People v. West CA1/4 ( 2023 )

Filed 10/25/23 P. v. West CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A165170
v.
JACKSON WEST, (San Mateo County Super. Ct.
No. 21-NF-006825-A)
Defendant and Appellant.
Jackson West set one car on fire and vandalized a second car, and the
prosecution charged him with several felonies, including arson. After the trial
court denied his request for mental health diversion, he pled no contest to
arson and admitted the offense would be designated a strike; the trial court
dismissed the remaining charges and placed him on probation.
West appealed. Appointed counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende) raising no issues and requesting an
independent review of the record. West filed a supplemental brief. We have
reviewed the record pursuant to Wende and evaluated the assertions in
West’s supplemental brief. We conclude there are no arguable issues and
affirm.
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Factual and Procedural Background
In July 2021, the prosecution charged West with felony arson, burglary
of a motor vehicle, two counts of felony vandalism, and misdemeanor
resisting, delaying, or obstructing a peace officer.
In November 2021, West applied for mental health diversion pursuant
to Penal Code section 1001.35 et seq.,1 contending—among other things—that
he suffered from major depressive disorder. At an unreported hearing, the
trial court found him eligible for diversion and scheduled a December 2021
suitability hearing. The suitability hearing was continued three times; it
finally took place on February 25, 2022.
At the suitability hearing, defense counsel informed the court that
West—who had an outstanding arrest warrant in another county—could not
obtain a referral to a treatment facility. Counsel asked the court to release
West on his own recognizance so that he could resolve the warrant, obtain a
referral to a treatment facility, and return to court to accept a grant of
diversion. The prosecution opposed the diversion request on several grounds,
among them that arson was a serious felony, and that West’s proposed
treatment plan was “wholly inadequate” because it failed to identify a
treatment provider.
The trial court denied West’s application for mental health diversion.
As relevant here, the court found that West had failed to submit a concrete
treatment plan or information indicating he would respond to treatment, and
that given the nature of the offenses, he would be a danger to public safety if
treated in the community. Thereafter, West pled no contest to arson and
agreed the offense would be designated a strike (§ 1192.7, subd. (c)). The trial
1 Undesignated statutory references are to this code.
2
court suspended imposition of sentence and placed him on probation with
various conditions.
West filed a timely notice of appeal challenging the denial of mental
health diversion.2 Appointed counsel filed a Wende brief, and West filed a
supplemental brief.
Discussion
Pursuant to Wende, we have conducted an independent review of the
record, and we have also evaluated the specific arguments raised in West’s
supplemental brief. We have found no arguable issues.
The trial court did not err in denying West’s request for mental health
diversion. (See People v. Gerson (2022) 80 Cal.App.5th 1067, 1080 [diversion
under § 1001.36 is discretionary, not mandatory, even if all requirements are
met].) Substantial evidence supports the trial court’s finding that West
presented an unreasonable risk of danger to public safety. (See People v.
Pacheco (2022) 75 Cal.App.5th 207, 213 [affirming denial of mental health
diversion; no abuse of discretion in concluding defendant charged with arson
posed an unreasonable risk of danger to public safety].)
In his supplemental brief, West makes two main assertions, neither of
which presents an arguable issue. First, he contends the trial court should
have continued the suitability hearing and released him from custody so that
he could clear up the warrant and obtain a referral to a treatment facility.
According to West, had the court granted a continuance, the “problems the
2 We exercise our discretion to assess the appeal for arguable issues
notwithstanding appointed counsel’s failure to obtain a certificate of probable
cause. (§ 1237.5.) While this appeal was pending, the Legislature amended
section 1001.36. (See Stats. 2022, ch. 735, § 1, eff. Jan. 1, 2023.) We assume
without deciding the amendments apply retroactively to West; we conclude
the amendments do not furnish a basis for reversal.
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court cited in denying [his] application could have been resolved.” No abuse of
discretion appears on this record. The record demonstrates West’s suitability
hearing had already been continued three times before February 25, 2022.
The court was well within its discretion to deny the request for a continuance
and to make the decision on the application for diversion that day. (People v.
Courts (1985) 37 Cal.3d 784, 790.) Second, West states “[p]rocedural
complications . . . prejudiced” his request for mental health diversion, and he
suggests trial counsel’s lack of experience with mental health diversion might
warrant reconsideration of the trial court’s ruling. These latter points find no
support in the record and do not raise an arguable issue. (People v. Stanley
(1995) 10 Cal.4th 764, 793.)
Disposition
The judgment is affirmed.
HIRAMOTO, J.
WE CONCUR:
BROWN, P. J.
GOLDMAN, J.
People v. West (A165170)

Judge of the Superior Court of California, County of Contra Costa,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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