his roommate [who] happened to be
Caucasian shifting the confrontation into a racial matter and he,
also, defended himself and took control of his situation as well.
. . . Hall repeatedly asked his roommate to follow him into the
back patio for a second assault but was declined. He chased and
followed him throughout the house making racial remarks and
destroying program property. His roommate backed into the
restroom and closed the door to separate himself from . . . Hall
who proceeded to break the door down with his fist. . . . Hall then
went into the kitchen looking for something and saw and broke a
[two]-gallon size pickle jar and picked up the bigger piece of glass
to use it as a weapon. He was stopped by fellow clients that had
been trying to assess the situation. . . . Hall continued to be
confrontational with staff. It was difficult for the staff to get
control of . . . Hall because he was incoherent. Five staff
members were not able to get him under control. He punched a
50-inch smart T.V. [H]e punched a hole in the bedroom door,
5
broke a secondary restroom door, made a mess of the kitchen,
and put the clients and staff in potential physical harm.” Hall
attempted to flee when police officers arrived; they apprehended
him but then allowed him to walk away.
On October 5, 2021, after receiving the letter from First to
Serve, the trial court issued a bench warrant for Hall. The
minute order from the October 5 hearing states that “diversion is
not terminated at this time.” At a hearing on March 29, 2022,
after Hall was taken into custody, the court recalled and quashed
the bench warrant. During the hearing, Hall’s attorney stated
that she thought “because [Hall] has a charge, [his] mental
health diversion is being terminated,” but there is no indication
in the appellate record that Hall was in fact charged with any
offenses related to his conduct while on diversion. Although the
minute order for the hearing states “diversion terminated,” the
record does not indicate the court gave the parties notice of a
hearing on reinstatement of criminal proceedings or that the
parties had the opportunity to argue the issue.
Instead, at the next hearing, on April 26, 2022, the trial
court asked the prosecutor about the status of the case, and the
prosecutor replied, “I think we’re set for mental health diversion
determination as to whether he’ll stay on today.” The court
responded, “That’s been terminated.” Hall’s attorney replied that
her client “is . . . respectfully requesting that the court reinstate
him on mental health diversion.” Hall’s attorney stated that Hall
wanted to be placed in a different program, and that she had
spoken with a contact at a recovery organization who believed he
could place Hall in a program.
The trial court denied the request, citing Hall’s “long
history of violence . . . . The court wanted to see if it was possible
6
to address his addiction problems. It’s clear to the court the time
he was in the program he was using drugs, probably meth,” and
that led him to “engage[ ] in a violent confrontation with another
resident of the program that escalated into further violence and
destruction of the program’s property as well.”
DISCUSSION
A. Legal Background on Mental Health Diversion
Mental health diversion is designed “to keep people with
mental disorders from entering and reentering the criminal
justice system while protecting public safety, to give counties
discretion in developing and implementing diversion across a
continuum of care settings, and to provide mental health
rehabilitative services. (§ 1001.35.) Diversion can be ‘viewed as
a specialized form of probation, . . . [that] is intended to offer a
second chance to offenders who are minimally involved in crime
and maximally motivated to reform . . . .’ [Citation.]” (People v.
Qualkinbush (2022) 79 Cal.App.5th 879, 886.)
Section 1001.36 gives the trial court authority to grant
pretrial diversion to criminal defendants who “ha[ve] been
diagnosed with a mental disorder as identified in the most recent
edition of the Diagnostic and Statistical Manual of Mental
Disorders” (id., subd. (b)(1)),2 so long as the “mental disorder was
2 Section 1001.36 has been amended since Hall’s diversion
proceedings in 2021. (See Senate Bill No. 1223 (2021-2022 Reg.
Sess.); Stats. 2022, ch. 735.) We assume without deciding that
these amendments apply retroactively to Hall’s case. In most
respects, the statute remains substantively unchanged, though
the statute’s provisions have been rearranged and renumbered.
