Under California Penal Code 1001.36, the judge plays a pivotal role in the mental health diversion process. They may deny diversion only if they find that the defendant poses an unreasonable risk of danger to the public, as defined by the likelihood of committing a 'super strike' offense listed under Penal Code 1170.18. The judge's evaluation should consider the defendant's criminal history, as well as other relevant factors.
In the context of mental health diversion programs, the concept of 'unreasonable risk of public safety' is a crucial factor. It refers to the judge's consideration of whether a defendant, if granted diversion, poses a high risk of re-offending, particularly in crimes involving violence. If such a risk is found, the judge can deny diversion.
When evaluating the risk, courts typically consider a range of factors. These include the opinion of the District Attorney, the defendant's counsel, a mental health expert, the defendant's criminal history, the proposed treatment plan, and the severity and nature of the offenses. Other factors may include the defendant's personal circumstances, the potential impact on the victim, and the community's safety concerns.
The court will assess the defendant's amenability to treatment and the likelihood that treatment will address the underlying mental health issues contributing to the criminal behavior. Simply put, the court must determine that the defendant will not pose an unreasonable risk to public safety if released on diversion.
Sometimes, the court may specify particular conditions that must be met for the diversion to be granted, such as ongoing psychiatric evaluation, compliance with medication, or participation in therapy. The decision to grant or deny mental health diversion based on 'unreasonable risk' requires balancing the individual's needs for treatment and the community's need for safety.
California Proposition 47
The passage of Proposition 47 in 2014 brought significant changes to the California criminal justice system. This initiative was designed to reduce the state's prison population and provide relief to individuals convicted of specific low-level and non-violent felonies. Understanding the implications of this proposition is crucial for anyone involved in the legal system.
Proposition 47 (Penal Code 1170.18 PC) reclassified certain non-violent felonies as misdemeanors, allowing eligible individuals to petition for resentencing, which means their original sentence may be reduced or their past convictions may be expunged. Notably, however, the law includes an exception that permits a judge to deny mental health diversion or resentencing if it would present an unreasonable risk to public safety.
Simply put, this means there's a significant likelihood that a defendant will commit one of the most serious violent felonies (super strikes) if released or granted mental health diversion. These super strike offenses include the most serious violent felonies, such as murder, attempted murder, solicitation to commit murder, and various sexually violent offenses or offenses against minors.
The phrase 'unreasonable risk' in this context means a high probability that a defendant will commit one of these super strike offenses if released from custody or if they are granted mental health diversion.
This phrase is often used in the context of decisions about mental health diversion. This program allows certain individuals with mental health issues to receive treatment instead of prison time, and decisions about being release from custody. If a judge finds that a defendant poses an unreasonable risk of committing a super strike, they may deny mental health diversion or other release options.
What Is a Super Strike?
Under California law, a 'super strike' refers to the most violent and serious felonies (Three Strikes Law) that are considered extreme threats to public safety. Penal Code 667(e)(2)(C)(iv) outlines these offenses, which include:
- Sexually violent offenses.
- Oral copulation, sodomy, or sexual penetration with a minor under 14.
- Lewd or lascivious acts involving a child under 14.
- Homicides, including attempted homicides.
- Solicitation to commit murder.
- Assault with a machine gun on a peace officer or firefighter.
- Possession of a weapon of mass destruction.
- Any serious or violent felony punishable by life imprisonment or death.
These crimes are considered most heinous under the law and pose the highest potential for harm. Judges are particularly cautious in granting resentencing or if they believe that doing so could lead to the commission of one of these offenses.
The term unreasonable risk is a factor that judges consider when evaluating whether releasing or resentencing an individual could pose an elevated danger to the community. Proposition 47 defines this specific risk as the likelihood of committing at least one super strike. Judges consider various factors in making this determination, including:
- The defendant's criminal history.
- Patterns of violent or dangerous behavior.
- Psychological evaluations or other relevant assessments.
- The circumstances of the original crime.
What Does PC 1170.18 Say?
California Penal Code 1170.8 PC says, "The court may consider all of the following:
(1) The petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes.
(2) The petitioner's disciplinary record and record of rehabilitation while incarcerated.
(3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety."
Prop 47 states that an "unreasonable risk of danger to public safety" means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Penal Code 667 PC, called "Super Strikes" codified in Penal Code 1170.18(c)."
What Does PC 667 Say?
California Penal Code 667(e)(2)(C)(iv) says -
"The defendant suffered a prior serious or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies:
(I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.
(II) Oral copulation with a child who is under 14 years of age and more than 10 years younger than the defendant as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than the defendant as defined by Section 286, or sexual penetration with another person who is under 14 years of age and more than 10 years younger than the defendant, as defined by Section 289.
(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.
(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.
(V) Solicitation to murder as defined in Section 653f.
(VI) Assault with a machinegun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.
(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.
(VIII) Any serious or violent felony offense punishable in California by life imprisonment or death."
Why You Need a Defense Lawyer
You will need legal representation from our California criminal defense attorneys if you're petitioning for resentencing under Proposition 47, especially if your criminal history indicates a possible risk of committing a super strike.
We can evaluate your eligibility for resentencing and identify potential challenges. We can also build a compelling argument to show that you do not pose an unreasonable risk to the public.
Perhaps we can show mitigating factors, such as evidence of rehabilitation, employment efforts, or participation in community programs, to support our argument. Perhaps we can challenge prosecutorial claims, ensuring that the court bases its decision on accurate facts rather than speculation.
For more information, contact our criminal defense law firm, Cron, Israels & Stark, located in Los Angeles, CA.
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