For the sake of consistency, we cite the current version of the
7
a significant factor in the commission of the charged offense” (id.,
subd. (b)(2)). To be eligible, the defendant must not be charged
with certain very serious offenses, such as murder, voluntary
manslaughter, or an offense requiring a defendant to register as
a sex offender. (Id., subd. (d).) Before the court grants diversion,
it must consider four criteria for determining whether “the
defendant is suitable for pretrial diversion.” (Id., subd. (c).)
First, a qualified mental health expert must opine that the
defendant’s symptoms would respond to treatment (id., subd.
(c)(1)). In addition, the defendant must consent to diversion and
waive his right to a speedy trial (id., subd. (c)(2)), and must
“agree[ ] to comply with treatment” (id., subd. (c)(3)). Finally, the
trial court must find that “[t]he defendant will not pose an
unreasonable risk of danger to public safety, as defined in Section
1170.18, if treated in the community” (id., subd. (c)(4); see also
People v. Frahs (2020) 9 Cal.5th 618, 626-627 [summarizing
requirements for diversion].)
If, at the conclusion of the diversion period, which may last
for a maximum of two years (§ 1001.36, subd. (f)(1)(C)(i)), the
defendant “has performed satisfactorily in 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.” (Id., subd. (h).)
statute throughout this opinion, noting where the prior version
differed. In this instance, the former version of the statute differs
from the current version in that it provided for pretrial diversion
for defendants who “suffer[ ] from a mental disorder” (Former
§ 1001.36, subd. (b)(1)(A)), as opposed to having “been diagnosed
with a mental disorder.” (§ 1001.36, subd. (b)(1).) The change
does not affect the outcome of this case.
8
On the other hand, if one of several circumstances applies,
“the court shall, after notice to the defendant, defense counsel,
and the prosecution, hold a hearing to determine whether the
criminal proceedings should be reinstated, whether the treatment
should be modified, or whether the defendant should be
conserved and referred to the conservatorship investigator . . . to
initiate conservatorship proceedings.” (§ 1001.36, subd. (g).)
These circumstances are as follows:
“(1) The defendant is charged with an additional
misdemeanor allegedly committed during the pretrial diversion
and that reflects the defendant’s propensity for violence.
“(2) The defendant is charged with an additional felony
allegedly committed during the pretrial diversion.
“(3) The defendant is engaged in criminal conduct
rendering the defendant unsuitable for diversion.
“(4) Based on the opinion of a qualified mental health
expert whom the court may deem appropriate, either of the
following circumstances exists:
“(A) The defendant is performing unsatisfactorily in
the assigned program.
“(B) The defendant is gravely disabled . . . .”
(§ 1001.36, subd. (g)(1)-(4).)
B. The Trial Court Did Not Err in Terminating Mental
Health Diversion
Hall argues the trial court erred by reinstating criminal
charges because none of the five statutory criteria for initiating a
hearing to terminate diversion outlined in section 1001.36,
9
subdivision (g)(1) through (g)(4) applied.3 We agree as to four of
these criteria. The appellate record does not indicate Hall’s
conduct at First to Serve led to any new felony charges, nor to
any filed misdemeanor charges reflecting a propensity for
violence (see § 1001.36, subd. (g)(1)-(2)), and there is no
indication that he is “gravely disabled” (id., subd. (g)(4)(B)).
Under the fourth criterion, a court may terminate diversion and
reinstate charges if “[b]ased on the opinion of a qualified mental
health expert” (id., subd. (g)(4)) “[t]he defendant is performing
unsatisfactorily in the assigned program” (id., subd. (g)(4)(A)).
Hall’s performance at First to Serve was decidedly unsatisfactory,
but the discharge letter from the program, which was unsigned,
did not represent the opinion of a “qualified mental health
expert.” (Id., subd. (f)(2).)4
3 The Attorney General contends Hall forfeited any
challenge to the trial court’s procedure in terminating diversion
or the material the court considered by failing to object before the
trial court. We disagree because under the circumstances, it is
not clear when Hall could have made a proper objection. At the
March 29, 2022 hearing when the court re-arraigned Hall,
defense counsel made a comment about the likely termination of
diversion but the court did not state on the record that it was
revoking Hall’s diversion status. At the next hearing the
following month, when the prosecutor indicated his
understanding that the matter was set for a hearing that day on
whether Hall would stay on diversion, the court stated it had
already revoked Hall’s diversion. At that point, Hall’s attorney
attempted to convince the court to reinstate diversion.
4 After Hall’s diversion was terminated, the Legislature
amended section 1001.36 to define “[q]ualified mental health
expert” as “includ[ing], but . . . not limited to, a psychiatrist,
10
That leaves one last potential basis for terminating Hall’s
diversion: that while on diversion, he “engaged in criminal
conduct rendering [him] unsuitable for diversion.” (§ 1001.36,
subd. (g)(3).) Hall does not deny he committed the conduct
described in the First to Serve letter, which included attacks on
other program participants and several instances of destruction
of property, or his absconding resulting in the issuance of a bench
warrant. Instead, he argues that his actions do not fall within
the definition of “criminal conduct” in section 1001.36,
subdivision (g)(3).5
psychologist, a person described in Section 5751.2 of the Welfare
and Institutions Code[, that is, a person subject to mental health
licensing requirements], or a person whose knowledge, skill,
experience, training, or education qualifies them as an expert.”
(§ 1001.36, subd. (f)(2.) As we find the termination of Hall’s
diversion appropriate under another provision of section 1001.36,
we need not address whether the failure of First to Serve’s
discharge letter to include the opinion of a qualified mental
health expert under section 1001.36, subdivision (c)(4) was
prejudicial.
5 Hall contends that the Attorney General conceded Hall’s
argument on this subdivision by arguing only that his criminal
conduct justified holding a hearing on terminating diversion,
rather than arguing that his conduct justified actually
terminating diversion. We disagree. Although section 1001.36,
subdivision (g) states that the circumstances listed in subdivision
(g)(1) through (g)(4) require the trial court to “hold a hearing to
determine whether the criminal proceedings should be
reinstated, whether the treatment should be modified, or whether
the defendant should be conserved,” it is implicit in the statute
that the same circumstances that trigger the hearing also justify
the trial court in exercising its discretion to reinstate criminal
11
Hall argues that to interpret “criminal conduct” in section
1001.36, subdivision (g)(3) we must look to subdivision (c),6 which
lists four criteria for determining whether a defendant is
“suitable for pretrial diversion.” Only one of these criteria refers
to the defendant’s propensity for committing crimes: “The
defendant will not pose an unreasonable risk of danger to public
safety, as defined in Section 1170.18, if treated in the
community.” (§ 1001.36, subd. (c)(4).) Section 1170.18 defines
“ ‘unreasonable risk of danger to public safety’ [as] an
unreasonable risk that the [defendant] 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).) Section 667, subdivision (e)(2)(C)(iv) in turn lists so-
called “super-strike” offenses, including homicide and sexually
violent offenses, and “[a]ny serious or violent felony offense
punishable in California by life imprisonment or death” (id.,
subd. (e)(2)(C)(iv)(VIII)). Because the conduct that led to Hall’s
expulsion from First to Serve did not rise to this level, Hall
argues it was not “criminal conduct rendering [him] unsuitable
for diversion” under section 1001.36, subdivision (g)(3).
We do not agree that “criminal conduct rendering the
defendant unsuitable for diversion” is limited to the offenses
listed in section 667, subdivision (e)(2)(C)(iv). We give a statute’s
proceedings, modify the defendant’s treatment, or initiate a
conservatorship.
6 This portion of section 1001.36 has been substantively
amended since the proceedings in Hall’s case. The former version
of section 1001.36 did not state which factors rendered a
defendant unsuitable for diversion. (See former § 1001.36,
subd. (b).)
12
words their ordinary and usual meaning. (Holland v. Assessment
Appeals Bd. No. 1 (2014) 58 Cal.4th 482, 490.) As indicated by
section 1001.36, subdivision (g)(3)’s plain language, “criminal
conduct rendering the defendant unsuitable for diversion” refers
to whether such conduct renders the defendant no longer suitable
for diversion, and not solely to whether the defendant’s criminal
conduct while on diversion “pose[s] an unreasonable risk of
danger to public safety” as defined by section 1001.36,
subdivision (c)(4).
As previously stated, suitability for diversion requires a
defendant meet all the criteria in section 1001.36, subdivision (c).
A defendant must not only “pose [no] unreasonable risk of danger
to public safety” (§ 1001.36, subd. (c)(4)) but must also “consent[ ]
to diversion” (id., subd. (c)(2)), and “agree[ ] to comply with
treatment as a condition of diversion” (id., subd. (c)(3)). These
criteria are consistent with the principle that diversion is
designed to provide an alternative to criminal charges for those
“ ‘maximally motivated to reform . . . .’ [Citation.]” (People v.
Qualkinbush, supra, 79 Cal.App.5th at p. 886.)
Hall’s criminal conduct included assaulting two fellow
program participants and destroying the program’s property. He
then absconded, requiring the issuance of a bench warrant, and
made no apparent effort to seek any further treatment in the six
months until he was re-arrested. In addition to being criminal,
this conduct demonstrated that Hall no longer agreed to comply
with his treatment obligations and had stopped consenting to
diversion. It thus fell within the meaning of section 1001.36,
subdivision (g)(3) and supported the trial court’s decision that
Hall’s criminal conduct rendered him no longer suitable for
diversion. In reaching this conclusion, we need not and do not
13
decide the full scope of section 1001.36, subdivision (g)(3). We
hold only that criminal conduct under section 1001.36,
subdivision (g)(3) need not include a super-strike offense or the
risk of such an offense, and that on the record before us the trial
court did not err in terminating diversion based on Hall’s
criminal conduct while on diversion.
C. The Trial Court’s Error in Failing to Provide Notice
of a Hearing to Terminate Diversion Was Harmless
Hall does not challenge the procedures the trial court
followed before terminating diversion, but for the sake of
completeness we note the trial court erred by terminating Hall’s
mental health diversion without following the procedures set
forth in section 1001.36, subdivision (g). The court did not
provide “notice to the defendant, defense counsel, and the
prosecution” (ibid.) before the March 29, 2022 hearing, nor did it
give Hall an opportunity to challenge the evidence against him or
argue for remaining on diversion before the court reinstated
criminal proceedings in the case. (Ibid.)
This is not sufficient to warrant remanding the case to the
trial court for a new hearing, however. A defendant seeking
relief from a trial court’s decision on mental health diversion
must show the error prejudiced him. (See People v. Bunas (2022)
79 Cal.App.5th 840, 866.) Because pretrial diversion is a creation
of state law and does not implicate Hall’s federal constitutional
rights, we review for prejudice under the Watson standard, under
which the appealing party must show “that it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (People v.
Watson (1956) 46 Cal.2d 818, 836; accord, People v. Banner (2022)
77 Cal.App.5th 226, 235.)
14
Hall cannot meet this standard. Although the trial court
did not give Hall an opportunity to argue his case at the
March 29, 2022 hearing, it allowed him to do so one month later
when his attorney requested that the court reconsider its decision
to terminate diversion. The court evaluated that argument on
the merits; it found termination of diversion appropriate on the
facts before it and not based on any rule particular to a motion
for reconsideration. At no point, either before the trial court or
on appeal, has Hall denied the accuracy of the First to Serve
report of the events that led to his dismissal from that program.
That conduct was a sufficient basis for the court’s determination
on April 26, 2022, that Hall was no longer suitable for diversion.
DISPOSITION
The judgment of conviction is affirmed.
CERTIFIED FOR PUBLICATION
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
15